UNIVERSITY OF CALABAR & ANOR. v. DR. UKOHA OBASI OJI
(2011)LCN/4376(CA)
In The Court of Appeal of Nigeria
On Monday, the 14th day of March, 2011
CA/C/56/2010
RATIO
ARGUMENT ON APPEAL: EFFECT OF ARGUMENT ON APPEAL BASED GROUND (S) OF APPEAL
One view of the law is that argument on appeal not based on issue but ground (s) of appeal is incompetent and must be discountenanced. See ONOWHOSA & ORS. v ODIUZOU & ANOR. (1999) 1 NWLR (Pt. 586) 173 at 183; U.A.C. LTD. v. FASHEYITAN (1998) 11 NWLR (Pt. 573) 179; MACAULAY v NAL MERCHANT BANK (1990) 4 NWLR (Pt. 144) 283 at 421. PER KUMAI BAYANG AKAAHS, J.C.A.
ISSUES FOR DETERMINATION: WHETHER A COURT CAN SUO MOTU RE-FORMULATE AN ISSUE ARISING FROM A GROUND OF APPEAL
… a court can suo motu re-formulate an issue arising from a ground of appeal if the interest of justice demands this. See MUSA SHA (JNR) & ANOR v DA RAP KWAN & 4 ORS (2000) 8 NWLR (Pt. 670) 685; OGBUANYINYA v OKUDO (No. 2) (1990) 4 NWLR (Pt. 146) 51; BANKOLE & ORS. v PELU & ORS (1991) 8 NWLR (Pt.211) 523. As long as the issue re-framed is anchored on the ground or grounds of appeal, the respondent cannot be heard to complain. The court will have authority to do this when the grounds of appeal and argument canvassed permit such a reformulation if the issue formulated by the appellant or respondent appears awkward or not well framed. PER KUMAI BAYANG AKAAHS, J.C.A.
ALTERNATIVE CLAIM: PURPORT OF AN ALTERNATIVE CLAIM
The purport of an alternative claim is that one remedy is available in place of the other. See EZEKWERE v. GOLDEN GUINEA BREWERY LTD. B (2000) 1 NWLR (Pt. 670) 648 at 656. PER KUMAI BAYANG AKAAHS, J.C.A.
ALTERNATIVE CLAIM: POSITION OF THE LAW WHERE THERE ARE CLAIMS IN THE ALTERNATIVE
Where a plaintiff by his pleading seeks damages in respect of a breach of contract or a breach of duty arising from the tort of negligence the claims being in the alternative, the law permits the court to consider only one of the claims and base its damages on it. See G. K. F. INVESTMENT NIG. LTD. v. NIGERIA TELECOMMUNICATIONS PLC. (2009) 13 NWLR (Pt. 1164) 344. 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 claim, that it will consider the alternative claim. See G.K.F. INVESTMENT NIG. LTD. v NITEL PLC supra at page 377. PER KUMAI BAYANG AKAAHS, J.C.A.
DAMAGES: DIFFERENCES BETWEEN GENERAL DAMAGES AND SPECIAL DAMAGES
It is the law that general damages are such as the law will presume to be the direct natural or probable consequence of the act complained of. On the other hand, special damages are such that the law will not infer from the nature of the act. They are exceptional in their character and therefore must be claimed specially and proved strictly. See: DUMEZ (NIG) LTD. v OGBOLI (1972) 1 ALL NLR (Pt.1) 241: ODULAJA v. HADDAD (1973) II SC 357; ACME BUILDERS LTD v KADUNA STATE WATER BOARD (1999) 2 NWLR (Pt. 590) 288; S.P.D.C (NIG) LTD. v TIEGBO VII (2005) 9 NWLR (Pt. 931) 439. PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. UNIVERSITY OF CALABAR
2. DR. A. N. BASSEY – Appellant(s)
AND
DR. UKOHA OBASI OJI – Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): Pursuant to the leave granted by the Federal High court on 27/3/2007 (see page 115 of records) the Applicant filed a Motion on Notice on 3/4/2007 praying the court for the following:
(a) An order of MANDAMUS compelling the Respondents or their Agents to effect correctly the date of the Doctorate Degree award on the Applicant to 7/7/2000 when he successfully defended his ph. D. Thesis.
