(2018) lpelr-45021(ca)lawpavilionpersonal.com/ipad/books/45021.pdf · rhodes - vivour jsc in...
TRANSCRIPT
OKANU v. OKANU & ANOR
CITATION: (2018) LPELR-45021(CA)
In the Court of AppealIn the Owerri Judicial Division
Holden at Owerri
ON THURSDAY, 5TH JULY, 2018Suit No: CA/OW/19/2012
Before Their Lordships:
RAPHAEL CHIKWE AGBO Justice, Court of AppealAYOBODE OLUJIMI LOKULO-SODIPE Justice, Court of AppealTUNDE OYEBANJI AWOTOYE Justice, Court of Appeal
BetweenMATHEW OKANU - Appellant(s)
And1. OSITA OKANU2. JONATHAN ONYEACHO - Respondent(s)
RATIO DECIDENDI
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1. ACTION - STATEMENT OF CLAIM/WRIT OFSUMMONS: Whether a statement of claimsupercedes a writ of summons"It is trite law that a statement of claimsupercedes a writ of summons. See ABOYEJI VMOMOH & ORS (1994) 4 NWLR PT.341 p.646EYA & ORS V OLOPADE & ANOR (2011) 11NWLR (PART 1259) 505. In GARAN V OLOMU(2013) NWLR PT 1365 p.227, Ngwuta JSC.aptly explained it this way. "The writ subsistsuntil the statement of claim is filed. Thestatement of claim is confined to the cause ofaction endorsed on the writ. Once thestatement of claim is filed, it supercedes thewrit; See UDECHUKWU V OKWUKA (1956)I.E.C.S 70 (1956) S.C.N.L.R 189. Whenappellant amended his statement of claim theamended process spoke from the date of theoriginal statement of claim which supercededthe writ. Once the order to amend thestatement of claim was granted, the originalstatement of claim was discarded with effectfrom the date it was filed. See ROTIMI VMACGREGOR (1974) 11 S.C. 133 AT 152;SNEADE V WOTHERTON BARYTES AND LEADMINUG CO. LTD (1904) IKB 295 at 297ADEWUMI V AG. EKITI STATE (2002) 92 LRCN43 at 64."Per AWOTOYE, J.C.A. (Pp. 21-22,Paras. F-E) - read in context
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2. ACTION - CLAIM(S)/RELIEF(S): Whetherthe Court can grant a relief not claimed"A relief not claimed cannot be granted bythe Court. See ALIMS NIGERIA LTD V UBA(2013) S6 NWLR PART 1351 p. 613."PerAWOTOYE, J.C.A. (P. 23, Para. B) - read incontext
3. APPEAL - INTERFERENCE WITH AWARDOF DAMAGES: Circumstances in which anappellate court will interfere with award ofdamages made by a trial Court"Learned counsel for the appellant'scontention was that the trial Court awardedto the plaintiff a sum of money beyond whathe claimed. This in my respectful view is avalid ground for challenging an award ofdamages by a trial Court. Where a trial Courtacted under misapprehension of the facts ofthe case, an appellate Court can interferewith the award of damages so made by thetrial Court. See AHMED & ORS V CBN (2013) 2NWLR PART 1339 p. 524; ONWU & ORS V NKA& ORS (1996) 7 NWLR PART 458 p.1."PerAWOTOYE, J.C.A. (P. 21, Paras. B-D) - read incontext
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4. DAMAGES - GENERAL DAMAGES: Meaning,nature and scope of general damages"Now, general damages need not bespecifically claimed. Fabiyi JSC explained itthus in UBN PLC V AJABULE & ANOR (2011)LPELR SC. "General damages are said to bedamages that the law presumed and theyflow from the type of wrong complainedabout by the victim. They are compensatorydamages for harm that so frequently resultsfrom the tort for which a party has sued thatthe harm is reasonably expected and neednot be alleged or prove. They need not bespecifically claimed. They are also termeddirect damages necessary damages."RHODES - VIVOUR JSC in CAMEROONAIRLINES V OTUTUIZU (2011) 4 NWLR 9Pt1238) 512 put it this way. "General damagesare thus losses that flow naturally from theadversary and it is generally presumed bylaw, as it need not be pleaded or proved. SeeUBN LTD V ODUSOTE BOOKSTORE LTD (1995)9 NWLR PT. 421 p. 558. General damages isawarded by the trial Court to assuage a losscaused by an act of the adversary."PerAWOTOYE, J.C.A. (Pp. 20-21, Paras. B-A) -read in context
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TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the
Leading Judgment): This is the judgment in respect of the
appeal of the 2nd defendant/appellant against the decision
of Imo State High Court sitting at Nkwerre Judicial Division
in consolidated Suit No. HON/6/99 and HON/8/2000
delivered on 14/10/2010.
