UKAM v. TRANSCORP METROPOLITAN HOTEL & CONFERENCE & ANOR
(2021)LCN/15759(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, May 05, 2021
CA/C/468/2014
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
TONY UKAM OON, JP APPELANT(S)
And
1. TRANSCORP METROPOLITAN HOTEL & CONFERENCE 2. KINGSVILLE HOTEL & METROPOLITAN HOTEL
RESPONDENT(S)
RATIO
WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PROVED
Special damages as rightly posited are such damages as the law will not infer from the nature of the act as they do not follow in ordinary course. Thus, they are exceptional in their character and they must be claimed specifically and proved strictly. Therefore, for a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such claim. In AJIGBOTOSHO V. R.C.C. LTD (2019) 3 NWLR (prt.1659) 287 at 297, it was held that special damages should be specifically pleaded in a manner that is clear to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. PER SHUAIBU, J.C.A.
THE POSITION OF LAW ON GENERAL DAMAGES
General damages are said to be damages that the law presume to flow from the type of wrong complained about by the victim. Thus, they are compensatory damages for harm that so frequently results from either breach of Contract or tort for which a party sued that the harm is reasonably expected and need not be alleged or proved. In other words, general damages need not be specifically claimed. In CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (prt.1238) 512, RHODES-VIVOUR, JSC said:-
“General damages are thus loses that flow naturally from the adversary and it is generally presumed by law as it need not be pleaded or proved”. PER SHUAIBU, J.C.A.
THE REQUIREMENT OF LAW ON A PARTY CLAIMING DAMAGES
Generally, a party claiming damages should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he is indeed entitled to award of damages. See A.G. OYO STATE V. FAIRLAKES HOTELS LTD (1989) 12 SC. However, a Court could make an award of general damages even if it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. See JOSEPH V. ABUBAKAR (2002) 5 NWLR (prt 759) 185 at 207 and OWAH & ANOR V. ACCESS BANK PLC & ANOR (2013) LPELR 23519 (CA).
What is therefore discernible from the chains of judicial authorities is that the award of general damages is discretionary and does not require strict proof. Thus, an appellate Court will only interfere with award of damages based on wrong principles. See OSUJI V. ISIOCHA (1989) 3 NWLR (pt.111) 623. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State sitting in Calabar delivered on 5th day of November, 2013 wherein judgment was entered in favour of the appellant by the trial Court in which it granted both special and general damages in the sum of N476,000.00 and N300,000 respectively.
By writ of summons and statement of claim respectively filed on 12/11/2010, appellant as claimant claims from the defendants/respondents jointly and severally as follows:-
1. An unqualified written apology for the professional misconduct, breach and fraud against the claimant on a sellout deal of N18m.
2. An unequivocal letter from the defendants to the plaintiff reinstating and reassuring him of the date for his great event (4th December, 2010)
3. An order restraining the defendants from attempting to and, or giving the claimant’s slot (Conference Hall and Buffet of 4/12/2010) to any other highest bidder, government, Bank or any other “Superior” personality whatsoever, other than the claimant.
4. Special damages of N4.6m covering: printing of Banners, invitation cards, printing of Even Magazine, Calendars, Souvenirs Awards plagues, media coverage, transportations, video coverages, Return ticket to dignitaries, Chalets bookings for dignitaries, feedings, drinks, Airport.
5. General damages of N120m (One hundred and twenty million naira) only for the huge embarrassment, inconvenience, shock, confusion and losses, incurred from the defendants by their breach and reckless treatment of customers and the gamble with the customer’s (claimants) future.
The defendants denied the claimant’s claim. They filed a joint statement of defence.
At the conclusion of the trial, the learned trial judge, Hon. Justice B. T. Ebuta reviewed and considered the evidence adduced by the parties, made findings of facts and concluded at pages 281 – 282 of the record of appeal as follows:-
“There is evidence that the hotel still carried out activities during the material time in the hotel rooms, Diamond Hall, and this betrays the position of the defendants. D.W.1 admitted this under cross-examination that they hosted CBN event which took place at the material time.
