UNITY BANK PLC v. JAHSWILL ONWUDIWE & ANOR
(2015)LCN/7937(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of July, 2015
CA/B/201/1999
RATIO
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION IN ANY PROCEEDINGS IN A COURT OR TRIBUNAL
The paramount position of jurisdiction of a court in the adjudicatory process cannot be overemphasised. This is so because jurisdiction is the fons et origo and threshold of judicial power and judicialism. It is the very lifeline and livewire of all proceedings in a court or tribunal without which the entire proceedings would be a nullity, however brilliantly they may have been conducted: ROSSEK vs. ACB (1993) 8 NWLR (PT 312) 382 at 437C-G and 487G-H and OKE vs. OKE (2006) 17 NWLR (PT 1003) 224. Jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision. Where a Court does not have jurisdiction to entertain a matter the proceedings however well conducted are a nullity as the defect or lack of jurisdiction is extrinsic to the adjudication: OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 and MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: JURISDICTION; THE FACTORS THAT MUST BE CONSIDERED WHEN THE JURISDICTION OF THE FEDERAL HIGH COURT IS IN ISSUE
In PDP vs. SYLVA (2012) LPELR (7814) 1 at 52 – 53, it was held that when the jurisdiction of the Federal High Court is in issue, two factors must co-exist namely, that the parties or one of the parties must be an agency of the Federal Government and the subject matter of the litigation must be within the jurisdiction of the Federal High Court. It does not suffice merely that a Federal Government Agency is a party in order for the Federal High Court to have jurisdiction. See also PORTS AND CARGO HANDLING SERVICES COMPANY LTD vs. MIGFO NIG. LTD (2012) LPELR (9725) 1 and INEGBEDION vs. SELO-OJEMEN (2013) LPELR (19769) 1. Accordingly the subject matter of the action must be within the jurisdiction of the Federal High Court in order for the State High Court to be divested of jurisdiction. This is in keeping with the long established and settled legal position that jurisdiction is determined by the plaintiff’s claim as endorsed on the writ of summons and statement of claim. See IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9 – 10 SC 31, ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT 788) 538 at 563 and ONUORAH vs. KRPC LTD (2005) LPELR (2707) 1 at 15. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: JURISDICTION; WHETHER THE JURISDICTION OF THE COURT IS STATUTORY AND WHETHER IT IS THE CONSTITUTION OR STATUTE CREATING A COURT THAT SETS OUT THE JURISDICTION OF THE COURT
It is settled law that the jurisdiction of a court is statutory and that it is the Constitution or statute creating a court that sets out the jurisdiction of the court. See OSADEBEY vs. A-G BENDEL STATE (1991) 1 NWLR (PT 169) 525 and SHELIM vs. GOBANG (2009) 12 NWLR (PT 1156) 435 at 455 G-H. Equally trite law is that the substantive law governing a cause of action is the law in force at the time the cause of action arose: SAVANNAH BANK vs. PAN ATLANTIC (1987) 1 NWLR (PT. 49) 212, ADEYEYE vs. AJIBOYE (1987) 3 NWLR (PT 61) 432 at 451F and ADIGUN vs. AYINDE (1993) 8 NWLR (PT 313) 516 at 536 and 539. The jurisdiction of the Court to entertain an action is determined on the state of the law conferring jurisdiction at the point in time when the action was instituted and heard. See ADAH vs. NYSC (2004) 7 SC (PT II) 139 at 142. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEEDINGS; PLEADINGS; WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS AND IMPLICATION OF ANY EVIDENCE WHICH IS AT VARIANCE WITH THE PLEADINGS
Now, it is rudimentary law that parties are bound by their pleadings and that any evidence which is at variance with the pleadings goes to no issue. See EMEGOKWUE vs. OKADIGBO (1973) 4 SC 113, MOHAMMED vs. KLARGESTER (2002) 7 SC (PT III) 1 at 15 and GEORGE vs. DOMINION FLOUR MILLS LTD (1963) 5 SCNLR 117. In paragraphs 8(b) and 21 of the Amended Statement of Claim, the 1st Respondent averred as follows: “8(b) As at the date of the said contract the Naira exchanged at the rate of N0.6793478 to the US. Dollar. Due to depreciation in the value of the Naira, cost of securing one US. Dollar at Central Bank rate as at 1992 is N18.60. At Inter Bank rate at the same date, the same is N18,716. As the plaintiff is more likely to secure US. Dollar at Bureux [sic]de Change rate today, the plaintiff is put to that higher burden namely, to secure US. $6946 at N19.95 per US. Dollar by paying N138,572.70, a difference of N133,853.95. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: GRANTING OF RELIEF; WHETHER THE COURT IS BOUND BY THE RELIEF OR RELIEFS SOUGHT
In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40. “It is elementary law that a court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF THE JUDGE TO INQUIRE INTO FACTS PLACED BEFORE IN THE COURT
It is the duty of the Judge to inquire into facts placed before him in the Court. A Judge is not an explorer so the law forbids the court from going outside the facts in court in search for more facts with a view to discovering newer pastures and in this con, greener pastures for the 1st Respondent. See AJIKAWO vs. ANSALDO NIG LTD (1991) 2 NWLR (PT 173) 359 at 372 E-F. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CONTRACT: BREACH OF CONTRACT; WHETHER DAMAGES FLOW NATURALLY ONCE A BREACH OF CONTRACT IS ESTABLISHED
The law is that once a breach of contract is established as in this matter, damages follow. General damages are those losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. General damages are awarded by the court to assuage the loss caused by an act of the adversary. See UNION BANK vs. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 558 and CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 31. The law is trite that in an action for breach of contract, the categorisation of damages under the terms “special” or “general” as done by the 1st Respondent is not apt: GKF INVESTMENT NIG LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 42 and ATIVIE vs. KABELMETAL NIG. LTD (2008) LPELR (591) 1 at 29. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DAMAGES: GENERAL DAMAGES; CIRCUMSTANCES WHERE THE PLAINTIFF ENTITLED TO DAMAGES
In UNIVERRSITY OF IBADAN vs. WICKLIFFE (2006) LPELR (11794) 1 at 12-13, this Court per Augie, JCA held: “It is settled that a Plaintiff is entitled to general damages in respect of pain and suffering…..It is further settled that in a proper case damages for mental distress can be recovered in contract. Thus, if the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset, embarrassment and frustration by the breach. The plaintiff will only be compensated for what is fair and adequate in the prevailing circumstances. See JARVIS vs. SWAN TOURS LTD (1973) 1 Q.B. 233 at 237.” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DAMAGES: THE AWARD OF GENERAL DAMAGES; WHEN ARE GENERAL DAMAGES AWARDED AND HOW ARE THEY QUALIFIED OR CALCULATED