The original plaintiff in the consolidated Suit was Sunday
Okanu. This was in respect of HON/6/99. He instituted the
action against his senior brother and claimed as follows:
“(a) Declaration that “ALA UZO OHIA” situate at
Okwu village Nkwerre in the Nkwerre L.G.A. in a
family land, jointly inherited by the 2nd defendant
and plaintiff who are brothers of full blood, from their
father.
(b) Declaration that the plaintiff and the 2nd
defendant are jointly entitled to the statutory right in
respect of the piece or parcel of land known as “ALA
UZO OHIA” situate at Okwu village in Nkwerre L.G.A.
of Imo State within jurisdiction.
(c) Declaration for the purported sale of the said land
“ALA UZO OHIA” by the 2nd defendant to the 1st
defendant without the consent of the plaintiff is
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illegal null and void and of no effect whatsoever.
(d) N500,000.00 (Five hundred thousand Naira)
General damages for the continuing trespass of the
1st defendant.
(e) Perpetual injunction restraining the 1st defendant
by himself, his heir, agents, servants and/or workers
from further trespass to the said land, entering
thereon or doing anything whatsoever on same
including continue to erect any permanent structures
on the said land.”
The plaintiff in Suit No. HON/8/2000 was the 1st defendant
in the original Suit i.e. HON/6/99. He filed a counter-action
against the plaintiff and 2nd defendant who were brothers
and claimed thus:
1. That the land situate and lying at Okwu Village
Nkwerre and known as “ALA UZO OHIA” sold to the
plaintif by the 1st defendant which said land has been
fully developed by the plaintiff is the bona fide
property of the plaintiff and that the plaintiff is
entitled to the certificate of occupancy to the said
property.
2. In the alternative the sum of N5,000,000.00 against
the defendant being special and general damages for
the fraudulent breach of sale of the said land to
the plaintiff.”
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The two suits were consolidated by order of Court.
The learned trial judge after hearing the parties gave
judgment in the following terms.
“Whether the 1st defendant is entitled to his claim
r ight o f occupancy or in the a l ternat ive
N5,000,000.00 damages for the fraudulent breach of
the sale of the land. As held earlier in this judgment,
the deceased claimant is entitled to void the sale of
the land by the 2nd defendant without his consent.
This therefore, means that the 1st defendant cannot
succeed in the 1st arm of his claim for declaration of
right of occupancy. As regards the alternative claim
for damages for the breach of the sale, I have earlier
held that the 1st defendant is entitled to be
compensated by the 2nd defendant for his losses on
the land. The 1st defendant claim special damages of
N3,000,000.00. In his deposition, he deposed to the
contractors charges for the developments on the land
and annexed same to the deposition but failed to
tender the bill or the charges of the contractor. Since
the 1st defendant did not prove the special damages
strictly as required by law, no special damages can be
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awarded to him. See BADMUS VS ABEGUNDE 1999
72 LRCN 2912 at 2925 cited by the claimants counsel.
However the 1st defendant claims N5,000,000
damages. When there is a breach of rights, the law
implies some damages. When there is a breach of
rights, the law implies some damages recoverable
arising from such breaches. See ZOBAM COY NIG
LTD VS TOFA GENERAL ENTERPRISES LTD 2006 ALL
FWLR (Part 317 515 at 527.
In the circumstances judgment is hereby entered as
follows:
The claimant as now substituted is entitled to
judgment in reliefs (a), (b) and (c). Relief (d) of the
claimant is dismissed as the 1st was on the land by
virtue of the purported sale by the 2nd defendant
which sale is now set aside. As regards the claim for
injunction, it is also granted but can only take effect
when the 2nd defendant has paid to the 1st defendant
damages to be here in after awarded to him for the
fraudulent sale.
