FIRST BANK OF NIGERIA PLC v. SUNDAY Y. OLALEYE CITATION: (2012) LPELR-20096(CA) In The Court of Appeal. Suit No: CA/J/35/2004. Before Their Lordships

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2 1 FIRST BANK OF NIGERIA PLC v. SUNDAY Y. OLALEYE CITATION: (2012) LPELR-20096(CA) In The Court of Appeal (Jos Judicial Division) On Friday, the 29th day of June, 2012 Suit No: CA/J/35/2004 Before Their Lordships CLARA BATA OGUNBIYI JUMMAI HANNATU SANKEY PHILOMENA MBUA EKPE Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal FIRST BANK OF NIGERIA PLC Between Appellant And SUNDAY Y. OLALEYE Respondent RATIO DECIDENDI 1 DAMAGES - AWARD OF DAMAGES: Whether the grant of general damages is intended to

3 2 assuage the natural loss and painful mental feelings suffered by the claimant "The principle guiding the award of damages is that damages will flow from the wrong suffered to a complainant. Any grant of general damages is intended to assuage the natural loss and painful mental feelings suffered by the claimant and caused by the Defendant. The relief claimed in such situations has no mathematical exactitude. However, since there is no parameter or yardstick for the Court to use in the award of general damages, such a discretion ought to be exercised judicially and judiciously and also to be considered as what the reasonable man would see as adequate loss or inconvenience flowing naturally from the act of the Defendant. See UNIPETROL NIG. PLC VS. ADIREYE WEST AFRICA LTD. (2005) 14 NWLR (PT.946) 563. Also the case of ROCKONOH PROPERTIES CO. LTD. VS. NIGERIAN TELECOMMUNICATION PLC (2001) 14 NWLR (PT.733) 468." Per EKPE, J.C.A (Pp 16-17,Paras F-C) - read in context 2 TORT - NEGLIGENCE: At what instance will a tort of negligence arise "The tort of negligence arises when a legal duty owed by the Defendant to the plaintiff is breached. The duty of care owed by the Defendant is paramount but that has to be proved either by preponderance of evidence or

4 on the balance of probabilities. In the instant case, the question to be asked is whether there is indeed a claim for negligence by the Respondent in the lower Court. I tend to agree with the reasoning of learning Appellants Counsel that negligence is a question of fact, and any party therefore claiming it must plead in the statement of claim the special facts relied on. See AGBOMAGBE BANK LTD. v. C.F.A.O. (1966) 1 SCNLR 367. Also in the case of DARE v. FAGBAMILA (2009) 14 NWLR 180 the Court of Appeal held thus: "The most fundamental ingredient of the tort of negligence is a duty of care, which must be actionable in law and not just a moral liability. Until a plaintiff can prove by evidence the actual breach of the legal duty of care against a defendant, the action must fail. In other to find a defendant liable for negligence, there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part. Such evidence may be direct or inferential depending on the circumstance of each particular case." Per EKPE, J.C.A (P 15,Paras A-G) - read in context 3 PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court Jos, plateau State delivered on the 17th day of December, 1998,

5 wherein the lower Court ordered the Appellant to pay the sum of N250, (Two hundred and fifty thousand naira) as general damages for the negligence of the 1st Appellant in remitting the Respondent's application for shares in the 2nd Defendant's Comp any and also to pay the cost of this action assessed at N5, (Five thousand naira) only. Dissatisfied with the judgment of the Lower Court, the Appellant filed a notice of appeal on the 21st day of December, 1998 containing three grounds of appeal. The facts of the case are as follows: The Appellant acting as an agent to Daily Times Nigeria Plc, her disclosed principal received the Respondent's subscription for 500 shares of Daily Times Nigeria Plc worth N260.00k (Two hundred and sixty naira) and quickly transmitted same to Daily Times Nigeria Plc. When the Respondent could not receive his share certificate he inquired from the Appellant who explained to him and presented documents to show that his money had been transmitted. The Respondent was dissatisfied with the explanation and thus instituted this action. The Appellants defences were: (a) That there was no contractual relationship between the Appellant and the Respondent. (b) That the 2nd Defendant was his Principal and as such was vicariously liable to the deed of the Appellant. The Respondent commenced this suit on the 7th day of May, 1996 and claimed as follows: 4

