LawCare Nigeria

Nigeria Legal Information & Law Reports

ZENITH BANK v. OKEKE (2020)

ZENITH BANK v. OKEKE

(2020)LCN/15835(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/AW/487/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

ZENITH BANK PLC APPELANT(S)

And

IWUCHUKWU OKEKE (Trading Under The Name And Style Okeke P.C Stores With NBC Ltd) RESPONDENT(S)

 

RATIO:

WHETHER FACTS ADMITTED NEED NO FURTHER PROOF

The law is settled that facts admitted need no further proof – Section 123 of the Evidence Act 2011 is an attestation to that principle of law, for as long as the Defendant admits these facts, the Plaintiff is relieved of the onus of further establishing the truth or otherwise of such admitted facts.
The party who admits a fact is barred from suggesting a renunciation of facts admitted by him. RITA NOSAKHARE PEMU, J.C.A. 

POITION OF LAW WHERE PARTIES AGREE ON SOME FACTS OF THEIR PLEADINGS

Where parties agree on some facts in their pleadings, decidedly there is no issue in dispute between them on such agreed matters – BUNGE V GOV. RIVERS STATE & ORS (2006) LPELR 816(SC). RITA NOSAKHARE PEMU, J.C.A. 

THE CONCEPT OF LOCUS STANDI

The concept of locus standi denotes legal capacity to maintain an action in a Court of law -MUSTAPHA V C.A.C 2019 10 NWLR. Part 1680 Page 355@ 366. RITA NOSAKHARE PEMU, J.C.A. 

POSITION OF LAW WHERE A DEFENDANT ADMITS A FACT IN DISPUTE BY HIS PLEADINGS

When a defendant admits a fact in dispute by his pleadings, that fact is taken as established, and forms one of the agreed facts in the case – BRITISH INDIA GENERAL INSURANCE CO NIG. LTD V THARWADAS 1978 3. S.C. 143.
In MOZIE & ORS V MBAMALU & ORS, (2006) LPELR – 1922 (SC), it was held inter alia that the law is elementary, that matters admitted in pleadings, need no further proof. AYOKE V BELLO 1992 10 NWLR (pt. 218) Page 380. RITA NOSAKHARE PEMU, J.C.A. 

DUTY OF COURT TO CONSIDER WHETHER A PARTY POSSESSES THE REQUISITE LOCUS STANDI

In considering whether a party possesses the requisite locus standi, it is the duty of the Courts, at that premise to view the Statement of Claim ADESANYA V PRESIDENT (1981) LPELR – 147 (SC); ADETONO & ANOR V ZENITH INTL BANK PLC (2011) LPELR – 8237 (SC). RITA NOSAKHARE PEMU, J.C.A. 

WHETHER LEAVE OF COURT IS A CONDITION PRECEDENT

In STATOIL (NIG) LTD V INDUCON (NIG) LTD & ANOR (2018) LPELR – 44387 (SC), it was held that the need for leave of Court where fresh issues are raised by a party to a suit, is a condition precedent. RITA NOSAKHARE PEMU, J.C.A.

POSITION OF LAW ON AWARD OF DAMAGES

In matters which smacks of contractual relationship, the maxim Restitutio in interqram applies. In other words, an award of damages is meant to restore the injured party to the position he or she was, prior to the injury. RITA NOSAKHARE PEMU, J.C.A. 

GENERAL DAMAGES AND SPECIAL DAMAGES

Decidedly, general damages is one such as the law presumes to be natural or probable consequence of the defendant’s act and does not need to be pleaded. This is because, this head of damages arises by inference of law and need not be strictly proved by evidence.
However, it may be averred generally. On the other hand, special damages is such loss as the law will not presume to be the consequence of the defendants’ act but which depends in part, on the special circumstances of the case. It must be specifically pleaded and strictly proved. – BRITISH AIRWAYS V ATOYEBI (2014)13 NWLR (Part 1424) Page 253 @ 303. RITA NOSAKHARE PEMU, J.C.A. 

