Cameroon Airlines V. Mike Otutuizu (2004)
LawGlobal-Hub Lead Judgment Report
M.D. MUHAMMAD, J.C.A.
This judgment relates to an appeal and a cross-appeal in respect of the decision of the Federal High Court, Lagos Division in suit No. FHC/1/CS/332/96 delivered on 23rd June, 2000. The respondent/cross-appellant was the plaintiff at the court of trial while appellant/cross-respondent was the defendant. The facts of the case which are hardly in dispute are hereunder supplied.
From his statement of claim and evidence, respondent/cross-appellant’s case is that he bought from the appellant/cross-respondent, an airline, two passenger tickets, exhibits A and B. By these tickets, appellant had contracted to fly the respondent/cross-appellant to Manzini Swaziland with stopovers at Doula in Cameroon and Harare in Zimbabwe. It is not in dispute that the routes in respondent’s journey as agreed by the two parties in exhibit A and exhibit B were to be Lagos – Doula – Harare – Manzini – Harare-Doula-Lagos. Appellant Airline took off from Lagos on 22nd February, 1996. As scheduled, the airline took off the next day with respondent from Harare with a view to proceeding to Manzini in Swaziland. Instead, respondent was flown to Johannesburg, South Africa, whereat respondent being without the necessary entry documents was arrested and detained. Sequel to his arrest and detention by the South African authorities, respondent lost his brief case containing twenty thousand dollars ($20,000) and other personal effects. He was also subsequently deported to Nigeria. Respondent/cross-appellant’s claim as indorsed on the writ and contained in his statement of claim was informed by these facts. His claim against the appellant/cross-respondent is for the sum of N5,000.000.00 being general and special damages for breach of contract particulars of which special and general damages respectively are:-
“(i) Cost of ticket i.e. $923 US Dollar or its Naira equivalent N80,000.00.
(ii) The sum of $20,000.00 US Dollar or its Naira equivalent removed from the defendant and un-refunded till date N1,800,000.00.
(iii) Costs of sundry personal effects removed by the defendant from the plaintiff N200,000.00. General damages is put at N2,920,000.00.
Respondent’s writ was taken out on 27th March, 1996 while his statement of claim against the appellants is dated 4th June, 1996.
Appellant/cross-respondent’s case is that it does not operate scheduled flight to Manzini, Swaziland. It operates only to Harare, Zimbabwe at which point passengers proceeding to Manzini are transferred to South African Airlines. Appellant has denied being in breach of the agreement to convey the respondent to his final destination. It also contends that the contract between it and the respondent is governed by the provisions of the Warsaw Convention as amended at the Harare in 1955. In essence, appellant’s case is that respondent had the duty to procure transit and or regular visas and its only responsibility to the respondent being that of a Carrier. The appellant has contended it cannot be held responsible for the action of South African Authorities of arresting and detaining the respondent who has been fully informed by the appellant to acquire all necessary travel documents.
Respondent testified for himself while appellant called one witness. In its judgment, the trial court found for the respondent in part. Appellant was adjudged to be in breach of the contract with the respondent. It has been ordered to pay $923 dollars or its naira equivalent of N800,000.00 as special damages and N500,000.00 general damages. Respondent’s claim for $20,000.00 (twenty thousand US Dollars) or its naira equivalent as well as N20,000.00 being cost of sundry personal effects were refused.
Being dissatisfied with the lower court’s judgment, parties have filed their respective notices of appeal and cross-appeal.
Parties have also filed and exchanged briefs of arguments for and against the two appeals.
In the appellant/cross-respondent’s brief, the following two issues have been formulated as having arisen for the determination of its appeal:-
“(1) Whether the learned trial Judge was right in awarding general damages of N500,000.00 having regard to the nature of the plaintiff/respondent’s claim in the court below (being one of carriage by air) and having regard to his earlier findings in the same judgment.
(2) Whether the award of special damages of N80,000.00 by the court below as the refund of the cost of the plaintiff/respondent’s Airway ticket was right having regard to the weight of evidence adduced before the court below and the provisions of the Warsaw Convention, 1929 as amended at the Hague 1955.”