OR IN THE ALTERNATIVE
To effect correctly the Doctorate Degree Award on the Applicant to 1/3/2001 when he effected all the necessary corrections on the Ph.D. Thesis and same was acknowledge by the 1st Respondent.
b) To award the sum of N10,000,000.00 (Ten Million Naira) to the Appicant being special and general damages arising from the conduct of the respondents leading to this application.
Upon being served with Motion papers, the 1st Respondent filed Notice of Preliminary objection to the hearing of the suit on the following grounds:
(a) That the suit is incompetent as presently constituted; and
(b) The matter is statute barred, thereby robbing this Honourable Court of jurisdiction to entertain the claim. (see page 116 of the records)
The learned trial Judge ordered the parties to file written submissions which were adopted on 14/7/2008 and ruling was reserved to 31/10/2009. On the adjourned date the preliminary objection was dismissed with cost of N5,000.00 and the suit was adjourned to 13/11/2008 for mention (see pages 134 – 139). The parties were ordered to file written addresses for the Motion on Notice. The Applicant complied by filing his written submissions on 14/11/2008. on 25/3/2009, learned counsel for the respondents informed the court that he filed Notice of Appeal and an application for stay of further proceedings and asked for adjournment to another date which was refused and the court then invited the applicant to adopt his written address and adjourned to 31/3/2009 for judgment. On that date the Respondents who had a pending motion were absent and the court struck out the motion before it proceeded to deliver the judgment. While granting relief (a) it also awarded the sum of N5 million as general damages with costs assessed at N10,000.00 to the applicant against the respondents.
The Respondents were dissatisfied with the judgment and filed their Notice of Appeal on 16/6/2009 containing three grounds of appeal. An amended Notice containing 5 grounds of appeal was filed on 16/4/2010.
In the Appellants’ brief of argument, three issues were raised. The Respondent raised objection to all the 5 grounds in the amended Notice which was argued in the brief and urged this court to either strike out or dismiss the appeal. The respondent went further to formulate two issues for determination. The appellants filed a Reply Brief. Both counsel adopted their briefs of argument.
The three issues formulated by the Appellants are:-
1. WHETHER the learned trial Judge was right in awarding the main claim with the alternative claim as contained in the Motion on Notice dated 28/3/07 –
2. WHETHER this suit was caught by the provisions of the Public Officers Protection Act Cap. P.41 Laws of the Federal Republic of Nigeria 2004.
3. WHETHER the Respondent’s action was initiated by due process of law to confer jurisdiction on the trial Judge.
The issues contained in the Respondent’s brief are:-
1. WHETHER the learned trial Judge awarded claim with the alternative claim of the Respondent as contained in the Motion on Notice dated 28/3/2007 as to make same double compensation and improper in law?
2. WHETHER the suit is competent to confer jurisdiction on the court?
The Respondent argued that Grounds 1, 4 and 5 of the Amended Notice of Appeal upon which issues 1, 2 and 3 are based respectively did not arise from the judgment of the lower court which was delivered on 31/3/2009. He contended that grounds 2 and 3 of the Amended Notice are grossly incompetent since they contain fresh issues which were not argued before the lower court and the Appellants did not obtain the leave of this court to raise them. In any event, argued learned counsel, the grounds are deemed abandoned since the appellants did not distil any issues from them.
The Appellants in reply to the preliminary objection to ground 1 submitted that the Respondent himself made the claim in the alternative on which the learned trial Judge based his judgment. He maintained that grounds 2 and 3 are competent and did not raise fresh issues. It is counsel’s contention that grounds 2 and 3 were argued under issue 1 and so were not abandoned and, this court is entitled to reframe issue or issues formulated by the parties if it will lead to a more judicious and proper determination of an appeal. The following cases were relied upon in support of the submission: OKORO v. STATE (1988) s NWLR (pt. 94) 255; LATUKDE v. LAJINFIN (1989) 3 NWLR (pt. 108) 177: AWOJUGBAGBE LIGHT INDUSTRIES LTD. v CHINUKWE (1e95) 4 NWLR (pt. 390) 379; UNITY BANK PLC V. BOUARI (2008) 7 NWLR (Pt.1086) 372; NWUKE v U.B.N. PLC (2009) 10 NWLR (pt. 1148) 1.