6 (a) From the defendants jointly and severally (i) An order for the specific performance of the contract by purchasing the 500 shares subscribed and paid for by the plaintiff. (ii) The sum of N150, being general damages for breach of contract. (b) From the 1st defendant the sum of N300,000 being general damages for deceit, fraudulent misrepresentation, negligent mis-statement and conversion. (c) Costs of this action. (See page 20 of the Record of appeal). When the matter came up for hearing, the Appellant testified through one Mr. Ichu Azua and tendered 8 Exhibits. The Respondent on his own called one witness and tendered 17 Exhibits A - a. Counsel to both parties filed written addresses at the conclusion of hearing of evidence and on the 7th day of December, 1998, the learned trial Judge, P. D. DAMULAK gave judgment in favour of the Respondent. The notice and grounds of appeal are contained at pages of the record of appeal and are hereby reproduced as follows: 1. The Learned Trial Judge erred in law by finding for the plaintiff that the 1st Defendant was negligent when there was no subsisting claim for negligence. PARTICULARS OF ERROR (a) The Plaintiff/Respondent did not in either his writ of summons or pleadings make any claim for negligence. (b) The Plaintiff did not furnish particulars of 5

7 Negligence in his pleadings as to encourage the learned trial judge to find for him. (c) The Plaintiff claimed negligent mis-statement but failed to prove same by oral evidence. 2. The learned trial Judge erred in law by entering judgment in favour of Plaintiff/Respondent and awarding damages in the sum of N250, (Two hundred and fifty thousand naira) without recourse to the principle governing the award of damages. PARTICULARS OF ERROR (a) The relevant claim as contained in paragraph 22 (b) of the further amended statement of claim filed on the 14th July, 1998 is for the sum of N300, (Three hundred thousand naira) being general damages for deceit, fraudulent misrepresentation, negligent mis-statement and conversion. (b) The principles governing the assessment of damages were not adhered to. 3. The judgment of the learned trial judge is unwarranted, unreasonable and cannot be supported having regards to the pleadings and oral evidence adduced by the Plaintiff/Respondent before the court. PARTICULARS OF ERROR (a) The Plaintiff did not supply particulars of negligence in his pleadings. (b)the Plaintiff who testified as PW1 did not mention the words/statement said to be negligently misstated. The appeal was entered in this Court on the 11th day of February, 2004 and the Appellant's brief was filed on the 2nd day of March, The Respondent on 6

8 the other hand did not file any brief of argument. When the appeal came up on the 17th day of April, 2012, both the parties and their counsel were absent but due to the age of the case, the Court therefore deemed the Appellant's brief as argued. From the three grounds of appeal the Appellant formulated three issues for determination which are hereby reproduced as follows: 1. Whether negligence as pronounced by the Honourable trial judge in his judgment was a claim before the court below. 2. Whether the Honourable trial judge followed the principles guiding the award of damages when he made an award of N250, (Two hundred and fifty thousand naira) in favour of the Respondent. 3. Whether the judgment of the learned trial Judge was unwarranted unreasonable and cannot be supported by facts in the pleadings and evidence adduced. On issue one, the learned counsel for the Appellant referred to the finding of the trial court which is in relation to Grounds One of the grounds of appeal thus: "There is no breach of contract but in the tort of negligence. In the circumstances I award against the two defendants jointly and severally considering the chequered history of the matter a conservative sum of N250, (Two hundred and fifty thousand naira) as general damages for the negligence of the 1st defendant in remitting the defendant's application for shares in 2nd defendant's company." (See pages of the record). 7

9 Learned counsel submitted that this decision is not in consonance with the Plaintiffs claim in the lower Court. That in the latter's further amended statement of claim, the Plaintiff/Respondent claimed against the Defendants as follows: (a) From Defendant's jointly and severally. (i) An order for the specific performance of the contract by purchasing the 500 shares subscribed and paid for by the Plaintiff. (ii) The sum of N150, (One hundred and fifty thousand naira) being general damages for breach of contract. (b) From 1st Defendant the sum of N300, (Three hundred thousand naira) being general damages for deceit, fraudulent misrepresentation, negligent mis-statement and conversion. (c) Costs of this action. (See page 20 of record). Learned Counsel further submitted that a careful look at the claim shows that there is absolutely no claim for negligence. That since negligence is a question of fact, any party claiming it must plead in the statement of claim the special facts relied on. He then cited the case of ANYAN V. IMO CONCORDE HOTELS LTD (2003) FWLR (PT.138) PARA H - Where the Supreme Court held that: "A blanket allegation of negligence in the pleadings is not sufficient and quite apart from giving explicit evidence of negligence' for the Appellant to succeed, he must also show the duty of care owed to him and its breach by the Respondents." That beyond pleading the particulars of negligence a 8