PRINCIPLE OF ON AWARD OF DAMAGES

An award of damages is within the discretionary powers of the Court but that discretion must be exercised not only judicially, but judiciously. Thus an appellate Court would not usually interfere with a previous award unless satisfied that
(a) The trial Court acted under a mistake of law or
(b) The Trial Court acted in disregard of some principles of law, or
(c) The Trial Court acted under a misapprehension of facts or
(d) The Trial Court took into account irrelevant matters or failed to take into account relevant matters or
(e) Injustice would result if the appellate Court does not interfere or
(f) The amount awarded is either ridiculously low or ridiculously high, that it must have been a wholly erroneous estimate of the damage. RITA NOSAKHARE PEMU, J.C.A. 

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Anambra State holden in Onitsha in Suit No. O/103/2017, delivered on the 30th of April, 2018.

In the said judgment, the Plaintiff (Respondent in this Appeal) was adjudged winner and judgment was given in his favour accordingly.

SYNOPSIS OF THE FACTS
The facts leading to this appeal is that the Respondent who claimed against the Appellant in the Court below, lodged the sum of N550,000 into the account of the Nigerian Bottling Company, which is domiciled in the Appellants bank, on the 1st of March, 2017.

The Appellant however detained the money for ten days before remitting same to the Nigerian Bottling Company (the beneficiary). The Appellant maintained that he had paid the money into an account number 1040133200 belonging to the Nigerian Bottling Company on the same March 1st, 2017 as evidenced by a transaction receipt issued to the Plaintiff. There was network problems and this did not enable credit-alert to the beneficiary timeously.

​As a result of this, the Respondent sued the Appellant seeking the following reliefs;

a) N5,000,000 (Five Million Naira) for unlawful and illegal detention of the Plaintiff’s sum of N550,000 (Five Hundred and Fifty Thousand Naira) for 10 (ten days) specifically from March 2017 till 10th March, 2017.
b) N10,000.000(Ten Million Naira) being general damages for reputational and business damage caused to the Plaintiff by the Defendant.
c) 25% interest per annum (or prevailing CBN interest rate) of the judgment sum from date of delivery of judgment until final liquidation of the judgment debt.

The Appellant is dissatisfied with the judgment and has appealed same. Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 7th of May, 2018. His brief of Argument was filed on the 14th of August, 2018. It is settled by F.C Moneke Esq.

The Respondent filed his brief of argument on the 25th of October, 2018. It is settled by C.J. Okeke Esq.
On the 7th of November 2018, the Appellant filed a reply brief of argument.
The parties adopted their respective briefs of argument on the 8th of June 2020.

The Appellant distilled three (3) issues for determination from the Notice and Grounds of Appeal which are:
WHETHER THE LEARNED TRIAL COURT WAS CORRECT IN HOLDING THAT THE RESPONDENT HAD LOCUS STANDI TO MAINTAIN THE ACTION, THUS VESTING THE TRIAL COURT WITH THE JURISDICTION TO HEAR AND DETERMINE SAME
2. WHETHER THE LEARNED TRIAL COURT WAS CORRECT IN FINDING THAT THE RESPONDENT PROVED ITS CASE ON A PREPONDERANCE OF EVIDENCE TO BE ENTITLED TO JUDGMENT
3. WHETHER THE HEADS OF DAMAGES AWARDED BY THE LEARNED TRIAL COURT ARE SUPPORTED BY ANY KNOWN PRINCIPLE OF LAW OR BY A JUDICIOUS EXERCISE OF COURT’S DISCRETION.

On his part, the Respondent distilled two issues for determination viz:
a) CONSIDERING THE STATE OF PLEADINGS AND EVIDENCE LED AT TRIAL, DID THE RESPONDENT POSSESS THE REQUISITE LOCUS STANDI TO MAINTAIN HIS ACTION?
b) WHETHER THE RESPONDENT PROVED HIS CASE AS TO MERIT THE JUDGMENT OF THE TRIAL COURT INCLUDING THE TOTAL JUDGMENT SUM AWARDED IN HIS FAVOUR?

