Edward Okwejiminor Vs G. Gbakeji & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

The suit was commenced at the Ughelli Judicial Division of the High Court of then Bendel State but now of Delta State on or about the 18/3/91. The plaintiff therein is the appellant herein while the defendants are the Respondents herein. The appellant claimed against the respondents jointly and severally as follows:

(a) The sum of N551.00 being medical expenses borne by the plaintiff as a result of the negligent acts of the defendants in bottling and selling a contaminated and poisonous fanta orange drink to the Plaintiff.

(b) The sum of N27.00 being costs of the crate of mineral purchased from the 1st defendant.

(c) The sum of N299,000.00 being loss of business expectation profits or income for the period of the Plaintiff’s treatment and time for recuperation.

(d) The sum of N700,422.00 being general damages for loss of life expectancy.

(e) The sum of N1,000,000.00 being damages for shock pain, agony and discomfort suffered by the Plaintiff as a result of the contaminated fanta drink bottled and sold by the defendant.

Total sum claimed N2,000,000.00.

Pleadings were settled and exchanged. The actual trial itself involved the testimony of five witnesses for the plaintiff and two for the defence. The parties through their counsel addressed the court. By its judgment dated the 23/3/1994 the learned trial Judge, W.A.O. Onoriobe J. allowed the claim of the appellant against the 2nd respondent with costs which he assessed at N2,500.00. He however dismissed the claim against the 1st respondent with N1000.00 costs. Dissatisfied with the said judgment the respondents appealed to the court below. The appellant was also dissatisfied with the award of damages and filed a cross-appeal in respect thereof to the court below. By its judgment on the 23/4/98 the appeal was allowed and cross-appeal dismissed. Dissatisfied, the Appellant has come on appeal to this Court. The original notice of appeal dated the 22nd of June 1998 contained 11 (eleven) grounds of appeal. With the leave of this Court the Appellant was granted the leave of this Court to file and argue four additional grounds of appeal. And the parties through their counsel filed and exchanged their briefs of argument. The Appellant’s brief was prepared by O.J. Oghenejakpor. He also prepared the appellant’s reply brief. They were filed on the 2/8/04 and 11/12/06 respectively. Mr Oluyele Delano prepared the 1st Respondent’s Brief and it was filed on the 7/3/06. The 2nd Rrespondent’s amended brief was prepared by Oluseye Opasanya and same was filed on the 9/3/06.

In his brief, the appellant submitted six issues for determination which are formulated as follows:

1. Whether in the circumstances of this case the Justices of the Court of Appeal were justified in reversing the firm findings of fact of the trial court that contaminated Fanta Orange drink containing a cockroach and a germ called Shigema tendered as exhibit H in this proceeding caused the Plaintiff ailment of stomach ache resulting in vomiting and stooling which led to his hospitalisation
2. Whether the Justices of the Court of Appeal were justified in reversing the findings of the trial court that the Fanta Orange exhibit H which caused the Plaintiff ailment was manufactured and bottled by the 2nd Defendant who sold same to the Plaintiff through the defendant their retailer
3. Whether the Justices of the Court of Appeal were Justified in reversing the findings of the trial court that the 2nd defendant was in breach of duty of care owed to the plaintiff and liable for damages for negligence
4. Whether the learned Justices of the Court of Appeal were right in holding that the 1″ defendant who is the retailer that sold the contaminated fanta orange exhibit “H” which caused plaintiff’s ailment is a mere conduct pipe and hence not liable in negligence for the sale of the defective and contaminated fanta orange Exhibit “H”.
5. Whether the learned Justices of the Court of Appeal were right in holding that there was no modicum of evidence on record to support the claim for damages for pain shock, agony and discomfort and reversing the award of N950,000.00 made by the trial court.

(6) Whether on the totality of the case as borne out by the records of appeal, the learned Justices of the Court of Appeal were justified in reversing the judgment of the trial court and in coming to their judgment in dismissing the plaintiff/appellant’s case.

For the first respondent the following four issues were submitted for determination.

