WEMA BANK PLC v. HON. OWOSENI JAMES OLUDARE
(2015)LCN/7927(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of June, 2015
CA/EK/14/2014
RATIO
DAMAGES; GENERAL DAMAGES; WHEN CAN GENERAL DAMAGES BE AWARDED
The established position of the law as regards award of damages has been clearly stated in ENGR. SAMUEL D. YALAJU-AMAYE Vs ASSOCIATED REGISTERED ENGINEERING CONTRACTORS Ltd & ORS (1990) 6 SCNJ 149 @ 172 wherein his Lordship Karibi-Whyte, JSC observed thus: “It is well settled law that general damages is the kind of damages which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstances of a case, in the absence of any yardstick which to assess the award except by presuming the ordinary expectations of a reasonable man. See: LAR STIRLING ASTALDI Ltd (1977) 11/12 SC 53; OMONUWA Vs WAHABI (1974) 4 SC 37. General damages may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded. It arises from inference of the law and need not be proved by evidence. It suffices if it is generally awarded. See INCAR Vs BENSON (1975) 3 SC 117. They are presumed by law to be direct and probable consequence of the action. Unlike special damages, it is generally incapable of substantially exact calculation. See ODULAJA Vs HADAD (1973) 11 SC 351.” per. ADZIRA GANA MSHELIA, J.C.A.
COURT: INTERFERENCE; WHEN CAN AN APPELLATE COURT INTERFERE WITH THE AWARD OF DAMAGES BY A TRAIL COURT
It is well settled principle of law that the award of damages by a trial court can only be upset by an appellate court if that court is satisfied that the trial court acted on wrong principles of law or that the amount awarded by the trial court is extremely high or low. Thus it is not sufficient that appellate court would itself have awarded a different sum if it had been sitting as a court of first instance. See JAMES Vs MID MOTORS (NIGERIA) Ltd (1978) 12 SC 31 and CHIEF WILLIAMS Vs DAILY TIMES of NIGERIA Ltd (1990) LPELR-3487 (SC), (1990) 1 NWLR (Pt.124) 1. per. ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
WEMA BANK PLC – Appellant(s)
AND
HON. OWOSENI JAMES OLUDARE – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Ekiti State High Court, Ise-Ekiti Judicial Division, delivered on 28th June, 2013 in Suit No: HIS/2/2012.
The respondent herein, as claimant, commenced the action against the appellant by filing a writ of summons on 14th day of March, 2012 claiming for:
(a) A declaration that the defendant, its staff, servants and agents, etc, breached the duty of secrecy of accounts and fiduciary relations which it owed to the claimant when the defendant, its officers, staff and agents negligently, carelessly, fraudulently, criminally, unethically, and without authorization by the claimant, tampered with the claimant’s Current Account with number 1741181834818 and Salary Account with number 17481894812 by making withdrawals, payments, transactions and granting loans with the aforesaid accounts without the claimant’s prior knowledge and authorization whatsoever.
(b) A declaration that the acts and actions of the defendants, its staff, servants and agents, etc. on 3rd of August, 2011 by putting, inscripting and writing the following words “FOR SALE, CONTACT WEMA BANK PLC”, “SEALED OFF” on the claimant’s premises (office) at 38, Ayetoro Street, Ise-Ekiti, Ekiti State without an order of court of law violates the claimant’s constitutional rights and has thus lowered his estimation, integrity and reputation in the society.
(c) Ten Million Naira (N10,000,000:00) only being general damages for the defendant’s breach of duty of secrecy and fiduciary relations owed by the defendant to the claimant and for the embarrassment, ridicules and humiliations which the defendant suffered as a result of the aforesaid words which were written on his premises (office) by the defendant and its members of staff, servants and agents who were acting on the defendant’s instruction and directives.
(d) A perpetual injunctive order restraining the defendant either by itself, agents, assigns, staff, servants, etc or whosoever from committing or further committing any of the aforesaid illegal acts on the claimant and or on his premises (officers).