On respondent/cross-appellant’s part, a lone issue is contained in his brief for the determination of the main appeal. The lone issue reads:-
“Whether the trial court was right against the background of the evidence adduced at the trial and all applicable laws in awarding N80,000.00 and N500,000.00 respectively as special and general damages in favour of the respondent against the appellant.”
For the cross-appeal, respondent/cross-appellant has, in his brief, formulated two issues for the determination of his cross-appeal.
These are:-
“(i) Whether the respondent at the trial proved his claim for the sum $20,000 or its naira equivalent to be entitled to judgment on that sum.
(ii) Whether it was legally mandatory on the respondent having regard to the nature of the respondent’s claim to join the South African Authorities as party to this suit to succeed in the claim for $20,000 or its naira equivalent of N1,800,000.00.”
The appellant/cross-respondent has adopted the two issues formulated by the respondent/cross-appellant in his brief as having arisen for the determination of the cross-appeal. It does so in its reply brief.
In arguing its appeal, the appellant/cross-respondent contends that the lower court has rightly, at page 75 lines 14-34 of the record of appeal, made a finding that the contract between the two parties is one of carriage by Air. The court however veered off when it failed to apply the correct law in determining the rights, liabilities and the damages accruable from breach of such a contract. It is submitted that Warsaw Convention 1929 as amended at the Hague in 1955, applies to the case at hand as same has been adjudged and applied in Nigeria under and by virtue of the Carriage by Air (Colonies Protectorates and Trust Territories) Order 1953, Vol. II, Laws of the Federation of Nigeria, 1958 and by virtue of section 315 of the 1999 Constitution. The decisions in Oshevire v. British Caledoman Airways Ltd. (1990) 7 NWLR (Pt.163) 507; Ibidapo v. Luftsansa Airlines (1997) 4 NWLR (Pt.498) 124. Appellant contends, buttresses its position. It follows therefore, that the court below is wrong to have applied the general principles governing the award of damages in Nigeria which goes beyond the purview and/or limits provided by the applicable convention. The appellant argues further that respondent has failed to prove any wilful misconduct on the part of the former to disentitle the appellant from enjoying the protection the convention has conceded to it. Thus, appellant was well within the limits of the convention and accordingly well protected.
Appellant also contends that even under the common law principle as enunciated in Hadley v. Baxendale (1854) 9 Exch. 341, the court could not have correctly found for the respondent. The court had already made a finding of fact at page 79 lines 24-37 to the effect that respondent’s evidence of earning which he puts at N4 million contradicts the averment in the statement of claim. Besides, the evidence was a mere ipse dexit incapable of being relied upon. The award of N500,000.00 in the light of this clear finding is perverse and quite in breach of the principles enunciated in many decided cases. The award does not flow from the alleged breach. Appellant relies on the case of Mustapha Aliyu Kusfa v. United Bawo Construction Co. Ltd. (1994) 4 NWLR (pt.336) 1. Appellant insists that there has been double compensation in respect of a single breach.
Under its 2nd issue, appellant argues that the trial court’s finding that given Clause 4 in the conditions of contract on exhibit B, appellant’s liability for breach has been founded cannot be right. Appellant insists that the court has invoked the wrong provision to adjudge that a breach of the contract has been occasioned. Article 3(1)(c) of the Warsaw Convention allows the appellant to alter any stopping place contained on its air tickets. A power so conferred and utilised cannot be said to create any liability. Indeed, appellant argues, respondent was unable to proceed on his journey because of his failure to obtain necessary travel papers and no more. Respondent could have been transported to Manzini but for the fact of his deportation to Nigeria. The order of the trial court that N80,000.00 being the cost of airways tickets be refunded by the appellant to the respondent is therefore wrong.
On the whole it is urged that the appeal be allowed.
