University of Ibadan V. Omoniyi Wickliffe & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
The 1st – 5th Respondents were students who took part in the 1993/1994 University Matriculation Examinations (UME) conducted by the 6th Respondent on the 8th of May 1993. They were offered provisional admission into the Appellant University, which they accepted and after paying the necessary fees, they were registered as students by the Appellant. Three months later, however, the Appellant cancelled their provisional admissions pursuant to a directive of the 6th Respondent, in a letter dated 31/5/94, which reads –
“As a result of our routine checks of the particulars of candidates so far offered provisional admission by your University, the candidates listed on the attached list were involved in tampering with their examination particulars. The Board would like to request that all the candidates listed on the attached list should not be registered. Any admission letters they may possess have been declared void’~ (Italics mine)
In reaction, the 1st- 5th Respondents filed an action against the Appellant and 6th Respondent at the Federal High Court, Ibadan, claiming as follows –
(a) A Declaration that the Plaintiffs did not tamper with any examination particulars at the 1993/1994 University Matriculation Examination.
(b) A Declaration that the purported cancellation of the Plaintiffs’ result and admission at the 1993/1994 University Matriculation Examination by the Defendants is unwarranted, unlawful, unconstitutional and ultra vires the Defendants.
(c) An order restraining the Defendants, their agents, or servants from interfering with the registration, matriculation and studies of the Plaintiffs.
(d) N2,000.000.00 (Two Million Naira) to each of the Plaintiffs being special and general damages for the injury occasioned by the Negligence, ineptitude and recklessness of the Defendants.
At the end of the trial that ensued, and after hearing address of counsel, the learned trial Judge, Soba, J., delivered his Judgment on the 14th of February 2001, wherein he granted prayers (a), (b), & (c) in favour of the 1st – 5th Respondents, and in awarding N500,000.00 as damages, held as follow –
“..The Plaintiffs’ claim is predicated in negligence on the part of the Defendants. However the plaintiffs have failed to comply with the principle in A.N.T.S. v. ATOLOYE (supra) that unless the Particulars of negligence has been pleaded no evidence shall be allowed to show the alleged negligence of duty the Defendants owed to the Plaintiffs. Consequently, the claim of damages for negligence is not proved. It is true that the Plaintiffs in their oral evidence, each of them told the Court that they were shocked, sad, and were embarrassed when they learnt about the cancellation of their results and admission to the University. I hold that the Plaintiffs are entitled to general damages for non-pecuniary loss in that the shock is an element of pain and suffering and the sickness and embarrassment are matters of inconvenience and discomfort for which the Plaintiffs are entitled to compensation. General damages are losses which naturally flow from the Defendant and its quantum need not be pleaded or proved as it is generally presumed by law. Considering the natural and probable consequences of cancellation of the Plaintiff’s notification of results and the withdrawal of their admission letters to the Universities concerned at the time it was done and in the circumstances reminiscence in the case of JARVIS v. SWAN TOURS LTD. (1973) 1 O. B. 233. Accordingly-
I hereby award the sum of N500,000.00 damages and N50,000.00 cost in favour of the aforementioned Plaintiffs against the Defendants Jointly and severally” (Italics mine)
Dissatisfied with the decision on damages, the Appellant’s appeal to this Court is against the award of damages only. Briefs of arguments were duly filed, and in the Appellant’s Brief prepared by Oladepo Abiodun, Esq., it was submitted that the sole issue for determination in this appeal is as follows –
“Whether from the facts and the weight of evidence adduced in this case, the trial Judge was right in holding that the Plaintiffs were entitled to damages, special and or general, for non-pecuniary loss and awarding the sum of N500,000.00 (Five hundred thousand Naira) as general damages after finding that the Plaintiff’s claim for special and general damages was not proved”.
It is the Appellant’s contention that there is no personal injury or wrong that accrues from its action to the 1st – 5th Respondents to warrant the award of N500, 000.00 general damages against it and it was merely carrying out its statutory duty of obeying the directive of the 6th Respondent requesting it to stop the registration of all candidates involved in examination irregularities; that the findings of the lower Court, which it said entitled the 1st – 5th Respondents to general damages for non pecuniary loss, are not foreseeable and too remote to found a claim in damages, citing Shell Pet. Dev. Co. (Nig.) Ltd. V. Tiebo VIII (1996) 4 NWLR (pt. 445) 657; and that notwithstanding its finding that the claim for negligence was not proved, the lower Court went ahead to hold that the said Respondents are entitled to damages for non-pecuniary loss and awarded N500, 000.00 as damages. This Court was urged to hold that the said award has no basis in law since the said Respondents failed to plead or prove negligence on their part.
