Alhaji Ahmadu Gari V. Seirafina Nigeria Limited & Anor (2007)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an appeal and a cross appeal against part of the judgment of the Kaduna State High Court in suit No.KDH/KAD/705/2002, holden at the Kaduna State Judicial Division delivered on the 28th day of May, 2004, by J.S. Abiriyi, J, of the Kaduna State High Court.
The respondents/cross-appellants as plaintiffs at the High Court of Justice, Kaduna State, instituted an action by an endorsed writ of summons dated 2/10/2002, claimed various reliefs against the appellant/cross-respondent, including the sum of N5,000,000.00 general damages. The respondents/cross-appellants’, subsequently filed their statement of claim dated and filed on 29th day of October, 2002 and claimed as per paragraph 28(7) of the statement of claim as follows:
“WHEREOF the Plaintiff’s claim against the Defendant:
- A Declaration that the unilateral seizure and detinue of an IVECO Tanker with Registration NO:AH 242 KAF owned and used by the Plaintiff’s in its business of lifting and transporting petroleum products form the NUPENG Union offices at the NNPC Depot, Kaduna by the Defendant on 05/08/2002 without Plaintiff’s knowledge and consent is illegal and constitutes a trespass to the Plaintiffs’ right to property.
- A Declaration that the aforesaid unilateral seizure and detinue of the said IVECO Tanker with Reg. NO:AH 242 KAF by the Defendant has estopped the Plaintiffs from carrying out their lawful business of lifting and transporting petroleum products and has therefore caused the Plaintiff grave economic losses and well as loss of business reputation.
- A Declaration that the Plaintiff having paid N1,320.000.00 out of the agreed purchase price of N1,750,000.00 for the said IVECO Truck Head and the agreed time frame of one year for the payment of the balance not having elapsed, have validly acquired an equitable title to the said truck head.
- An order compelling the Defendant to issue the Plaintiffs a receipt, acknowledging the sum of N1,320,000.00 only paid so far out of the agreed N1,750,000.00 and to release the original particulars of the, said vehicle to the Plaintiffs.
- An Order of perpetual Injunction restraining the Defendant, his agents, privies or servants whomsoever from re-seizing, impounding tampering with and or hampering the Plaintiffs’ use of the said IVECO Truck Head for their business.
- An Order directing the Plaintiffs to pay to the Defendant the balance sum of N430,000.00 within one year from 10/01/2002, as earlier agreed with the Defendant.
- N5,000,000.00only as general damages for the said unlawful seizure, detinue, trespass, loss of business earnings and loss of business reputation.”
Pleadings were ordered filed and exchanged between the parties, the statement of claim is contained at pages 32 – 35 of the printed record’ while the statement of defence is at pages 36 – 40 of the printed record.
At the trial, the 2nd respondent/cross-appellant testified as PW.1 and one Nura Shehu Abubakar also testified for the respondents/cross-appellants who were the plaintiffs at pages 76 – 83 and pages 83 – 88 of the printed record respectively while four witnesses testified for the appellant/cross-respondent who was the defendant, DW.1 testified at pages 91 – 94, DW.2, at pages 94 – 99, DW.3 at pages 100 – 104 and DW.4 at pages 105 – 109 of the printed record.
At the conclusion of hearing, counsel to the parties addressed the court and in a reserved and considered judgment delivered on. 28/5/04, the learned trial Judge at pages 144 – 145 of the printed record, held:
“The plaintiff is entitled to the return of the truck and a sum of money representing the normal loss through the detention of the vehicle at the rate the vehicle would have been hired during the period of detention. See Odusomu vs. African Continental Bank Ltd. (Supra) at 439 – 440. (underline mine)
It is hereby declared that the unilateral seizure and detention of an IVECO Tanker with Registration number AH 242 KAF used by the plaintiff in the business of lifting and transporting petroleum products by the defendant on the 5th August, 2002 without the knowledge and consent of the plaintiff is illegal and has therefore caused the plaintiff grave economic loss as well as loss of business reputation.