The award of general damages are such as the court may give when it cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is qualified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case and since general damages is always at large, the court may also take into account the motive and conduct of the party in default where they aggravate the claimant’s injury. See KOPEK CONSTRUCTION LTD vs. EKISOLA (2010) 3 NWLR (PT 1182) 61 and ALUMINIUM MANUFACTURING CO. NIG LTD vs. VOLKSWAGEN OF NIG LTD (2010) 7 NWLR (PT 1192) 97. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
DAMAGES: ALTERNATIVE RELIEFS; WHAT THE COURT MUST CONSIDER WHERE A CLAIM IS IN THE ALTERNATIVE
In the words of Ogbuagu, JSC in GKF INVESTMENT NIG LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 32 – “Where a claim is in the alternative, the court should first consider whether the principal or main claim, ought to have succeeded. It is only after the Court may have found that it could not, for any reason, grant the principal or main relief, that it would now consider the alternative claim. See the case of Mercantile Bank of Nig. Ltd vs. Adalma Tanker & Bunkering Services Ltd (1990) NWLR (Pt. 153) 747. In other words, where there are alternative reliefs as in the instant case leading to this appeal, once one of the reliefs is granted, the other relief cannot be granted as there would be no need to do so. See the cases of William Agidigbi v. Danaha Agidigbi & 2 Ors (1996) NWLR (PT 454) 303, 313; (1996) 6 SCNJ 105; Chief Yesufu & Anor v. Kupper International N.V. (1996) 4 SCNJ 40 and Gaji & 2 Ors v. Paye (2003) 5 SCJN 20” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
UNITY BANK PLC
{Substituted for New Nigeria Bank Plc by Order of the Court of Appeal dated 15/02/2010} – Appellant(s)
AND
1. JAHSWILL ONWUDIWE
{Substituted for Francis Onwudiwe by the Order of Court of Appeal dated 27/2/2012}
2. CENTRAL BANK OF NIGERIA – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment): The 1st Respondent was at all material times to this action a customer of the Appellant Bank. The 1st Respondent had a younger brother who was a student in the United States of America. In the course of ordinary and normal banking relationship, the 1st Respondent approached the Appellant to help him source foreign exchange and transfer to his younger brother in the United States for payment of his school fees and for his upkeep. The 1st Respondent made the naira equivalent available to the Appellant and paid the commission and other charges for the transaction.
The initial application made by the Appellant on behalf of the 1st Respondent was rejected by the 2nd Respondent on the grounds that the application was not supported by original documents. Upon the rejected application being returned, the application was made once again, this time with the original documents attached thereto. That was however the last that was heard of the application as the funds were neither sent to the 1st Respondent’s younger brother nor was the application returned to the 1st Respondent. This state of affairs put the 1st Respondent’s younger brother in dire straits as he could not pay his school fees or have funds for his upkeep. Ultimately the 1st Respondent was able to transfer funds through another bank. Piqued by the way and manner in which 1st Respondent handled the transaction, the Appellant instituted proceedings against the 1st Respondent in Suit No. HCK/12/87 claiming specific performance of the contract and special and general damages for breach of contract. In the processes filed by the Appellant, it claimed that it was the 2nd Respondent that did not approve the application made for the foreign exchange and furthermore that the application was misplaced by the 2nd Respondent. Consequent upon this disclosure the 1st Respondent applied and obtained an order of court joining the 2nd Respondent as a party to the action. The 1st Respondent alleged negligence and breach of duty of care against the 2nd Respondent based on the alleged carelessness in the 2nd Respondent misplacing the application.
The 1st Respondent claimed the following reliefs against the Appellant and 2nd Respondent:
“Wherefore the Plaintiff claims as follows:
(i) Against the 1st defendant:-
(a) Specific performance of the said contract made in Kwale on 23rd April, 1982, between the plaintiff and the 1st defendant, or,
(b) N4,744.85 being money had and received for consideration that failed
AND
(ii) Against the defendants jointly and severally, N300,000.00 (Three Hundred Thousand Naira) being general and special damages for breach of contract on the footing of aggravated and/or exemplary.
OR IN THE ALTERNATIVE
(iii) Against the defendants jointly and severally N304,744.85 (Three Hundred and Four Thousand, Seven Hundred and Forty Four Naira, Eighty-Five Kobo) being general and special damages for negligence on the footing of aggravated or exemplary.”
In the course of the proceedings the 2nd Respondent challenged the jurisdiction of the Lower Court to entertain the action, contending that the action raised the issue of foreign exchange in respect of which jurisdiction was vested in the Federal High Court. In a considered Ruling delivered on 31st March, 1992, the Lower Court held that the 1st Respondent’s action did not fall within the realm of foreign exchange fiscal measures but was a matter between a customer and a bank in the normal course of daily business and in respect of which negligence had been alleged obviating the need for there to be a contractual relationship between the 1st and 2nd Respondents. (See pages 104 – 116 of the records).
The action was then subjected to a full dressed inter partes hearing after which the Lower Court entered judgment in favour of the 1st Respondent. The said judgment of the High Court of Delta State in Suit No. HCK/12/87 which was delivered on 22nd July, 1996 is at pages 160 – 179 of the Records. All the parties were dissatisfied with the judgment and they all appealed against the same, with the 1st Respondent filing a cross appeal on the quantum of damages pursuant to the leave of this Court.
However, the 2nd Respondent later withdrew its appeal against the said judgment of the Lower Court. Accordingly this judgment relates to the appeal of the Appellant and the cross appeal of the 1st Respondent. With the leave of the court the Appellant amended its notice of appeal. The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The extant briefs on which the appeal was argued are the Appellant’s Amended brief of argument filed on 17th October, 2012, the 1st Respondent Brief of Argument and Cross Appellant Brief filed on 6th February, 2015, the Second Respondent’s Amended Brief of Argument filed on 8th March, 2013 and the Appellant/Cross Respondent’s Reply Brief filed on 10th March, 2015.
