UNION BANK OF NIGERIA PLC v. MR. SUNDAY BUKAM MOLTOK (2019)

UNION BANK OF NIGERIA PLC v. MR. SUNDAY BUKAM MOLTOK

(2019)LCN/13366(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of May, 2019

CA/J/218/2018

RATIO

ONUS OF PROOF: DEFINITION

The onus of proof is the burden to prove any issue arising from the pleadings. It is only when and where issues of facts arise from the pleadings of the parties that the Court can determine what those issues are and on whom the onus of proof lies. A Plaintiff is to discharge the onus of proof in his pleadings. ONYEKAONWU & ORS. V. EKWUBIRI & ORS (1966) 1 ALL N.L.R. 32 AT P. 35.PER UCHECHUKWU ONYEMENAM, J.C.A.

A PLAINTIFF HAS NO DUTY TO PROOF AN ISSUE IN HIS CASE THAT HAS NOT BEEN TRAVERSED

Where a plaintiffs case is not traversed, there will be no issue of fact on the case presented by the plaintiff in his Statement of Claim and as such there will be no issue to prove as no one sets out to prove that which had not been denied. OLALE V. EKWELENDU (1989) LPELR -2560 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.

HOW TO DETERMINE WHETHER A PLAINTIFF HAS DISCHARGED HIS ONUS OF PROOF

In a civil action where there is an overwhelming evidence in proof of the claim before the trial Court, the Plaintiff would have discharged the onus of proof placed on him by the law where he puts sufficient evidence in support of his claim. BAMGBEGBIN & ORS. V. ORIARE & ORS. (2009) LPELR ? 733 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.

THERE ARE CIRCUMSTANCES WHERE THE BURDEN OF PROOF IS ON THE DEFENDANT INSTEAD OF THE PLAINTFF

I must note that although the burden of proof lies on the plaintiff to prove his case, in some circumstances, the burden of proof may lie on the defendant. An instance is where the defendant in his pleadings admits the position of the plaintiff. EKENNIA V. NKPAKARA & ORS. (1997) LPELR ? 1078 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.

ON WHOM DOES BURDEN OF PROOF LIE WHEN ISSUES ARE JOINED

It is elementary and fundamental principle of proof that where issues are joined, the onus of proof rests on the person who would lose if no evidence was adduced. ECHI & ORS. V. NNAMANI & ORS. (2000) LPELR – 1001 (SC); ODIETE V. OKOTIE (1972) 6 SC. 83; also S. 135 of the Evidence Act. ARE V. ADISA (1967) 1 ALL NLR. 148. It is trite that once the trial Court, is found to have misplaced the onus of proof, the resultant judgment cannot stand. DURU V. NWOSU (1989) 4 NWLR (PT. 113) 24 AT 42; EKENNIA V. NKPAKARA & ORS. (supra).PER UCHECHUKWU ONYEMENAM, J.C.A.

DAMAGES: HOW TO CALCULATE OR MEASURE GENERAL DAMAGES

The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequences of that complained of. Unlike special damages, it is generally incapable of exact calculation. SOETAN & ANOR V. OGUNWO (1975) LPELR ? 3089 (SC); ELF PETROLEUM V. UMAH & ORS (2018) LPELR ? 43600 (SC); FEDERAL MORTGAGE FINANCE LTD V. HOPE EFFIONG EKPO (2004) 2 NWLR (PT. 865) 100 AT 132, DUMEZ V. OGBOLI (1972), 2 SC 196; WASA V. KALLA (1978) 3 SC 21 . It is important to note that the award of damages is improper where the quantum of loss is certain. THOMAS KEREWI V. BISIRIYU ODEGBESON (1967) N.M.L.R. 89 AT PAGE 91; SOETAN & ANOR V. OGUNWO (1975) LPELR ? 3089 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.

JUDGMENT: PERIOD WITHIN WHICH A JUDGMENT SHOULD BE DELIVERED

Section 294 (1)

“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of delivery thereof.”

Section 294 (5)

“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

The general interpretation given to the combined reading of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria is that, a Court?s decision cannot simply be nullified for the fact that the decision was delivered outside the ninety day period allowed by the Constitution. The party seeking such nullification must forge ahead to state facts that will satisfy the appellate Court that he has suffered a miscarriage of justice by reason of the failure of the lower Court to deliver its decision within the time frame as provided by the Constitution.PER UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

Between

UNION BANK OF NIGERIA PLC – Appellant(s)

AND

MR. SUNDAY BUKAM MOLTOK – Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The judgment herein is on the appeal against the decision of the National Industrial Court delivered on 21st March, 2018 in Suit No. NICN/JOS/37/2016; wherein the trial Court entered judgment in favour of the Respondent.