10 party is required to prove it. He again cited the case of UNION BANK OF NIGERIA PLC VS. E.D. EMOLE (2002) FWLR (PT. SS) 556 PARA E -F where the Supreme Court held thus: "Having failed to prove the particulars of negligence pleaded by him, Plaintiffs claim for damages for negligence on a tort ought to have been dismissed." Learned Counsel further submitted that since negligence was not pleaded by the Respondent, the Appellant did not join issue with the Respondent in her statement of defence. That in the case of IBWA LTD. VS. IMANO NIG. LTD. (2001) FWLR 443 PARA D. The Court held thus: "The Law is well settled that since pleadings have been settled and issues are joined, the duty of Court is to proceed to trial on those issues as settled in the pleadings of the parties." Learned Counsel cited several other authorities to buttress the fact that any relief granted by a Court without the parties asking for it would be discountenanced as the court is not empowered to do so. He then concluded that when a court grants a litigant a relief he did not seek in court, it is tantamount to setting for that party a case different from what he had made for himself. He then referred to the case of NDIC VS. ENYIBROS FOOD PROCESSING CO. (NIG) LTD. IN RE MBAMALU (2002) FWLR (PT.246) 257 PARA G and urged the court to set aside the judgment of the Lower Court. On Issue number two, whether the trial judge followed the principles guiding the award of damages 9

11 when he made an award of N250, (Two hundred and fifty thousand naira) in favour of the Respondent, learned counsel for the Appellant challenged the decision of the lower court which held as follows: "The Plaintiffs remedy here is not in specific performance but damages. The damages is general not specific hence there is no fixed rule by which to assess such damages. The Plaintiffs claim is for N450, (Four hundred and fifty thousand naira) as general damages for breach of contract, conversion, deceit etc. There is no breach of contract but in the tort of negligence. In the circumstance I award against the two Defendants jointly and severally considering the chequered history of the matter a conservative sum of N250, (Two hundred and fifty thousand naira) as general damages for the negligence of the Defendant for not remitting the Plaintiffs application for shares in 2nd Defendant's company." (See pages of record of appeal). Learned Counsel submitted that the above finding is not derived from the Respondent's claim. He referred to paragraph 22 of the Respondent's statement of claim where the Respondent asked for the sum of N150, (one hundred and fifty thousand naira) as general damages for breach of contract and N300, (Three hundred thousand naira) as general damages. That the said N300, (Three hundred thousand naira) as claimed was in respect of four heads of tort namely: 1. Deceit 10

12 2. Fraudulent misrepresentation 3. Negligent mis-statement 4. Conversion. That this claim now results in the sum of N75, (Seven five thousand naira) for each head of tort and not N450, (Four hundred and fifty thousand naira) as stated by the trial Court. In defining "general damages", counsel referred to the case of JOSEPH VS. ABUBAKAR (2002) FWLR (PT.91) 1543 PARA E - F as follows: "Now general damages are such as the law will presume to be the direct natural or probable consequence of the act complained of." He also referred to the case of UBA PLC VS. OKORO (2002) FWLR (PT.122) 37 PARA A - B. Learned Counsel again submitted that the contention of the trial Judge that, there is no fixed rule by which to assess such (general) damages" and went ahead to award damages of N250, (Two hundred and fifty thousand naira) based on "the chequered history of the matter" is erroneous. That in law, there are principle guiding the award of general damages and a Court is guided by the market value of the chattel involved. He then referred to the case of N.I.D.B. LTD. VS. ADVANCE BEVERAGES IND. LTD (2002) FWLR (PT.106) 1143 PARA C - D where the Court held as follows: "The action in this type of case always results in judgment for pecuniary damages only. And the judgment is often for a single sum of which the measure is generally the value of the chattel. That is the market value of the chattel; it appears that by 11