At the hearing of the appeal, the learned counsel for the parties adopted and relied on the submissions in their respective briefs of argument. In its brief of argument, the Appellant distilled five issues for determination as follows:
“1. Whether the learned trial Judge was right in holding that he had jurisdiction to entertain the suit in which Unity Bank Plc was the 2nd Defendant and which case touched the issue of remittance of foreign exchange in view of the Federal High Court Act 1973 and the Federal High Court (Amendment) Decree, Decree No. 60 of 1991.
2. Whether the Learned Trial Judge was right in holding that the 1st Defendant/Appellant was liable for breach of contract when he awarded special damages against the 1st Defendant/Appellant for the breach of contract for the sum to be calculated on the value of the naira deposited to the dollar at the time the suit was filed in 1987.
3. Whether the special damages, were rightly awarded.
4. Whether the general damages for negligence for the sum of N150,000.00 jointly and severally against the defendants were rightly awarded.
5. Whether the learned trial judge was right in awarding both reliefs of breach of contract and negligence which were in the alternative against the 1st Defendant/Appellant.
On his part, the 1st Respondent equally formulated five issues for determination, namely:
“1. Whether in the circumstances of this case, the jurisdiction of the Delta State High Court presided over by the Trial Court was ousted by virtue of the Federal Court [sic] Amendment Decree No. 60 of 1991 by the joinder of the Respondent/Respondent (Central Bank of Nigeria)?
2. Whether the Learned Trial Judge was justified in holding the Appellant/Cross Respondent liable for breach of Contract?
3. Whether the Learned Trial Judge was justified in awarding special damages against the Appellant/Cross Respondent (1st Defendant) for the value of the Naira deposited to the Dollar at the time the suit was filed in 1987? And, if the answer is in the negative, whether the Court of Appeal can make the appropriate award?
4. Whether the Learned Trial Judge was justified in holding the Appellant/Cross Respondent and the Respondent/Respondent liable in negligence in the manner they handled the re-scheduled Foreign Exchange Application of the Respondent/Cross Appellant resulting in the loss of the original documents of the Respondent/Cross Appellant?
5. Whether the Learned Trial Judge was justified in awarding N150,000.00 General damages against the Appellant/Cross Respondent and Respondent/Respondent jointly and severally for their negligent act against the Respondent/Cross Appellant.”
The 2nd Respondent distilled a sole issue for determination in its brief of argument as follows:
“Whether or not a State High Court i.e, High Court of Justice, Ughelli, Delta State, had jurisdiction to entertain a suit founded on foreign exchange transaction as well as entertain a suit involving Federal Government Agency, in this case, the Central Bank of Nigeria.”
The issues for determination distilled by the Appellant and the 1st Respondent are similar in nature. Issue number one distilled by them on the jurisdiction of the Lower Court is akin to the sole issue formulated by the 2nd Respondent. However, the issues formulated by the 1st Respondent are succinct coupled with the fact that it embodies the issue for determination on the cross appeal, it is therefore on the basis of the issues as distilled by the 1st Respondent and glossed on to it, issue number five formulated by the Appellant which has not been adequately captured by the issues distilled by the 1st Respondent that I will determine this appeal. For purposes of clarity and in order to conduce to the utmost pellucidity, the issues on the basis of which I will consider and resolve this appeal are as follows:
“1. Whether in the circumstances of this case, the jurisdiction of the Delta State High Court presided over by the Trial Court was ousted by virtue of the Federal High Court Amendment Decree No. 60 of 1991 by the joinder of the Respondent/Respondent (Central Bank of Nigeria)?
2. Whether the Learned Trial Judge was justified in holding the Appellant/Cross Respondent liable for breach of Contract?
3. Whether the Learned Trial Judge was justified in awarding special damages against the Appellant/Cross Respondent (1st Defendant) for the value of the Naira deposited to the Dollar at the time the suit was filed in 1987? And, if the answer is in the negative, whether the Court of Appeal can make the appropriate award?
4. Whether the Learned Trial Judge was justified in holding the Appellant/Cross Respondent and the Respondent/Respondent liable in negligence in the manner they handled the re-scheduled Foreign Exchange Application of the Respondent/Cross Appellant resulting in the loss of the original documents of the Respondent/Cross Appellant?
5. Whether the Learned Trial Judge was justified in awarding N150,000.00 General damages against the Appellant/Cross Respondent and Respondent/Respondent jointly and severally for their negligent act against the Respondent/Cross Appellant.
6. Whether the learned trial judge was right in awarding both reliefs of breach of contract and negligence which were in the alternative against the 1st Defendant/Appellant.”
ISSUE NUMBER ONE
Whether in the circumstances of this case, the jurisdiction of the Delta State High Court presided over by the Trial Court was ousted by virtue of the Federal High Court Amendment Decree No. 60 of 1991 by the joinder of the Respondent/Respondent (Central Bank of Nigeria)?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant argues this issue on pages 14 – 16 of the Appellant’s Brief. It is its contention that by Section 7 of the Federal High Court (Amendment Decree No. 60 of 1991 exclusive jurisdiction in causes and matters connected with or pertaining to foreign exchange was vested in the Federal High Court. It was posited that the action as originally constituted was based on a banker and customer relationship simpliciter but that upon the joinder of the 2nd Respondent, the action took the character of breach of contract to approve foreign exchange or negligence in handling foreign exchange application resulting in the failure or inability to issue the foreign exchange applied for thereby making the transaction a foreign exchange matter. It was conclusively asserted that the State High Court did not have jurisdiction.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that his claim is one between a customer and banker for breach of contract and/or claim for negligence in handling the application for foreign exchange. It was opined that a State High Court has jurisdiction to entertain an action arising from a banker customer relationship. It was maintained that the 2nd Respondent became a necessary party as a result of the allegations made by the 1st Respondent and it was imperative to join it in the action for negligence in the banker-customer related disputed. It was further contended that the jurisdiction of a Court is determined by the law in operation at the time the cause of action arose and that at the time in 1982 – 1983, Decree No. 60 of 1991 was not in force and that the said Decree did not have retrospective effect. It was therefore submitted that the applicable law as at 1983 was the 1979 Constitution and Section 7 of the Federal High Court Act, which limited the jurisdiction of the Federal High Court to issues of revenue and taxation. It was further stated that Decree No. 60 of 1991 was not in force as at the time the 2nd Respondent was joined as a party on 20th January, 1989. It was consequently asserted that Decree No. 60 of 1991 had no application to the action.