By a Writ of Summons issued on 30th September, 2016, the Respondent as claimant commenced an action against the Appellant who was the Defendant at the trial Court. The claimant by his statement of claim endorsed the following reliefs against the Defendant Bank viz;

1. The immediate payment to/credit of the claimant?s account with the sum of N500,000 (five hundred thousand naira) and N22,958 (twenty two thousand nine hundred and fifty eight naira) respectively.

2. The sum of N10,000,000 (ten million naira only) being general damages for the mental anguish and loss occasioned claimant by the singular action of the Defendant.

The Respondent also filed a witness statement on oath which is substantially the same with the facts averred to in the statement of claim. The trial Court?s Judgment is at pages 184 to 197

of the record of appeal wherein the Court entered Judgment in favor of the Respondent granting all the reliefs with the sum of N7,000,000.00 as general damages. The Appellant not satisfied with the judgment lodged this appeal against it. The Appellant filed her Notice of Appeal pursuant to the leave of this Court granted on 24th April, 2018. The Notice of Appeal consisting of 4 (four) grounds of appeal was filed on 10th May, 2018. See pages 198 to 201 of the records.

In brief, the facts of the case is that; The Respondent/ Claimant was a staff of the Appellant Bank and served in various capacities with the Bank until 2014 when he was disengaged by the bank for services no longer required. The Appellant bank had obliged its staff certain benefits such as car, furniture, housing and share loans. The Respondent while in the employment of the bank was a beneficiary of these loans. The Respondent was given share loan in the sum of N500, 000 to purchase First Bank of Nig. Plc. shares. Upon disengagement from employment of the bank for services no longer required effective from March 2014, the Respondent was advised of his terminal benefits, the balance of

which was paid into the Respondent?s account with the Appellant?s bank after deducting his indebtedness to the Appellant

The Appellants case is that sometimes in August, 2015 and while reconciling its accounts, it discovered that the share loan granted to the Respondent was still outstanding and had not been paid. The Appellant bank therefore debited the Respondents account with the bank of the sum, and the accrued interest being N500,000.00 and N22,958.00 respectively. See Paragraph 14 of the Respondents witness Statement on Oath at page 66 of the Records. It was these deductions the Respondent contended was wrongly done hence this action.

The Respondents case is that while it is true that he collected the share loan from the Appellant, he had paid back the loan by way of monthly deductions from his salary within a period of (seven) 7 years while the loan lasted and which deductions is automatic as he was only bound to receive credit of net salary sum in his main account after Appellant had deducted his liabilities. See paragraph 6 of the Respondents Witness Statement on Oath at page 65 of the Record.

In proof of his case, the Respondent called two witnesses including himself who testified as CW2, two exhibits were tendered by the Respondent viz the withdrawal letter and the terminal benefits schedule which were admitted and marked as Exhibits SBM1 and SBM2 respectively. See lines 12 and 13 at page 177 of Records. The Appellant bank on the other side called a witness, the Appellant bank manager of the branch where the Respondent maintained his account. The Appellant bank tendered three Exhibits, viz Certificate of Compliance with Section 84 of the Evidence Act, the Respondent?s Statement of Account and the withdrawal of service letter. The Exhibits were admitted in evidence and marked as Exhibits HF1, HF2a and HF2 respectively.

The appeal was heard on 2nd April, 2019 wherein Mr. A.S. Moyosore with O.E. Akanbi appeared for the Appellant; and Mr. A.I. Okafor with Z.D. Mukala represented the Respondent. In Court, Mr. Moyosore in arguing the appeal referred to leave of this Court the Appellant obtained on 24th April, 2018 to appeal against the decision of the trial Court. He thereafter adopted the Appellant?s brief filled 19th September, 2018

but deemed properly filed and served on 17th October, 2018 in urging the Court to allow the appeal. On their side, Mr. Okafor adopted the Respondents brief filed 19th October, 2018 in urging the Court to dismiss the appeal.