In arguing his lone issue in the main appeal, the respondent/cross-appellant refers to the lower court’s finding at page 76 of the record to the effect that he was never transported to Manzini, his final outward destination as contracted by the appellant by virtue of exhibit B. The court’s conclusion that there was failure of consideration, here N80,000.00 is beyond reproach. Respondent argues that the reasons given for the appellant on the basis of which the lower court’s judgment should be up-turned cannot hold. Firstly, the court is right in its award of N80,000.00 and N500,000.00 general damages in the light of the uncontroverted evidence before the court. It remains in evidence what the costs of the Air tickets exhibits A and B sold to the respondent by the appellant are. It is in evidence also that respondent had not been transported to Manzini as agreed between the two. The law, the respondent again argues, implies general damages in every breach of contract. He submits that the measures of damages is such that may be fairly and reasonably considered as arising naturally from the breach or in contemplation of the parties at the time of entering into the contract. Respondent argues that particularly in respect of N80,000.00, the issue had been pleaded and evidence led to prove same and on the authorities, the court was correct to have granted the reliefs it did. Respondent relies on Hadley v. Baxendale (1854) Exch. 344; Shell B.P. Co. Ltd. v. Jammal Engineering Nigeria Ltd. (1974) 1 All NLR (Pt.1) at 523; Incar v. Ojomo (1986) 5 NWLR (Pt.34) 14; Odulaja v. Haddad (1973) 1 All NLR 191 at 196 and Benson v. Otubu (1975) 3 SC 12.
Respondent further contends that appellant’s argument that its liability had been limited by the Warsaw Convention avail it at this stage. It is a fresh issue which cannot be raised on appeal. And should such an argument in the absence of any ground of appeal to base same be valid, the damages awarded have not been shown to be in excess of what the Convention provided. The Convention does not also exclude the application of general principles of contract but limits liability only where the provision of Articles 17 and 19 of the Convention applies. In the case at hand Articles 17 and 19 of the Convention do not apply such as to make the appellant’s arguments relevant. By virtue of the decision in Nigeria Airways Ltd. v. Abe (1988) 4 NWLR (Pt.90) 524, the lower court’s decision is correct. Respondent asks that it be upheld and the appeal dismissed.
What of the cross-appeal?
Cross-appellant argues his appeal thus: that he claimed a total of N2,920,000.00 by way of special damages. The sum includes $20,000.00 or its equivalent being N1,800,000.00. Cross-appellant contends that uncontroverted evidence has been led in proof the total sum so claimed. Cross-appellant argues that he has shown by virtue of exhibit C that he has bought the sum of $20.000.00. Evidence also had been led that contrary to what he agreed with the cross-respondent in the light of exhibits A and B, he was conveyed to Johannesburg where he was arrested and detained by the South African authorities. He lost his personal effects including the sum of $20,000 in the process. These fact were neither challenged through cross-examination nor was evidence led to controvert same by the cross-respondent. The lower court has made a finding that cross-respondent was in breach of the contract with the cross-appellant. Cross-appellant argues that the trial court’s refusal to grant him his prayer in respect of the $20,000 is contrary to the available evidence. Cross-appellant insists that he has proved that at Johannesburg he was directed by a flight attendant with the cross-respondent to the latters office where he was asked to release his passport. It was at this same office that cross-appellant’s personal effects were taken away from him. Cross-appellant contends that the lower court’s findings that the $20,000.00 was taken away by the South African authorities evolved from an improper and wrong application of applicable laws leading to a miscarriage of justice. He urges that the finding be set aside on the basis of: Mogaji v. Odofin (1978) 4 SC 91 and Ogunleye v. Oyewole (2000) 14 NWLR (Pt.687) 290.
Cross-appellant further submits that but for the breach of the contract occasioned by the cross-respondent, a fact which the lower court had correctly found, he could not have lost his personal effects including the $20,000.00. On the authority of Hadley v. Baxendale supra, it is contended, the refusal to grant the relief in respect of the $20,000.00 is accordingly wrong. A court of law must act on such evidence that remains unchallenged. Cross-appellant commends the followings:- Attorney-General, Oyo State v. Fairlake Hotels (1989) 5 NWLR (Pt.121) 255 and Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt.210) 403 and N.B.C. Plc v. Borgundu (1992) 2 NWLR (Pt.591) 408.