The plaintiff having paid N1,300,000 out of the agreed sum of N1,750,000 for the said IVECO truck Head had validly acquired an equitable title to the said truck.
Defendant shall issue the plaintiff a receipt acknowledging the sum of N1,300,000 paid so far.
An order of perpetual injunction is hereby made restraining the defendant, his agents, privies or servants whomsoever from impounding, re-seizing tampering with and or tampering the plaintiff’s use of the IVECO Truck Head for their business.
Plaintiff shall pay to the defendant the balance of N450,000 (Four hundred and fifty thousand naira) only. Plaintiff is awarded N1,150,000 (One million one hundred and fifty thousand naira) only general damages for loss of business earnings during the period of detention of the vehicle .which shall be returned immediately to the plaintiff.”
Dissatisfied with the judgment of the trial court, the appellant/cross-respondent by his notice of appeal dated 14/6/2004, filed on 30/8/2004, containing four grounds of appeal appealed to this Court. With the leave of the court, grounds 1 and 2 of the original notice of appeal were amended. The two amended grounds of Appeal and grounds 3 and 4 of the original notice of appeal are with their particulars as follows:
GROUNDS OF APPEAL
- “The learned trial Judge erred in law in awarding special damages in favour of the plaintiffs/respondents which were not specifically pleaded and proved and thereby occasioned substantial miscarriage of justice to the appellant.”
PARTICULARS OF ERROR
(a) Plaintiffs/respondents neither pleaded nor led evidence in proof of business loss/earnings and yet an award N1,150,000.00 was made in their favour.
(b) Plaintiffs/respondents evidence as to loss of opportunity to supply petroleum products is inadmissible as same falls in the realm of special damages, which was not specifically pleaded.
(ii) Leave to abandon grounds two (2) and three (3) contained in the Notice of Appeal dated 14th
day of June, 2004 which should now be struck out.
(iii) Leave to substitute the existing ground 4 contained in the Notice of Appeal dated 14th day
of June, 2004 (which should now be renumbered as ground 2) with the following ground of appeal.
- The learned trial Judge erred in law when he awarded damages in favour of the 1st plaintiff/respondent when it was not privy to the transaction which gave rise to the action before the trial court and therefore had no claim against the appellant.
PARTICULARS OF ERROR
(a) The learned trial Judge having made a finding that the 1st plaintiff/respondent was not a party to the transaction in question was wrong to have proceeded to award damages in its favour.
(b) The learned trial Judge having as aforesaid, found out that the 1st plaintiff/respondent was not
a party to the transaction ought to have struck out its name as a party to the suit.”
GROUNDS OF APPEAL
- “The learned trial Judge erred in law and misdirected himself when he awarded the sum of N1,150,000 in favour of the plaintiffs/respondents for loss of business earning and reputation.
PARTICULARS OF ERROR
(a) Loss of business earning is in the nature of specific damages and should be pleaded and specifically proved in order for a claimant to succeed.
(b) Plaintiffs/respondents neither pleaded nor led any evidence in proof of items of business loss nor business reputation.
(c) Plaintiffs’ evidence as to loss of opportunity to supply petroleum product is inadmissible as same falls in the realm of special damage.
- The learned trial Judge erred in law and misdirected himself when he declared that defendant/appellant seized and detained the Iveco tanker with Registration No. AA 240 KAF and further in consequence, ordered defendant/appellant to release the Iveco tanker to the plaintiffs/respondents.
PARTICULARS OF ERROR
(a) Though it was in dispute between parties as to what was actually seized i.e. the Iveco truck-head alone or together with the tanker attached, the learned trial Judge never made a finding of fact on same and yet ordered defendant/appellant to return an Iveco tanker to the plaintiffs/respondents.
(b) The item which 2nd plaintiff/respondent bought from defendant/appellant was an Iveco truck-head only.