In the Appellants brief Mr. Moyosore raised 3 issues for determination. The issues are:

1. Whether the learned trial judge was right when having correctly found ?that tendering of the claimant?s pay slip would have made everything clear and that where no evidence is tendered, judgment will be given against the party who would lose the most when none is tendered? but came to the conclusion that the burden of proof in this instance shifts from the claimant to the defendant to prove that the loan was not repaid?.

2. Whether the learned trial judge was right when he awarded a whooping sum of N7, 000, 000 on a claim of N500,000 and without giving any reason or basis upon which he arrived at such amount.

3. Whether the learned trial judge delivery of the judgment outside the statutory 3 months allowed has not affected the judgment and occasioned a miscarriage of justice and

prejudiced the position of the appellant.?

Mr. Okafor in the Respondent?s brief also formulated 3 issues for determination. The issues are:

1. ?Whether from the pleadings and evidence adduced by the parties, the respondent proved his claim against the appellant so as to be entitled to the judgment.

2. Whether the award of damages in favour of the respondent is right.

3. Whether the judgment of Court delivered outside the statutory period of 90 days will be invalidated or nullified for non-compliance.

The two sets of issues have the same objective though differently phrased. The Appellant?s issues are verbose, but since the appeal is its grouse I shall be adopting the issues as framed by the Appellant for the determination of the appeal since the appeal is his grouse.

SUBMISSIONS OF ISSUE 1

The learned counsel referred to the learned trial Judge?s holding at page 148 lines 25 ? 27 and page 149 lines 1 ? 6 to submit that although the learned trial Judge stated the correct position of the law to the extent that in civil cases, the parties rights are determined on the preponderance of

evidence and that it is trite that where no evidence is tendered, judgment will be given against the party who will lose in the circumstance, but came to a wrong conclusion by shifting the burden of proof of the repayment of the loan granted by the Appellant to the Respondent to the Appellant thereby occasioning a miscarriage of justice.

The learned counsel referred to the Appellant?s statement of defence, Respondent?s reply to the statement of defence and paragraph 9 of the statement of claim; to submit that the foregoing all point to the fact that the Respondent admitted:

1. That share loan of N500, 000 was granted to him by the Appellant while in the service of the bank.

2. That the loan ought to be repaid from deductions from monthly salary and/or deductions from the Respondent?s terminal benefit upon exit from the bank.

He noted the law that facts admitted by a party or both parties to a suit are deemed proved against the party who admitted same and such facts need no further proof. He referred to: Section 123 Evidence Act Cap 18, E14, Vol. 18 LFN. Also, that in civil claim, the onus is on the claimant to satisfy

the Court that he is entitled to the claim before the Court. He referred to: Section 131, 132 and 133 of the Evidence Act, 2011; AGWARAMGBO V. IDUMOGU (2008) 5 NWLR (PT. 1081) 564. He quarreled that the trial Court wrongly placed the onus of proof of repayment of the loan on the Appellant contrary to the provisions of the Evidence Act.

He also argued that it was the Respondent who alleged that he had repaid the loan by monthly deductions that had the duty to prove that assertion by the production of his pay slip which the learned trial judge found would have cleared everything. He submitted that it was not for the Appellant to produce the Respondent?s pay slip to prove that the loan was never repaid by the Respondent. The learned counsel added that, failure of the Respondent to produce his pay slip to show he had repaid the loan via monthly salary deductions amounts to withholding information contrary to Section 167 (d) of the Evidence Act.

He urged the Court to hold that the learned trial Judge?s wrong conclusion as a result of misplacing the onus of proof worked injustice against the Appellant for which the Court ought

to resolve this issue in favour of the Appellant.

In his response, Mr. Okafor reproduced the Respondent?s claim at the trial Court, leaned Exhibits SBM1 and SBM2, the evidence of CW1 and CW2, to submit that in view of the fact that the evidence he referred to above was not in any way debunked, the Respondent proved his case at the trial Court to entitle him to judgment. He further submitted that the learned trial Judge upon the evaluation of evidence before it and particularly the content of Exhibit SBM2, determined the suit based on the preponderance of evidence before it. He cited: JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 182; (1999) LPELR-1611 SC.

The learned counsel referred to Section 167 (d) of the Evidence Act 2011, alluding to the presumption of law therein to argue that, in the instant case, the PAY SLIP which was at the disposal of the Appellant could simply have been availed the Court by the Appellant to settle the case at trial, but he wilfully refused to do so. He cited: FRIDAY SMART V. THE STATE (2016) 9 NWLR (PT. 1518) 447.