On the first issue, cross-appellant finally argues that the conditions and limits of liability under Chapter 111 of the Carriage by Air (Colonies, Protectorate and Trust Territories) Order 1953 does not affect the recovery of his $20,000.00. The sum was neither a registered luggage or “any goods” in the contemplation of Article 18 of the relevant order. Most importantly, the loss of the money did not occur during but outside flight when the cross-appellant/respondent had already disembarked. The decision in Nigeria Airways Ltd. v. Abe (1988) 4 NWLR (Pt.90) 524 has been invoked to urge that the 1st issue in the cross-appeal be resolved in cross-appellant’s favour.
Under his 2nd issue for the determination of the cross-appeal, it has been contended that the South African authorities are not a necessary party to the suit given the pleadings before the trial court. The issue in controversy is one of breach of contract. Cross-appellant argues that there is no privity of contract between him and the South African authorities to make their joinder a necessity for the determination of the suit he had commenced. Only a party in breach of a contract bears the consequence of such a breach. But for the breach of the contract to transport him to Manzini by the cross-respondent, the loss of cross-appellant’s $20,000.00 dollars would not have been occasioned. The court’s finding that the South African authorities were necessary for just determination of the issue in controversy is accordingly perverse. Same should be set aside having proceeded upon wrong principles. Cross-appellant relies on the following: African Insurance Development Corporation v. Nigeria LNG Ltd. 1 SCN Quarterly Report 258, (2000) 4 NWLR (Pt.653) 494; Ikpeazu v. A.C.B. (1965) NMLR 374 and Agaba v. Otubusin (1961) NMLR 299.
On the whole, it is urged that the cross-appeal be allowed.
Appellant/cross-respondent’s argument in respect of the cross-appeal is at pages 9-12 of its reply brief. Regarding the 1st issue, reference has been made to page 77 lines 11-21 and page 78 lines 6 – 20 of the record where the lower court outlined the standard of proof required in proving special damages. Also stated is the evidence the cross-appellant relied in proof of the loss of $20,000 and the fact that the South African authorities that removed the $20,000.00 had not been made party to the suit. Appellant/cross-respondent argues that the evidence in proof of the loss of the sum is not only a mere ipse dexit, it is also devoid of credibility. The lower court is right to have rejected such evidence. It does not matter that cross-appellant had exhibit C in place. It was for him to prove that he actually travelled with the money and same had been removed from him. Failure to do this was fatal as was held in U.B.N. Plc v. Sparkling Breweries (1997) 5 NWLR (Pt.505) 344 and Momodu v. University of Benin (1997) 7 NWLR (Pt.512) 32.
Under the 2nd issue, cross-respondent referred to page 36 lines 6-14 and page 43 lines 14-18 of the record of appeal where the lower court found that the $20,000.00 special damage sought to be recovered from it was indeed removed by South African officials. These officials, it has been argued, were not made party to the cross-appellant/respondent’s suit. The lower court decision given the cases of Mathewe Ohawuye and Another v. Joseph Adeyemi (1990) 4 NWLR (Pt.147) 746, and Green v. Green (1987) 3NWLR (Pt.61) 480, cannot be faulted. Appellant/cross-respondent urges that the decision be affirmed and the cross-appeal dismissed.
Before going into the merits or demerits of the appeal and/or cross-appeal, be it observed that appellant/cross-respondent’s reply apart from containing arguments in respect of the cross-appeal also contains further arguments in respect of the main appeal. These arguments are not in respect of such new matters advanced in the respondent/cross-appellant’s brief in relation to the main appeal which arguments appellant never had the opportunity of addressing in his brief. No. These are further arguments to those already made and contained in appellant’s brief regarding his appeal. Reply brief, must not provide such a facility and arguments of this type must be discountenanced. It is so done here. See Order 6 rule 5 of the Court of Appeal Rules, 1981 as amended and Iso v. Eno (1999) 2 NWLR (Pt.590) 204; Onuaguluchi v. Ndu (2000) 11 NWLR (Pt.679) 519 and A.C.B. Ltd. v. Apugo (1995) 6 NWLR (Pt.399) 65.