(c) Eye witnesses to what was arrested by the defendant/appellant on the 5th day of August, 2002 said he took away the Iveco truck-head only, leaving behind the tanker part.
(d) The only eyewitness for the plaintiffs/respondents as to what was actually seized was never called as a witness.
(e) The evidence of plaintiffs/respondents as to what was seized on the 5th day of August 2002 was hearsay.
(f) Plaintiffs/respondents did not by either their writ or statement of claim seek for, the return of the Iveco tanker to them.
(g) The learned trial Judge erred in law and misdirected himself when he decided the case based on the sales of goods Act.
The background facts of this case leading to this appeal are as follow: The 2nd respondent/cross-appellant who was the 2nd plaintiff at the trial court in January, 2002, in order to boost the 1st respondent/cross appellant’s business orally negotiated with the appellant/cross-respondent whose business is selling second-hand vehicles popularly called “Belguim” for the purchase of a second-hand Iveco Truck head at an agreed price of N1,750,000.00. The 2nd respondent/cross-appellant paid a deposit of the sum of N1,000,000.00 on 10/1/2002 vide a cheque which was cashed by the appellant/cross-respondent at the Intercontinental Bank Plc, Kaduna, leaving a balance of N750,000.00 agreed between the parties to the transaction to be paid within one year in accordance with the usual trade practice. The 2nd respondent/cross appellant, thereafter took delivery of the vehicle on 10/1/2002, the date the deposit was paid, with the expressed understanding that the original particulars of the vehicle would be handed over to the 2nd respondent/cross-appellant on payment of the balance of the agreed price of the vehicle.
After taking possession of the vehicle, the 2nd respondent/cross-appellant, bought a 33,000 litre capacity tank and new tyres for the purpose of using it in lifting petroleum products. The vehicle was also insured and put into use for the business of lifting and transporting petroleum products. A further payment of N320,000.00 was subsequently made to the appellant/cross-respondent by the 2nd respondent/cross appellant from the profit realized from the said business leaving a balance of N430,000.00 to be paid before the end of the year. On 5/8/02, the said Iveco truck was issued with a ticket for the loading of petroleum products at N.N.P.C. Deport, Kaduna Refinery, Kaduna, however, the appellant/respondent went to the NUPENG office where the vehicle was parked preparatory to the loading of the petroleum products, impounded it and drove it away to an unknown destination leaving a note for the respondents/cross-appellants, hence the institution of this action against the appellant/cross respondent as defendant leading to this appeal.
Briefs of argument in respect of the appeal, were filed and exchanged by the parties in accordance with the rules of practice and procedure of this Court.
The appellant in his brief dated and filed on 7/4/2005 distilled two issues from both his original and amended grounds of appeal as follows:-
“(1) Whether having regard to the nature of item of damages awarded in favour of the respondents, the Honourable trial Court did not award special damages in the name of general damages.
(2) Whether having found that the 1st respondent was not a party to the transaction that gave rise to the action, the Honourable learned trial Judge was right in awarding damages in her favour.”
The respondent on the other-hand in the respondent’s brief dated 8/7/2005, filed on 13/7/05, formulated only one issue for determination in this appeal, which reads:
“(1) Whether there was any basis in law for the award N1,150,000.00 general damages by Lower Court in favour of “Plaintiff” in view of the pleadings and evidence adduced.”
The appeal came up for hearing on the 14/11/06 and both counsel to the parties .who were in court only adopted their respective briefs without advancing any oral argument.
Arguing issue No.1 as to whether having regard to the nature of item of damages awarded in favour of the respondent the Honourable trial court did not award special damages, learned counsel for the appellant, M.E. Chikezie, Esq, submitted that having regard to the nature of the item of damages awarded in favour of the respondent which is for loss of business earning, the learned trial Judge was not wrong in awarding it under general damage, as loss of business earning has been held to be in the regime of special damage. See A.N.T.S. v. ATOLOYE (1993) 6 NWLR (PT.298) 233 at 257 paragraph H. It is contended that what the learned trial Judge, awarded to the respondent was in fact special damages but termed general damages.