It was further submitted that the 1st Respondent’s action against the 2nd Respondent did not come within the meaning and intendment of foreign exchange as the cause of action was not predicated on why the 2nd Respondent did not grant the application for foreign exchange but rather it was on the negligence of the Appellant and 2nd Respondent in handling of the application and the original documents attached thereto which were misplaced and declared missing. It was finally posited that even if the State High Court did not have jurisdiction over the 2nd Respondent, the misjoinder would not defeat the entire case but can only lead to the name of the 2nd Respondent being struck out.
SUBMISSIONS OF THE 2ND RESPONDENT’S COUNSEL
The 2nd Respondent contends that the Federal High Court has exclusive jurisdiction and power over disputes arising from foreign exchange transaction. That even though a State High Court had jurisdiction in any dispute between an individual customer and his bank, that upon the joinder of the 2nd Respondent, a Federal Government Agency, the State High Court divested itself of jurisdiction.
RESOLUTION OF ISSUE NUMBER ONE
The paramount position of jurisdiction of a court in the adjudicatory process cannot be overemphasised. This is so because jurisdiction is the fons et origo and threshold of judicial power and judicialism. It is the very lifeline and livewire of all proceedings in a court or tribunal without which the entire proceedings would be a nullity, however brilliantly they may have been conducted: ROSSEK vs. ACB (1993) 8 NWLR (PT 312) 382 at 437C-G and 487G-H and OKE vs. OKE (2006) 17 NWLR (PT 1003) 224. Jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision. Where a Court does not have jurisdiction to entertain a matter the proceedings however well conducted are a nullity as the defect or lack of jurisdiction is extrinsic to the adjudication: OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 and MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13.
The perennial jurisdictional tussle between the Federal High Court and the State High Court has been such that there has been an unending disputation as to whether the subject matter of an action or the nature the claim before a court should play a part in ascertaining the court that has jurisdiction where the Federal Government or its agencies is a party to an action. The 2nd Respondent herein is clearly an agency of the Federal Government. The legal position has remained in flux but it seems to be crystallizing to a situation where both the parties and the subject matter are considered. In PDP vs. SYLVA (2012) LPELR (7814) 1 at 52 – 53, it was held that when the jurisdiction of the Federal High Court is in issue, two factors must co-exist namely, that the parties or one of the parties must be an agency of the Federal Government and the subject matter of the litigation must be within the jurisdiction of the Federal High Court. It does not suffice merely that a Federal Government Agency is a party in order for the Federal High Court to have jurisdiction. See also PORTS AND CARGO HANDLING SERVICES COMPANY LTD vs. MIGFO NIG. LTD (2012) LPELR (9725) 1 and INEGBEDION vs. SELO-OJEMEN (2013) LPELR (19769) 1. Accordingly the subject matter of the action must be within the jurisdiction of the Federal High Court in order for the State High Court to be divested of jurisdiction. This is in keeping with the long established and settled legal position that jurisdiction is determined by the plaintiff’s claim as endorsed on the writ of summons and statement of claim. See IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9 – 10 SC 31, ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT 788) 538 at 563 and ONUORAH vs. KRPC LTD (2005) LPELR (2707) 1 at 15.
The learned Counsel for the 1st Respondent has rightly submitted that the action before the Lower Court was not predicated on why the 2nd Respondent did not approve the application for foreign exchange, but was a simple claim of misfeasance of negligently handling documents in respect of the application resulting in the documents being misplaced. This is evident from the averments in paragraphs 19, 20A and 21 of the Amended Statement of Claim as follows:
“19. The said notice was supported by an affidavit sworn to and filed by the plaintiff on 16.6.88 following an order of court made on 13.5.88. In reply to this, the 1st defendant by his servant or agent, one Francis Abhulomen Iluobe, Manager of its Kwale Branch, of No. 3 Ipo Street, Kwale, swore and filed a counter-affidavit on 15.7.88, in an effort to exploit the absence of the Central Bank as party in this suit, alleging in paragraph 6 thereof as follows:
‘6……that on the 6th August, 1982, the application was re-scheduled by our Foreign Division to the Central Bank of Nigeria with the original copies of the supporting documents but the new application was misplaced in the Central Bank of Nigeria and it had never found ever since inspite of our concerted efforts. Nothing had been heard since about this application……’
20A The plaintiff says that before he sought to join the 2nd defendant in this suit, he first of all contacted the said 2nd defendant by letter dated 21st September, 1988. By way of reaction the 2nd defendant sent queries to the 1st defendant by letters BSD/IEL/12/Vol. 2764 of 6.10.88 and BSD/BC/21/VOL.4/422 of 2.11.88. It appearing that the 2nd defendant was not making a headway with the 1st defendant, the plaintiff made the 2nd defendant party to this suit to expedite matters. The Plaintiff hereby pleads and will found on the said letters at the hearing.
21. The plaintiff says that in the circumstances, the 2nd defendant owes a duty of care to the plaintiff; that the 1st defendant’s said allegations of carelessness against the 2nd defendant go to establish a breach of the said duty of care; that the said breach of duty induced the breach of the said contract with the plaintiff; that it was the immediate cause of the damage suffered by the plaintiff, and that the 2nd defendant ought to be condemned in damages for negligence on the footing of aggravated or exemplary…”
It is flowing from these averments that the 1st Respondent claimed the reliefs for special and general damages for breach of contract or in the alternative negligence.