The Respondent, as claimant, sought and obtained leave of court to issue and serve the court processes on the appellant outside jurisdiction. The appellant upon receipt of the Writ of Summons, Statement of Claim and front loaded court processes, entered appearance by filing his memorandum of appearance, Statement of Defence and counter-claim and front loaded processes on 12th November, 2012. The reliefs sought as per the counter-claim read:-
(a) That sum of N249,205:08 as at 14th February, 2011.
(b) Interest rate of 22% per annum on the said amount from 15th February, 2011 until Judgment and thereafter at the rate of 10% per annum until final liquidation of the debt.
Respondent filed his reply to the statement of Defence and defence to the counter-claim after obtaining leave of court to file same out of time on 11th December, 2011. The Appellant’s reply to Defence to counter-claim was filed on 16th January, 2013.
Briefly put, the case of the claimant (Respondent) is that as customer of the Appellant, he operates/maintains Salary Account with No:17481894812 and Current Account with No:1741181834812 with the appellant, Ise-Ekiti branch. In 2009, he applied for and secured N1,000,000:00 (One Million Naira) overdraft facility from the appellant’s Ise-Ekiti branch. The agreement he had with the appellant as regards mode of repayment was that appellant would make monthly deductions from his Salary Account with its branch at Ise-Ekiti until the said loan debt was fully liquidated and paid. The appellant breached the duty of secrecy of accounts and fiduciary relations which appellant owed to him when the appellant fraudulently, without authorization, tampered with his Current Account by making withdrawals without his prior knowledge. He said the appellant violated his constitutional rights and thus lowered his estimation, integrity and reputation in the society when its agent/staff put in script and wrote the words “FOR SALE CONTACT WEMA BANK PLC” on his (Claimant’s) premises at No. 38 Ayetoro Street, Ise-Ekiti.
The case of the defendant (appellant) is that it granted the Respondent an overdraft facility of N1,000,000:00 (One Million Naira) upon his request. The respondent through a letter of pledge/commitment duly executed in favour of the appellant authorized the appellant to make direct deductions from the respondent’s current account with the appellant. The appellant in line with the letter of commitment, made withdrawals from the respondent’s account in settlement of his overdraft debt. The respondent made use of the overdraft facility but made no consistent repayment despite demand upon loss of his job as Councilor such that the respondent has debit balance of N249,205:08 as at 4th February, 2011.
At the trial, claimant testified and called three witnesses. While one witness testified for the defendant as DW1. The learned trial Judge evaluated the evidence adduced before the court, entered Judgment in favour of the respondent and granted his claims as follows:-
“1. A declaration is hereby made that the defendant has breached the contractual/fiduciary duty and obligation which it owes the claimant as his banker by its employee’s or staffers’ tampering with the claimant’s Current Account number 1741181834818 and loan account number 17481894812 by making withdrawals from, payments into, granting unsolicited loans and effecting sundry transactions on the said accounts without the knowledge and authorization of the claimant.
2. It is further declared that the act or action of the defendant through its staffers and employees, on 3rd August, 2011 in putting the inscriptions and writing the words “FOR SALE, CONTACT WEMA BANK PLC” on the Claimant’s office premises at 38, Ayetoro Street, Ise-Ekiti without an order of Court, violates the constitutional rights of the claimant and has thus lowered his estimation, integrity and reputation in the society.
3. The defendant shall pay a sum of N2,000,000:00 (Two Million Naira) as general damages to the claimant in atonement for its wrongs against the claimant and his property complained of in this suit.
4. An order of perpetual injunction is hereby made restraining the defendant either by itself, its agents, assigns, staffers or servants from further committing any of the illegal acts complained of in this suit against the claimant or his office premises.
5. The counter-claim of the defendant is hereby dismissed for want of proof.”
Dissatisfied with this Judgment, appellant lodged an appeal to this court vide his Notice and Grounds of Appeal dated 12th August, 2013 and filed on 17th January, 2014, containing two grounds of appeal. The grounds are hereunder reproduced thus:-
GROUND OF APPEAL:
(i) The learned trial Judge erred in law when he held that:
“I, in the light of the foregoing, arrive at a conclusion that a sum of N2,000,000:00 (Two Million Naira) general damages in atonement for the evident wrongs of the defendant against the claimant will meet the Justice of the circumstances of this matter and this takes care of the relief in paragraph 34(c) of the statement of claim.”