It is further submitted that even if the award was termed special, the claim would still have failed as the claim for special damages was not specifically pleaded and proved. He pointed out that since business earnings are specific in nature, the respondent ought to have pleaded the losses incurred and proved them strictly by evidence in order for the trial court to make any award for loss of business earning. According to the learned counsel for the appellant, the nearest attempt to fulfill the requirement of the aspect of loss of earning, can only be found in paragraphs 22 and 27 of the statement of claim contained at page 34 of the printed record, but that throughout the length and breath of the printed record the respondent did not lead any evidence that ought to have persuaded the learned trial Judge to make the award he made in favour of the respondents.
Relying on the authority of JOE GOLDAY CO. LTD. & ANR. v. CO-OPERATIVE DEVELOPMENT BANK PLC (2003) FWLR(PT.153) 376 at 393, he submitted that the law is settled that a court must not grant a party what he has not sought for in clear terms and strictly proved. Learned counsel for the appellant stated that in paragraphs 28(7) of the respondents’ statement of claim, the respondents made a general claim of N5,000,000.00 for unlawful seizure, detinue, trespass, loss of business earnings and reputation without specifying the amount claimed in respect of each specie of the claim but the learned trial Judge awarded damages, in respect of loss of earnings which he termed general damages.
Concluding his submission on his issue No.1, learned counsel for the appellant urged the court to resolve the issue in favour of the appellant and allow the, appeal on issue No.1.
Responding to the’ submissions of the learned counsel for the appellant, learned counsel for the respondent, Jim A. Omoigberale, Esq, in the respondent’s brief dated 8/7/05, submitted that the lower court was right in law to have awarded the sum of N1,150,000.00 to the respondents as general damages for loss of business earnings during the period of the detention of the vehicle.
According to the learned counsel for the respondents, the award by the trial court was rightly made in view of the unchallenged findings of fact made by the court and referred to the evidence of PW.1 and PW.2, contained at pages 77 – 99 and 85 – 86 respectively: He further stated that the respondent in paragraphs 20, 21, 22, 24, 25,. 27 and 28(7) of their statement of claim, dated 29/10/2002, pleaded the losses suffered, entitling the respondents to damages. It is also argued that the respondents/cross-appellants led evidence in support of their pleadings. It is further argued by the learned counsel for the respondents that the lower court did not award special damages, referring the court to pages 33 – 35 of the printed record. It is contended that the case of A.N.T.S. v. ATOLOYE (1993) 6 NWLR (PT.298) 233 at 257 cited by the learned counsel for the appellant is not relevant to the issue for determination in this appeal.
Learned counsel for the respondents, further argued that where it is clear as in the instance case, that the respondents as plaintiffs have suffered substantial loss but the evidence of the loss was not precisely quantified, the court will award damages as best as it can only on the available evidence. -He relied on KUSFA v. U.S.C. LTD. (1994) 4 SCNJ 1, at 15 – 16 and several other authorities in support of his argument.
Learned counsel for the respondents urged the court to resolve issue NO.1 in favour of the respondents, uphold the award of damages by the trial court and dismiss the appeal.
The grouse of the appellant in this appeal, is the award of N1,150,000 general damages when in fact what the respondents claimed, as itemized in paragraph 28(7) of the statement of claim is a claim for special damages but termed general damages.
Now, in the law of contract, general damages are those damages which the law implies in every breach and every violation of a legal right. See FAMOJIRO v. OTAMU (1955 – 56) N.N.L.R. 67. It is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is qualified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See OSUJI v. ISIOCHA (1989) 3 NWLR (PT.111) 623 at 636 PARAGRAPHC – D and E. See also ODULAJA v. HADDAD (1973) 1.S.C. 357 at 360; INCA (NIG) LTD v. BENSON TRANSPORT LTD (1975) 3 S.C. 117; OMONUWA v. WAHABI (1976) 4 S.C. 37; LAR v. STERLING ASTALDI (1977) 11 – 12 S.C. 53 at 62; ODUMOSU v. AFRICAN CONTINENTAL BANK LTD (1976) 11 S.C. 55 and IDAHOSA v. ORONSAYE (1959) S.C.N.L.R. 407.