I shall consider this Appeal based on the Appellant’s issues for determination as the Respondent’s issues for determination seem to me an adoption of the Appellant’s issues for determination.
ISSUE NO.1
It is the Appellant’s argument that the Respondent had admitted that he is not the original owner of the business name “Okeke P.C. Stores”. That when questioned under cross-examination as PW1, if he owned “Okeke P.C. Stores”, he replied that the Company belongs to his late mother who handed it over to him.

Submits that the Respondent had no locus standi to sue. That the Respondent proffered no evidence that he notified the Register of Business Names of Changes in particulars of the proprietorship of the business owing to the death of the original owner of the Company under Section 577 (1) of the Companies and Allied Matters Act 1990 (CAMA), and failure to do this, deprived him of any right arising from any contract in relation to the business, and divest him of the capacity to maintain an action, or other legal proceedings in that business name or otherwise.

Submits that given the death of the original owner, the firm had ceased to carry on business and the implication is that the Respondent could not competently maintain an action in respect of a contract entered into in the name of a moribund business name.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Submits that locus standi is a jurisdictional issue, and where a person has no locus standi to sue, the Court has no jurisdiction to entertain the suit.

CITING AG FEDERATION V A.G LAGOS STATE (2017) 8 NWLR. Pt 1566 Page 20, he submits that the Apex Court had held that when a party’s standing to sue is in issue, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue, and not whether the issue itself is justiciable.
That the matter here is whether the Respondent had a right to sue.
He submits that the Respondent had no locus standi to institute the action at the Court below.

ISSUE NO 2
The Appellant submits that the Respondent’s case was based on the tort of detinue. That the Respondent did not prove on a preponderance of evidence or balance of probability that the Appellant unlawfully detained his money.
He submits that he who avers must prove by compelling evidence – CHAIRMAN EFCC V LITTLE CHILD (2016)3 NWLR (pt 1498) 72 @ 95; OMOTOSHO V OJO (2008). All FWLR (pt 408)389.

That the Respondent was given an E-bill receipt of payment by the Appellant (Exhibit A), which stated clearly on its face that the transaction was successful.

Therefore, the Appellant successfully carried out its own side of the bargain by complying with the Respondent’s instruction to credit a particular account.

That admission that network glitch delayed a concluded banking credit transaction from immediately reflecting on a beneficiary’s account or delayed the credit alert from getting to the beneficiary is certainly not an admission that the bank detained the money or refused to credit the beneficiary’s account, which was the claim of the Respondent in the case leading to this appeal.
He submits that admission is always conclusive proof of an issue – Section 27 of the Evidence Act 2011 (as amended).

He submits that the Respondent testified that he paid money into NBC account, for which the Appellant gave him receipt that the account of the beneficiary had been successfully credited. That Exhibit A shows that the Appellant did not issue a receipt of successful crediting of the NBC account, but that he collected the Respondent’s money with a promise or undertaking to credit the account subsequently, but made default in so doing. If that is so, he submits, the action of the Respondent for detaining of his money could merit some credence.

Submits that the status of “bank customer” is not predicated solely on maintaining an account with the bank.

That in the instant case, assuming the Respondent does not maintain an account with the Appellant, the very fact of paying money into the Appellant’s bank to be credited to the account of NBC, qualified the Respondent as a customer of the Appellant.
Submits that the relationship between the parties is purely based on contract.

ISSUE NO 3
The Appellant submits that the two heads of damages awarded by the Court below, and the quantum thereof as assessed by the trial Court are not supported by any known legal principle. Neither is same a judicious exercise of the trial Court’s discretion.
He submits that the Respondent claimed two heads of damages.