As regards grounds 4 and 5 learned counsel conceded that these grounds did not emanate from the judgment of the trial court delivered on 31/3/2009. He argued that the court had dealt with the issue in its earlier ruling on the preliminary objection on 31/10/2008 and when the appellants filed their application for extension to file record of appeal it contained a prayer seeking leave to raise issue of jurisdiction which this court granted on 29/9/2010. He said the objection is misconceived and urged this court to discountenance it.
The grounds in the Amended Notice shorn of their particulars read as follows:
1. The learned trial Judge misdirected himself in law when he proceeded to award the reliefs that were claimed in the alternative.
2. The learned trial Judge misdirected himself in law when he awarded special damages without specific proof.
3. The learned trial Judge misdirected himself when he assesses (sic) damages without receiving evidence on the issue.
4. The learned trial Judge erred in law when he found and held that Section 2(b) of the Public Officers (Protection)Act is not applicable to this suit.
5. The learned trial Judge misdirected himself in law when he held that Order 47 Rule 5(6) of the Federal High Court (Civil Procedure) Rules 2000 was complied with by the Applicant.
Learned senior counsel for the Appellants did not dispute the fact that he did not frame any issue from grounds 2 and 3 but contended that the said grounds were argued under issue 1 and this court can reframe the issue if it will lead to a more judicious and proper determination of the appeal.
One view of the law is that argument on appeal not based on issue but ground (s) of appeal is incompetent and must be discountenanced. See ONOWHOSA & ORS. v ODIUZOU & ANOR. (1999) 1 NWLR (Pt. 586) 173 at 183; U.A.C. LTD. v. FASHEYITAN (1998) 11 NWLR (Pt. 573) 179; MACAULAY v NAL MERCHANT BANK (1990) 4 NWLR (Pt. 144) 283 at 421. Another position is that a court can suo motu re-formulate an issue arising from a ground of appeal if the interest of justice demands this. See MUSA SHA (JNR) & ANOR v DA RAP KWAN & 4 ORS (2000) 8 NWLR (Pt. 670) 685; OGBUANYINYA v OKUDO (No. 2) (1990) 4 NWLR (Pt. 146) 51; BANKOLE & ORS. v PELU & ORS (1991) 8 NWLR (Pt.211) 523. As long as the issue re-framed is anchored on the ground or grounds of appeal, the respondent cannot be heard to complain. The court will have authority to do this when the grounds of appeal and argument canvassed permit such a reformulation if the issue formulated by the appellant or respondent appears awkward or not well framed. Since the arguments proffered by learned senior Counsel have gone beyond issue 1 as formulated but encompassed the complaints made in grounds 2 and 3, I shall re-formulate issue 1 as follows:-
“Whether the learned trial Judge was right in awarding the main claim as well as special damages contained in the alternative claim when no evidence was led by the Respondent to prove same'”
The preliminary objection to the hearing of the suit was predicated on the following two grounds:-
a) That the suit is incompetent as presently constituted; and
b) The matter is statute barred thereby robbing the Honourable court of jurisdiction to entertain the claim.
The learned trial Judge delivered his Ruling on the Preliminary Objection on 31/10/2008 dismissing the objection. Grounds 4 and 5 in the amended Notice of Appeal arise from the said Ruling. In the Motion for departure the Appellants asked for leave to raise issues of mixed law and fact and also jurisdiction and the prayers were granted on 29/9/2010. However, there is no appeal against the Ruling of 31/10/2008 as both the original Notice and the Amended Notice complained about the judgment of the Federal High Court which was delivered on 31/3/2009. consequently the Preliminary objection partially succeeds and additional grounds 4 and 5 as well as Issues 2 and 3 are incompetent and are consequently struck out. It is only arguments in respect of Issue 1 as re-framed that this appeal will be centered on.
Mr. Agi, SAN, learned Senior Counsel for the Appellants referred to the Motion on Notice dated 28th March, 2007 and the reliefs contained therein and the judgment of the learned trial Judge at page 150 of the Records and submitted that from the reliefs sought in the motion papers, they are in the alternative. He said the court granted relief
(a) and a part of relief (b) with N10,000.00 cost. He submitted that despite the fact that the Appellants did not file a counter-affidavit, this did not obviate the duty placed on the court to administer justice according to law. The Respondent, he argued, having presented his claim in the alternative was not entitled to the principal claim as well as the alternative relief placing reliance for his submission on the case of G.K.F. INVESTMENT NIG. LTD v. NIGERIA TELE-COMMUNICATIONS PLC (2009) 15 NWLR (pt.1154) 344 at 377. He argued that in awarding special damages, the Plaintiff must lead cogent and credible evidence to the hilt. He further contended that the lumping of special and general damages has further worsened the case of the Respondent. He said relief (a) cannot stand because after respondent defended his thesis on 7/7/2000 numerous errors were noticed and corrected on 1/3/2001 and submitted that no court should encourage the issuance of a tainted certificate to any student as a student must be worthy in character and learning to merit the certificate being issued. He therefore urged this court to hold that the dating of the Respondent’s certificate is proper and strike out the application.