While special damages are specifically pleaded and proved, general damages are presumed by law to be the direct natural probable consequence of the act complained of, and generally incapable of substantially exact calculation. See EZEANI v. EJIDIKA (1964) 1 ALL N.L.R. 402. While in awarding general damages a trial judge must make his own assessment of the quantum of such damages, he should do so in the light of the evidence before him and not based his award on speculative claim and scanty facts. See WEST AFRICAN SHIPPING AGENCY v. KALLA (1978) 3 S.C. 21, ODUMOSU v. A.C.B. (1976) 11 S.C. 55.
The Supreme Court of Nigeria, in the recent case of ARABAMBI v. A.B. IND. LTD. (2006) 8 WRN 1 at 46, per Aloma, JSC, held that it is common ground and trite law that special damages must be strictly proved and that strict proof of special damages means no more than such proof as would readily lend itself to qualification and assessment. It is s4ch proof that the law will not infer from the nature of the act but is exceptional in character. Special damages denotes those pecuniary losses which have crystallized in terms of cash and value before trial.
In the instant appeal, the respondents’ claim, is in the nature of special damages, having itemized the specie of claims in the statement of claim, the requirement of the law is that special damages should be specifically pleaded and particularized in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. A claim in the nature of special damages to succeed must be proved strictly, the court is not entitled to make its own estimate on such a claim. See GONZEENIG LTD v. NERDC (2005) 13 NWLR 634 at 649. –
In my view it is appropriate to ask how the learned trial Judge arrived at the amount awarded to the respondents as general damages? The basis of the award of the sum of N1,150,000.00 is not apparent from the printed record even though stated to be for the loss of earnings by the respondents.
The case of CHIEF J.K. ODUMOSU v. A.C.B. LTD (1976) 11 S.C. 55 relied upon by the learned trial Judge is distinguishable from the instant appeal in that the claim in ODUMOSU, was a lump sum claim for general damages only basically for the return of the specific chaltel detained or its value and general damages arising from the unlawful detention. In KUSFA v. UNITED BANK CONSTRUCTION CO. LTD. (1994) 4 NWLR (Pt.336) 1 at 15 – 16, also the claim was simply for general damages arising from a breach of -contract contemplated by the parties without the inclusion of other heads of damages as in the present appeal. The stringent requirement of the law for the claim to be specifically pleaded and strictly proved applies only to a claim for special damages while in respect of a claim for general damages, the estimation of the quantum of damages is left to the estimation of the trial Judge based on the evidence. A party in respect of a claim of general damages is not required to specifically plead and strictly prove the amount claimed in a claim of general damages hence the difference between the two cases stated above and the instant appeal. The position in the present appeal, clearly is a claim of loss of business ‘earnings, trespass, detinue and loss of business reputation all lumped up together and termed general damage. The mere fact that the claim was termed general damage does not make it so having regard to the nature of the claim described in paragraphs 22 and 27 of the statement of claim, the said paragraphs are as follows:
“22. The plaintiffs further aver that the defendant’s action has caused them huge financial losses as the said vehicle usually generates about N150,000.00 only from each trip it undertakes, out of which various sums are set aside for the Insurance Premiums, maintenance of the vehicle, salaries
for the driver and staff and to settle the indebtedness.
- The plaintiffs aver that the said vehicle makes about 3 trips every month and generates about
N150,000.00 only per trip with the net profit resulting after expenses at N50,000.00 only.”