It is his contention that assuming the first head of damages was for special damages, same has not been strictly established. Neither did he plead it.

RESOLUTION OF ISSUES
In resolving issue No. 1, it is pertinent to take a painstaking perusal of the pleadings of the parties. Noteworthy is Paragraph 1 of Respondent’s Statement of claim (Plaintiff in the Court below) and Paragraph 1 of the Appellant’s statement of Defence.

I shall reproduce these paragraphs verbatim viz:
PARAGRAPH 1 of Statement of Claim
“The Plaintiff is a businessman that trades under the name and styles of “OKEKE P.C. STORES”. Specifically, he deals with products of Nigerian Bottling Company Limited.” – Page 3 of the Record of Appeal.
PARAGRAPH 1 of Statement of Defence
“The Defendant admits paragraphs 1, 2 and 3 of the Plaintiff’s statement of Claim.” – Page 28 of the Record of Appeal.

There is no gainsaying that Paragraph 1 of the Statement of Defence is unequivocal in its response to the facts in Paragraph 1 of the Statement of Claim. The Response connotes explicit admission of the facts stated in paragraph 1 of the Statement of Claim.
​The law is settled that facts admitted need no further proof – Section 123 of the Evidence Act 2011 is an attestation to that principle of law, for as long as the Defendant admits these facts, the Plaintiff is relieved of the onus of further establishing the truth or otherwise of such admitted facts.
The party who admits a fact is barred from suggesting a renunciation of facts admitted by him.
The fact that the Appellant (Defendant in the Court below) clearly and unequivocally admitted the legal capacity in which the Respondent (Plaintiff in the Court below) approached the Court below, he is barred from resiling from such admission. He cannot and will not further probe, or quiz the Respondent on same. He cannot even cross-examine him on same. That would amount to doing a somersault – ADEJUMO V AGUMAGU (2015)12 NWLR (pt 1472)1028 KWARA STATE MINISTRY OF HEALTH V MALLAM ISSAH ELECTRICAL ENTERPRISES (2012)3 NWLR (pt 1287)258.
Where parties agree on some facts in their pleadings, decidedly there is no issue in dispute between them on such agreed matters – BUNGE V GOV. RIVERS STATE & ORS (2006) LPELR 816(SC).
One of the objects of pleadings is to ascertain with specificity, what facts are agreed. The Appellant’s admission of the capacity in which the Respondent approached the Court below, deprives him from questioning whether the Respondent complied with the provisions of CAMA.
There is no dispute on facts which are admitted – OLUFOSOYE & ORS V OLORUN FEMI (1989)1 NWLR (pt 95) 573 @ 600. OKPOSIN V ASSAM (2005) 14 NWLR (pt 945)495.
Decidedly, no other person except the person on whom is vested the aggregate of the enforceable rights in a cause, has the standing to sue. Where a person has brought an action claiming a relief against a party which on the facts of the matter is preferable to another, he cannot succeed for want of locus standi. This is because there is no dispute between them. This is not the situation in the present case.
The concept of locus standi denotes legal capacity to maintain an action in a Court of law -MUSTAPHA V C.A.C 2019 10 NWLR. Part 1680 Page 355@ 366.
When a defendant admits a fact in dispute by his pleadings, that fact is taken as established, and forms one of the agreed facts in the case – BRITISH INDIA GENERAL INSURANCE CO NIG. LTD V THARWADAS 1978 3. S.C. 143.
In MOZIE & ORS V MBAMALU & ORS, (2006) LPELR – 1922 (SC), it was held inter alia that the law is elementary, that matters admitted in pleadings, need no further proof. AYOKE V BELLO 1992 10 NWLR (pt. 218) Page 380.
Where pleadings are ordered, the Law is cardinal, that surprises are not allowed to be sprung on the adverse party, in the conduct of cases in Courts.
When the Appellant attempted to re-open/revisit the admission made by it during pleadings by using the machinery of cross-examination he was wrong.
The Appellant had agreed that the Respondent admitted under cross-examination that he is not the original owner of “Okeke P.C. Stores” But there was no such averment in the pleadings.