PARTICULARS OF ERROR:
The learned trial Judge in his earlier finding on page 30 paragraph 2 of the Judgment held “The defendant, aside breaching the fundamental rules governing the basis of its banker/customer relationship with the claimant, assumed the height of arrogance and took laws into its hands though the trespass occasioned thereby did not result in any proven damage or loss.”
(a) It is trite law that Award of damages for trespass where no actual loss or damage is proved must only be nominal.
(b) The Respondent did not prove any damage or loss arising from the appellant trespass therefore only entitled to nominal damages.
(c) The award of N2,000,000.00 (Two Million Naira) general damages against the appellant is totally excessive.
(d) N2,000,000.00 (Two Million Naira) general damages is not nominal.
(ii) The Judgment is against the weight of evidence.
In compliance with the practice of this court, parties exchanged their respective briefs of argument. At the hearing of the appeal, the appellant’s brief of argument dated and filed on 20th October, 2014, same settled by Funso Netufo, Esq, was adopted by same counsel. The Respondent’s Brief of Argument settled by Sunday J. Ochayi, Esq., was deemed properly filed on 23rd March, 2015 and same adopted by counsel.
The lone issue formulated for determination by the appellant read thus:-
“Whether in the light of the learned trial Judge finding that the trespass occasioned by the appellant’s conduct did not result in any damage or loss to the respondent, the award of N2,000,000.00 (Two Million Naira) general damages is not excessive.”
The Respondent on the other hand adopted the lone issue formulated by the appellant as reproduced supra. I do not find it necessary to reproduce it again.
While arguing the lone issue submitted for determination, learned counsel for the appellant contended that the said issue centers on whether, in the light of the learned trial Judge finding that the trespass occasioned by the appellant’s conduct did not result to any damage or loss to the respondent, the award, N2,000,000.00 (Two Million Naira) general damages, is not excessive. Counsel referred to the finding of the learned trial Judge appearing at page 158 of the record. The finding read:-
“The defendant aside breaching the rules governing the basis of its banker/customer relationship with the claimant, assumed the height of arrogance and took laws into his hands though the trespass occasioned thereby did not result in any proven damage or loss.”
It is the contention of learned counsel that the trial court found as a fact that the trespass occasioned thereby did not result in any proven damages or loss. In other words, the respondent did not prove that he suffered any damages or loss therefrom. Counsel submitted that it is trite that a plaintiff/claimant is only entitled to nominal damages for trespass where no damage or loss is caused but where a damage or loss is caused, a claimant is entitled to recover same as damages based on the general principle for award of damages. Reliance was placed on SPRING BANK PLC Vs ADEKUNLE (2011) AFWLR (Pt. 601) 145 @ 1472 PARAS A-C and ELIOCHIM (NIG) LTD Vs MBADIWE (1986) NSCC at 42. That the learned trial Judge cited ELIOCHIM (Nig.) LTD Vs MBADIWE (SUPRA) and restated the principle that the plaintiff is only entitled to nominal damages for trespass where no damage or loss is caused. According to counsel, despite the bold and courageous finding of fact that trespass did not result to any proven damage or loss to the respondent and therefore entitled to nominal damages went ahead to award a whopping sum of Two Million Naira (N2,000,000:00) in favour of the respondent which sum is excessive. He referred to definition of nominal damages as defined by Black’s Law Dictionary (2nd Edition). According to learned counsel, since the learned trial Judge found as a fact that the respondent did not prove any damage or loss arising from the appellant’s trespass, the award of a whopping sum of Two Million Naira (N2,000,000:00) is inconsistent with the finding and not in accordance with the principle of law that the damages must only be nominal. That no evidence was adduced by the respondent to show that he suffered any damage or loss on account of the appellant’s trespass. He said respondent’s statement of account, that is, current account admitted as Exhibit P7 showed that respondent is indebted to the sum of Eighteen Thousand Nine Hundred and Seventy-five Naira Ninety-five Kobo (N18,975.95).