Now, what is the fate of both appeals?
The lower court, has made some findings which must be recounted to make a meaningful consideration of the issues canvassed in the appeal and the cross-appeal possible. At page 76 lines 12-13 the court in its judgment stated as follows:-
“The evidence before me is that the plaintiff was never transported to Manzini the final outward destination on exhibit B as contracted by the defendant. I therefore find from the evidence before me that the defendant having contracted as an agent to transport the defendant (sic) from Harare to Manzini, were in breach of their contractual obligation to the plaintiff on his contract by air.”
The court from line 33 of the same page 76 continued its decision thus:-
“Having so held above, I now proceed to consider…
The necessary consequences that follows:-
What are the damages accruing therefrom to the plaintiff?”
The lower court’s answer to this very important question and the reasons for the answer span through line 31 at page 77 to line 20 of page 78 thus:-
“Based on the above proposition of law and authorities, exhibits A and B tendered by the plaintiff and admitted by the court in the course of proceedings are the two tickets sold by the defendant to the plaintiff in respect of the contract of carriage between them the subject-matter of this action. The cost of the air fare to and from the routes as agreed by the parties is indicated thereon as USD 923 or its naira equivalent of N80,000.00. The court has found as above that there is failure of consideration on the part of the defendant. I therefore hold that the plaintiff is entitled to a refund of the said amount. Now turning to item (11) on the particulars of claim the sum of $20,000 US Dollars or its naira equivalent removed from the defendant and unrefunded till date. The evidence of the plaintiff before the court on this issue can be recapsulated as follows:-
“The security officers came in and took me to a room. They asked for my luggage and my brief case containing my wrist watch and money. I was told that as a Nigerian, I was unwanted in South Africa”.
It follows from the evidence of the plaintiff before the court that the defendant’s (sic) brief case containing his wrist watch and money were removed by South African immigration. Authorities who have not been made parties to this case … I therefore cannot make any award on this head of claim.”
The foregoing provides the crux of the decision appealed against by the two sides in the instant matter. It is not in doubt that the court had found, rightly or wrongly, that the respondent/cross-appellant had established a breach of the contract between them by the appellant/cross-respondent. The court had found as well that the breach was occasioned because of appellant/cross-respondent’s failure to provide the agreed services to the respondent/cross-appellant who had by way of consideration of $923 or its naira equivalent purchased exhibits A and B. It is the court’s finding as well that respondent/cross-appellant had proved the loss of his brief case as well as his money: $20,000 to South African officials following his being taken there by the appellant/respondent instead of Manzini as agreed. The court only declined to oblige respondent/cross-appellant his relief in respect of the $20,000 simply because the officials that removed the money were not made parties to the suit. An answer as to whether or not the court’s decision in this regard is correct would resolve the issues raised by the cross-appeal. Before hazarding such an answer, it is perhaps rewarding to embark on an inquiry. The inquiry entails an examination of the grounds of appeal on both the main appeal and the cross-appeal to gather precisely what complaints the two appeals are raising against the decision of the trial court.
Appellant/cross-respondent’s amended notice of appeal contains four grounds of appeal which are hereunder reproduced without the particulars:-
Ground of appeal
(i) Error of law
The learned trial Judge erred in law when he awarded both special damages of N80,000 (the cost of the plaintiff’s Airway ticket) and general damages in a case of this nature, founded on a contract of carriage of goods and passenger by Air.
(ii) Error of law
The learned trial Judge erred in law when, having found that the plaintiff did not specifically prove special damages beyond the cost of his Airway ticket, (for which he awarded special damages of N80,000) he went ahead to award the plaintiff general damages of N500,000 (five hundred thousand naira).
(iii) Misdirection
The learned trial Judge misdirection himself when he awarded N500,000 as general damages in addition to the special damages of N80,000 (the cost of the plaintiff’s Airway ticket) awarded in favour of the plaintiff even where there was no additional evidence adduced by the plaintiff to justify his claim for general damages.
(iv) The entire judgment is against the weight of evidence.