The 1st – 5th Respondents however argued in their own brief prepared by Razaq Okesiji, Esq., that the lower Court awarded the said damages for non-pecuniary loss having found that the cancellation of their results and admission had no basis whatsoever. The Court’s attention was drawn to the separate appeal filed by the 6th Respondent in CA/I/254/2001 and the fact that this Court has determined this same issue of damages in its Judgment thereon delivered on the 6th of July 2004, wherein it was held as follows –
“With relevant principle in mind and the evidence adduced in support coupled with the presumption that the suffering and embarrassment were short lived, I am of the view that the award of N500,000.00 damages for non-pecuniary loss is on the high side if not outrageous. I shall award the Respondents such sum as will fairly compensate them for the loss that might have suffered. I accordingly reduce the award of N500,000.00 to N250,000.00 for each of the Respondents”.
It was further submitted that the Appellant’s insistence on going ahead with this appeal after the Court’s decision in CA/I/254/2001 is a sheer waste of valuable judicial time, and the Court was urged to follow its decision in Appeal No.CA/I/254/2001. On the merits of the Appeal, it was conceded, citing Momodu v. University of Benin (1997) 7 NWLR (pt. 512) 325, & Audu v. Okeke (1998) 3 NWLR (pt. 542) 373, that this Court has power to re-assess award of damages by the lower Court subject to laid down principles.
The 6th Respondent toed the same line with the Appellant. It canvassed the same line of arguments in its brief prepared by Tunji Omole, Esq., and further submitted, citing A.N.T.S V. Atoloye (1993) 6 NWLR (pt 298) 233, that the evidence on damages suffered by the 1st – 5th Respondents are speculative and scanty, and ought not to have been relied on by the lower Court, since there was nothing to further buttress the claims of injury suffered by them beyond their ipse dixit. citing Egesimba v. Onuzurike (2002) 9 – 10 SC 1. Furthermore, that what the said Respondents claimed in their Statement of Claim was “N2,000,000.00 being Special and General damages for the injury occasioned by the negligence, ineptitude, and recklessness of the Defendants”, and not “General damages for non-pecuniary loss” as granted by the lower Court, and citing Etim Ekpeyong v. Inyang Nyong & ors (1975) 2 SC 71, Liman v. Mohammed (1999) 6 SC (pt.1) 67 & Chukwuma v. Chukwuma (1996) 1 NWLR (pt 426) 543, it was submitted that a trial Judge does not have the power to grant what was not claimed.
This appeal is easily resolved. I have to agree with the 1st – 5th Respondents that this appeal against the same issue already adjudicated upon by this Court in Appeal CA/I/254/2001 is a “sheer waste of valuable judicial time”.
This Court is bound to follows its previous decisions unless the earlier decision is given per incuriam or is wrong – see Ali Peters v. Atigwe David & 3 ors (1999) 5 NWLR (pt 603) 486 @ 496; & Odido v. The State (1994) 3 NWLR (pt 333) 504, & Akinade v. N. A. S. U. & 16 ors (1999) 2 NWLR (pt. 592) 570 @ 581-582, wherein Okunola J.C.A., stated as follows-
“- Since there is no provision in the rules governing precedent, the practice of the Court of Appeal of England commends itself to us. That practice is laid down in the English case of Young v. Bristol Aeroplane (1944) KB 718. Applying the principle in this case to the Court of Appeal here in Nigeria, the Court here is bound by its previous decisions save it will decide which of its own which though not expressly overruled cannot, in its opinion, stand with a decision of the Supreme Court in Nigeria, the Court is not bound to follow a decision of its own if it is satisfied that the decision is given per incuriam.
In other words, this Court is bound to follow its earlier decision, and the definition of “decision” includes “any determination” of the High Court as to an issue before the Court, and not a mere remark or recommendation – see Odido v. The State (supra).
What is the situation in this appeal?
The Appellant and the 6th Respondent filed separate appeals against the same decision of the Federal High Court, Ibadan in Suit No. FHC/IB/CS/22/95. Appeal No.CA/I/254/2001 filed by the 6th Respondent challenged both the award of damages and the nullification of its decision to cancel the admission.
The 6th Respondent’s Issue 4 in that appeal is as follows –
“Whether from the facts and the preponderance of evidence given in this case, the trial Judge was right in holding that the Plaintiffs were entitled to damages for non-pecuniary loss and awarding N500,000.00 general damages after finding that the Plaintiffs claim for special and general damages was not proved’: (Italics mine)
The Appellant’s only Ground of Appeal in this appeal is as follows –
“The learned trial Judge erred in law in awarding general damages against the Defendant’s to the tune of N500,000.00 whereas he found that the Plaintiffs/Respondents failed to prove special damages or any pecuniary loss”.