Learned counsel posed a question: whether an appellate court has the vires to review the award of damages where it found it excessive? In answer, counsel contended that it is a well grounded principle of law that an appellate court will review an award of damages downwards where its finds it excessive or not in accordance with the principle of law. For this proposition, he relied on AJAGBADE Vs IDOWU (2011) AFWLR (Pt.90) 1235 @ 1254 PARAS G-H; STIRLING CIVIL ENGINEERING (Nig.) Ltd Vs YAHAYA (2005) AFWLR (Pt.2263) 628; OTARU & SONS Ltd Vs IDRIS (1999) 6 NWLR (Pt. 606) at 630 and JARMAKUN TRANSPORT Ltd Vs ABEKE (1963) 1 ALL NLR 180. Counsel submitted that in the exercise of this discretion, this court in SPRING BANK PLC Vs ADEKUNLE (Supra) review the trial court award at page 1472 of the judgment and held that the award of Two Million Naira (N2Million) is excessive and substituted an award of Two Hundred Thousand Naira (N200,000:00). He contended that this is a typical case in which an appellate court will review an award of damages downward for being excessive and not in accordance with the principle of law. He urged the court to so hold.
In response, learned counsel for the respondent submitted that respondent’s claims before the Lower Court are for declarations, general damages of Ten Million Naira (N10,000,000:00) only against the appellant and perpetual injunction. That the learned trial Judge found that respondent (claimant) has established a breach of the contractual and fiduciary relationship it has with the appellant (defendant), he is no doubt entitled to damages. He referred to the finding of the learned trial Judge at page 183 of the record wherein he said:
“Against the background of the foregoing, I entertain no doubt that the claimant is entitled to general damages—“.
Learned counsel referred to the definition of nominal damages as contained in BLACK’S LAW DICTIONARY, EIGHT EDITION by BRYAN A. GARDNER 2004 at PAGE 418. Learned counsel relied on UNIVERSITY of CALABAR Vs OJI (2012) 3 NWLR (Pt.1288) 418 @ 413-432 PARAS G-A; ELIOCHIN NIG. LTD. Vs MBADIWE (1986) 1 NWLR (Pt.14) 47; ALLIED BANK OF NIG. LTD. Vs AKUBUEZE (1997) 6 NWLR (Pt.509) 375 and ODIBA Vs EZEGE (1998) 9 NWLR (Pt.566) 370, to buttress his point that there was no claim for exemplary damages by the respondent, as such the award of nominal damages does not arise in this appeal. That a court will not grant to a party, a relief not sought. According to counsel, the crux of appellant’s case is that this court should interfere with the award by awarding a lesser amount. That, it is settled law that the award of damages is at the discretion of the trial court and the appellate court will not ordinarily interfere with an award of damages made by trial court except where certain conditions exists. The case of BETA GLASS Plc Vs EPACO HOLDINGS Ltd (2011) 4 NWLR (Pt.1237) P. 223 @ 249-250 PARAS C-E was cited in aid. See also A.S.E.S.A Vs EKWUEME (2009) 13 NWLR (Pt.1158) P. 410; JOHNSON WAX (Nig.) Ltd Vs SANNI (2010) (Pt.1181) 235 at 251-252 PARAS G-C and TARIBO Vs MAI-WAKA (2010) (Pt.1176) 468 at 491 PARAS E-G. That the award of general damages by the trial court in this appeal was based on assessment for breach of contract, trespass and lowered integrity and estimation, (tort). See also IJEBU ODE L.G Vs ADEDEJI BALOGUN & CO. Ltd (1991) 1 NWLR (Pt.166) 136.