It is settled law that the jurisdiction of a court is statutory and that it is the Constitution or statute creating a court that sets out the jurisdiction of the court. See OSADEBEY vs. A-G BENDEL STATE (1991) 1 NWLR (PT 169) 525 and SHELIM vs. GOBANG (2009) 12 NWLR (PT 1156) 435 at 455 G-H. Equally trite law is that the substantive law governing a cause of action is the law in force at the time the cause of action arose: SAVANNAH BANK vs. PAN ATLANTIC (1987) 1 NWLR (PT. 49) 212, ADEYEYE vs. AJIBOYE (1987) 3 NWLR (PT 61) 432 at 451F and ADIGUN vs. AYINDE (1993) 8 NWLR (PT 313) 516 at 536 and 539. The jurisdiction of the Court to entertain an action is determined on the state of the law conferring jurisdiction at the point in time when the action was instituted and heard. See ADAH vs. NYSC (2004) 7 SC (PT II) 139 at 142.
The Appellant anchored its submissions that the Lower Court did not have jurisdiction on the provisions of the Federal High Court (Amendment) Decree No. 60 of 1991. Generally, the effect of a statute is prospective and not retrospective. Decree No. 60 of 1991 does not have retrospective effect. The 1st Respondent’s cause of action arose around 1982 – 1983 and the action was filed on 22nd May, 1987. The 2nd Respondent was joined as a party to the action on 20th January, 1989. Clearly therefore Decree No. 60 of 1991 has no application to the action; since it was not in operation at the time the cause of action arose or when the action was instituted. See UWAIFO vs. A-G BENDEL STATE (1982) 7 SC 124 and ROSSEK vs. ACB LTD (supra). The reliefs claimed by the 1st Respondent came within the jurisdiction of the State High Court where the action was litigated. The Lower Court was therefore right in exercising jurisdiction and entertaining the action. This issue number one will therefore be resolved against the Appellant.
ISSUE NUMBER TWO
Whether the Learned Trial Judge was justified in holding the Appellant/Cross Respondent liable for breach of contract?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that its contract with the 1st Respondent was to send money to the 1st Respondent’s brother in the United States and that the contract was predicated on the 2nd Respondent approving the remittance of the money. It was contended that the Appellant did not have the capacity to approve the remittance and that the 2nd Respondent was not bound in law to approve the remittance. It was posited that it is only where the 2nd Respondent approves the remittance and the Appellant failed to remit the same that the Appellant will be liable for breach of contract. It was therefore argued that the 2nd Respondent did not approve the remittance and the 1st Respondent was duly notified and the failure to grant approval frustrated the contract between the Appellant and the 1st Respondent.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that his contract with the Appellant was for the Appellant to process, procure and transmit foreign exchange to his brother in the US. That he duly performed his part of the contract by executing the necessary forms submitting the necessary documents and paying the fees charged by the Appellant. The 1st Respondent maintained that the Appellant was in breach of the contract by sending photocopies of accompanying documents instead of originals, which led to the rejection and return of the application by the 2nd Respondent; that the Appellant negligently, defectively and sluggishly handled the contract resulting in the failure of the contract and that the Appellant received the foreign exchange but converted it to other use and deceived the 1st Respondent by telling him inconsistent stories.
RESOLUTION OF ISSUE NUMBER TWO
The necessary elements for the creation of a contract are present in this matter and it has not been contested that there was a contract between the Appellant and the 1st Respondent. The disceptation is on whether the Appellant was in breach of the contract.
In finding that the Appellant had breached the contract, the Lower Court, inter alia, held that the Appellant did not follow up the 1st Respondent’s application with the urgency it deserved, especially when another bank processed the application within even a shorter period (See page 175 of the Records). It is in evidence that when the initial application was made by the Appellant on behalf of the Respondent, it accompanied the application with photocopies as a result of which the application was rejected and returned by the 2nd Respondent. It is in evidence from the 1st Respondent’s witness, whom the Lower Court accepted as an expert in banking matters (See page 174 of the Records) that if an application for foreign exchange is refused the supporting documents would be returned. While this happened with the application that was accompanied with photocopies, when the application was resubmitted (rescheduled) with the original documents the money was neither transferred to 1st Respondent’s brother, nor were the documents returned. I reiterate that on the evidence where the application is not granted the documents are returned. This did not happen in this instance thus giving fortification to the finding of the Lower Court at page 176 of the Records that the failure to return the documents confirmed that the documents were missing and the 1st Respondent was being deceived.
These findings of the Lower Court have not been challenged and from the available evidence on record the Appellant failed in discharging its obligations under the contract which resulted in the application not being processed in a timely manner and the foreign exchange sent to the 1st Respondent’s brother. This is definitely a breach of the contract. This issue umber two will therefore be resolved in favour of the 1st Respondent.
ISSUE NUMBER THREE
Whether the Learned Trial Judge was justified in awarding special damages against the Appellant/Cross Respondent (1st Defendant) for the value of the Naira deposited to the Dollar at the time the suit was filed in 1987? And, if the answer is in the negative, whether the Court of Appeal can make the appropriate award?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s contention is that because it was not in breach of the contract, the Lower Court was wrong in law to have awarded special damages against it. It was submitted that when it could not secure foreign exchange for the 1st Respondent it credited his account with the money he had paid for the foreign exchange. It was posited that the Lower Court erred in awarding special damages to be calculated on the value of the naira deposited at the time the suit was filed in 1987. It was submitted that the assessment of damages for breach of contract was restitutio in integrum and not restitutio in opulentiam. It was stated that special damages must be specifically pleaded and strictly proved and that a court is not entitled to make its own estimate on such. It was submitted that the 1st Respondent lumped the claim for special and general damages together in paragraph 22(ii) of the Amended Statement of Claim and did not specify or quantify the special damages. The Appellant maintained that the 1st Respondent’s pleading on special damages was speculative and that the evidence led in support was equally speculative and that there was no evidence of the value of the naira deposited to the dollar at the time the action was filed in 1987 thereby making the judgment of the court meaningless and lacking in clarity. It was opined that a party should only be given the relief he claims and what was reasonably antecedent to it. It was finally submitted that the money deposited by the 1st Respondent for the purchase of the foreign exchange having been refunded to him before he filed the action, he was not entitled to any other sum as special damages.