The notice of cross-appeal has three grounds which read:
Grounds of cross-appeal
- Error of law
The learned trial Judge erred in law when he failed to rely on the unchallenged evidence and his finding that the defendant was in breach of its contract of carriage of passenger by air with the plaintiff to grant the plaintiff’s claim for $20,000 US Dollars or its naira equivalent as damages.
- Error of law
The learned trial Judge erred in law when he held that the plaintiff ought to have joined the South African Authorities to his suit for the loss of the brief case containing the lost of $20,000 and other effects.
- Misdirection
The learned trial Judge misdirected himself on facts and came to a wrong decision when he refused the plaintiff’s claim for $20,000 with the finding that the plaintiff’s brief case was removed by South African Immigration Authority who should have been made party to the case.”
It is significant to state that none of the two notices of appeal contain any ground against the two findings of the lower court that have already been reproduced in this judgment. It is trite that a finding not challenged by an appellant in any of the grounds of appeal remains, rightly or wrongly, the settlement of that issues as between the parties to the appeal. It follows that in the absence of any appeal by either party to the action against a finding of the trial court, the appeal court would have no jurisdiction to consider and determine such an issue. See Adeyemi v. Olakunri (1999) 14 NWLR (Pt.638) 204 at 211; Koya v. U.B.A. Ltd. (1997) 1 NWLR (Pt.481) 251 and Udom v. E. Micheletti and Sons Ltd. (1997) 8 NWLR (Pt.516) 187. In the instant matter, the lower court’s finding that the appellant/cross-respondent is liable for the breach of contract between it and the respondent/cross-appellant as well as to the fact that consequent upon the breach there was failure of consideration and loss of respondent/cross-appellant’s $20,000 must be accepted as given. Rightly or wrongly, the issues cannot be revisited now.
Appellant has argued that its liability for the breach of the contract had been limited by the operation of the Warsaw Convention Articles 17-24 of which are most relevant.
The Warsaw Convention does provide that appellant could alter the routes particular flight takes. It does not however absolve the appellant from performing a contract legitimately entered into with others. An examination of Articles 17-19 of the Convention reveals that the Articles relate to “registered luggage” or “goods” damaged in the course of flight. The Articles have nothing to do with the liability of an airliner in the event of breach of a contract to transport its customer to a given location. Respondent is justified in his reliance on the decision in Nigeria Airways Ltd. v. Abe (supra). Again the respondent/cross-appellant is right in his submission that the law implies general damages in every breach of contract. He also cannot be faulted that the measures of damages recoverable is such that may be fairly and reasonably considered as arising from the breach or in the contemplation of the parties to the contract at the time of entering the agreement. Hadley v. Baxendale and all the indigenous judicial authorities cited by both sides are about this principle. The legislations relied upon by the appellant have neither provided a defence nor set a limit to the amount of damages recoverable in the event of a plaintiff’s success in establishing that the defendant had failed to transport him by air to an agreed destination.
Only parties to a given contract benefit from or are made to perform such a contract. Liability in a contractual relationship is founded on the basis of privity. See Attorney-General, Federation v. A.I.C. Ltd. (2000) 10 NWLR (Pt.675) 293. It draws inexorably from this principle that only parties to a contract can be necessary parties in a litigation consequent upon the breach of the very contract. The suit commenced by the respondent in the instant case is grounded in contract. It is not about any wrong other than the breach of the said contract to necessitate the joinder of the officials without whom the lower court wrongly held it was not able to grant the relief sought by the respondent/cross-appellant. The complaint before the court was about complete failure of “consideration” in a lawful contract and the relief asked of it pertains to the ensuing damages. Respondent’s complaint was that but for the failure of the appellant to transport him to agreed destination, the South African Authorities would not have been able to arrest and detain him. It still would not have been possible for the said officials to remove the $20,000 dollars from him. In all these contentions respondent/cross-appellant is on a firm ground. The facts and the law are fully on his side. Since breach of the contract between him and the appellant had successfully been proved, the court on the authorities cannot justly decline redressing any wrong that directly and reasonably stemmed from the breach. The trial court’s refusal to accede to respondent’s prayer’s regarding the $20,000 it held established and flowing from the breach is indeed baffling. Such a decision is untenable in law. This conclusion determines the cross-appeal which invariably has to and is determined in favour of the cross-appellant.