Learned counsel further contended that in the case at hand, appellant has not alleged any of the grounds as enunciated in the case of BETA GLASS Plc Vs EPACO (Supra); to justify a reversal of the award of general damages of Two Million (N2,000,000:00) Naira only awarded to the Respondent. He said general damages awarded by the learned trial Judge was for breach of contract in respect of the Banker/Customer relationship, trespass and tort and for conduct which has lowered the integrity and estimation of the respondent as the former number three person in the Ise/Orun Legislative House and a Civil and Building Engineer. According to counsel, in an assessment of general damages, the courts are enjoined to bear in mind galloping inflation and consistent depreciation of the value of the Naira which is obvious to all. The case of IGHRERINOVO Vs S.C.C (NIG.) LTD (2013) 10 NWLR (Pt.1361) 138 @ 154 PARAS B-C was cited in aid. That the cases of SPRING BANK Plc Vs ADEKUNLE (SUPRA) and ELIOCHIM (NIG.) LTD Vs MBADIWE (SUPRA) heavily relied upon by the appellant are not applicable to this appeal. That the facts of both cases are distinguishable from the facts of the subject matter of this appeal. He urged the court to uphold the judgment of the trial court and dismiss the appeal.
An appeal from an award of damages made by a Judge is by way of rehearing and the Court of Appeal may reduce or increase the damages awarded.
The crux of appellant’s case is that this court should interfere with the damages awarded by the trial court by reducing same. In other words, the complaint of the appellant in this appeal is only limited to the award made. It is apparent that appellant is not challenging any other finding made by the trial court. The law is now clearly settled that, where a trial court makes a specific finding on fact and such finding of facts is not appealed against by any of the parties, such finding of fact shall be deemed admitted and undisputed. See DABUP Vs KOLO (1993) 9 NWLR (PT. 317) 269, ZAKARI Vs ALHASSAN (2002) 14 NWLR (PT. 798) 52 at 73, OLAREWAJU Vs THE GOVERNOR OF OYO STATE & ORS (1992) 11-12 SCNJ 92 and C.C.C.T.C.S. LTD Vs EKPO (2008) 6 NWLR (PT. 1083) 362 at 388 PARAS E-F. The issue under consideration is whether in the light of the learned trial Judge’s finding that the trespass occasioned by the appellant’s conduct did not result to any damages or loss to the respondent, the award of Two Million Naira (N2,000,000:00) general damages is not excessive. The finding complained of is at page 158 of the record which read thus:-
“The defendant aside breaching the rules governing the basis of its banker/customer relationship with the claimant, assumed the height of arrogance and took laws into his hands through the trespass occasioned thereby did not result in any proven damage or loss.”
The argument presented by appellant’s counsel is that since respondent did not prove that he suffered any damage or loss therefrom, he is only entitled to nominal damages.
The respondent’s claims before the Lower Court are for declarations, general damages of Ten Million Naira (N10,000,000:00) only against the appellant and perpetual injunction. The evidence of the claimant, PW1, was to the effect that since the offensive words complained of was written on his office premises on 3rd August, 2011, he has suffered serious embarrassment, ridicule, public odium and loss of reputation, business fortunes and political patronage as his friends, political and business associates now look down on him as a bankrupt, recalcitrant debtor and irresponsible man with the result that they now avoid him. PW2 and PW3 testified in support of his claim. The defence put forward by the appellant to demolish his character was rejected by the trial court. It is clear from the record that defendant admitted that the inscription complained of was a subtle recovery strategy adopted to “force” the claimant to pay after several letters of demand without reply. The admission is contained in Paragraph 13 of the statement of defence and the oral testimony of DW1. The learned trial Judge considered this conduct as self-help. The learned trial Judge made a finding to the effect that the conduct of the defendant, acting through its employees, agents and servants in writing those offensive words offering the claimant’s office building at 38, Ayetoro Street, Ise-Ekiti for sale, also constitutes trespass to the claimant’s property and violates his constitutional right to quietly enjoy same. The trial court held that the claimant has proved the facts that will entitle him to relief number (b) in paragraph 34 of the Plaintiff’s statement of claim.