The Appellant in its Appellant/Cross Respondent’s Brief further submitted that the 1st Respondent never pleaded that the exchange rate of the dollar to the Naira in 1993 was $1.00 to N37.00 and that the value of the foreign exchange sought stood at N257,002 in 1993. It was further stated that there is equally no evidence on the said exchange rate. It was stated that the averments in paragraphs 8(b) and 21 of the Amended Statement of Claim were inconsistent and that the evidence led as to the exchange rate was not in line with what was pleaded. The Appellant further submitted that the various exchange rates put forward by the 1st Respondent’s counsel in his brief were mere conjectures and that it will be a deprivation of fair hearing if the 2015 exchange rate as submitted by the 1st Respondent’s Counsel was used, especially as there was no official document backing up the assertion of the exchange rate. It was finally submitted that the court was not a Father Christmas and cannot grant a party what it did not claim, emphasising that the rate of exchange in 2012 was not pleaded nor given in evidence.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent argues that there was evidence that in 1993 the exchange rate was $1.00 to N37.00 and that when this is converted on the basis of the foreign exchange sourced in 1982, it amounts to N257,002 for which the 1st Respondent had paid N4,718.75 in 1982. It was stated that fluctuation and devaluation of the Naira was such that as at 4th February, 2015 the official price of the Naira to the Dollar was N192.00 and in the open market, N207.00. It was thus opined that the value of the foreign exchange applied for was N1.3M or N1.4M but that in making the award of special damages the Lower Court limited it to the exchange rate at the time when the writ of summons was filed. It was stated that since there was no pleading or evidence as to the exchange rate as at the time when the writ of summons was filed, the Lower Court cannot base its judgment on that. It was posited that the evidence as to the exchange rate in 1993 was neither contradicted nor challenged and was therefore proved. The 1st Respondent submitted that any award to be made in compensation had to be such that would put him in the same position he would have been if the Appellant had not caused the wrong and that an award at the 1993 rate will not meet the justice of the case. The court was urged to act pursuant to Section 15 of the Court of Appeal Act and make an award at the current exchange rate of the US Dollar to the Naira.
RESOLUTION OF ISSUE NUMBER THREE
In resolving issue number two against the Appellant I held that the Lower Court rightly found that the Appellant was in breach of contract. It is flowing from this breach that the Lower Court awarded “special damages against the 1st defendant (Appellant) for the breach of contract for the sum to be calculated on the value of the naira deposited to the dollar at the time the suit was filed in 1987.” (See page 179 of the Records). The Appellant is dissatisfied with this award. The 1st Respondent is equally dissatisfied with the award. Indeed the 1st Respondent’s cross-appeal is in respect of the quantum of special damages awarded. The 1st Respondent wants this court to award special damages based on the current exchange rate of the Naira to the US Dollar.
Now, it is rudimentary law that parties are bound by their pleadings and that any evidence which is at variance with the pleadings goes to no issue. See EMEGOKWUE vs. OKADIGBO (1973) 4 SC 113, MOHAMMED vs. KLARGESTER (2002) 7 SC (PT III) 1 at 15 and GEORGE vs. DOMINION FLOUR MILLS LTD (1963) 5 SCNLR 117. In paragraphs 8(b) and 21 of the Amended Statement of Claim, the 1st Respondent averred as follows:
“8(b) As at the date of the said contract the Naira exchanged at the rate of N0.6793478 to the US. Dollar. Due to depreciation in the value of the Naira, cost of securing one US. Dollar at Central Bank rate as at 1992 is N18.60. At Inter Bank rate at the same date, the same is N18,716. As the plaintiff is more likely to secure US. Dollar at Bureux [sic]de Change rate today, the plaintiff is put to that higher burden namely, to secure US. $6946 at N19.95 per US. Dollar by paying N138,572.70, a difference of N133,853.95.
21. The plaintiff says that in the circumstances, the 2nd defendant owes a duty of care to the plaintiff; that the 1st defendant’s said allegations of carelessness against the 2nd defendant go to establish a breach of the said duty of care; that the said breach of duty induced the breach of the said contract with the plaintiff; that it was the immediate cause of the damage suffered by the plaintiff, and that the 2nd defendant ought to be condemned in damages for negligence on the footing of aggravated or exemplary.
FURTHER PARTICULARS IN SUPPORT OF AGGRAVATION
By 1982 Exchange Rate of $1 U.S = N0.6793478
$6,946 US = N4,718.75
By 1993 Exchange Rate of $1 US at
Bureux [sic]De Change = N 37.00
$6,946 US = N257,002.00
Difference as at 1993 = N252,283.25
And the plaintiff suffered additional special damage to the extent of N252,283.25 as at 1993.”
The 1st Respondent thereafter claimed as follows in paragraph 22(ii) of the Amended Statement of Claim:
“22 (ii) Against the defendants jointly and severally, N300,000.00 (Three Hundred Thousand Naira) being general and special damages for breach of contract on the footing of aggravated and/or exemplary.”
(See page 144 of the Records).
So by the averments in paragraph 8(b), the 1st Respondent pleaded that the exchange rate “as at today”, being 11th November, 1993 when the Amended Statement of Claim was filed was N19.95 to the US Dollar. By paragraph 21, the 1st Respondent put the 1993 Exchange Rate at N37.00 to the US Dollar. So on the pleadings of the 1st Respondent there is no consistency as to what the exchange rate was as at 1993. But then what was the evidence. In his testimony, the 1st Respondent testified as follows on the exchange rate:
“In 1982 $1 was 70k and in 1992 $1 was N19.95 and in the CBN rate $1 to N22.00 in 1993. Now what I will pay today for what I paid in 1982 will be N257,000 – 4,718.75. I am claiming N300,000.00 from the 1st defendant.”
(See page 233 of the Records).
Now, whilst the fact pleaded is that the exchange rate as at 1993 was N19.95 as in paragraph 8(b) and N37.00 as in paragraph 21, the evidence is that the exchange rate was N22.00. The evidence is clearly at variance with the facts as pleaded and consequently goes to no issue. The concomitance is that there is no credible evidence to prove what the exchange rate on the basis of which the special damages were claimed was.
Notwithstanding this failure of the evidence in proof of the claim, the Lower Court awarded special damages, not as claimed or pleaded but based on the exchange rate as at the date the writ of summons was filed in 1987. This was not the claim before the court and there was no evidence whatsoever on the exchange rate as at 1987. The 1st Respondent was the person aggrieved. He knew the relief he desired from the court, he pleaded and led evidence on the facts as pleaded. The court and the 1st Respondent were bound by the reliefs as framed and it was not the duty of the court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40.