1. Whether the Court of Appeal was right by holding that the plaintiff failed to prove that his illness was caused by drinking contaminated fanta orange drink produced by the defendant
2. Whether the contamination was occasioned by the carelessness of the 2nd defendant in breach of its duty of care to the Plaintiff
3. Whether the plaintiff was in breach of any duty of care to the plaintiff
4. Whether the Court of Appeal was right to set aside the award of N950,000.00 as damages to the Plaintiff against the 1st and 2nd defendants

And on behalf of the 2nd respondent, the following four Issues for determination were also proposed:

1. Whether the evidence adduced by the plaintiff proves that the alleged contaminated fanta drink was manufactured by the 2nd defendant
2. If the answer to issue 1 is in the affirmative, whether the Court of Appeal was right in holding that there was no evidence showing that the drink in question was the cause of the Plaintiff’s ailment.
3. Whether the Justices of the Court of Appeal were justified in deciding that the evidence before the court did not support the claim in negligence
4. Whether the Court of Appeal was right that there is no modicum of evidence on record to support the award by the Court of N950,000.00 damages for pain shock agony and discomfort

First of all, let me react to what appears to be a novel submission of learned counsel for the 1st Respondent. The submission is that “in order to identify the correct issues for determination one has to consider not only the grounds of appeal and the decisions of the lower courts, but also the basic principles laid down in Donoghue’s case. The settled principle of law is that issues for determination in an appeal must relate to the grounds of appeal filed and the judgment appealed against. Such issues should not be framed in the abstract but must relate to the grounds of appeal which represent the questions in controversy in the particular appeal. See Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 N.W.L.R. (Part 49) 284 at 304; Okonko v. Okolo (1988) 2 N.W.L.R. (Part 179) 632; Olowosago v. Adebanjo (1988) 4 N.W.L.R. (Part 88) 275; Okpala v. Ibeme(1989) 2 NWLR (Part 102) 208 at 220; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Part 102) 122 at 161. Since the appellant insists by this appeal that the Respondents are liable in negligence for damages, the principles of Donoghue v. Stevenson (1932) AC 562 may be called into play on the question of causation. I do not think that the principles in Donoghue v. Stevenson (supra) falls for consideration on the formulation of issues for determination.

With respect to the issues for determination proposed by counsel for the parties, the appellant’s 6th issue seems to encompass all other issues both of the appellant and the respondents. It is whether on the totality of the case as borne out by the evidence on record the Court of Appeal was justified in reversing the judgment of the trial court and in coming to their judgment dismissing the appellant’s claim. I would therefore adopt the said issue as the main issue for determination. In the course of this judgment, however I shall restate the substance of the arguments of the parties as they are set out in their respective briefs.

Under the appellant’s issue one references were made to the trial court’s findings on Exhibit “H” and the reversal of same by the Court of Appeal and submitted that there was no legal basis for the interference since the findings of the trial court were supported by the evidence and therefore not perverse. Reliance was placed on Sha v. Kwan (2000) 5 7 SC 178 at 194; Akinloye v. Eyiola (1968) NMLR 92 at 95; Lion Building Ltd v. Shadipe (1976) 12 SC 135 at 152; Mogaji v. Odofin (1978) 4 SC 91 at 93; Woluchem v Gudi (1981) 5 SC 291 at 326-330; Ebba v. Ogodo (1984) 4 SC 84;Balogun v. Labiran (1988) 3 NWLR (Part 80) 66; Shell bp Develop. Co. Nig Ltd v. Hiss Highness Pere Cole & Ors (1978) 3 SC 183 at 194. Learned counsel for the Appellant referred to the finding of the trial court at page 82 of the record and submitted that the finding is supported by the pleadings and evidence. He also made reference to the reliance of the Court of Appeal on the issue of Bread and Tea and contended that the question of the Appellant’s breakfast of bread and tea was not made an issue in the pleading, submitting that the Court must restrict itself to the pleadings. The Appellant relied on Niger Construction v. Okungbeni (1987) 4 NWLR (Part 67) 787 at 792; Lewis & Peat Ltd v. Akhimien(1976) 7 SC 157 at 160-162; Nig Engineering Works Ltd v. Denap Ltd & Ors. (1997) 10 NWLR (Part 525) 481 at 591; Igwe v. AICS (1994 8 NWLR Part 363, 459 at 48l.

Learned counsel for the Appellant pointed out that the issue of bread and tea came up only in cross-examination and submitted that evidence in cross-examination on matters not pleaded goes to no issue. He relied on Nsirim v. Onuma Construction Co. Ltd (2001) FWLR (Part 44) 405 at 416 and the reaction of the learned trial judge at pages 81-82 of the record when the issue was raised. Counsel further referred to the question of how well equipped the laboratory at 24 Post Office Road Ughelli was and submitted that the question was not an issue raised in the pleadings and therefore goes to no issue. It was the submission of the appellant that the court below reversed the judgment of the trial court on issue not canvassed by the parties.