Learned counsel for the Respondent. O. O. Amuzie, Esq. argued that there were three principal reliefs sought in the Motion on Notice dated 281312007. Each relief stood by itself and none was dependent on the other. He said only prayer (a) had an alternative prayer as to the date the said award should be corrected to. He submitted that the lower court was lenient in awarding N5 million as special and general damages against the Appellants since they did not challenge or defend the substantive case. He argued that special and/or general damages can be proved by affidavit evidence. It was urged by learned counsel that this court should discountenance the issue of tainted certificate and non-payment of school fees as there are no facts to support such argument since the appellants had an opportunity to put up a defence but failed to do so. He urged this court to resotve the issue in favour of the respondent.
The reasonable interpretation which one can give to the claim in the Motion on Notice (reproduced at the beginning of this judgment) is that the claim is made in the alternative namely:-
If the court acceded to granting prayer (a) which is to effect the change of date of the award of Doctorate Degree to 7/7/2000 (the day the Respondent successfully defended his Ph. D. Thesis) no monetary compensation should follow. Where however the correction of the date of the certificate takes effect from 1/3/2001, he should be awarded N10,000,000.00 as special and general damages which arose from the conduct of the Respondents that led to the application. The respondent deposed to a 19 paragraph affidavit in support of the Motion on Notice and in paragraphs 15, 10 and 17 of the said affidavit he stated the following facts:
15. That I have already been employed by the Michael Okpara University in anticipation of the proper dating of my Doctorate Degree.
16. That my employers have already threatened to terminate my employment if the Doctorate Degree effective from the time I completed my programme and statement of result issued to me is
not submitted to them. The said letter is Exhibit L.
17. That I am now about to loose (sic) my job if the order sought is not made.”
Exhibit ‘L’ dated 4th July, 2003 emanated from the Office of the Registrar, Michael Okpara University of Agriculture, Umudike was addressed to the Respondent and it reads:
“SUBJECT: COUNCIL DECISION ON STAFF WHO ARE YET TO SUBMIT THEIR CERTIFICATE(S)
At its 28th Statutory meeting held on the 5th and 6th June, 2003, the University Governing Council considered among other things, the report of the Council Committee that reviewed the memorandum of University Staff Certificate Screening Committee and directed as follows:
1. Any staff who has not submitted his/her certificate (s) be given one month from the date of this letter to submit his/her certificate (s).
2. The appointment of any staff who did not comply within the stipulated time be terminated.
In your case you are to present Ph. D (2000) Certificate to the Screening Committee through the Secretary.
You are however given the 21st July to 20th August, 2003 to comply. The Council decision is hereby conveyed to you.
SGD:
REGISTRAR
The purport of an alternative claim is that one remedy is available in place of the other. See EZEKWERE v. GOLDEN GUINEA BREWERY LTD. B (2000) 1 NWLR (Pt. 670) 648 at 656. Where a plaintiff by his pleading seeks damages in respect of a breach of contract or a breach of duty arising from the tort of negligence the claims being in the alternative, the law permits the court to consider only one of the claims and base its damages on it. See G. K. F. INVESTMENT NIG. LTD. v. NIGERIA TELECOMMUNICATIONS PLC. (2009) 13 NWLR (Pt. 1164) 344. 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 claim, that it will consider the alternative claim. See G.K.F. INVESTMENT NIG. LTD. v NITEL PLC supra at page 377.