“It is elementary law that a court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”
There is therefore no basis on which the award of special damages by the Court on the exchange rate as the date when the writ of summons was filed in 1987 can be justified. The said award is accordingly set aside.
The 1st Respondent/Cross Appellant in the cross appeal contends that the special damages ought to be awarded based on the current exchange rate. I have already stated that the Court is bound by the relief or reliefs sought. The claim on which the action was fought was not that the current exchange rate be used as the basis on which to compute the special damages to be paid. Indeed the gallant and valiant efforts made by the 1st Respondent’s counsel to amend the relief on appeal for the current exchange rate to be used fell flat on its face. There is no averment in the pleadings and no evidence before the court on what the current exchange rate is. It is not the judicial function of a court to embark on an unguarded voyage of discovery of facts which are not placed before it. The Court is not Vasco Dagama, the Portuguese explorer who discovered the sea route to India. The Court is not Christopher Columbus, the Italian explorer who made four voyages across the Atlantic Ocean and who is credited with having discovered, the New World, the Americas, when he landed on an island in the Bahamas archipelago. Coming nearer home, the Court is not Mungo Park, the Scottish explorer who led the failed expedition to find the source of the River Niger. It is the duty of the Judge to inquire into facts placed before him in the Court. A Judge is not an explorer so the law forbids the court from going outside the facts in court in search for more facts with a view to discovering newer pastures and in this con, greener pastures for the 1st Respondent. See AJIKAWO vs. ANSALDO NIG LTD (1991) 2 NWLR (PT 173) 359 at 372 E-F. I am therefore unable to agree with the 1st Respondent that this Court can under Section 15 of the Court of Appeal Act make any award of special damages based on the current exchange rate of the Naira to the US Dollar when the same had neither been pleaded nor is there any evidence in proof thereof. The dexterous submissions of the learned counsel for the 1st Respondent on the current exchange rate cannot take the place of evidence. See ISHOLA vs. AJIBOYE (1998) 1 NWLR (PT 532) 71 at 93, ARO vs. ARO (2000) 12 WRN 51 at 65 and KAZEEM vs. MOSAKU (2007) 17 NWLR (PT 1064) 523 at 535. This obviously sounds the death knell for the 1st Respondent’s cross appeal as the court cannot award special damages based on the current exchange rate. Furthermore, I reiterate that the special damages awarded by the court based on the exchange rate at the date of filing of the writ of summons which was neither pleaded nor given in evidence cannot be sustained.
The matter however does not end there. It is in evidence that the amount paid by the 1st Respondent for the foreign exchange had been refunded and credited to his account even before he filed the action in Court. So in the strict sense the question of special damages premised on the exchange rate at any time does not arise, since the money paid had been refunded. Howbeit, the 1st Respondent’s claim was for special and general damages. I have already held that the Appellant was in breach of the contract. The Appellant is not to be given a slap on the wrist for the breach of contract because it had refunded the money paid by the 1st Respondent for the foreign exchange. The 1st Respondent claimed general damages. The law is that once a breach of contract is established as in this matter, damages follow. General damages are those losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. General damages are awarded by the court to assuage the loss caused by an act of the adversary. See UNION BANK vs. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 558 and CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 31. The law is trite that in an action for breach of contract, the categorisation of damages under the terms “special” or “general” as done by the 1st Respondent is not apt: GKF INVESTMENT NIG LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 42 and ATIVIE vs. KABELMETAL NIG. LTD (2008) LPELR (591) 1 at 29. I have already held that the 1st Respondent is not entitled to any award of special damages. This does not however preclude the 1st Respondent being awarded general damages which he claimed pursuant to the general powers of the court under Section 15 of the Court of Appeal Act. This is especially so because in the law of contract, general damages are those damages which the law implies in every breach and in every violation of a legal right. See ACME BUILDERS LTD vs. KADUNA STATE WATER BOARD (1999) LPELR (65) 1 at 20.
It is in evidence that as a result of the Appellant’s breach of contract the 1st Respondent failed in his duty of sending funds to his brother in the US and that he was made to shuttle from the Appellant’s Kwale Branch to Benin and to Lagos all in pursuit of having the foreign exchange procured and sent for the school fees and upkeep of his brother in the United States, all to no avail. In UNIVERRSITY OF IBADAN vs. WICKLIFFE (2006) LPELR (11794) 1 at 12-13, this Court per Augie, JCA held:
“It is settled that a Plaintiff is entitled to general damages in respect of pain and suffering…..It is further settled that in a proper case damages for mental distress can be recovered in contract. Thus, if the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset, embarrassment and frustration by the breach. The plaintiff will only be compensated for what is fair and adequate in the prevailing circumstances. See JARVIS vs. SWAN TOURS LTD (1973) 1 Q.B. 233 at 237.”
The award of general damages are such as the court may give when it cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is qualified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case and since general damages is always at large, the court may also take into account the motive and conduct of the party in default where they aggravate the claimant’s injury. See KOPEK CONSTRUCTION LTD vs. EKISOLA (2010) 3 NWLR (PT 1182) 61 and ALUMINIUM MANUFACTURING CO. NIG LTD vs. VOLKSWAGEN OF NIG LTD (2010) 7 NWLR (PT 1192) 97.
In the entire circumstances of this case and acting pursuant to Section 15 of the Court of Appeal, it seems that the sum of N200,000.00 would be adequate recompense for the damages suffered by the 1st Respondent for the Appellant’s breach of contract. In encapsulation of this issue, the special damages awarded by the Lower Court is set aside. The 1st Respondent’s cross appeal that the exchange rate to be employed in computing the special damages should be the current exchange rate cannot fly as the same is not pleaded nor is there evidence in proof thereof. The amount paid by the 1st Respondent for the foreign exchange having been refunded before the action was filed, the 1st Respondent is not entitled to any award of special damages. However since the evidence discloses breach of contract by the Appellant, the 1st Respondent is entitled to the sum of N200,000.00 as general damages.
ISSUE NUMBERS FOUR, FIVE AND SIX
Whether the Learned Trial Judge was justified in holding the Appellant/Cross Respondent and the Respondent/Respondent liable in negligence in the manner they handled the re-scheduled Foreign Exchange Application of the Respondent/Cross Appellant resulting in the loss of the original documents of the Respondent/Cross Appellant?