13 awarding the sum of N4,655, (Four million, six hundred and fifty five thousand, two hundred and sixty three naira) as general damages, the trial Judge was fashioning an award to compensate the Plaintiff/Respondent for its inability to make profit as a result of the business which the trial Judge found to have been ruined and also for loss of expectation of gainful employment by the proprietor. Undoubtedly, this is a wrong principle to follow in the award of general damages." Learned Counsel argued that since the Respondent bought shares worth N (Two hundred and sixty naira). He again recalled the evidence of the Defendants witness one Mr. Ichu Azur who stated that if the sum of Two hundred and sixty naira had been paid into an interest yielding account the total interest would have amounted to N (Three hundred and sixty five naira) within the period involved. He then concluded on that point that the sum of N250, (Two hundred and fifty thousand naira) awarded as damages by the lower Court is excessive and erroneous. He then referred to the case of NIGERIAN DYNAMIC PLC VS. AGUOCHA (2002) FWLR (Pt.104) 662 PARA F - G where the Court of Appeal held thus: "Where a trial Judge in assessing general damages proceeds upon a wrong principle or on no principle of law (as in this case) and makes an award which is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionable in comparison with the greatest loss that would possibly flow from the said breach of contract and without stating whether 12

14 the amount awarded is for loss of business or loss of profit or anticipated profits and the measure or basis of its assessment such an award would not be allowed to stand." That the essence of general damages is to place the injured party in the position he would have been had the negligence not occurred. He went further to state that the Respondent would not have made the sum of N250, (Two hundred and fifty thousand naira) with the paltry sum of N (Two hundred and sixty naira) within the said period. That the lower Court in the instant case failed to take cognizance of the amount involved which is the market value of the chattel in contention. He further contended that the trial judge was not guided by any principle in the award of damages when he stated thus: "The damages is general not specific hence there is no fixed rule by which to assess such damages." It is also submitted that when a Court cannot easily find the measure upon which to base the assessment of general damages, the law requires that the opinion and judgment of a reasonable person in the circumstance of the case be brought to bear. He again referred to the case of NIGERIAN DYNAMIC LTD. vs. AGUOCHA (SUPRA) and urged the Court to find issue two in favour of the Appellant. Issue number 3 as formulated by the Appellant is: Whether the judgment of the learned trial judge was unwarranted, unreasonable and cannot be supported by facts in the pleadings and evidence adduced. Learned Counsel submitted that judgment is a 13

15 product of facts led out in the pleadings and evidence given at the hearing. He cited the case of RANSOME KUTI VS. ATTORNEY-GENERAL OF THE FEDERATION (2001) FWLR (PT.80) 1695 PARA G where the Court held as follows: "Judgment must be confined to a determination of the issue raised on the pleadings and on what has been properly claimed." Learned Counsel went further to adopt his argument on Issue number 1 by concluding that the judgment of the Court below which awarded the sum of N250, (Two hundred and fifty thousand naira) is not in tandem with the claim of the Respondent. That since negligence as a tort was not pleaded in the statement of claim, the particulars of negligence was not proved in the oral evidence of the Respondent. That the judgment was therefore, strange, unwarranted and unreasonable. He then urged the Court to allow the appeal. Learned counsel to the Respondent however failed to file any brief and due to the circumstance and age of the case, the Court deemed the Appellants brief as duly argued, hence this judgment. I shall take the issues one after the other as argued by the learned Appellant's Counsel and deal with each accordingly. On Issue number One, the crux of the argument of counsel is that the lower court decided on the issue of negligence which was not claimed by the Plaintiff/Respondent. The learned trial judge found that there was no breach of contract but in the tort of negligence. The Plaintiff/Respondent however claimed from the 14

16 Appellant the sum of N300, (Three hundred thousand naira) as general damages for deceit, fraudulent misrepresentation, negligent mis-statement and conversion. The tort of negligence arises when a legal duty owed by the Defendant to the plaintiff is breached. The duty of care owed by the Defendant is paramount but that has to be proved either by preponderance of evidence or on the balance of probabilities. In the instant case, the question to be asked is whether there is indeed a claim for negligence by the Respondent in the lower Court. I tend to agree with the reasoning of learning Appellants Counsel that negligence is a question of fact, and any party therefore claiming it must plead in the statement of claim the special facts relied on. See AGBOMAGBE BANK LTD. v. C.F.A.O. (1966) 1 SCNLR 367. Also in the case of DARE v. FAGBAMILA (2009) 14 NWLR 180 the Court of Appeal held thus: "The most fundamental ingredient of the tort of negligence is a duty of care, which must be actionable in law and not just a moral liability. Until a plaintiff can prove by evidence the actual breach of the legal duty of care against a defendant, the action must fail. In other to find a defendant liable for negligence, there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part. Such evidence may be direct or inferential depending on the circumstance of each particular case." The closest that the Respondent got to a claim for negligence is a claim for negligent mis-statement 15