As already shown the Respondent wanted his certificate backdated to the year 2000 to enable him keep his job at the Michael Okpara University and once the learned trial Judge granted the mandamus compelling the Appellants to effect the change of date in the certificate to 2000, the matter should have ended there. If for any reason e.g. the Respondent lost his job and so wanted to be compensated by way of damages, it will then consider the evidence adduced before proceeding to award damages. The learned trial Judge in considering relief (b) referred to the facts deposed to the affidavit in support of the Motion on Notice, Exhibits ‘AA – BB’ including Exhibits A L and formed the opinion that the Appellants/Respondents particularly the 2nd Appellant/Respondent acted in bad faith with malice as well as in a capricious and oppressive matter and held that the applicant was entitled to general damages for breach of contract and tortious act. And when he was to finally dispose of the case he awarded the sum of N5,000,000.00 representing special and general damages. Unless the learned trial Judge wanted to award exemplary or punitive damages, there is no way he could justify the award of N5,000,000.00 as general damages and probably that is why he changed the award to special and general damages. But the snag there is that the special damages was not proved. There was no claim for exemplary, punitive, vindictive, aggravated damages. Such damages when claimed are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where for instance, it discloses malice, fraud, cruelty, insolence or flagrant disregard of the law. See ELIOCHIN (NIG) LTD. v MBADIWE (1986) 1 NWLR (Pt.14) 47; DARMAN V THE FEDERAL MINISTER OF INTERNAL AFFAIRS (1981) 2 NCLR 459; ODOGU v A-G FEDERATION (1996) 6 NWLR (Pt.456) 508; ALLIED BANK OF NIG. LTD. v AKUBUEZE (1997) 6 NWLR (Pt. 509) 374; ODIBA v MEGE (1998) 9 NWLR (Pt. 566) 370. It is the law that general damages are such as the law will presume to be the direct natural or probable consequence of the act complained of. On the other hand, special damages are such that the law will not infer from the nature of the act. They are exceptional in their character and therefore must be claimed specially and proved strictly. See: DUMEZ (NIG) LTD. v OGBOLI (1972) 1 ALL NLR (Pt.1) 241: ODULAJA v. HADDAD (1973) II SC 357; ACME BUILDERS LTD v KADUNA STATE WATER BOARD (1999) 2 NWLR (Pt. 590) 288; S.P.D.C (NIG) LTD. v TIEGBO VII (2005) 9 NWLR (Pt. 931) 439.
Learned counsel for the Respondent argued that the damages awarded were for injustice and inconvenience. That will make such an award general and not special because injustice and inconvenience cannot be quantified.
Learned senior counsel has argued that the order of Mandamus cannot be made to compel the Appellants to effect the correction of the date of the award of the Doctorate Degree to 7/7/2000 when he successfully defended his ph. D. Thesis because of the corrections the Respondent had to make coupled with the fact that he did not register or pay the school fees and so he was not legitimately a bona fide student of the university. Although the Respondent denied owing any fees but from the documents he attached to the motion papers and particularly his reply to the Registrar’s letter of 7th October, 2003 dated 16th October, 2003, there is a clear indication that he had not paid ail the fees. The letter written to the Vice-Chancellor, University of Calabar reads:
“Dear Sir,
SUBMISSION OF MY Ph.D. RESULT TO THE GRADUTE SCHOOL
Sir, with reference to your letter UC/R.101 of 7th October, 2003, I hereby submit my fee clearance certificate and photocopies of receipt of all the fees I was expected to pay from the beginning of my PH.D. programme (1990/91 Session) to date. As at now, I am not owing any fee again. I have also renewed my registered with the Graduate School and the Department of Economics.
I am grateful to you. Thank you sir.
Yours faithfully,
SGD:
Obasi Oji Ukoha.”
Since he successfully defended the Ph.D. Thesis on 7/7/2000 and effected the necessary correction as recommended by the External Examiner, the effective date of Ph. D. certificate should be 1/3/2001.
The appeal partially succeeds on the award of N5,000,000.00 as special and general damages which is hereby set aside. The Appellants are hereby ordered to effect the date of the Doctorate Degree award on the Respondent to 1/3/2001. There shall be no order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I read before now a copy of the lead judgment by my learned brother, Kumai Bayang Akaahs, JCA. I am also of the firm viewpoint that the appeal partially succeeds with regards to the award of N5 Million as special and general damages made by the lower court. The same is accordingly set aside by me. I also make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother, Kumai Bayang Akaahs, JCA, just delivered. The judgment shows a thorough consideration of the issues raised in the appeal and I abide by the conclusion as to the partial success of the appeal. I also abide by the consequential orders and I make no order as to costs.
Appearances
Joe Agi, SAN with M. ShuaibuFor Appellant
AND
O. O. Amuzie, Esq.For Respondent