Under its issue two learned counsel for the appellant referred to the pleadings of the parties including admissions, the evidence of the parties particularly that of the 1st respondent, exhibits G, H, J and K and argued that the trial courts finding about the 2nd respondent being the manufacturer and bottler of the contaminated fanta orange drink exhibit “H” is unassailable. Arguing the 3rd issue learned counsel for the appellant referred again to the pleadings and the evidence and submitted that the 2nd Respondent owed the Appellant a duty of care which duty it breached and therefore liable in negligence to the appellant and the trial court correctly so found. He argued therefore that the Court of Appeal was wrong in disturbing the finding.

Under his issue four the appellant raised the question of the 1,I respondent’s liability. Both courts below found her not liable.

According to the trial court she was a mere “carrier”. And the Court of Appeal described her as a conduit pipe. It was argued that the 1st Respondent having admitted the sale of exhibit “R” to the appellant for N27.00 and having regard to the established fact that she was one of the sources through which the 2nd Respondent marketed her products there was an implied warranty on her part that the said Exhibit “R” was safe for human consumption. exhibit “J” which had not been opened also contained a fly and same was also sold by the 1st respondent, it was pointed out. It was submitted that as retailer of a defective product she also owed the final consumer including the appellant the duty of care and therefore also liable. Reliance was placed on Nigerian Bottling Co. Ltd. v. Ngonadi (1985) 5 SC 317; Ifeanyi Chukwu Ltd. v. Saleh Boneh (Nig.) Ltd. (2000) FWLR (Part 27 2046 at 2070-2071, Makwe v. Nwukor (2001) FWLR (Part 63) 1 at 16. It was appellant’s submission on this issue that both respondents are jointly liable.

With respect to the 6th issue it was submitted that there was no appeal against the quantum of N950,000.00 damages. Learned counsel referred to the portions of the evidence of the appellant himself the PW2 and PW3 and argued that in view of the stomach pain, vomiting and stooling which resulted in his hospitalisation, the appellant is entitled to to the damages awarded. In conclusion it was urged that the appeal be allowed and the judgment of the Court below set aside.Next is the argument of learned counsel for the 1st Respondent in her brief He concedes some submissions of the appellant which I shall highlight later. Apart from that his submissions centred around the principles of causation as espoused in Donoghue v. Stevenson (1932) AC 562. He pointed out what he regarded as lapses in the evidence of the appellant and his witnesses. He pointed to the evidence of the PW2 under cross-examination to the effect that the stooling and vomiting could have been caused by cholera or typhoid fever or indeed over eating and submitted that the appellant did not exclude by evidence the possibility of his illness having been caused otherwise than by the fanta orange drink. It was submitted therefore that the finding of the Court of Appeal cannot be faulted. It was further argued that the appellant had to prove that the cockroach was present in the bottle at the time the drink left the 2nd respondent’s factory. Counsel referred to Daniel’s and Daniel’s v. White (R) & Sons Ltd.(1938) KBD 258 and Clerk and Lindsell on Tort 16th Edition at page 691 and submitted that where a defendant is able to show that he has taken all reasonable care in his production process he would have successfully rebutted negligence. He argued that although the presence of the cockroach in the fanta orange drink gives rise to the inference of the 2nd respondent’s negligence, it was sufficiently rebutted by the evidence of the DW2 about its reasonable care.

With respect to the 1st Respondent, it was argued that she incurred no liability for negligence as she was only an innocent retailer. The 1st Respondent was just in as good a position as the appellant to detect defect in the fanta orange just by visual examination of the bottle. On the issue of the N950,000.00 damages award learned counsel for the 1st respondent supported the Court of Appeal about there being no modicum of evidence in support of the claim that the appellant suffered any shock pain agony and discomfort as a result of the consumption of the contaminated fanta orange drink. It was his contention that the most persuasive evidence on the point is that of the PW2. He described the ipsit dixit evidence of the appellant and his wife as self serving and of little probative value. And the PW2 gave no evidence of shock pain or agony as claimed by the appellant. In conclusion, he urged that the appeal be dismissed.