As regards the counter claim of the 1st defendant in
suit No. HON.8.2000, the claim 1 for declaration of
right of occupancy is hereby dismissed, In respect of
the alternative claim for damages, I award
N4,000,000.00 (four million Naira) damages to the
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1st defendant for losses suffered by him for the
fraudulent purported sale of the land to him by the
2nd defendant.
I make no order as to costs.”
Miffed by the above decision the appellant on 14/1/2011
filed Notice of Appeal challenging it on two grounds.
He later with leave of Court on 12/3/2015 filed amended
Notice of Appeal which was deemed filed on 22/1/2018. The
Amended Notice of Appeal contains four grounds of appeal
which read thus:
“GROUND ONE- ERROR IN LAW
The learned trial judge erred in law when he held
thus:
In respect of the alternative claim for damages, I
award N4,000,000 (four million Naira) damages to
the 1st defendant for losses suffered by him for the
fraudulent purported sale of the land to him by the
2nd defendant.
PARTICULARS OF ERROR
1. That the general damages awarded by learned trial
judge against the appellant was manifestly too high
and erroneously assessed.
2. The trial Court simply awarded the said damages of
N4,000,000 (four Million Naira) without giving reason
as to how it arrived thereat.
3. The trial Court in awarding the said damages took
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into account irrelevant matters.
4. That the said damages awarded by the trial Court
were unjustifiable, unfair and unreasonable. There’s
no evidence on record on which the trial Court based
its award.
5. The 1st Defendant/Respondent had a duty not to
increase the damages recoverable by his own
voluntary and unnecessary act.
6. The 1st Defendant/Respondent had a duty to do all
in his power to minimize his loss.
7. The 1st Defendant/Respondent breached or did not
discharge this duty of acting reasonably.
8. The general damages of N4,000,000 was awarded
by the learned trial Court against the appellant out of
sympathy /sent iment born of extraneous
considerations and not on the basis of legal evidence
of probative value adduced before the Court.
9. Injustice would result if the Appeal Court does not
interfere.
GROUND TWO:
The judgment is against the weight of evidence.
GROUND THREE:
The lower Court erred in law holding as follows:
Having made the 1st defendant to part with his
money and develop the property, the 2nd defendant is
bound to compensate the 1st defendant for his
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losses on the land to the detriment of the 2nd
defendant/appellant.
PARTICULARS OF ERROR
1. The 2nd defendant/appellant and the 1st defendant
agreed for the sum of N150,000.00 (one hundred and
fifty thousand naira) for the sale of the land, which
the 1st defendant/respondent paid to the 2nd
defendant/appellant.
2. During negotiations for the sale transaction
between the 2nd defendant/appellant and the 1st
defendant/respondent, the then claimant, Sunday
O k a n u s e n t e m i s s a r i e s t o t h e 1 s t
defendant/respondent not to buy the land in dispute
but he ignored the warning.
3. There is also evidence that when the 1st
defendant/respondent made the initial deposit for the
purchase of the land, he was warned by Sunday Okanu
not to go further in the land transaction but he
refused.
4. The 2nd defendant/appellant, his wife and son
made several attempts to pay him N2,000,000.00
agreed upon as the cost of the land and survey work
done on it but the 1st defendant/respondent made
himself unavailable.
5. The 1st defendant/respondent insisted on
developing the land in spite of all entreaties, made to
him.
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6. The lower Court made an order for interlocutory
injunction restraining the 1st defendant/respondent
from further developing the land but he ignored the
order.
7. The lower Court made the order complained of due
to its failure to consider these facts and evidence
borne out of the Court’s records.
GROUND FOUR
The lower court erred in law by stating thus:
Relief (d) of the claimant is dismissed as the 1st
defendant was on the land by virtue of the purported
sale by the 2nd defendant which sale is now set aside.
As regards the claim for injunction, it is also granted
but can only take effect when the 2nd defendant has
paid to the 1st defendant damages to be herein after
awarded to him for the fraudulent sale.
PARTICULARS OF ERROR:
1. Relief (d) of the claimant at the lower Court ought
to be granted following the grant of reliefs a, b and c.
2. The continued stay and activities of the 1st
defendant/respondent on the land violated an earlier
order made against him by the lower Court.