In considering whether a party possesses the requisite locus standi, it is the duty of the Courts, at that premise to view the Statement of Claim ADESANYA V PRESIDENT (1981) LPELR – 147 (SC); ADETONO & ANOR V ZENITH INTL BANK PLC (2011) LPELR – 8237 (SC).

The Respondent, in my view in his pleadings, disclosed sufficient interest in law in instituting the Suit in the Court below. When the Appellant, in his brief went to town with certain provisions of CAMA, it was obvious that what he was doing was tantamount to raising fresh issues, thereby taking the Respondent by surprise. Assuming he decides to raise fresh issues, he did not seek nor obtain the leave of Court before doing so.
In STATOIL (NIG) LTD V INDUCON (NIG) LTD & ANOR (2018) LPELR – 44387 (SC), it was held that the need for leave of Court where fresh issues are raised by a party to a suit, is a condition precedent.

The Respondent in his brief of argument in paragraph 4.17 urged this Court to discountenanced the Appellant’s argument on the issues of Notification to Register of Business names of changes of proprietorship. I agree with his submission as that is the correct thing to do by this Court.
This issue is resolved in favour of the Respondent, and against the Appellant.

Regarding Issue No. 2
Let me quickly state here that the Respondent’s case at the Court below was based on contract.

The Plaintiff (Respondent in this appeal) in their first relief Claims thus:-
“N5,000,000.00 (Five Million Naira) for unlawful and illegal detention of Plaintiff sum of N550,000.00 (Five Hundred and Fifty Thousand Naira) for 10 (ten days) specifically from 1st March, 2017 till 10th March 2017.” – Page 2 of the Record of Appeal.

The Respondent alleged that he made a lodgment of N550,000 into an account of the Nigerian Bottling Company domiciled with Zenith Bank PLC (the Appellant) on the 1st of March, 2017, and that the Appellant detained it for 10 days before remitting same to the said beneficiary.

The Appellant states that the money paid in by the Respondent into Account No. 1040133200 belonging to Nigerian Bottling Company was successfully credited to that account on the same March 1st, 2017. A transaction receipt – was exhibited. Credit alert was however delayed owing to network glitch.

Let me quickly state here that it is common knowledge in banking practice, with the advent of E-banking, that incidences of absence/delay in transfer of funds are replete.

The Respondent factually used the Appellant’s platform to pay money into the NBC’s Ltd account. He got a transaction receipt on that day. But the money was not credited in favour of NBC Limited for a period of ten (10) days. In other words, NBC Limited did not receive any alert until after a period of ten (10) days.

The issue of detinue is ruled out, as you cannot maintain an action in detinue with nontangible money. Detinue only applies to tangible chattels.

But as with contract, a breach of it requires that the vexed party must be put in the position which he would have been before the alleged breach.

It is no gainsaying that the Appellant left a Lacuna in its trail when the money deposited with it could not be reflected in NBC Limited account for ten (10) days.

The only reasonable deduction is that the Appellant failed and/or refused to transfer the money to NBC Limited. What excuse did the Appellant have? E-transfers have come to ease transfers of money and not to scuttle it. How would “network glitch” last for so long a time in a commercial body such as the Appellant? DW1, under cross-examination attributed the delay in crediting NBC Limited to network Glitch. I do not accept this explanation in the circumstances of this case.

Why may I ask did the Appellant not remit the money back to the Respondent when it could not transfer same to NBC Limited timeously? In Paragraph 6 of the Statement of Claim, the Plaintiff averred thus:
“As usual, defendant attributed the delay to poor network. Plaintiff was being directed to and fro different staff/officers of the defendant in a bid to solve the problem. In fact, Plaintiff became like a small boy being sent on an errand by the parents.”