While assessing the damages, the learned trial Judge had this to say:-
“Having held in the foregoing that the claimant has established a breach of the contractual and fiduciary relations it has with the claimant, he is, no doubt entitled to damages therefore. See: U.B.A Vs EVE-GYMINIRAL RESOURCES LTD (Supra). Damages would naturally flow from the defendant’s act of trespass without proof of any special damage. The law presumed it to flow from the type of wrong complained of. Trespass is actionable per se. See: INYANG Vs EKPE (2001) ALL FWLR (PT.556) 564 at 589-890 Paragraphs H-D. See also ELIOCHIM (NIG) LTD Vs MBADIWE (1986) NSCC 42. However, the plaintiff is only entitled to nominal damages for trespass where no damages or loss is caused but where damage or loss is caused, the claimant will be entitled to recover same as damages based on general principle for the award of damages. In self-help cases, the conduct of parties will influence the award of damages. See Obaseki, J.S.C. at page 110 in C.D.C. (NIG) LTD Vs SCOA (NIG) LTD (SUPRA). Libel as a form of defamation is also actionable per se being one that is in a written and permanent form without proof of damages. See: ADEOSUN Vs AFOLABI (SUPRA) @ 601 PARAGRAPH G. A Judge in awarding damages should not be carried away; in fact he must not allow his mind to be affected by any high sounding figure of money claimed. He must look at the whole case dispassionately and let his award be a proper and sober assessment of the entire case. The measure of damages in an action against a banker for a breach of banker/customer relations will depend on the status of the claimant/customer. See: ACCESS BANK PLC Vs M. E.C.C.S. (SUPRA) at 321 Paras B-D.
I have carefully considered all the aforementioned principles and their application to this case at hand. The claimant is a politician, a onetime majority leader in Ise/Orun Local Government Council. He is also a Building and Civil Engineer who has proved loss of reputation and esteem among his business and political associates, who now hold him in public odium in consequence of the unlawful acts or actions of the defendant herein. The conduct of the defendant herein is no doubt barbaric, reprehensible and falls short of the minimum standard set by the modern day civilization and observance of the rule of law. Upon the receipt of Exhibit “P3″, the defendant rebutted same rather than apologize by which reason the wrong done the claimant would have been mitigated. The defendant, aside breaching the fundamental rules governing the basis of its banker/customer relationship with the claimant, assumed the height of arrogance and took laws into its hands though the trespass occasioned thereby did not result in any proven damage or loss. Against the background of the foregoing, I entertain no doubt that the claimant is entitled to general damages”.
The finding of the learned trial Judge is clear and unambiguous. He found as a fact that respondent was entitled to general damages. The established position of the law as regards award of damages has been clearly stated in ENGR. SAMUEL D. YALAJU-AMAYE Vs ASSOCIATED REGISTERED ENGINEERING CONTRACTORS Ltd & ORS (1990) 6 SCNJ 149 @ 172 wherein his Lordship Karibi-Whyte, JSC observed thus:
“It is well settled law that general damages is the kind of damages which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstances of a case, in the absence of any yardstick which to assess the award except by presuming the ordinary expectations of a reasonable man. See: LAR STIRLING ASTALDI Ltd (1977) 11/12 SC 53; OMONUWA Vs WAHABI (1974) 4 SC 37. General damages may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded. It arises from inference of the law and need not be proved by evidence. It suffices if it is generally awarded. See INCAR Vs BENSON (1975) 3 SC 117. They are presumed by law to be direct and probable consequence of the action. Unlike special damages, it is generally incapable of substantially exact calculation. See ODULAJA Vs HADAD (1973) 11 SC 351.”
It is well settled principle of law that the award of damages by a trial court can only be upset by an appellate court if that court is satisfied that the trial court acted on wrong principles of law or that the amount awarded by the trial court is extremely high or low. Thus it is not sufficient that appellate court would itself have awarded a different sum if it had been sitting as a court of first instance. See JAMES Vs MID MOTORS (NIGERIA) Ltd (1978) 12 SC 31 and CHIEF WILLIAMS Vs DAILY TIMES of NIGERIA Ltd (1990) LPELR-3487 (SC), (1990) 1 NWLR (Pt.124) 1.
In order to justify reversing the decision of a trial court on the question of the amount of damages, it will generally be necessary that the appellate court be convinced either that:
(a) The court acted upon some wrong principle of law or under a mistake of law.
(b) The award is arbitrary or perverse.