Furthermore, the learned counsel for the Respondent drew the attention of the Court to the fact that

the Appellant failed to tender its pleaded documents having refused to produce before the trial Court the Claimant?s statement of account between 1st January, 2007 to 31st August, 2015 as pleaded in paragraph 3 (viii) of the statement of defence, covering the period of the loan booking till the exit of the Respondent from the service of the Appellant. This act he argued is evident of the sincerity of the Claimant?s claim before the Court against the Appellant.

Mr. Okafor urged that the trial Court was right in evaluating the evidence adduced by the parties and to shift the burden of proof to the Appellant to prove that the loan was not repaid by the Respondent and that the statement of terminal position of the Respondent with Union Bank Plc. was done in error and that the Respondent was still indebted to the Bank. This he emphasized was not done, so he urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 1

The onus of proof is the burden to prove any issue arising from the pleadings. It is only when and where issues of facts arise from the pleadings of the parties that the Court can determine what

those issues are and on whom the onus of proof lies. A Plaintiff is to discharge the onus of proof in his pleadings. ONYEKAONWU & ORS. V. EKWUBIRI & ORS (1966) 1 ALL N.L.R. 32 AT P. 35. Where a plaintiffs case is not traversed, there will be no issue of fact on the case presented by the plaintiff in his Statement of Claim and as such there will be no issue to prove as no one sets out to prove that which had not been denied. OLALE V. EKWELENDU (1989) LPELR -2560 (SC). In a civil action where there is an overwhelming evidence in proof of the claim before the trial Court, the Plaintiff would have discharged the onus of proof placed on him by the law where he puts sufficient evidence in support of his claim. BAMGBEGBIN & ORS. V. ORIARE & ORS. (2009) LPELR ? 733 (SC). I must note that although the burden of proof lies on the plaintiff to prove his case, in some circumstances, the burden of proof may lie on the defendant. An instance is where the defendant in his pleadings admits the position of the plaintiff. EKENNIA V. NKPAKARA & ORS. (1997) LPELR ? 1078 (SC). It is elementary and fundamental principle of proof that where

issues are joined, the onus of proof rests on the person who would lose if no evidence was adduced. ECHI & ORS. V. NNAMANI & ORS. (2000) LPELR – 1001 (SC); ODIETE V. OKOTIE (1972) 6 SC. 83; also S. 135 of the Evidence Act. ARE V. ADISA (1967) 1 ALL NLR. 148. It is trite that once the trial Court, is found to have misplaced the onus of proof, the resultant judgment cannot stand. DURU V. NWOSU (1989) 4 NWLR (PT. 113) 24 AT 42; EKENNIA V. NKPAKARA & ORS. (supra).

The learned trial Judge and the learned counsel for the Appellant were correct that the parties were unison that the Appellant bank granted the Respondent share loan of N500,000.00 while he was in its service. Also that the said loan was to be repaid from either Respondent?s monthly salary deductions or terminal benefit upon his exit from the bank. The dispute is whether the said load had been repaid by the Respondent either way of the two means of repayment; and who the onus of proving non repayment lies on. The learned trial Judge after evaluation of the evidence of parties placed before him made his findings and then drew his conclusion, at pages 194 to 195 of the records

thus:

Issues are not in contention except for the fact that the said loan of N500,000.00 naira was paid back or not and that the subsequent withdrawal of the said amount from the Claimant?s account was wrongly done by the Defendant, now the Claimant has tendered a document that said he was cleared by the bank and cleared him of all indebtedness, the defendant on the other hand filed a statement of the Claimants account, to my mind based on the preponderance of the evidence of the Claimant has a stronger case here, he has proved by way of documentary evidence that the bank cleared him of all indebtedness deducting the outstanding loans at source, the statement of account tendered by the Defendant does not show how the Defendant arrived at the fact that the Claimant was still indebted to the Bank and that the loan was never serviced, it only shows that the said sum of N500,000.00 was disbursed to the Claimant, parties made mention in their addresses that the Claimants pay slip if tendered would have shown that the Claimants loan was either serviced monthly or not, under cross examination the Claimant testified that he did not request for