In Paragraph 4 of the Statement of Defence, the Defendant simply, in reply to paragraph 6 of the Statement of Claim averred thus:
“The Defendant categorically denies paragraphs 6 and 7 of the Statement of Claim and puts the Plaintiff to the strictest proof thereof.”
With respect, this constitutes general traverse, which in law is no traverse. The effect is that the defendant admits the facts stated therein.

But curiously, Defendant had, before this general traverse stated in paragraph 3(b) of his Statement of Defence thus:
“Sometime between late February 2017 and early March 2017, the Defendant experienced some system/network glitches, which stalled the transactions of some customers, thus delaying credit and debit alerts to such customers.”
In Paragraph 3(c) the Defendant went on to aver thus:
“The Payment by the Plaintiff into Nigerian Bottling Company Ltd account was affected by the said system/network glitches, hence the Defendant circumvented the problem by manually crediting the said account, thus payment apparently did not immediately reflect on the account.”

There is no evidence to show that the Defendant (Appellant) told this fact to the Plaintiff (Respondent), at the time when he deposited the money, the Respondent should have been alerted.

In Paragraph 5 of the Statement of Defence, the Defendant averred thus:
“The Defendant vehemently denies paragraphs 8 and 9 of the Statement of Claim and in response thereto states that the Plaintiff was informed that the Payment had been duly credited into the account of Nigerian Bottling Company Limited. The Defendant acted in utmost good faith and in accordance with standard Banking Practice and procedure in the circumstances, never did the Defendant act with impunity nor did it cripple or injure the Plaintiff’s business in any way howsoever.”

In its reply to the Statement of Defence, the Plaintiff in Paragraph 1 of the Reply simply states that:

“The Plaintiff specifically denies all her issues and averments raised by the Defendant in their Statement of Defence.” – Page 35 of the Record of Appeal.

DW1 Nwafor Innocent Kenechukwu testified that the Respondent came to the Appellant’s office on five occasions for a refund of his money but same was not refunded to him.

The Appellant knew for a surety that the payment by them into NBC Ltd account was affected by the system network glitches. They should have notified the Respondent that they were resorting to manual crediting of the said amount, which culminated in the late payment.

Appellant’s sole witness DW1 was not even personally involved in the transaction between the Appellant and the Respondent, as he works in the Lagos branch of the Appellant, as a marketer while the transaction took place in Onitsha branch of the Appellant. May I then ask how did the Defendant (Appellant) established the issue of system network Glitch? There is no evidence to buttress that averment. Pleadings do not constitute evidence.

DW1 is a marketer and not a computer Engineer. He clearly had no personal knowledge of the facts in this case.

The Respondent in Paragraph 4.28 of his brief of argument pointed thus:
“…How can the bank account of NBC Ltd be manually credited? Since the payment did not reflect on NBC Ltd account, why did the Appellant refuse to refund the Respondent the money even after repeated demands? Why did the Appellant refused/neglect to reply Respondent’s complaint letter through his solicitor?”

The learned trial Court judge properly captioned the scenario of this case when it stated inter alia
“The case of the Plaintiff is not whether or not he was issued with a receipt evidencing the payment to the account of the NBC through the defendant bank but on failure of the defendant to remit the said money into the account of NBC Ltd and its attendant consequences on the business and person of the Plaintiff.” – Page 108 of the Record of Appeal

In one breath the Appellant had posited that the E-bill receipt (Exhibit A) issued to the Respondent is conclusive proof that payment was successful as the Appellant had completed its obligation – Page 29 of the Record of Appeal. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

But in his Statement of Defence he pleaded that System/Network glitches affected the Plaintiff’s payment; and that was why the Defendant resorted to manually crediting the said account which money did not reflect on NBC Ltd account.

A peculiar feature in this case is the failure to transfer the money to NBC Ltd account, and despite several demands from the Respondent that his money be paid back to him, his pleas fell on deaf ears. Moreso, the Respondent was not informed of the problem the Appellant was facing transferring money.

