Nzube Anazodo V. Pazmeck Inter Trade, Nigeria & Anor (2007)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
This is an appeal against the judgment of Nnewi High Court in Anambra State of Nigeria delivered on the 27th day of July, 2004 in Suit No. HN/124/2001:
Pazmeek Inter-trade Nig. Ltd. and 1 other and Nzube Anazodo.
By paragraph 15 of the amended statement of claim, the plaintiffs now respondents sued the defendant now appellant for the sum of five million Naira being special and general damages caused to the plaintiffs by the wrongful act of the defendant.
In a considered judgment, the learned trial Judge held at pages 83 to 84 of the record thus……”
Most of items of special damages have been proved to the satisfaction of the Court, and I shall now proceed to enter judgment for the plaintiff:-
(a) Plaintiff is hereby awarded the sum of N700, 000.00 paid to the defendant for services not rendered less N 173, 000.00 import duty paid by the defendant thereby leaving a balance of N527, 000.00 to be refunded by the defendant.
(b) The court is not satisfied with the sum N340, 000.00 claimed as legal fee for the filing of suit in the Federal High court, Lagos. The court now reduces the legal fee to N 150,000.00
(c) N172, 050.00 being penalty for late clearance is awarded to plaintiff in full.
(d) Bank interest on the loan granted is hereby consigned to general damages.
(e) The sum of N132, 096.00 being the loss of 190 pieces of goods lost at N688.00 per piece is awarded the plaintiff in full.
(f) Ten trips to Abuja and accommodation for N156, 000.00 and N50, 000.00 for six trips to Lagos are hereby consigned to general damages.
The total amount of special damages is N981, 146.00 (nine hundred and eighty one thousand, one hundred and forty-six naira).
I award to the plaintiff the sum of N200, 000.00 (Two hundred thousand Naira) as general damages.
The defendant made a counter claim of N200, 000.00 being the balance of the agreed fee of N900, 000.00 not paid to him. A counter-claim is a sort of cross action, and not merely a defence to plaintiff’s claim. The court does not see the basis for the counter claim. The lack of diligence, and or recklessness, and attempts to make unjustified gain in this matter landed the plaintiff to a position for which he sustained losses.
The defendant rendered little or no service for the sum of N700, 000.00 he collected.
The counter claim is hereby dismissed for lack of merit.
It was simply a gold digging exercise which he rendered in futility”
Dissatisfied with the above decision, the appellant now appealed to this Court while the respondents also cross appealed.
The appellant/cross respondent formulated four issues for determination as follows:-
“(a) Whether the holding by the learned trial Judge that the State High Court has jurisdiction to entertain this suit in spite of the issues pertaining to the revenue of the Government of the Federation and operations of Nigerian Customs service inextricably interwoven in the subject-matter of the appeal was correct in view of the provisions of section 251 of the 1999 Constitution of Nigeria.
(b) Whether the heavy reliance on exhibits “B” and “B” internal investigation reports by the Nigeria Custom Service which indicted the appellant for forgery is a sufficient proof of commission of the offence by the F learned trial judge and the basis for finding the appellant liable sustainable in law in view of the clear provisions of section 36 of 1999 Constitution of Nigeria.
(c) Whether the awards of special and general damages against the appellant by the learned trial Judge were justified in the circumstance.
(d) Whether the learned trial Judge having held that he was not satisfied with the sum of N340, 000.00 claimed as legal fees had the power to reduce same to N150, 000.00.”
The respondents/cross appellants on the other hand also formulated for issues for determination as follows:-
(i) Whether the High Court of Anambra State has the jurisdiction to hear and determine the respondents’ suit as constituted.
(ii) Whether the respondents proved their case as required by law against the appellant.
(iii) Whether the learned trial Judge was right to award both special and general damages in favour of the respondents in the circumstances of this suit.
(iv) Whether the learned trial Judge was right to reduce the sum of N340, 000.00 claimed as special damages to N 150,000.00 in his judgment.”
At the hearing, learned counsel for the parties adopted and relied on their respective briefs of argument.
The issues formulated by learned counsel on behalf of the parties are similar. However, the issues set out by the respondents/cross-appellants are considered relevant and apt to determine this appeal.
Issue I
Learned counsel for the appellant/cross respondent referred to his evidence before the lower court at page 56 of the record and section 251(1)(c) of the 1999 Constitution.
He stated that the pleadings of both parties and indeed the evidence led were inextricably interwoven with and inseparable from cause and matters connected with or pertaining to customs and excise duties.