a pay slip monthly as it was only given if requested for, sadly neither party tendered this as it would have made everything clear, as earlier said however civil cases are determined based on the preponderance of evidence, it is trite that where no evidence is tendered, judgment will be given against the party who would lose the most where non is tendered, the Claimant only has a duty to prove his case by relevant and credible evidence, see the case of JIAZA V. BAMGBOSE (1999) 7 NWLR (PT. 610) 182 (1999) LPELR ? 1611 (SC). The Claimant has raised evidence that he was cleared by the Defendant upon examination of his appointment, the Defendant has raised a counter issue that the Claimant was still indebted to them, the burden of proof in this instance shifts from the Claimant to the Defendant to prove that the loan was not repaid and that the statement of terminal position of the Claimant with the Union Bank Plc was done in error and that the Claimant was still indebted to the Bank. See: ISHOLA V. UBN LTD. (2005) 6 NWLR (PT. 922) 422 (2005) LPELR ? 1550 (SC) P. 16 PARAS E ? F; this was not done. There is no evidence before the Court to

ascertain this assertion, the Defendant has failed to debunk the claims of the Claimant that the sum of N500,000.00 and N22,958 were wrongly deducted from his account for a like sum that was already serviced, the Claimant is thereby entitled to be reimbursed in like sum by the Defendant and I so hold.

From the facts of the case on record and the evidence of parties, I hold that the findings and holding of the learned trial Judge is unassailable. The Appellant by Exhibit SBM2 (Statement of terminal Position) issued to the Respondent, and paragraph 7 of its statement of defence being a tabulation of the Respondent?s indebtedness to the Appellant bank; gave the Respondent a clean bill of full settlement of all ?Outstanding balances of ALL LOANS. With this the Respondent left the bank clean and free of every debt ever owed the bank only for the Appellant to wake up after about a year to allege a mistake on their part in reconciliation of the indebtedness of the Respondent to them. Without reference to the Respondent they withdrew the sum of alleged N500,000.00 unpaid share loan and N22,958.00 accrued interest on the principal. So

while the Respondent by his claim, Exhibit SBM2 made by the Appellant and paragraph 7 of the Appellant?s statement of defence have it that he was not indebted to the Appellant, the Appellant now contrary to its earlier documented position claims that the Respondent still owed it. In the circumstance, it is certainly the Appellant that will lose if no evidence is adduced by either party. For this therefore the learned trial Judge was right to hold that the onus of proof shifted from the Respondent to the Appellant.

From the records, the Appellant made no recognizable effort to prove that the Respondent did not repay the share loan. The Appellant concentrated its effort through Exhibits HF1 and 2 to prove that the Respondent was granted share loan. This was unnecessary because a party does not need to prove fact that has been admitted by his opponent. The Respondent clearly admitted the share loan grant. It is of great worry that the Appellant who at paragraph 3 (viii) pleaded reliance on the Respondent?s statement of account from 1st January, 2007 to 31st August, 2015 which period would have clearly made it certain as to whether the share loan

was being deducted from the Respondent?s salary or not, tactically failed to produce the statement of account even though it was very much within its convenience to so produce the referred Respondent?s statement of account. From all I have said, I agree with the learned trial Judge that the Appellant who had the onus to prove that the Respondent had not paid back the share loan it granted him, failed to prove same. The Appellant was therefore wrong to have withdrawn the sum of N500,000.00 principal sum and N22,958.00 accrued interest from the Respondent?s account maintained with it.

Issue 1 is resolved in favour of the Respondent.

SUBMISSIONS ON ISSUE 2

Mr. Moyosore of counsel to the Appellant referred to the Respondent?s claim for N500,000.00 and N22,958.00, paragraphs 6 ? 9 of the statement of claim which contain facts in support of the referred claim to contend that the Respondent did not depose to facts in support of the claim of general damages and none was put in evidence at the trial. He also contended that there is no fact pleaded in support of the claim of general damages apart from the endorsement made

under the reliefs claimed in the statement of claim.

The learned counsel conceded to the point that general damages are damages that the law presumes flow from the type of wrong complained of and do not need to be specifically claimed. He however argued that where as in this case, the claimant decides to claim general damages as a head of claim and maintained a particular amount in his pleadings, the rule of pleadings and evidence must be complied with, in which case the Respondent ought to plead facts and give evidence in support of the N10,000,000.00 claim as general damages. He submitted that even though general damages need not be specifically pleaded some evidence of such damages is required to assist the Court assess the quantum of damages to be awarded. JULIUS BERGER NIG. PLC. V. OGUNDEHIN (2014) 2 NWLR (PT. 1391) 383.