The minute the Respondent stepped into the Appellant’s bank, to pay in money to be transferred to NBC Limited, he became a customer and an implied contract ensured between him and the Appellant.

Failure of the Appellant to carry out his own part of the bargain, was a breach of the contract between them. The issue of detinue does not arise. There was a breach of contract simpliciter.

When a trial Court amply evaluates the evidence inherent in a case before it, having seen and heard the witnesses, this Court is reluctant to disturb its findings except where the judgment is clearly perverse.

The Learned Trial Judge concluded his judgment by stating that the Plaintiff had proved his case as required by law and is therefore entitled to judgment. This also is my view.

This issue is resolved in favour of the Respondent and against the Appellant.

On the Issue of damages, the Court below had this to say viz:
“Judgment is hereby given in favour of the Plaintiff in the following terms;
1. N1,000,000.00 for unlawful and illegal detention of the Plaintiffs sum of N550,000.00 (Five Hundred and Fifty Thousand Naira) for 10 (10) days specifically from 1st March 2017 till 10th March 2017.
2. N10,000,000.00 (Ten Million Naira) being general damages for reputational and businesses damage caused to the Plaintiff by the Defendant.
3. 25% interest per annum (for prevailing CBN interest rate) of the judgment sum from date of delivery of judgment until final liquidation of the judgment debt.” – Page 112 of the Record of Appeal

It is apparent that when the Respondent claimed general damages for reputational and business damage he would have itemized them to buttress his claim, but this he did not do. The sum of Ten Million Naira was obviously another one for general damages (though not specified).

General damages is, as the law may presume to have resulted from the defendant’s tort. All other heads of damage e.g mental distress are sometimes called general damages.
Regarding special damages, it is such a loss as will not be presumed by the law. The expenses which the defendant has actually incurred up to the date of the hearing, ear also styled special damages, for instance in personal injury cases, expenses for medical treatment.
Damages which must be specifically pleaded in order to give the Defendant adequate Notice are called special damages.
Substantial damage capable of pecuniary assessment, which must be proved in case of all torts not actionable per se is call “Special damage”.
In the main, it is the assessment by the trial judge, where the Plaintiff succeeds in proving that he is entitled to them. The Trial Judge must base his assessment on the evidence led in establishing the claim.
In my view, all that the Respondent has suffered is the failure of the money he deposited from getting to its destination.

The transaction was based purely on contract and all that the Respondent is entitled to is the amount of money which he lodged and which did not get to its destination, nor given back to him.
General damages can be classified into two categories:
1) That in which the damages may either be inferred e.g in cases of defamation or of personal injury to Plaintiff when pain and suffering may be presumed.
2) That in which they will not be inferred but must be proved for instance damages arising by way of general loss of business following an injury.
The instant case does not, in my view fall into any of these categories.
The primary object of an award of damages is to compensate the Plaintiff for the harm done to him.
A possible secondary object is to punish the defendant for his conduct in inflicting that harm.
In matters which smacks of contractual relationship, the maxim Restitutio in interqram applies. In other words, an award of damages is meant to restore the injured party to the position he or she was, prior to the injury.
​Decidedly, general damages is one such as the law presumes to be natural or probable consequence of the defendant’s act and does not need to be pleaded. This is because, this head of damages arises by inference of law and need not be strictly proved by evidence.
However, it may be averred generally. On the other hand, special damages is such loss as the law will not presume to be the consequence of the defendants’ act but which depends in part, on the special circumstances of the case. It must be specifically pleaded and strictly proved. – BRITISH AIRWAYS V ATOYEBI (2014)13 NWLR (Part 1424) Page 253 @ 303.