3. Relief (e) of the claimant at the lower Court ought
not be stayed until the payment of the award of four
million naira (N4,000,000.00) to the 1st
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defendant/respondent by the 2nd defendant/appellant
as same was not proved.
4. Reliefs (e) is a consequential claim which would
give effect to reliefs a, b and c already granted by the
lower Court.
5. The 2nd defendant/appellant is greatly prejudiced
by this order as it is unreasonable, excessive and
unnecessary.
After transmission of record of appeal to this court, parties
filed and exchanged briefs of argument.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant Brief of Argument was filed on 29/01/2004. It
was settled by his counsel P. U. NNODUM ESQ.
Learned Counsel to the appellant formulated a lone issue
for determination:
(1) Whether the lower Court was justified in the award of
N4,000,000.00 (four million naira) damages to the 2nd
respondent.
Learned Counsel to the appellant submitted that since the
trial Court found that the claim of (Three Million Naira)
N3,000,000.00) special damage was not proved, it was
wrong for it to have awarded damages to the 2nd
respondent to the tune of (Four Million Naira) whereas the
total claim for general damages was N2,000,000.00 (Two
Million Naira)
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And that the trial Court who in grave error to have awarded
a party a sum of money beyond what he claimed because
the Court was not a father Christmas.
He submitted that the loses referred to by the trial Court as
general damages on the land were the same losses
articulated and set out by the 2nd respondent (as claimant)
in paragraphs 21(6) of the amended statement of claim in
suit No. HON/8/8000 as particulars of special damages; for
instance cost of purchase of land, charges, perfection of
title deeds etc totaling (three million naira) N3,000,000.00
(See page 3 of the record).
He further submitted that it was the law that award of
general damages is improper where the quantum of loss
was ascertainable and it was also wrong to take into
consideration in awarding general damages matters which
should have been considered in awarding special damages.
He relied on the cases of UBN LTD V ODUSOTE
BOOK STORES LTD (1995) 9 NWLR (PART 421) 558,
586 PARA H P. 600 PARA D.
Learned Counsel to the Appellant contended that there
were guiding principles which would matter as appellate
Court interfere with an award by a trial Court, where it
was clearly shown.
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(a) That the trial Court acted upon wrong principles of law
(b) That the amount awarded by the trial Court was
ridiculously too high or too low; or
(c) That the amount was entirely erroneous and
unreasonable estimate having regard to the circumstances
of the case. He relied on the case of UBN PLC V
AJABULE (2011) 18 NWLR (PART 1278) 162, (181,
PARAS D-F)
Learned Counsel to the appellant contended that from the
state of the 2nd respondent pleading at the trial Court, he
became aware from the onset that the land he purchased
was being questioned by the family members of the
appellant and he ought to have warned himself of the risk
of developing same and the doctrine of caveat emptor
postulated that a purchaser should be aware of what he
was purchasing since it was for a party to a contract to take
all necessary precautions in order to avoid entering into a
bad bargain. He contended further that the 2nd respondent
ought to have taken steps to mitigate loss to himself. He
relied on the cases of AGEH V. TORTYA (2003) 6 NWLR
(PART 816) 385 (PP 395-396, PARAS P
A-D OKONGWU V N.N.P.C. (1989) 4 NWLR (PART
115) 296, 305, PARAS C-D.
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Learned counsel to the appellant submitted that general
damages was not awarded as a matter of cause but on
sound and solid legal principles and not on speculations,
sentiment or as father Christmas and could not also be
awarded as a largesse or out of sympathy borne of
extraneous considerations but rather on legal evidence of
probation value adduced for the establishment of an
actionable wrong or injury. He relied on the case of
ADEKUNLE V ROCKVIEW HOTEL LTD (2004) 1 NWLR
(PART 853) 161 (175-178, PARAS H-B.
Learned Counsel to the appellant finally submitted that
there was no basis for the findings of the trial Court
reproduced above because the appellant and the 2nd
respondent agreed for the sum of One hundred and fifty
thousand naira (N150,000.00) for the sale of the land in
dispute which the appellant paid him and evidence also
revealed that for the sale transaction, the deceased
claimant sent emissaries to the 2nd respondent not to buy
the land in dispute but he ignored the warning.