It is the duty of the claimant to prove special damages by pleading same also. I agree with the defence that the only special damages proved are:
1) Exhibit 6 – Flight ticket – N20,000
2) Exhibit 7 – Courier receipts – N1,500
3) Tranex City Express receipts – N4,500
4) Official receipts from Monty Suites – N200,000 exhibit 15
The total amount specifically proved is N226,000. Also proved is the deposit made by the claimant which has not been refunded amounting to N250,000.
I award therefore special damages in favour of the claimant in the sum of N476,000.00 (Four hundred and seventy six thousand naira).
I award damages in the sum of N300,000 in favour of claimant.
Reliefs No.1, 3 and 4 have been… prayer 1 is granted. Defendants shall write a letter of apology to the claimant.
I assess cost of action at N50,000.00 against the defendants.”
Dissatisfied with the award of damages by the trial Court, appellant appealed to this Court through a notice of appeal filed on 23/1/2014. The said notice of appeal contains two grounds of appeal at pages 284 – 286 of the record of appeal. Both parties filed and exchanged briefs. Learned counsel for the appellant formulated two issues for the determination of this appeal while the respondents also formulated two issues for the determination of this appeal. However, the two sets of issues formulated by both the appellant and the respondents can be narrowed down to:-
1. Whether the appellant has made out his claim for special damages in the sum of N4.6 million naira.
2. Whether the learned trial Judge exercised his discretionary power judiciously and judicially in awarding general damages of N300,000 in favour of the appellant?
On issue No.1, learned counsel for the appellant contended that the appellant spent triple costs for some of the items listed as special damages because he changed the venue three times and had to reprint the invitation cards, plague, banners, program cover etc. to reflect the new venue from Metropolitan Hotel to Monty Suit and finally to Cultural Centre. Rather, they dispute the special damages, respondents pleaded facts that supported the appellants claim for special damages. He submits that where there has been proper and adequate pleading for special damages, unchallenged evidence, without more can constitute sufficient proof of special damages relying on ADIM V. NBC LTD (2010) 9 NWLR (prt.1200) 543 at 547.
Counsel also submits that all he need do is to adduce credible evidence of such a character as would suggest that he is entitled to the award of special damages. And having adduced credible evidence in proof of special damages and the adverse party not controverting same, the Court is entitled to accept and believe in it. He referred to AMADI V. CHINDA (2009) 38 NSQR 344.
Counsel further submits that although it is most desirable to prove special damages by production of receipts but failure on the part of the claimant to do so in certain circumstances will not defeat the claim for special damages.
In response to the above, learned counsel for the respondents referred to the appellant’s pleadings and evidence to contend that same are not only vague, generic and presumptuous but they are mere figments of the claimant’s imagination and golden adventure. Counsel relied on BADMUS V. ABEGUNDE (2001) 3 WRN 40 to submit that special damages have to be strictly proved where various items are claimed under special damages.
In further argument, counsel argued that the appellant lumped-up several items without making effort to itemize the amounts claimed in respect of each of the items claimed. And that the purported oral evidence being relied upon as the basis of the claim of N4.6 million was without particulars of the actual amount of loss suffered. He submits that all the evidence in respect of items claimed as special damages without specification of amount actually spent would go to no issue as the trial Court is not entitled to embark upon self assessment using its own parameters. He referred to OGBIRU V. NAOC-LTD (2010) 14 NWLR (prt.1213) 208 to the effect that if there is no evidence to support a claim for special damages, the claim ought not to be granted.
Special damages as rightly posited are such damages as the law will not infer from the nature of the act as they do not follow in ordinary course. Thus, they are exceptional in their character and they must be claimed specifically and proved strictly. Therefore, for a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such claim. In AJIGBOTOSHO V. R.C.C. LTD (2019) 3 NWLR (prt.1659) 287 at 297, it was held that special damages should be specifically pleaded in a manner that is clear to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence.
The bedrock of the appellant’s claim for special damages at the lower Court is set down in paragraphs 12 – 17 of the statement of claim at pages 5-6 of the record of appeal as follows:
12. Upon the payment and acknowledgement, the claimant sprang into action. Firstly, he logged into his website the date of the occasion which he had just booked i.e. 4th day of December, 2010 at Metropolitan Hotel Calabar by 10am.