The Appellant’s Issue for determination, which bears repeating, is as follows –
“Whether from the facts and the weight of evidence adduced in this case, the trial Judge was right in holding that the Plaintiffs were entitled to damages, special and or general, for non-pecuniary loss and awarding the sum of N500,000.00 (Five hundred thousand Naira) as general damages after finding that the Plaintiff’s claim for special and general damages was not proved’: (Italics mine)
Without a shred of doubt, the Issues for determination in this appeal and Appeal No. CA/I/254/2001 already adjudicated upon by this same Division of the Court of Appeal are more or less identical, save for the use of the words “preponderance of evidence” in one and “weight of evidence” in the other, which mean exactly the same thing anyway. There is also no question that the Appellant canvassed more or less the same arguments as the 6th Respondent in Appeal No. CA/I/254/2001, wherein this Court in its Judgment delivered on the 6th of July 2004 reduced the damages awarded by the lower Court from N500,000.00 to N250,000.00. The reasons for reducing the said damages was clearly spelt out by Ibiyeye, JCA, who held as follows –
“I have carefully considered the record of proceedings and found that it is not true that the Respondents did not plead damages for non pecuniary loss for the psychological trauma they had for the sudden cancellation of results and admission into the University. Thus, in paragraph 17 of the Statement of Claim, the Plaintiffs state:
“The sudden cancellation of the admission affected the Plaintiffs psychologically and culminated in a great financial loss to the Plaintiffs who have incurred expenses in preparation for resumption of studies”.
After enumerating the evidence adduced by the Respondents, he further held-
“The Appellant did not react to the psychological trauma the Respondents had as a result of the cancellation of their results and withdrawal notice from the 2nd Defendant. In these circumstances, the trial Court cannot be faulted for sustaining the claim of the Respondents as averred in paragraph 17 of their joint Statement of Claim. The Claim made in that paragraph 17 (supra) is for non pecuniary loss for pain, suffering and shock. It is settled that a Plaintiff is entitled to general damages in respect of pain and suffering, which he has undergone for being unable to participate in an event for which he had been looking forward. It is further settled that in a proper case damages for mental distress can be recovered in contract. Thus, if the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset, embarrassment and frustration by the breach. The Plaintiff will only be compensated for what is fair and adequate in the prevailing circumstances. See JARVIS v. SWAN TOURS LTD. (1973) 1 Q. B. 233 @ 237.
In the instant case, it is common ground that the relationship between the Appellant and the Respondents was contractual. It has been established from Issue 1 that the Appellant was in breach of contract by unlawfully canceling the results and admissions of the Respondents. The Respondents are thereby, in view of the principle stated above, entitled to damages as opposed to damages for negligence, which the trial Court rightly refused. The lower Court awarded N500,000.00 damages for non pecuniary loss. The question is: Is it proper in the prevailing circumstances of this case to award N500,000.00 to each of the five Respondents?- – -From the state of record of proceedings, it is not in doubt that the Respondents were upset and embarrassed by the breach of contract occasioned by the Appellant. That discomfort did not however last for any considerable length of time because by virtue of an injunctive order made by the lower Court, the Respondents pursued their different courses of study to finality and with resounding successes. The mental suffering had since ceased. The thought of discomfort and embarrassment suffered by the Respondents are, in my view, now only remain in flashes reminiscent of what happened in the past. With the relevant principle in mind and the evidence adduced in support coupled with the presumption that the suffering and embarrassment were short lived, I am of the view that the award of N500, 000.00 damages for non-pecuniary loss is on the high side if not outrageous. I shall award the Respondents such sum as will fairly compensated them for the loss that might have suffered. I accordingly reduce the award of N500,000.00 to N250,000.00 for each of the five Respondents’ (Italics mine)
It goes without saying that the above decision of this Court in its Judgment on Appeal No. CA/I/254/2001 was not given per incuriam, and is clearly a “decision” within the legal meaning of the word. What is more, it covers the same Issue raised and arguments canvassed by the Appellant in this appeal. I must also add that it is definitely not wrong and can stand against any decision of the Supreme Court on the subject – see Akinade v. N. A. S. U. & 16 ors (supra). It follows therefore that I can only arrive at the conclusion urged on us by the 1st- 5th Respondents, which is to hold that this Court is bound by its previous decision in Appeal No. CA/I/254/2001, as any order I may give that is at variance with it, will amount to sitting on appeal over it. The end result is that I hereby adopt the decision of this Court in Appeal No.CA/I/254/200, and the N500,000.00 awarded by the lower Court as damages is hereby reduced to N250,000. 00.
There will be no order as to costs.
Other Citations: (2006)LCN/2042(CA)