He submitted that a combined study of section 251(1) particularly (c) of the 1999 Constitution of Nigeria and the dictum of Bairaman, FJ in Madukolu v. Nkemdilim (1962) All NLR Page 581 at 589; (1962) 2 SCNLR 341 where it was held among others that: –
“A court is competent when: – the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; will evident show that the learned judge’s conclusion that –
‘The mere mention of Board of Customs, payment of custom duties, detention of container by the board of customs are certainly not evidence of the revenue of the federation’ (at page 81 of the record) shows that the learned trial Judge did not consider the said section 251(1) of the Constitution in totality.”
He finally stated that this suit raised issues exclusively within the jurisdiction of the Federal High Court.
The respondents/cross-appellant on the other hand submitted that the High Court of Anambra State that heard and determined the said suit has jurisdiction to do so as there was no evidence before the lower court or from the pleadings of the parties showing that the B suit related to the revenue of the Federal government or any of its agencies or that they are interested in the outcome of the litigation.
In order to appreciate the arguments of the learned counsel for the parties, it would be necessary to set out section 251(1)(a) and (c) of the 1999 Constitution of the Federal Republic of Nigeria and it is as follows: –
“251(1) Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and D exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties.”
A perusal of the said section 251(1)(a) and (c) of the Constitution quoted above envisages a civil cause or matter relating to the revenue of the government of the Federation in which the said government or an organ thereat or a person suing or being sued on behalf of the Federal Government is a party.In the instant case, neither the Federal Government nor any of its organs or agencies was a party to the suit in the lower court. The case of the respondents/cross appellants was based on losses suffered by them as a result of wrong doing on the part of the appellant. And mere reference to board of customs is not the same as a claim by or against the Nigeria Customs Service.
In Jammal Steel Structures Ltd. v. African Continental Bank Lid. (1973) 1 All NLR (Pt. II) Page 208 the Supreme Court considered and interpreted section 9(1) of the Federal High Court Act, No. 23 of 1973 which is about the same with section 251(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria and held among others that:-
“For the Federal High Court to have exclusive jurisdiction two conditions must be fulfilled-
(1) the cause or matter must relate to the revenue of the Federation or its organs or agencies.
(2) the Federal government or its agency must be a party.”There was nothing in the action before the lower court to suggest or indicate that the revenue of the Federal Government was involved or that the Federal Government or any of its organs was a party to the suit. The mere mention of or reference to the board of customs, payment of custom duties, seizure and detention of the container by the board of customs as a result of forging of the Clean Report of Inspection and investigation of the forgery by the board of customs and subsequent release of the container to the respondents are not sufficient to oust the jurisdiction of the State High Court on ordinary matter of breach of contract or tort, moreso when the action in question is not a claim by or against Nigeria Customs Service.
There is nothing in the suits which suggest or gave impression that the Federal Government or any of its organs is interested in the outcome of the suit.
In view of the foregoing, there is no feature in the case which prevents the State High Court from exercising its jurisdiction in this suit since the suit is between private citizens and the action was based on contract and tort.
Consequently, I hold a firm view that the High Court of Anambra State being a State High Court has jurisdiction to entertain the respondents/cross appellants’ suit and further that the Federal High Court do not have exclusive jurisdiction in the matter.
This issue is therefore resolved in favour of the respondents/cross appellants and against the appellant/cross respondent.
Issue No.2:
The learned counsel for the appellant referred to exhibit “B” relied upon by the lower court which is the investigation report by the Nigeria Customs Service. He also referred to exhibit “C”.
He then submitted that the learned trial judge was in error to have placed much reliance on exhibit “B” which was a mere investigation report and not a judgment of a court of competent jurisdiction. He also relied on the following cases:-
Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR Page 306.
Dr. Sofekun v. Chief Akinyemi (1980) 5-7 S.C. Page 1 Carba & others v. University of Maiduguri (1986) 2 SC Page 128 at 155; (1986) 1 NWLR (Pt. 18) 550.
The learned counsel for the respondents/cross appellants in his response stated that the findings of the lower court were not based solely on the investigation report of the Nigeria Customs Service but on the conduct of the appellant including other circumstances of the case.
D The appellant/cross respondent in the instant appeal admitted paragraphs 5, 6, 7 and 8 of the amended statement of claim by paragraph 3 of the statement of defence. He did not also deny that it was the use of the forged C.R.I. by him that resulted in the seizure of the respondent’s container. It was also stated that the appellant absconded when the board of customs was investigating the case of forgery.
There is no doubt that the board of customs has the power to investigate and prosecute offenders. The learned trial judge found that the Investigation by the board of customs absolved the respondents of any wrong doing in the forgery. The appellant/cross-respondent did not challenge that finding by the lower court.