Whether the Learned Trial Judge was justified in awarding N150,000.00 General damages against the Appellant/Cross Respondent and Respondent/Respondent jointly and severally for their negligent act against the Respondent/Cross Appellant.
Whether the learned trial judge was right in awarding both reliefs of breach of contract and negligence which were in the alternative against the 1st Defendant/Appellant.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellant’s submissions on those issues are on pages 21 – 28 of the Appellant’s Amended Brief and pages 7 – 8 of the Appellant/Cross Respondent’s Reply Brief. The contention of the Appellant is to the conclusive effect that the Lower Court was wrong to have found it liable for negligence. Furthermore that since the reliefs for damages for breach of contract and damages for negligence were in the alternative, the Lower Court was in error to have granted both reliefs.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The argument of the 1st Respondent on these issues spans from pages 17 – 26 of the 1st Respondent Brief of Argument and Cross Appellant Brief. The contention is to the conclusive effect that the Lower Court rightly found that the Appellant and 2nd Respondent owed a duty of care to the 1st Respondent and that they were in breach of that duty of care and consequently liable to be mulcted in damages for negligence.
RESOLUTION OF THE ISSUES
These issues deal with the finding of the Lower Court that the Appellant and 2nd Respondent were negligent in the manner in which they handled the 1st Respondent’s foreign exchange application. The resolution of issue numbers one, two and three in a way that is largely favourable to the 1st Respondent makes it imperative that these issues be dealt with totidem verbis. Firstly, it is necessary to put matters in proper perspective. The Lower Court found the Appellant and 2nd Respondent liable to the 1st Respondent for negligence. (See page 178 of the Records). The Lower Court then awarded the sum of N150,000.00 as general damages for negligence against them jointly and severally. I have already stated that the 2nd Respondent initially filed an appeal against the decision of the Lower Court but subsequently withdrew the same. The effect of this is that there is no challenge to the decision that the 2nd Respondent is liable for negligence for which it is to pay the 1st Respondent the sum of N150,000.00 as damages, since the award is joint and several.
In the course of this judgment I had set out the reliefs claimed by the 1st Respondent. The relief of damages for negligence is claimed in the alternative. Having been claimed as an alternative award, it is an award that can be made instead of another. It is a separate claim and a separate award. It is not an additional award otherwise it would amount to double compensation which the law frowns at. See THE M.V. CAROLINE MAERSK vs. NOKOY INVESTMENT LTD (2002) 6 SCNJ 203 at 224 and ALAO vs. ADEMOLA (2005) 3 NWLR (PT 913) 630 at 660 – 661.
I have sustained the decision of the Lower Court that the Appellant is in breach of contract and awarded general damages against it. Accordingly, the principal or main claim of the 1st Respondent has been granted thus implying that the alternative relief for damages for negligence cannot be granted against the Appellant. In the words of Ogbuagu, JSC in GKF INVESTMENT NIG LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 32 –
“Where a claim is in the alternative, the court should first consider whether the principal or main claim, ought to have succeeded. It is only after the Court may have found that it could not, for any reason, grant the principal or main relief, that it would now consider the alternative claim. See the case of Mercantile Bank of Nig. Ltd vs. Adalma Tanker & Bunkering Services Ltd (1990) NWLR (Pt. 153) 747. In other words, where there are alternative reliefs as in the instant case leading to this appeal, once one of the reliefs is granted, the other relief cannot be granted as there would be no need to do so. See the cases of William Agidigbi v. Danaha Agidigbi & 2 Ors (1996) NWLR (PT 454) 303, 313; (1996) 6 SCNJ 105; Chief Yesufu & Anor v. Kupper International N.V. (1996) 4 SCNJ 40 and Gaji & 2 Ors v. Paye (2003) 5 SCJN 20”
I kowtow. The Lower Court having granted the main relief claimed against the Appellant, there was no need to also grant the alternative relief against the Appellant. This however does not affect the decision as it relates to the 2nd Respondent. Quite apart from the fact that the 2nd Respondent did not appeal against the decision of the Lower Court, the main relief claimed before the Lower Court was not claimed against the 2nd Respondent. These issues would therefore be resolved in favour of the Appellant.
CONCLUSION
The manner in which the issues for determination have been resolved afford little comfort for both the Appellant in respect of its appeal and the 1st Respondent in respect of his cross appeal. Though they have each recorded relative success, it seems that looking at the larger picture the ultimate outcome of this appeal is that both the appeal and cross appeal fail. The decision of the Lower Court that the Appellant is liable for breach of contract is affirmed. Though the award of special damages for breach of contract and the award of N150,000.00 general damages for negligence made against the Appellant have been overturned, the sum of N200,000.00 has been awarded as general damages for breach of contract against the Appellant. The quest of the 1st Respondent in his cross appeal to have the special damages for breach of contract to be made at the current rate of exchange has fallen flat on its face. In a summation therefore, both the appeal and cross appeal ultimately fail. The parties are to bear their respective costs of the appeal.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice U. A. Ogakwu, JCA, to the effect that both the appeal and the cross-appeal are unmeritorious.
Hence, having adopted the said reasoning and conclusion as mine, I too hereby dismiss both the appeal and the cross-appeal. I abide by the consequential orders contained in the judgment in question.
HAMMA AKAWU BARKA, J.C.A.: Having been privileged to read before now the judgment of my Lord UGOCHUKWU ANTHONY OGAKWU JCA, which was just read; I totally agree with the reasoning and the conclusions reached therein.
Indeed the resolution of issue number three and the 1st respondent’s cross appeal on same is very interesting.
My Lord having brilliantly and conclusively dealt with the issue, to the conclusion that the appeal and the cross appeal fail and are consequently dismissed. I abide on my Lord’s order made as to costs.
Appearances
O. Ovrawah, Esq., (with him J. E. Edosa) for the Appellant/Cross Respondent.For Appellant
AND
O. J. Oghenejakpor (with S. Esharivwotu and Miss E. E. Edeh) for the 1st Respondent/Cross Appellant.
C. Udeh, Esq., for the 2nd Respondent.For Respondent