The learned counsel submitted that the award of N7m could not have been the expectation of a reasonable man in the circumstance of this case. He urged the Court to interfere with the award of damages against the Appellant bank for the fact that the amount awarded as general damages was so large which made the assessment of the

damages wrong. He added that the N7m award was not made in keeping with the claim pleaded by the Respondent. He relied on: N.N.B. PLC. V. DENCLAG LTD. (2005) 4 NWLR (PT. 916) 549.

Mr. Morosoye urged the Court to resolve the issue in favour of the Appellant.

Mr. Okakor learned counsel for the Respondent in a negative reaction, noted that there is a difference between special damages and general damages which the Respondent sought for in his 2nd claim. He submitted that the award of general damages does not require particulars. However, he referred the Court to the evidence of the Respondent as CW2 at paragraph 11 of his witness statement on oath, and paragraph 10 of his statement of claim where he stated his hardship as a result of the wrongful debit of his account by the Appellant.

The learned counsel submitted that the Court is entitled to award general damages for acts occasioned by the Appellant against the Respondent, particularly for unlawful deduction of monies from his account which served majorly as his means of survival, being a retiree. He urged the Court to hold that the learned trial Judge was justified in making the award of

general damages and to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 2

In the award of general damages, a widespread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequences of that complained of. Unlike special damages, it is generally incapable of exact calculation. SOETAN & ANOR V. OGUNWO (1975) LPELR ? 3089 (SC); ELF PETROLEUM V. UMAH & ORS (2018) LPELR ? 43600 (SC); FEDERAL MORTGAGE FINANCE LTD V. HOPE EFFIONG EKPO (2004) 2 NWLR (PT. 865) 100 AT 132, DUMEZ V. OGBOLI (1972), 2 SC 196; WASA V. KALLA (1978) 3 SC 21 . It is important to note that the award of damages is improper where the quantum of loss is certain. THOMAS KEREWI V. BISIRIYU ODEGBESON (1967) N.M.L.R. 89 AT PAGE 91; SOETAN & ANOR V. OGUNWO (1975) LPELR ? 3089 (SC).

?The law is therefore firmly settled that because

general damages are presumed by the law to flow directly and naturally from the act or omission complained of in a case, they are such damages that the Court would award without any gold standard in assessing the quantum. The main required guide of assessing the quantum of general damages is the expectation of a reasonable man in the circumstances of the case. The assessment of the quantum is therefore solely at the discretion of the Court based on what a reasonable man would presume in the circumstance of the case. However the unavoidable benchmark is that the exercise of the discretion of the Court in assessing the quantum of general damages must be judicial and judicious.

In the instant case, the Respondent claimed N10m general damages for mental anguish and loss suffered. At paragraph 10 of the Respondent?s statement of claim, he averred that the wrong deductions of N500,000.00 and N22, 958.00 from his account by the Appellant put him under untold hardship as he only survives majorly on his retirement benefits. His statement on oath echoes this too. Reasonably, for a retiree, a sudden unexplained and unaccountable withdrawal of a lump sum of

N500,000.00 from his account will cause him mental anguish, untold hardship and pecuniary loss. This is damage that will naturally and directly flow from the Appellant?s act. By law, the Respondent need not plead the damage or prove it. That the mental anguish and untold hardship cannot be quantified or have exact calculation, qualifies the Respondent?s 2nd claim as general damages. I therefore hold that the learned trial Judge was justified to grant the Respondent general damages.

Now to whether the trial Court was right to award N7m general damages. The Appellants counsel argued that N7m was unreasonable a damage for the N500,000.00 and N22, 958.00 deductions from the Respondent?s account for a period beginning 2015 when the money was deducted from his account to 2018 when judgment was delivered. He contended that no amount of interest or business could fetch the Respondent N7m for N500,000.00 and N22, 958.00 within that space of time. This Appellant?s argument cannot stand since the award is for general damages where the Court has no yardstick for measuring the quantum of damages. Generally it is only the circumstance of