The only relevant portion of the evidence where monetary claim was mentioned by PW.1 Hajiya Binta Shagamu, the 2nd respondent, is at page 79 of the printed record which reads:
“My business suffered because regional office gave a ticket for me and it was retrieved. Regional
office of Texaco. It is true the ticket. I will be paid. I used to lift oil. It is true the ticket I will be
paid. The particulars of the vehicle not even a receipt was given to me.
He grew up in our house. I trusted him. The transaction was not in August 2001 as he claimed. It
was in 2002. We never agreed with defendant that if I did not pay, he had the right to seize the vehicle.”
It can easily be seen from both the pleadings and the relevant portion of the evidence adduced in this appeal that the respondents in’ this appeal have not complied with the requirement of the law in that apart from their failure to specifically plead special damages and particularized them, there is also no. credible evidence to warrant the award of N1,150,000.00 by the learned trial Judge. Certainly, from the printed record, the learned trial Judge awarded the sum of N1,150,000.00 as special damages, when the learned trial Judge, at pages 144 – 145 of the printed record held:
“The plaintiff is awarded N1,150,000.00 (one million, one hundred and fifty thousand naira)only general damages for loss of business earnings during the period of detention of the vehicle which shall be returned immediately to the plaintiff.” (underline mine)
From the distinction drawn above between “general” and “special”, damages and the judgment of the learned trial Judge, I agree with the submission of the learned counsel for the appellant that what the learned trial Judge awarded as general damages was in fact special damages which has not been specifically pleaded particularized and strictly’ proved as required by law as rightly argued in my view by the learned counsel for the appellant.
When a trial Judge in assessing general damages proceed upon a wrong principle or no principle of law and make an award which is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionably in comparison with the greatest loss that would flow from the said breach of contract without stating the amount awarded is for loss of business or loss of profit or anticipated profit and measure or basis of its assessment such an award would not be allowed to stand. See HADLEY v. BAXENDALE (1854) 9 EXCH. 341; VICTORIA LAUNDRY LTD. v. NEWMAN INDUSTRIESLTD. (1949) 2 K.B. 528; OKOROJI v. EZUMAH (1961) 1 S.C. NLR 187; P.Z & CO. v. OGEDENGBE (1972) 1 NWLR (PT.1) 202, 205 – 206; UWA PRINTERS (NIG) LTD. v. INVESTMENTTRUST LTD. (1988) 5 NWLR (Pt.92) 110 at 111 – 112; OKONGWU v. NNPC (1989) 4 NWLR (Pt.115) 296 and ZIKS PRESS LTD. v. ALVAN IKOKU 13 WACA 188 at 189. Indeed, the courts have repeatedly held that apart from damages naturally resulting from the breach, no other form of general damages can be contemplated. See NIGERIA PRODUCE MARKETING BOARD v. ADEWUNMI (1972) ALL NLR (PT.11) 433 at 438.
In view of the aforesaid, I resolved issue No.1 in the affirmative, in favour of the appellant against the respondents.
Having resolved issue No.1, in. favour of the appellant, against the respondents, issue No.2 formulated by the appellant as to whether having found that the 1st respondent was not a party to the transaction that gave rise to the action, the Honourable learned trial Judge was in error in awarding damages in her favour, is no longer relevant and has become an academic exercise for that reason issue No.2, is hereby discountenanced.
The facts of the case of the cross-appeal, are substantially the same as that of the main appeal, set out in this judgment and no useful purpose would be served in repeating it all over again, for the purpose of the cross-appeal.
This court granted extension of time to the cross appellants on 5/7/05 to cross-appeal against part of the judgment of the Kaduna State High Court in suit No. KDH/KAD/705/02 delivered on 28/5/2004. The cross appellants filed their notice of appeal containing two grounds of appeal contained in the supplementary record as follows:
“(1) The learned trial Judge erred in law when in his judgment he held:
“Plaintiff is awarded N1, 150,000.00 (One million, one hundred and fifty thousand naira) only general damages for loss of business earnings during the period of detention of the vehicle which
shall be returned immediately to the plaintiff.”