It is my view that the award of damages granted the Respondent was excessive and without basis in the circumstances of this case. Indeed, it amounts to double compensation and the law and the Courts frown at this kind of award.
Double compensation connotes situations where a person who has been fully compensated under one head of damages for a particular injury, is awarded damages in respect of the same injury under another head. Equity leans against double portion.
In this particular case, the Court below, regrettably awarded double compensation to the Respondent.
May I say here that a Court of law is not bound to award anything which the Plaintiff Claims for the sake of granting same. Where a Plaintiff seeks double compensation it must be refused.
The award of N1,000,000.00 for unlawful and illegal detention of the Plaintiff’s sum of N550,000.00 (Five Hundred and Fifty Thousand Naira) for 10 (ten) days, and the sum of N10,000,000.00 (Ten Million Naira) being general damages for reputational and business damage caused to the Plaintiff by the Defendant amounts in my view to double compensation.

An award of damages is within the discretionary powers of the Court but that discretion must be exercised not only judicially, but judiciously. Thus an appellate Court would not usually interfere with a previous award unless satisfied that
(a) The trial Court acted under a mistake of law or
(b) The Trial Court acted in disregard of some principles of law, or
(c) The Trial Court acted under a misapprehension of facts or
(d) The Trial Court took into account irrelevant matters or failed to take into account relevant matters or
(e) Injustice would result if the appellate Court does not interfere or
(f) The amount awarded is either ridiculously low or ridiculously high, that it must have been a wholly erroneous estimate of the damage.
In the present case, the Court had no basis for awarding the sum of N10,000,000.00 (Ten Million Naira) against the Defendant/Appellant.
The award of N1,000,000.00 should have been for breach of contract and its attendant general damages, and not for unlawful detention of a non-tangible goods like cash. Cash not seen cannot be unlawfully detained. Human beings and chattels can be detained.
I therefore hold that the award of damages granted the Plaintiff Respondent in the Court below was erroneous, and under a wrong principle of law. If the Respondent pleaded loss of sales, he should have specifically pleaded same under special damages and proved it. This he failed to do. It is not for the Court to embark on arithmetic exercise for a party. Even though the testimony of a Plaintiff regarding special damages is not challenged by the adverse party, the law requires that the Plaintiff must establish his claim where it smacks of special damages.
The Court below stated inter alia that:
“It is for this callous act of the Defendant that the Plaintiff is now claiming damages” – Page 109 of the Record of Appeal.
The Court below also stated thus:
“In the instance case, the Plaintiff can be said to have pleaded and prove the unlawful detention of the sum of N550,000.00 by the Defendant and that it could have sued four trucks of products wherein he makes profit of N55,000.00 per truck. It follows that for the four trucks he would have made a profit of N220,000.00.” – Page 110 of the Record of Appeal.
But it is the Respondent who should have specifically itemized these claims in special damages. He however failed to do this.
I hold that the discretion of the Court below was exercised erroneously regarding the issue of damages.
In the circumstance, the judgment of the Court below is hereby affirmed; howbeit, I hereby set aside the award of damages granted by the Court below as same lacks basis.

In its stead, I hereby award the following to the Respondent.
(a) N1,000,000.00 (One Million Naira) damages for breach of contract.
(b) N25% interest per annum (or prevailing CBN interest rate) of the judgment sum from date of delivery of judgment until final liquidation
N100,000 costs in favour of the Respondent.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading the draft of the lead judgment delivered by my learned brother, R. N. PEMU, JCA.
I agree with the reasoning and conclusion which I adopt as mine.
I also dismiss this appeal and affirm the judgment of the Onitsha division of the High Court of Anambra State in Suit No. O/103/2017, delivered on the 30th of April, 2018.
I agree that the award of damages by the Court below which has no basis, be set aside.
I abide by the One Million Naira damages awarded to the Respondent for breach of contract as well as the interest rate.
I am in agreement with the order as to costs made by PEMU, JCA in the lead judgment.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

F.C. MONEKE, ESQ. LLM (London) For Appellant(s)

C.J. OKEKE, ESQ., with him, J.U. OKOROAFOR, ESQ., and UJU NWOGOH, ESQ. For Respondent(s)