the case that can determine what is appropriate by the standard of a reasonable man. In the circumstance at hand, the Appellants counsel was wrong in his submission which fixed the reasonableness of the quantum of damages grantable to the Respondent herein on the pecuniary gain the N500,000.00 and N22, 958.00 could have accrued to him between a period beginning 2015 when the money was deducted from his account to 2018 when judgment was delivered. Important to the assessment of the quantum of general damages to the Respondent in this case is also what would assuage his mental anguish and untold hardship between a period beginning 2015 when the money was deducted from his account to 2018 when judgment was delivered. The pecuniary loss as a result of the wrong withdrawal by the Appellant is only but a speck of what the Court would bear in mind in assessing the quantum of the general damages. No principle can be laid down upon which damages for mental anguish and untold hardship can be awarded in terms of the quantum. This makes mental anguish and untold hardship recognized heads for award of general damages. In assessing the quantum therefore, the Court

would be assisted by the evidence that gives it an insight of the intensity of the mental anguish and untold hardship. The award is usually generous although it should not be excessively high or grossly low. It must be such as reasonably tends to reflect the intensity of the anguish and hardship. C & C CONSTRUCTION CO. LTD. & ANOR. V. OKHAI (2003) LPELR ? 821 (SC).

In the circumstance of this case where there is nothing tending to show that the mental anguish resulted in some form of ailment to the Respondent, or the hardship such that led to failure to solve a serious and irreparable problem, I hold that although the learned trial Judge was justified in awarding general damages to the Respondent, the award of N7m was excessively high. I agree with the Appellant that this Court in the circumstance should interfere with the quantum of the general damages granted by the trial court.

I resolve issue 2 in favour of the Appellant

SUBMISSIONS ON ISSUE 3

Mr. Moyosore learned counsel for the Appellant noted that parties through their respective counsel adopted their written addresses on 13th December, 2017 and judgment was reserved

for 27th February, 2018. He referred to pages 182 and 183 of the Records. He contended that the trial Court eventually delivered its judgment on 21st March, 2018; without reason why the Judgment was delivered outside the 3 months allowed by the constitution from the date of final adoption of written addresses and delivery of the final judgment. He further observed that counsel were not invited to readopt their written addresses or address the Court on a fresh issue to render the judgment valid.

He reproduced Section 294 (1) of the 1999 Constitution (as amended). The learned counsel equally acknowledged the provision of Section 294 (5) of the Constitution. He submitted that the interval outside the 3 months period greatly account for why the learned trial Judge misplaced the burden of proof in the course of his judgment. He urged the Court to set aside the judgment of the trial Court and to allow the appeal.

?In his response for the Respondent, Mr. Okafor of counsel submitted that the position of the Appellant is a misconception of our jurisprudence. He admitted Section 294 (1) of the Constitution but submitted that by virtue of

Section 294(5) of the Constitution, the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Section 294 (1) of the Constitution unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by the reason thereof. He cited: AKOMA V. OSENWOKWU (2014) 11 NWLR (PT. 1419) 462.

The learned counsel contended that in the instant case, the Appellant has not shown how the mind of the National Industrial Court was adversely affected in the way it evaluated the documents before it and how the failure of the Court to deliver its judgment within the 90 day stipulation affected “the perception of the Court, its appreciation of the evidence adduced and evaluation of the case.

He urged the Court to resolve the issue in favour of the Respondent and to dismiss the appeal.

RESOLUTION OF ISSUE 3

Relevant to the determination of this issue is principally the provisions of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria which provides:

Section 294 (1)

Section 294 (5)

The general interpretation given to the combined reading of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria is that, a Courts decision cannot simply be nullified for the fact that the decision was delivered outside the ninety day period allowed by the Constitution. The party seeking such nullification must forge ahead to state facts that will satisfy the appellate Court that he has suffered a miscarriage of justice by reason of the failure of the lower

Court to deliver its decision within the time frame as provided by the Constitution. Where he so fails to establish a miscarriage of justice in the decision delivered, the appellate Court will not declare the judgment a nullity. The Courts have therefore placed more emphasis on the effect the failure to deliver judgment within the constitutional time frame has on the decision than the length of time it took the Court to deliver its decision outside the constitutional stipulated time. See: SAVANNAH BANK OF NIGERIA LTD. V. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 8 NWLR (PT. 1144) 491, INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LTD V. MUTUNCI COMPANY (NIG) LTD. (2012) 6 NWLR (PT. 1297) 487, KOLAWOLE INDUSTRIAL COMPANY LTD. V. ATTORNEY GENERAL, FEDERATION (2012) 14 NWLR (PT. 1320) 221; PEOPLES DEMOCRATIC PARTY V. OKOROCHA (2012) 15 NWLR (PT. 1323) 205; NNPC V. ZARIA & ANOR (2014) LPELR ? 22362 (CA).