17 which was not supported or proved by any oral evidence. It is noted that a court not being a charitable organization cannot award more than what is claimed by a party. This Court cannot therefore allow the grant for a litigant a relief he did not seek in court. In the final analysis, it is my humbly view that the issue of negligence was neither pleaded nor claimed by the Plaintiff/Respondent. I reiterate the fact that this court will not grant a party a relief not sought and therefore find issue one in favour of the Appellant. Issue number Two is whether the trial Judge followed the principles guiding the award of damages when he made an award of N250, (Two hundred and fifty thousand naira) in favour of the Respondent. The trial judge in his findings clearly stated that the damages claimed by the Respondent is general not specific, "hence there is no fixed rule by which to assess such damages"' The Respondent had claimed the sum of N300, (Three hundred thousand naira) as general damages for four heads of tort including negligent mis-statement and the trial court awarded N250, (Two hundred and fifty thousand naira) as general damages to the Respondent for negligence simpliciter. The principle guiding the award of damages is that damages will flow from the wrong suffered to a complainant. Any grant of general damages is intended to assuage the natural loss and painful mental feelings suffered by the claimant and caused by the Defendant. The relief claimed in such situations has no mathematical exactitude. However, 16

18 since there is no parameter or yardstick for the Court to use in the award of general damages, such a discretion ought to be exercised judicially and judiciously and also to be considered as what the reasonable man would see as adequate loss or inconvenience flowing naturally from the act of the Defendant. See UNIPETROL NIG. PLC VS. ADIREYE WEST AFRICA LTD. (2005) 14 NWLR (PT.946) 563. Also the case of ROCKONOH PROPERTIES CO. LTD. VS. NIGERIAN TELECOMMUNICATION PLC (2001) 14 NWLR (PT.733) 468. I agree with the submission of learned Appellant's Counsel that when a Court cannot easily find the measure upon which to base the assessment of general damages, the law requires that the opinion and judgment of a reasonable person in the circumstance of the case be brought to bear. See NIGERIAN DYNAMICS LTD. VS. AGUOCHA (2002) FWLR (pr. 104) 662 PARA D - E. The Respondent gave to the Appellant the sum of N (Two hundred and sixty naira) yet he was awarded damages of N250, (Two hundred and fifty thousand naira). This, in my view is far in excess of what is reasonably due to the Respondent. It is therefore my humble opinion that the learned trial Judge did not follow the principle guiding the award of damages when he awarded the sum of N250, (Two hundred and fifty thousand naira) in favour of the Respondent. This issue is again found in favour of the Appellant. Issue number 3 is whether the judgment of the learned trial judge was unwarranted, unreasonable 17

19 and cannot be supported by fact in the pleadings and evidence adduced. Learned Counsel for the Appellant submitted that judgment is a product of facts led out in the pleadings and evidence given at the hearing. He cited the case of RANSOME KUTI VS. A.G. OF THE FEDERATION (SUPRA) where the Court as follows: "Judgment must be confined to the determination of the issues raised on the pleadings and on what has been properly claimed." Learned Counsel adopted his argument on issue number 1 and tied it to this issue. He then concluded that the judgment of the Court below which awarded the sum of N250, (Two hundred and fifty thousand naira) against the Appellant as damages for negligence is not in tandem with the Respondent's claim as contained in the particulars of claim and paragraph 22 of the statement of claim. I agree with the reasoning of learned Appellant's Counsel that negligence as a tort was not pleaded in the statement of claim. Also that the particulars of negligence was not proved in the oral evidence of the Respondent. From the totality of all of the above, I find that this appeal has merit and it is therefore allowed. The judgment of the Hon. Justice P.D. Damulak of the Plateau State High Court delivered on the 176 day of December, 1998 is hereby set aside. The Plaintiff s claim is accordingly dismissed. I make no order as to cost. 18

20 CLARA BATA OGUNBIY, J.C.A.: I have read in draft the lead judgment just delivered by my brother Philomena Mbua Ekpe J.C.A. I agree that the appeal has merit and I therefore also allow same in terms of the lead judgment inclusive of the order made as to costs. 19 JUMMAT HANNATU SANKEY, J.C.A.: I have had a preview of the lead Judgment of my learned brother, Ekpe, J.C.A. and I subscribe to the reasons he gave for allowing the Appeal. For these same reasons, I too hereby allow the Appeal and set aside the Judgment of the trial Court. In place thereof, I substitute an order of dismissal of the Plaintiffs claim. I abide by the order as to costs. Appearances M. U. Okereafor Esq. For Appellant Respondent not represented and filed no brief. For Respondent

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