Learned Counsel to the appellant urged this Court to
resolve this issue in favour of the appellant.
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2ND RESPONDENT BRIEF OF ARGUMENT
The 2nd Respondent’s Brief of Argument was filed on
1/3/2018 it was settled by his counsel COLLINS IWUORIE
ESQ.
Learned Counsel to the 2nd Respondent adopted the lone
issue formulated by the appellant’s counsel:
(1) Whether the lower Court was justified in the award of
N4,000,000.00 (Four Million Naira) damages to the 2nd
respondent.
Learned counsel to the 2nd respondent contended that
there were two types of damages special and general
damages and that the law was trite that every item
contained in the claim of special damage must be
specifically proved and tied to the claimant’s testimony and
in the cause of the trial, the 2nd respondent testified how
he spent the huge amount of money in his particulars for
special damages to the development of the land in dispute.
He relied on the case of ADIM V NBC LTD (2010) VOL.
187 L.R.C.N. at PAGE 90 RATIO 1, ADECENTRO LTD
V COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY
(2005) 5 KLR (PT. 196).
He submitted that the 2nd respondent, apart from
specifically pleading the special damages and proving same
in evidence during the trial he particularized the items of
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special damage with precise calculation within his pleading
and evidence. He relied on the case of XTOUDOS
SERVICES NIG LTD V TAISEI WEST AFRICA LTD
(2006) KLR (PT 221).
Learned counsel to the 2nd respondent contended that
contrary to the submission of counsel to the appellant that
the trial Court took into consideration in awarding general
damages matters which should have been considered in
awarding special damages; that the appellant counsel
misfired in using special and general damages
interchangeably and that the law was trite that where a
plaintiff failed to prove special damages he was entitled to
general damages. He relied on the case of S.P.D.C. V
TIEBO II (2005) 4 NSCR.
Learned Counsel to the 2nd respondent contended that a
Court of law had the discretion to award general damages
even though not claimed in as much as the party pleaded
and proved special damages and this was because general
damages was predicated on the proof of special damages.
He relied on the case of S.P.D.C. V TIEBO II (Supra).
He contended that contrary to the argument of the
appellant’s counsel that the said award of N4,000,000.00
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was neither claimed nor proved by the 2nd respondent but
the 2nd respondent claimed the sum of N5,000,000.00 in
the alternative which was split into N3,000,000.00 special
damages and N2,000,000.00 general damages (See page 9
of the record). He relied on the case of N.N.P.C. V.
CLIFCO NIG. LTD. (2011) ALL FWLR (PT 583) PG
1875.
Learned counsel to the 2nd respondent submitted that it
was a settled principle of law that a Court of law had no
jurisdiction to award a relief not claimed but the 2nd
respondent not only claimed in the alternative the sum of
N5,000,000.00 but also pleaded particulars of special
damages. Thus, the trial Court was right in awarding the
sum of N4,000,000.00 as damages to the 2nd respondent as
the latter specifically pleaded damages of N3,000,000.00
and that the law was trite that a Court had no jurisdiction
to entertain a suit which was not substantiated on a claim
of special damages but having claimed special damages
and pleaded same, the award of N4,000,000.00 to the 2nd
respondent by the trial Court was not in vacuum. He relied
on the cases of FATUNBI V OLANLOYE (2004) 12
NWLR (PT. 887) 229 AT 256; AGBU V CIVIL SERVICE
COMMISSION
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NASARAWA STATE (2013) ALL FWLR (PT 675) AT
PAGE 231.
Learned Counsel to the 2nd respondent finally submitted
that trial Court denied its jurisdiction in awarding the said
consent of money from the claims of the 2nd respondent
before the lower Court and that jurisdiction of a Court was
determined by the plaintiff’s claim. He relied on the case of
ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD V
GARBA (2002) 14 NWLR (PT 788) 538 AT 564.
Learned Counsel to the 2nd respondent urged this Court to
resolve this issue in favour of the 2nd respondent and
dismiss this appeal as lacking in merit.
APPELLANT’S REPLY BRIEF OF ARGUMENT
The Appellant’s Reply Brief of Argument was filed on
12/3/2018. It was settled by his counsel N. R. CHIBUISI
ESQ.