Where an appellant has filed no ground of appeal against any part of the judgment of the trial court which is averse to him, it must be deemed that part of the judgment stands.
See: Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) Page 664.
Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) Page 242.Furthermore, there was evidence before the lower court that the appellant/cross respondent was paid N700, 000.00 for the transaction out of which he paid only N173, 000.00 to the government and that by forging the Clean Report Inspection he stood to benefit more.
It is therefore my view that the learned trial Judge was right to have considered the investigation report along with the other available evidence including the undisputed facts before coming to the conclusion which has not been shown to be perverse.
The appellant/cross-respondent had the opportunity to join issues with the respondents/cross-appellants on the allegation of forgery and he utilized the opportunity. Therefore Section 36 of the 1999 constitution was not breached and the case of: Denloye v. Medical and Dental Practitioners Disciplinary Committee (supra)
Dr. Sofekun v. Chief Akinyemi (supra)
Garba v. University of Maiduguri (supra) referred to by the appellant are not relevant.
This issue is also resolved against the appellant/cross respondent and in favour of the respondents/cross appellants
Issue 3:
The learned counsel for the appellant/cross respondent submitted that special damages claimed by the respondents were not proved and it ought to have been dismissed and the respondents should not have been compensated by way of general damages.
He relied on the case of – Shell Petroleum v. Tiegbo VII (2005) 4 F.W.L.R. Page 673; (2005) 9 NWLR (Pt. 931) 439.
In his reply learned counsel for the respondents/cross appellants submitted that the appellant/cross respondent did not appeal against the award of N527, 000.00, N 132, 096.00 and N 172, 050.00 respectively as special damages in his notice of appeal. He went further in his submission that all arguments which go beyond the grounds of appeal or which are based on aspects of the decision not appealed against are irrelevant. He relied on the case of: Okudo v. I.G.P & others (1998) 1 NWLR (Pt. 533) Page 335 at 341.
On the issue of general damages, he submitted that there is nothing wrong in the award of general damages made by the trial court in the circumstances of this case.
He submitted that where a claim for special damages on a particular item has failed on the ground that it has not been strictly proved the court may award general damages in favour of the party that has claimed it. He referred to the case of:- A.-G., Oyo State v. Fairlakes Hotels Ltd. (1989) 5 NWLR (Pt. 121) 225.
In a claim for special damages, what is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head.
See: – Odumosu v. A.C.B. (1976) 11 S.C. Page 55. ,A.G. Oyo State & others v. Fairlakes Hotels Limited & 1 other (supra).The appellant/cross-respondent did not plead in his statement of defence that he paid any other sum on behalf of the respondents apart from the sum of N173, 053.00, which he paid to the government.
On the issue of the N 172, 050.00 paid by the respondent/cross appellant as penalty for late clearance, it was pleaded and full particulars furnished in the amended statement of claim of the respondents. The defendant did not deny it and thus no issue was joined on it. The 2nd respondent’s evidence on this fact was not challenged or in any other way controverted.
In my view, the issue of proof of special damages can be sustained by oral evidence that is credible and not discredited under cross-examination.
In fact, the appellant/cross respondent did not specifically appeal against the awards of N527, 000.00, N l32, 096.00 and N172, 050.00 respectively as special damages. I therefore agree with the submission of learned counsel for the respondents/cross appellants that arguments based on aspects of decision not appealed against are irrelevant. See E Okudo v. I.G.P. (Supra).
On the issue of general damages, it was the contention of the appellant/cross respondent that the N200, 000.00 general damages should not have been awarded because it amounted to double compensation.
In U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) Page 558 at 586 Wall, J.S.C. held inter alia-
“The general principle of law is that an award of general damages is a matter for the trial Court and that normally an appeal court will not interfere with such an award unless:
“(1) Where the trial judge has acted under a mistake of law.
(2) Where he had acted in disregard of principle.
(3) Where he acted under misapprehension of facts.
(4) Where he has taken into account irrelevant matter or failed to take account of relevant matters or
(5) Where injustice would result if the appeal court does not interfere.”
In the instant appeal, the learned trial Judge acted under a mistake of law in awarding N200, 000.00 general damages in place of special damages on bank interests and trips to Abuja and Lagos, which were not proved strictly, court should scrutinize a plaintiff’s claim for general damages where the plaintiff also claims special damages in order to avoid double compensation after the claim for special damages as been granted. Therefore, by the rule of double compensation, if a plaintiff recovers in full under special damages, he will not be entitled to recover under general damages.
See: – Gamboruma v. Borno (1997) 3 NWLR (Pt 495) Page 530.