It has already been stressed that appellant cannot challenge the lower court’s finding as to the breach of the contract of carriage of the respondent’s person by air. Appellant’s resolve to persuade this court that respondent had not established the fact on the basis of which the trial court had ordered that the latter be refunded the cost of exhibits A and B is charitable to say the least. Evidence in that regard speaks loudly for itself and the trial court was right to have relied on it. The evidence had neither been challenged nor controverted. See Okonkwo v. Onovo (1999) 4 NWLR (Pt.597) 110 C.A. and Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562 S.C.
Finally, appellant has complained about the N500,000 general damages on the further ground that it is not supported by the evidence before the court. There is the added contention that same has constituted double compensation for a single wrong. Is it? One thinks not.
General damages are such which the law presumes to flow from the wrong complained of. The respondent has made this much submission in his brief. A claimant of this category of relief is obliged purely on the basis that it is the expectation of the ordinary reasonable man. The relief is given to assuage a loss that was naturally caused by the act of the defendant. Once averred, the law presumes such a loss to be a direct and possible consequence of the act complained of. The relief does not mature on the basis of evidence or a particular yardstick. This category of relief is one at large incapable of exact calculation. See Omonuwa v. Wahabi (1974) 4 SC 37 and Odulaja
v. Haddad (1973) 11 SC 35.
The lower court’s consideration of respondent’s claim for general damages is at page 79 as follows:-
“This in my view is inconsistent with the claim of the plaintiff in the particulars of claim where he is claim (sic) the sum of N2,920,000.00 as general damages. The plaintiff also informed the court he is importer and exporter of general goods.
I must say that the plaintiff’s oral evidence on this issue has not been helpful in assisting the court in that he has not informed the court of his stock in trade. This court is therefore not bound to speculate or to accept his evidence on his figure of over N4 million as his profit for a single trip to Manzini.”
Not surprisingly, inspite of the foregoing state of evidence before the court, it proceeded at page 80 thus:-
“Based on the authorities which I have earlier referred to in this judgment and complied with the facts of the present case, I hold that the plaintiff is entitled to some compensation as general damages. In the circumstances, I make an award of N500,000.00 and general damages in favour of the plaintiff.”
It could not have been otherwise given the opportunity of law earlier on recounted in this judgment. The court having found that quite apart from the wrong specifically itemised by the respondent, claimant had still encountered further loss which needed to be redressed. The respondent’s loss of earning although at large had come forcefully through and caught the trial court’s attention. It’s ward is within the trial court’s province more so when it is not for such loss that had already been granted as a special damage. The relief as granted does not even negate our finding that since respondent had proved the loss of his $20,000 consequent upon the breach by the appellant, the later should refund to the former a loss it has brought about in view of the breach. The court cannot interfere with a trial court’s order for damages that had not been shown to have proceeded upon a wrong principle of law. N500,000 compensation to the respondent for the trauma of his arrest and detention by the South African authorities and for the loss of earning because of such incarceration is manifestly neither too small nor too big to be revisited by this court. The award does not constitute a further compensation to one accommodated by other reliefs. See U.B.A. Ltd. v. Achoru (1989) 1 NWLR (PtA8) 172 and Co-operative Development Bank Plc. v. Joe Golday Co. Ltd. (2000) 14 NWLR (Pt.688) 506.
For all the foregoing, the issues formulated by the appellant/cross-respondent in its brief regarding the main appeal are hereby resolved against it. The appeal lacks merits and is hereby dismissed.
The cross-appeal having succeeded, the appellant/cross-respondent is accordingly ordered to pay the cross-appellant/respondent $20,000 a category of special damages claimed against the former by the latter which claim has been proved to have naturally stemmed from the breach of the contract between the two.
Appellant/cross-respondent shall pay a cumulative cost of N10,000 to the respondent/cross-appellant.
Other Citations: (2004)LCN/1601(CA)