Learned Counsel to the appellant contended that the 2nd
respondent brief of argument was not wholly based on the
record of appeal in this case as it contained matter which
was not verifiable from the record of appeal. Thus, the 2nd
respondent stance was at variance with the findings of the
lower Court. (See paragraphs 4.05, 4.07 and 4.08 of the
2nd respondent brief of argument) (See also page 246
of the record of appeal).
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He further contended that the legal effect of failure of the
2nd respondent to file a cross appeal or a respondent’s
notice of contention as provided for by Order 9 of the Court
of Appeal Rules 2007 was that the adverse findings made
by the lower Court against the 2nd respondent were extant
and binding on him and he could not make an argument
against those findings. To this end paragraph 9.06, 9.07
and 4.08 of the 2nd respondent brief of argument should be
discountenanced.
Learned counsel to the appellant submitted that the law
was trite that where a party claimed special damages, the
burden was on him to prove the special damages to the last
kobo and it was not a matter to be left to conjecture and he
had to do this by leading credible evidence in proof of
them. He relied on the case of ARISONS TRADING V
MIL. GOV. OSUN STATE (2009) ALL FWLR (PART
496) 1819, 1844E, 1854F. That, the 2nd respondent
struggled to justify the award by the lower Court in
paragraphs 4. 14, 4. 15 and 4. 17 of his brief of argument.
Learned counsel to the appellant submitted that the
computation above was erroneous as it could not be
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justified or did not arise from the judgment of the trial
Court which rightly refused the grant of the special
damages but went ahead to award general damages of
N4,000,000.00 when what the 2nd Respondent requested
for was N2,000,000.00 a general damages.
Learned Counsel to the appellant contended that despite
the finding of the trial Court that the 2nd respondent failed
to prove the special damages, what was left to be
considered was the general damages of N2,000,000.00 and
that the lower Court seemed to have misconceived the limit
of what was claimed before it.
Learned Counsel to the appellant urged this Court to allow
the appeal and set aside the decision/judgment of the trial
Court.
RESOLUTION OF ISSUE.
I have carefully considered the argument canvassed by
learned counsel on both sides. In spite of having been
served with appropriate processes the 1st Respondent
failed to file a brief of argument. I shall therefore
determine this appeal based on the briefs filed by appellant
and the 2nd Respondent respectively.
Learned counsel in this appeal are ad idem on the sole
issue for determination to wit.
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WHETHER THE LOWER COURT WAS JUSTIFIED IN
THE AWARD OF (Four Million Naira) DAMAGES TO
THE 2ND RESPONDENT.
It needs to be stated that the four million naira damages
granted in favour of the 1st defendant was general
damages. In granting the general damages the learned trial
judge explained it this way:
“In respect of the alternative claim for damages, I
award N4000,000.00(four million naira) damages to
the 1st defendant for losses suffered by him for the
fraudulent purported sale of the land to him by the
2nd defendant.”
This is the award being challenged by the appellant. This
award drew its foundation from the claim of the 1st
defendant as plaintiff in HON/8/2000 where he claimed
thus as per his statement of claim.
In the alternative the sum of five million naira against the
defendants are as follows:
(1) Three million naira (N3,000,000.00) special damages,
PARTICULARS OF SPECIAL DAMAGES:-
(1) For purchase of land = N150,000.00
(2) Charges, perfection of Title Deeds and Registration =
N150,000.00
(3) Works and cost of labour from Foundation to Floor slab
(German Floor) = N500,000.00
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(4) Works and cost of labour from Floor – slab
to linter level = N850,000.00
(5) Works and cost of labour from linter level to roofing =
N650,000.00
(6) Works and cost of labour for concrete wall fence and
Iron-gate. =N700,000.00
(7) Two million naira (N2,000,000.00) general damages for
breach of contract and trespass on the land.
Now, general damages need not be specifically claimed.
Fabiyi JSC explained it thus in UBN PLC V AJABULE &
ANOR (2011) LPELR-8239 SC.
“General damages are said to be damages that the
law presumed and they flow from the type of wrong
complained about by the vict im. They are
compensatory damages for harm that so frequently
results from the tort for which a party has sued that
the harm is reasonably expected and need not be
alleged or prove. They need not be specifically
claimed. They are also termed direct damages
necessary damages.”