PARTICULARS OF ERROR:
(a) Plaintiffs claim was for N5,000,000.00 (Five million naira) only general damages for the unlawful seizure of the vehicle, detinue, trespass, loss of business earnings and loss of business reputation.
(b) The lower court found as a fact that the seizure and detention of the said vehicle by the defendant was illegal.
(c) The lower court found that the plaintiffs had improved the vehicle by fixing in new tyres, buying and installing a tank, insuring same and were using same for the business of transporting petroleum products as at the time defendant seized the vehicle.
(d) that the lower court also found as a fact that the aforesaid action of the defendant caused the plaintiffs grave economic loss as well as loss of business reputation.
(e) The lower court found as a fact that the plaintiffs are entitled to a “Sum of money representing
the normal loss through the detention of the vehicle.”
(f) Yet the lower court having properly made these findings on the unassailable facts before it which are unchallenged claimed on the unlawful seizure, trespass, detinue and loss of business reputation which it held were all proved.
- The damages awarded is so small that it is an erroneous estimate of what the plaintiffs are entitled to based on the evidence adduced before the lower court, the claims made before it and the unchallenged findings of facts made by the lower court.”
From the two grounds of appeal, the appellants’ formulated the following issue for determination in the cross-appeal.
“Whether the award of N150,000 general damages restricted to loss of business earnings was not so small as to be based on an erroneous estimate in view of the plaintiff’s generic claim for N5,000,000.00 general damages under various heads which the lower court found proved?”
In the cross-appellant’s brief dated 8/7/05, learned counsel for the cross-appellants, Jim A. Omoigberale, Esq submitted that the award of N1,150,000.00 only to the plaintiffs/respondents. as general damage for loss of business during the period of detention of the vehicle which shall be returned immediately to the plaintiffs/respondents was wrong in law and did not accurately reflect the facts and circumstance of the case as proved before the lower court thereby occasioned a miscarriage of justice. It is argued that the award was made inspite of the unchallenged findings of fact made by the lower court and referred to the evidence of PW.1 and PW.2. Learned counsel for the cross-appellant urged this Court to use its powers under Section 16 of the Court of Appeal
Act and Order 1 rule 19(3) and (4), Order 1 rule 20(4), Order 3 rule 23(1) and (2) of the Court of Appeal Rules, 2002 not only to uphold the findings of fact but more importantly to re-assess the damages awarded as related to the proved losses and review the award upwards to properly compensate the cross-appellants, citing the case of JOHN OGU v. IHEJIRIKA & ANOR. (1991) 4 NWLR (PT.185) 388 at 393 in support of his submission.
In conclusion, learned counsel for the cross appellants urged the Court to allow the cross-appeal and award N5,000,000.00 to cover the trespass to the vehicle, unlawful seizure, detinue, loss of business as will be reasonable having regard to the proved losses as found by the lower court.
The cross-respondent did not file a cross respondent’s brief, hence no argument was advanced at all in respect of the cross-appeal.
Having regard to my determination and resolution of issue No.1 of the appellant’s appeal, which I resolved in the affirmative in favour -of the appellant in respect of the award of general damages by the learned trial Judge, J.S. Abiriyi, J, of the Kaduna State High Court in suit No. KDH/KAD/705/02 delivered on 28/5/04, my answer to the issue formulated for determination in the cross appeal, is obvious. It is resolved against the cross appellant in favour of the cross-respondent.
In the final analysis, the appeal against part of judgment, the award of general damages of N1,150,000.00 succeeds and is hereby allowed while the cross-appeal fails and is hereby dismissed.
The award of N1,150,000.00 to the respondents as plaintiffs by the learned trial Judge, J.S. Abiriyi, J, of the Kaduna State High Court in suit No. KDH/KAD/705/02 delivered on 28/5/2004, is hereby set aside and substituted with an order dismissing the claim of N5,000,000.00 (Five million naira) general damages as per paragraph 28(7). I make no order on costs.
Other Citations: (2007)LCN/2221(CA)