(c) There has been an element of wrong exercise of discretion in the award.
(d) Injustice would result if the appeal court does not interfere.
(e) The amount awarded by the court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of damages.
See: ERO Vs TINUBU (2012) 8 NWLR (Pt.1301) 132-133 E-B and A.S.F.S.A. Vs EKWENEM (2009) 13 NWLR (Pt.1158) 410.
The assessment of damages is within the discretion of the learned trial Judge who is expected to take into account all the circumstances of the case including the conduct of the appellant. In the instant case, in awarding the sum of Two Million (N2,000,000.00) Naira as general damages, the trial court took into consideration all the circumstances of the case. The award was for breach of contract in respect of banker/customer relationship, trespass, and for conduct which has lowered the integrity and estimation of the respondent as the former number three person in the Ise/Orun Legislature House and a Civil and Building Engineer. The conduct of the appellant leaves much to be desired. The appellant used self-help by acting through its employees as agents and servants to writing the offensive words offering the claimant’s office building at No. 38, Ayetoro Street, Ise-Ekiti for sale. Due process was not followed. There is no dispute as to the fact respondent did not adduce evidence to prove that the trespass resulted into damage or loss. In other words, there is no evidence of proven damage or loss. I do not however, agree with learned counsel for the appellant that respondent is only entitled to nominal damages. I have read the case of SPRING BANK PLC Vs ADEKUNLE (Supra) relied upon by appellant’s counsel. In that case, the general damages were awarded for the illegal removal and detention of the items on Exhibit P5 by the appellant which belonged to the respondent. Whereas in the case at hand, the award made was based on combination of factors. The facts and circumstances are therefore distinguishable from Spring Bank’s case. The law is trite that in the award of damages, the courts are endowed with an unfettered discretion to keep up with the times and economic trend in the country and most especially with the prevailing fluctuating and rather obvious decline of purchasing power of the Nigerian currency, that is, Naira. See: ONWU Vs NKA (1996) 7 NWLR (Pt.458) 1 at 19 and KALU Vs MBUKO (1988) 3 NWLR (Pt.80) 86. The learned Judge rightly took into consideration, the value of the Naira and the rate of inflation in assessing the damages. Guided by relevant and applicable authorities and from all that has been said, I am of the firm view that the learned trial Judge’s award of Two Million (N2,000,000.00) Naira cannot be said to be excessive or high having regard to the circumstances of the case. The learned trial Judge applied the right principles of law in arriving at the amount awarded as damages, which I consider reasonable in the circumstances of this case. Appellant has failed to substantiate his complaint. There is no justifiable reason for this court to interfere with the award made by the trial court. I hereby affirm the award. The sole issue is therefore resolved against the appellant.
In the result, I hold that this appeal is devoid of merit and same fails. Appeal is accordingly dismissed. The Judgment of Ogundana, J. of the High Court of Ekiti State, Ise-Ekiti Judicial Division, delivered on 28th June, 2013 in suit No. HIS/2/2012 is hereby affirmed. Parties to bear their own costs.
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, ADZIRA GANA MSHELIA, J.C.A. and I entirely agree with the lucid reasoning contained therein and the conclusion arrived thereat.
My learned brother, has carefully treated all the issues canvassed in the appeal in such an admirable manner, that I have nothing useful to add to the well researched judgment.
I adopt the reasons and the conclusion arrived at, by my learned brother as mine in reaching a conclusion that the appeal lacks merit. I also dismiss the appeal. The judgment of Ogundana J, of the High Court of Ekiti State, Ise-Ekiti Judicial Division delivered on 28th June, 2013 in Suit No: HIS/2/2012 is hereby affirmed. I abide the order made as to costs in the lead judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my Lord Adzira Gana Mshelia J.C.A. I completely agree with it and hereby adopt the reasoning and conclusions therein contained.
I also share my Lord’s view that the appeal lacks merit and should be dismissed but parties bear their costs.
Appearances
Funso NetufoFor Appellant
AND
S.J. Ochayi with Ogunremi Opeyemi, Esq., R. O. Ayeni (Miss) and E. E. IsehFor Respondent