RHODES – VIVOUR JSC in CAMEROON AIRLINES V
OTUTUIZU (2011) 4 NWLR 9 Pt 1238) 512 put it this
way.
“General damages are thus losses that flow naturally
from the adversary and it is generally presumed by
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law, as it need not be pleaded or proved. See UBN
LTD V ODUSOTE BOOKSTORE LTD (1995) 9 NWLR
PT. 421 p. 558. General damages is awarded by the
trial Court to assuage a loss caused by an act of the
adversary.”
Learned counsel for the appellant’s contention was that the
trial Court awarded to the plaintiff a sum of money beyond
what he claimed. This in my respectful view is a valid
ground for challenging an award of damages by a trial
Court.
Where a trial Court acted under misapprehension of the
facts of the case, an appellate Court can interfere with the
award of damages so made by the trial Court. See AHMED
& ORS V CBN (2013) 2 NWLR PART 1339 p. 524;
ONWU & ORS V NKA & ORS (1996) 7 NWLR PART
458 p.1.
I have carefully perused the record of appeal and the
summary of the facts as framed by the learned trial Judge
in his judgment. It appears to me, his lordship mistakenly
relied on the endorsement on writ of summons of plaintiff
in HOS/8/2000 instead of paragraph 21(c) of his Amended
Statement of claim. It is trite law that a statement of claim
supercedes a writ of summons. See ABOYEJI V MOMOH
&
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ORS (1994) 4 NWLR PT.341 p.646 EYA & ORS V
OLOPADE & ANOR (2011) 11 NWLR (PART 1259)
505.
In GARAN V OLOMU (2013) NWLR PT 1365 p.227,
Ngwuta JSC. aptly explained it this way.
“The writ subsists until the statement of claim is
filed. The statement of claim is confined to the cause
of action endorsed on the writ. Once the statement of
claim is f i led, i t supercedes the writ ; See
UDECHUKWU V OKWUKA (1956) I.E.C.S 70 (1956)
S.C.N.L.R 189. When appellant amended his
statement of claim the amended process spoke from
the date of the original statement of claim which
superceded the writ. Once the order to amend the
statement of claim was granted, the original
statement of claim was discarded with effect from the
date it was filed. See ROTIMI V MACGREGOR (1974)
11 S.C. 133 AT 152; SNEADE V WOTHERTON
BARYTES AND LEAD MINUG CO. LTD (1904) 1 KB
295 at 297 ADEWUMI V AG. EKITI STATE (2002) 92
LRCN 43 at 64.”
The learned trial Judge was with due respect under a
misapprehension that the plaintiff claimed five million naira
as special and general damages as per his writ of Summons
but failed to take cognizance of the subsequent amendment
in the amended statement of claim
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which limited the claim for the general damages to two
million naira (N2,000,000.00). This was why his lordship
awards four million naira damages to the 1st defendant for
losses suffered by him in excess of the two million naira
general damages claimed. For this reason I shall interfere
with the award of damages by reducing it to the two million
naira damages claimed. A relief not claimed cannot be
granted by the Court. See ALIMS NIGERIA LTD V UBA
(2013) S6 NWLR PART 1351 p. 613.
The award of general damages by the lower Court apart
from the above cannot be faulted. The sale of the land by
the 2nd defendant was fraudulent and the 1st defendant
incurred undisputable losses as a result.
This appeal has merit. It is hereby allowed.
The judgment of the lower Court delivered on 14/10/2010
in Suit No. HON/6/99 and HON/8/2000 (CONSOLIDATED)
Between OSITA OKANU AND JONATHAN ONYEACHOR
& ANOR is hereby varied to read as follows:-
“In respect of the alternative claim for damages, I
award N2,000,000 (Two million Naira) damages to the
1st defendant for losses suffered by him for the
fraudulent purported sale of the land to him by the
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2nd defendant. I make no order as to costs.”
This shall be the judgment of the Court.
Parties are to bear their respective costs in this appeal.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
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Appearances:
N. R. Chibuisi, Esq. For Appellant(s)
Peter Anyiam-Osigwe, Esq. - for 1st RespondentK.O Anyaegbulam, Esq. - for 2nd Respondent. ForRespondent(s)
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