13. Claimant avers that the second thing he did was to travel to Abuja to meet with the Chief Justice of Nigeria, the Hon. Justice A. I. Katsina-Alu CON, CJN and other justices of the Supreme Court, on 13th and 14th of October, 2010, to seek or solicit for their approval and attendance, more so, since they are to be honoured at the claimant’s 20th Anniversary. Claimant pleads and shall rely on some copies of the Nomination letters for the honour, and the Air travel tickets to and fro Abuja.
14. When the claimant returned from Abuja, he embarked on the printing of the invitation cards for the occasion, which his Event Committee had concluded distribution and circulation to clients, church members, fellow Cross Riverians, Lawyers, Judges, etc. claimant pleads and shall rely on the invitation card at the trial of this case.
15. The claimant also engaged an Artist, Mr. Alaoma along Target Street, Calabar to design the Banner to inform the public of the date and venue of his Twentieth Anniversary. Claimant pleads and shall rely on the said banners which was printed and hanged at the old office Chambers of the claimant at No.41 Mayne Avenue, Calabar.
16. Based on the already concluded arrangement with the defendants, the claimant met with and went into wide consultations with Religious leaders and personalities concerning the event and their Merit Awards at the said venue- Metropolitan Hotel, Calabar on 4th December, 2010. Some of those dignitaries met include: Rev. Theodore Effiong; Bishop Eneobong E. Ephraim; Bishop Emma Gospel Isong; Lady Apostle Helen Ukpabio; Rev. Sylvanus Tom, Bishop Ugo Evergreen Wems; Prof Clement Odigwe; Justice Okoi Itam; Justice Michael Edem; The Hon. Justice Philomena Ekpe JCA; Justice Franca Nnang Isoni; Prof. Olu Lawal; High Chief Emmanuel Nsan; Mrs. Rosemary Archibong; H.R.M. DODOII Dr. Capt. Winston E. Ogoun JP, etc. claimant pleads and shall rely on some of the acceptance letters from the guest to attend the occasion at Metropolitan Hotel, Calabar.
17. Claimant further avers that, just as everything was set for the event, the defendant sent their Supervisor for Food and Beverages, Mr. Eyam to the claimant on 26/10/2010 to inform him that the date he booked is no longer feasible and that he should try and shift it. The claimant replied him, that it is too late to do that because all arrangements and contacts have been concluded.
It was consequent of the above that the appellant claimed N4.6 million being special damages covering printing of Banners, invitation cards, printing of Event Magazine, Air ticket, etc.
In the quest to establish the claim for special damages, the appellant at the trial tendered Exhibits 6 – Flight ticket, Exhibit 7 – Courier receipts, Tranet city Express receipts, Exhibit 15 – official receipts from Monty Suits including the deposit of N250,000 made to the 1st respondent by the appellant all totaling to the sum of N476,000.00 the trial Court awarded to the appellant the said N476,000.00 as special damages which the learned counsel for the appellant argued is grossly low.
I have stated that special damages have to be pleaded and proved. Every item contained in the claim of special damages must be specially proved. Such proof must be characterized by testimony that ties each item with the evidence led. See A.G. LEVENTIS (NIG) LTD V. AKPU (2002) 1 NWLR (prt.747) 182, JOSEPH V. ABUBAKAR (2002) 5 NWLR (prt.759) 185 and ADECENTRO (NIG) LTD V. COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY (2005) 5 NWLR (prt.948) 290. Also in the cases of XTOUDOS SERVICES NIGERIA LTD V. TAISEI (W.A.) LTD (2006) 15 NWR (prt.1003) 533 and AJIGBOTOSHO V. R.C.C. LTD (supra), it was held that the obligation to particulars of special damages arises not because the nature of loss is unusual, but because the plaintiff, who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which makes the calculation possible.
Learned counsel for the appellant has alluded to the fact that his claim for special damages was neither challenged nor controverted as such the trial Court was bound to grant same.