On behalf of the 2nd respondent the following represent the substance of the submissions of learned counsel. It was the submission that where the medical evidence fail to conclusively link the contaminated fanta orange Exhibit “H” to the ailment complained of, then 12 the manufacturing company cannot be liable in negligence. He referred to portion of the evidence of the PW2 and PW4 under cross-examination and submitted that there was a total failure to link the 2nd respondent’s fanta orange to the ailment suffered by the appellant He argued that the possibility of ailment having been caused by factors other than exhibit “H” was not excluded. Reliance was placed on Nathaniel Ebenalu v. Guinness Nig. Ltd (1979) 7-9 CCHJ Vol. I. He argued therefore that the Court was right in reversing the judgment of the trial court. The appellant, he argued, failed to prove that the 2nd respondent breach its duty of care to the appellant. With respect to the 1st respondent learned counsel argued that there was no evidence on record against the 1st respondent, she being only an agent to a disclosed principal and who performed within the scope of her agency. For this submission he relied on M.S.L. (Nig) Ltd v N.M.A. (2000) 9 NWLR (Part 672) 391; Niger Progress Ltd. v. N.E.L. Corp.(1989) 3 NWLR (Part 107) 68; Orji v.Anyaso (2000) 2 NWLR (Part 643) 1; Ezeluwa v. Ekong (1999) 11 N.W.L.R. (Part 635) 55.

By way of conclusion learned counsel submitted that in order to succeed the plaintiff/appellant must prove:

1. Duty of Care
2. Breach of Duty of Care and
3. Damage resulting from the breach of duty of care.

He relied on Donoghue v. Stevenson (supra) Merchantile Bank v. Abusomwan (1986) 2 NWLR (Part 22).

In the appellant’s reply brief of argument, learned counsel for the appellant referred to the concessions at page 5 of the 1st respondent’s Brief and submitted that in the light of those concessions, the lower courts reversal of the decision of the trial court cannot be sustained. He reproduced the entire evidence of the PW2 and PW4 and contended that the respondent’s statement of the evidence of these witnesses contained distortions. It was his further submission that the evidence of the PW2 and PW4 under cross-examination on possible other causes of stooling and vomiting was evidence in respect of which there was no pleading and which was therefore inadmissible and cannot therefore be relied upon. Learned counsel referred to the Statement of Lord Macmillan in DONOGHUE v STEVENSON at page 622-623 and described same as a sweeping obiter and urged this court not to be bound by it and that there should be a presumption of negligence and that there should be justification of the maxim res ipsa loquitar.

Let me now deliberate on the case by examining the pleadings, the evidence of the parties, the judgment of the trial court and the judgment of the Court of Appeal to see if the reversal of the trial court’s judgment by the Court of Appeal is justifiable. First is the issue of causation. Was there on the balance of probability, such evidence that linked the 2nd Respondent to the ailment and eventual hospitalisation of the plaintiff/appellant The Court of Appeal carried out some re-evaluation of the evidence for the appellant, particularly the evidence of the appellant himself, the PW2, PW3 and PW4 under cross-examination and at pages 239-240 had this to say:

“The above answers to cross-examination of the PW2, PW3, PW4 and the plaintiff/respondent /cross-appellant have greatly punctured the case for the plaintiff/respondent that the fanta orange drink complained of caused injuries or any injury to the plaintiff/respondent/cross-appellant. These answers do not rule out the possibility that other agents not from the alleged fanta caused the infection the plaintiff/respondent suffered from. There was no evidence from the PW2 and PW4 at the trial that the plaintiff/respondent by taking the alleged contaminated of

fanta orange drink caused the injury pleaded or complained or caused any injury or illness revealed by both the medical practitioner or the laboratory tests. It seems to me that there was a total failure to link the 2nd defendant/appellant’s company with the alleged fanta orange drink in question nor the inference of duty of care. See Ogbimi v. Guinness (Nig.) Ltd. (1981) 1 FNL 67 at 69-70.”