– Soetan v. Ogunowo (1975) 6 S.C Page 67.
– F.BN v. Igumbor (2000) 6 NWLR (pt. 662) Page 637.
In Shell Petroleum v. Tiegbo VII (supra) it was held among others by the Supreme CouJ1 that:-
“Where a plaintiff is unable to prove special damages, his case crumbles and a trial Judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed.” In view of the foregoing, the award of N200, 000.00 general damages is hereby set aside.
This issue is therefore resolved in favour of the appellant/cross respondent against the respondents/cross appellant.
Issue No.4:
This issue was distilled from the cross appeal.
The learned trial judge at the lower court found in favour of the respondents/cross appellants on the claim for special damages in respect of legal fees for filing a suit at the Federal High Court Lagos.
The court was not satisfied with the sum of N340, 000.00 legal fees claimed and it was reduced to N150, 000.00.
As a result of the said reduction the respondents/cross-appellants appealed to this court.
The learned counsel for the respondents/cross appellants contented that the suit handled by the legal practitioner Queen Ukadike at the Federal High Court Lagos on behalf of respondents/cross appellants was pleaded and given in evidence in proof of the special damages of N340, 000.00 claimed.
On the other hand, the learned counsel for the appellant/cross respondent referred to the finding of the learned trial Judge where the legal fees was reduced from N340, 000.00 claimed to N 150,000.00 he contended that the lower court was not satisfied with the evidence led in support of the said legal fees claimed and that that item of special damages should have been dismissed.
He relied on the case of – Xtoudos v. Taisei (2006) 6 SCNJ Page300 at 303-304; (2006) 15 NWLR (Pt. 1003) 533.
The law does not require an extraordinary measure of evidence to establish entitlement to special damages. Special damages must be specifically pleaded and proved.
See – B.E.O.O. Industries Nig. Ltd. v. Maduakoh (1975) 12 S.C. Page 91 at 108.
A plaintiff claiming special damages has an obligation to plead and particularize any item of damage. The obligation to particularize arise not because the nature of loss is necessarily 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 make such calculation possible. See – Xtoudos v. Taisei (supra).
In the instant case, the issues relating to the seizure of the respondents/cross appellant’s goods and the legal fees of N340, 000.00 paid to Miss Queen Ukadike, legal practitioner were given in the amended statement of claim and at trial, evidence was led in proof thereof. The receipt issued on payment of the legal fees i.e. exhibit “G” was tendered in evidence at the trial. Also the evidence of the 2nd respondent/cross appellant on the aspect of the losses was not challenged or controveI1ed by the appellant/cross respondent.
In my own view, the said exhibit “G” and the evidence of the 2nd respondent/cross appellant being unchallenged and uncontroverted are sufficient to establish the said claim of N340, 000.00 legal fees as special damages.
I do not see any reason why the learned trial judge reduced the special damages from N340, 000.00 to N150, 000.00 since the respondents/cross appellants had strictly proved the said sum as required by law. Consequently, they are entitled to be awarded the said sum of N340, 000.00 in full. The trial court was therefore wrong to have reduced the amount claimed by the respondents/cross appellants in the absence of evidence to the contrary.
See the following cases: –
Uman v. Owoeye (2003) 9 NWLR (Pt. 825) page 221.
F.BN Plc v.Associated Motors Co. Ltd. (1998) 10NWLR (Pt. 570) Page 441
F.BN Plc v.Abba (1998) 10NWLR (Pt 569) Page 227.
U.BN Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) Page 558.
Imana v. Robinson (1979) 3-4 S.C. Page l.
Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) Page 668.
This issue is resolved in favour of the respondents/cross appellants against the appellant/cross respondent.
In the final analysis, this appeal succeeds in part. That part of the judgment of the lower court dated the 27th day of July, 2004 which awarded N200, 000.00 general damages in favour of the plaintiffs/respondents/cross appellants is herby set aside. In its place the plaintiff’s claim on general damages is hereby dismissed. The cross appeal also succeeds and it is allowed. That part of the judgment of the lower court which reduced the special damages of N340, 000.00 claimed as legal fees to N150, 000.00 in favour of plaintiffs/respondents/cross appellants is hereby set aside. In its place the plaintiff’s claim for special damages of N340, 000.00 legal fees for the filing of suit at the Federal High Court Lagos is hereby granted.
For avoidance of doubt, I also uphold the judgment of the lower court in terms of legs (a), (c), (e) as contained in the said judgment.
This shall be the judgment of the court.
There shall be no order as to costs.
Other Citations: (2007)LCN/2433(CA)