?Notably, the insertion of a provision in the Constitution stipulating a time frame for delivery of judgment in a case after final address is in recognition of the fact that human memory is circumscribed by time and space and loses its

impressions or knowledge of persons, things, with the passage of time and such loss increases with time and pre-occupations. See: IFEZUE V. MBADUGHA (1984) 5 SC 79. Where the delay in the delivery of judgment is unconscionable, undue, immoderate in that it exceeds reasonable limit, then, it will be beyond peradventure that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter such that whichever way the decision goes, it cannot be, and would not be seen to be justice according to law.

In a recent decision of the Supreme Court, the apex Court emphasized Section 294 (5), stating that notwithstanding its decision in IFEZUE V. MBADUGHA (supra); delay alone will not lead to setting aside any judgment unless there is evidence of miscarriage of justice. See: AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR ? 22885 (SC); DALYOP V. MADALLA (2017) LPELR – 43349 (CA). In legion of authorities, the decisions have echoed that in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of evidence and written addresses; and the

delivery of judgment, the emphasis is not simply on the length of time but on the effect it produced on the mind of the Court. Still in the said circumstance it remains the duty of the Appellant to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment. In AKOMA & ANOR. V. OSENWOKWU & ORS. (supra); the apex Court sounded that:

In cases where the delay involves the judgment of a trial Court which is to hear and appraise witnesses, I will readily agree that a delay of about 17 months after final addresses was so inordinate to affect the outcome of the proceedings. However, when it concerns an Appellate Court as in this case, I will be very slow to so declare because Appellate Courts’ functions are based on printed records only which involved the reading and appreciation of written briefs of argument and oral amplifications of such Briefs which are recorded by the justices. They cannot be said to have lost touch with the contents of the printed reviews placed before

them such that it would affect their perception and evaluation of the Appeal which is based on printed records only. I think that this section applies more to trial Courts than Appellate Courts.

In the instant case, final addresses of counsel were adopted on 13th December, 2017 and judgment delivered on 21st March, 2018 meaning judgment was delivered 99 days after final addresses. Straight away I hold that the delay of the trial Court in delivering the judgment was not inordinate. The Appellant counsel argued that the period outside the 90 days resulted to the learned trial Judge misplacement of the onus of proof which he shifted to the Appellant occasioning him a miscarriage of justice. This again deserves a straight answer. While resolving issue 1, I held that the learned trial Judge did not misplace the burden of proof. I therefore do not find merit in the argument of the Appellant that the 9 days outside the 90 days stipulated by the Constitution the trial Court delivered its judgment occasioned a miscarriage of justice because the trial Court misplaced the onus of proof. Having found that the 9 days beyond the required 90 days was not

inordinate and there is no miscarriage of justice shown by the Appellant, the decision of the trial National Industrial Court delivered outside the provision of Section 294 (1) of the Constitution which does not offend Section 294 (5) of the Constitution is not a nullity and as such cannot be set aside on this ground.

I therefore resolve issue 3 in favour of the Respondent.

Having resolved the issues the ways I did, I find an ounce of merit in the appeal based on my resolution of issue 2. This appeal succeeds in part and is allowed to the extent I hold that the trial Court was wrong in granting excessive general damages to the Respondent in the sum of N7m.

From the foregoing I make orders as follows:

1. Varying the order of the trial National Industrial Court on the quantum of general damages awarded in favour of the Respondent.

2. Awarding N3,000,000.00 (Three million naira) general damages in favour of the Respondent as against the N7,000,000.00 (seven million naira) awarded by the trial Court.

3. Affirming the part of the decision of the trial National Industrial Court granting the 1st claim of the Respondent/Claimant in Suit No.

NICN/JOS/37/2016 delivered on 21st March, 2018.

4. I make no order as to cost.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusion reached therein.

TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading in draft the lead judgment of my Learned brother, UCHECHUKWU ONYEMENAM, JCA. I agree with the conclusion therein.

Appearances:

A.S. MOYOSORE with him, O.E. AKANBIFor Appellant(s)

A.I. OKAFOR with him, Z.D. MUKALAFor Respondent(s)

Appearances

A.S. MOYOSORE with him, O.E. AKANBIFor Appellant

AND

A.I. OKAFOR with him, Z.D. MUKALAFor Respondent