In the first place the evidence elicited under cross-examination on which the Court of Appeal based its findings quoted above was not founded on issues raised in the pleadings. I am therefore persuaded by the submission of learned counsel for the Appellant that they go to no issues for it is settled that evidence obtained in cross-examination but on facts not pleaded is inadmissible. See Dina v. New Nigerian Newspapers Ltd. (1986) 2 NWLR (Part 22) 353, Aguocha v. Aguocha(1986) 4 NWLR (Part 37) 366. On this issue of whether the bread and tea taken by the Appellant in the morning of 13/2/91 could be a possible cause of the appellant’s ailment and eventual hospitalisation the learned trial judge at page 81 of the record reacted as follows:

“With the greatest respect to the learned counsel to the 2nd defendant this submission is unfounded and without merit if considered with the established facts of this case. Firstly, the 2nd Defendant never pleaded the fact that the plaintiff injury was caused by bread and tea taken at breakfast. No bread was tendered before me, nor is there any report showing that the plaintiff suffered injury from any bread tendered before me. Counsel submission was based on unpleaded and speculative evidence and hence goes to no issue …. ”

I agree entirely with the above opinion of the learned trial judge. It embodies the true state of the law on pleadings and evidence.

Still on this issue of causation the learned trial judge embarked upon a reasonably extensive evaluation of the evidence adduced before the Court in the light of the facts pleaded. Specifically, at pages 84-85 he examined paragraphs 12 and 13 of the 2nd respondent’s statement of defence and paragraphs 3 and 7 of the 1st respondent’s statement of defence the testimony of the plaintiff as to the source of exhibits “G” “H” and “K”, the evidence of the 1st respondent and made crucial findings. And after remarking that the 2nd respondent failed to tender any evidence in proof of paragraphs 12 and 13 he made the following findings:

“On the whole I accept the 1st defendant evidence given in support of her pleadings that it was the crate supplied to her by the 2nd Defendant that she sold to the plaintiff on the 13/2/91. I also accept that the 2nd Defendant made the supply of exhibit “G” to the 1st defendant on the 9/2/91 as reflected in exhibit “K”, the Route Card. The plaintiff’s case is that the contaminated fanta drink exhibit “H” is taken from the crate exhibit “G”. There is no contrary evidence to this averment. The crate was tendered before me as exhibit “G”. I saw and examined the crate. The contaminated fanta taken half-way by the plaintiff was also tendered before me as exhibit “H”. I saw the cockroach and other sediments in it. I also saw another unopened fanta orange containing a fly in the same crate (exhibit “G’ ) tendered as exhibit “J” in this proceeding”

Continuing, the learned trial Judge stated as follows:

“I believe the evidence of the plaintiff that the fanta orange exhibit “H” was taken from the crate of minerals exhibit “G” bought from the 1st defendant who is the retailer of the mineral produced and bottled by the 2nd defendant. I found as a fact that the 2nd defendant bottler of the contaminated fanta orange exhibit “H” which the plaintiff bought and consumed on the 13/2/92 and which caused plaintiff stomach pain, vomiting and stooling and led to the plaintiff admission in hospital, I also held that the 2nd defendant is the manufacturer of exhibit “G” including exhibit “H” and “J” … ”

(See pages 85-86 of the record)

The above findings and beliefs are all supported by evidence on record including evidence from the 1st respondent. There was in the circumstances, no basis for any interference with the findings as they were amply supported by the evidence on record.

Still on this issue of causation, while both learned counsel for the respondents placed reliance on the principle in Donoghue v. Stevenson (supra), learned counsel for the appellant advocated a shift from the burden of proof on the injured party as stated in the obiter by Lord Macmillan. Stating the duty of care owed to the ultimate consumer of a product by the manufacturer Lord Atkin at page 599 of the report said:

“By the Scots and English Law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property owes a duty to the consumer to take reasonable care. ”

On his part, Lord Thankerton at page 603 of the report stated the legal relationship between the manufacturer of some type of products and the ultimate consumer in the following terms:-

“That the respondent (manufacturer), in placing his manufactured article of drink upon the market has intentionally so excluded interference with, or examination of the article by any intermediate handler of the goods between himself and the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer. If that contention be sound, the consumer, on her showing that the article has reached her intact and that she has been injured by the harmful nature of the article, owing to the failure of the manufacturer to take reasonable care on its preparation prior to its enclosure in the stated vessel, will be entitled to reparation from the manufacturer. ”

Lord Macmillan spoke in the same vein at page 622 of the report

In this case it is not contested that the fanta orange drink exhibit “R” was manufactured and bottled by the 2nd defendant. It was sealed in such a manner as to exclude interference with or examination by an intermediate handler like the 1st respondent. And the appellant received it in the form in which it was bottled and sealed by the 2nd respondent. In such a situation there is a complied warranty by the 2nd respondent to the ultimate consumer that the contents of Exhibit “R” are safe for human consumption. In such a circumstance, the manufacturer, which in this case is the 2nd respondent owes a duty of care to the appellant. And once it is established that the appellant was injured by the contents of exhibit “R” that duty is breached entitling the appellant to reparation from the 2nd respondent.