I have reproduced the appellant’s pleadings but the facts in support of the claim are incomplete, inconclusive and also devoid of any particularization. The appellant’s claim of special damages was based on mere estimates and thus not precise. An assessment would be correct and valid if it was arrived at strictly on the evidence accepted as establishing the amount to be awarded. In ONYIORAH V. ONYIORAH (2019) 15 NWLR (prt.1695)227 at 240, the Supreme Court was emphatic that on no account can a trial judge make his own assessment or speculate on special damages.
In the instant case, the appellant neither pleaded the special damages claimed nor give necessary particulars, and or adduce credible evidence in support. Issue No.1 is therefore resolved against the appellant.
On issue No.2, the appellant’s contention is that the trial Court did not take into account the length of time he had been in Court in search of justice, his status in the society as well as the huge embarrassment and losses suffered in awarding him a meager sum of N300,000 or as general damages. Counsel submits that award of damages depends on the facts which sustain the plead for the award. The appellant according to the learned counsel has proved his case at the lower Court but the Court failed to award adequate damages to him.
On the part of the respondent, it was contended that the subject matter of the action is contractual and that in cases of breach of contract, assessment of general damages is usually based on the actual loss which the trial Court assessed at N300,000.00. Counsel submits that the award of general damages is a matter entirely at the discretion of the trial Court which the appellate Court seldom interferes. He referred to NWOBODO V. ACB LTD (1998) 6 NWLR (prt.464) 658.
Counsel submits further that on the issue of general damages, the law imposes on the claimant a duty to mitigate his loss otherwise anything which must be ascribed to his failure to do is not recoverable from the defendant.
The appellants’ complaint here relates to the quantum of the general damages awarded to him by the trial Court. General damages are said to be damages that the law presume to flow from the type of wrong complained about by the victim. Thus, they are compensatory damages for harm that so frequently results from either breach of Contract or tort for which a party sued that the harm is reasonably expected and need not be alleged or proved. In other words, general damages need not be specifically claimed. In CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (prt.1238) 512, RHODES-VIVOUR, JSC said:-
“General damages are thus loses that flow naturally from the adversary and it is generally presumed by law as it need not be pleaded or proved”.
In the instant case, the trial Court found the act of the respondents as a deliberate and intended to breach the contract with the appellant and as a result awarded damages to him in the sum of N300,000. I have stated that general damages are awarded by the trial Court to assuage a loss caused by an act of the adversary. The question here is the sum of N300,000 awarded to the appellant as general damages adequate to assuage the loss caused by an act of the respondents?
Generally, a party claiming damages should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he is indeed entitled to award of damages. See A.G. OYO STATE V. FAIRLAKES HOTELS LTD (1989) 12 SC. However, a Court could make an award of general damages even if it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. See JOSEPH V. ABUBAKAR (2002) 5 NWLR (prt 759) 185 at 207 and OWAH & ANOR V. ACCESS BANK PLC & ANOR (2013) LPELR 23519 (CA).
What is therefore discernible from the chains of judicial authorities is that the award of general damages is discretionary and does not require strict proof. Thus, an appellate Court will only interfere with award of damages based on wrong principles. See OSUJI V. ISIOCHA (1989) 3 NWLR (pt.111) 623.
As stated above, an appellate Court will only interfere with the award of damages if there was no evidence to justify the award or the appraisal of the facts are unrealistic. The appellant’s counsel in the instant case merely argued that the amount awarded as general damages is grossly low without more. In the absence of any fact showing that the trial Court acted upon wrong principle or that the award is arbitrary and or an element of wrong exercise of discretion in the award, there is therefore no reason for me to interfere with it.
In the result, both issues Nos. 1 and 2 are resolved against the appellant. The appeal fails and is accordingly dismissed with N100,000.00 costs to the respondents.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA.
I agree with the reasoning and conclusion reached in the said judgment.
I also agree that the appeal lacks merit and ought to be dismissed.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA and I too think that there is no merit in the appeal.
For the reasons more elaborately stated in the lead judgment, I too dismiss the appeal.
I abide by all other orders in the lead judgment including the order as to costs.
Appearances:
Obasesam Okoi, Esq. For Appellant(s)
Williams Anwan, Esq. For Respondent(s)