On that issue the learned trial Judge at page 87 of the said remarked:

“The plaintiff is the final consumer of the fanta orange drink exhibit “H” manufactured and bottled by the 2nd defendant. Plaintiff is a person closely and directly affected by the act of the 2″d defendant and he owes the consumers including the plaintiff the duty of care or that the drinks manufactured by them should not do damaged to the consumers. ”

I have no cause to fault this reasoning. The consequence therefore is that there was equally no basis for the conclusion of the Court of Appeal at page 241 of the record to the effect that causation was not established.

Next is the question of the damages awarded. At page 244 of the record the Court of Appeal found in respect of the damages awarded by the learned trial judge. The court said:-

“I must say that there is no modicum of evidence to support the claim that the plaintiff/respondent/cross appellant suffered any shock pain agony and discomfort as a result of the consumption of the contaminated fanta orange drink manufactured and bottled by the 2nd defendant/appellant. Thus the above findings of the learned trial judge are not borne out of the evidence adduced before the court by the respondent/cross- appellant. ”

It is clear from the judgment of the Court of Appeal that it was prodded into the above erroneous conclusion because of its heavy reliance on the evidence extracted under cross-examination but which was not in support of any of the issues raised in the pleading. On the issue of the damages awarded the learned trial judge stated at page 91 of the record thus:

“The plaintiff also claimed the sum of NI000,000.00 being damages for shock, pain, agony and discomfort he suffered as a result of the consumption of the contaminated fanta orange drink manufactured and bottled by the 2nd defendant. From the pleading and the evidence in this case and in view of my finding, I hold that the 2nd defendant is liable under this head of claim. I have considered carefully the circumstances and the facts of this case and I come to the conclusion that the plaintiff is entitled to the sum of N950, 000.00 Nine hundred and fifty thousand naira) as damages for the injury suffered by the plaintiff as a result of the consumption of the contaminated fanta orange drink against the 2nd defendant.”

Earlier the learned trial judge had allowed some other heads of claim and dismissed some. With respect to the special damages awarded there is practically no challenge. The only area of some complaint is with respect to the award of N950,000.00 which is in the form of general damages.

The guiding principle is that an appellate court would not ordinarily interfere with the decision of a trial court as to the amount of damages awarded unless it is satisfied that:

(a) the trial court proceeded on a wrong principle of law; or

(b) the amount awarded is so high or so low as to make it an entirely erroneous estimate of damages to which the claim is entitled. See Ogunkoya v.Peters (1954) 14 WACA 504; Soleh Bonelt Overseas (Nig.) Ltd. v.Ayodele (1989) 1 NWLR (Part 199) 549. It is also settled that the award of general damages is essentially that of the trial court’s exercise of discretion and being a discretion an appellate court must ordinarily be circumspect in an invitation to interfere with the amount awarded. In the award of general damages therefore it is not for the appellate court to interfere on the promise that on a balance of opinion that a higher or low amount of award would have been preferred. See His Highness Uyo I v. Egware (1974) 1 All NLR 293 at 295; Nwachwkwu v. Egbuchu (1990) 3 NWLR (Part 139) 435; Bello v. Ringim (1991) 7 NWLR (Part 206) 668 In this case the Court of Appeal formed his opinion on the propriety or otherwise of the amount of N950,000.00 awarded because of its erroneous finding that the claim was not sustainable. I have examined the award made by the learned trial judge and I do not find any strong reason to interfere with the exercise of his discretion in the award. The result is that I would not disturb the award made by the learned trial judge.

On the whole, it is my view that the Court of Appeal was in grave error to interfere with the very reasoned judgment of the learned trial judge. And in view of all I have been saying above I hold that there is merit in the appeal which ought to be and is hereby allowed. The judgment of the Court of Appeal be and is hereby set aside and that of the trial court restored in its entirety. I assess the costs of this appeal at NI0,000.00 in favour of the appellant against the 2nd respondent.

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SC.67/2002