Newbreed Organisation Ltd. V. J. E. Erhomosele (2006)
LAWGLOBAL HUB Lead Judgment Report
MUKHTAR, J.S.C.
In the High Court of Lagos State, the plaintiff who is the respondent in this appeal claimed the following reliefs against the defendant/ appellant.
“(a) N500,000.00 (Five Hundred Thousand Naira) being, damages for libel contained in the ‘President Magazine’ Volume I, No. 27 (of November 20, 1989) published and widely circulated by the defendant within and outside Nigeria.
Alteratively
(b) N500,000.00 (Five Hundred Thousand Naira) damages against the defendant for innocently, negligently or deliberately and falsely misrepresenting (sic) or crediting to the plaintiff statements which the plaintiff never uttered and by reason of which the plaintiff has suffered untold damages.”
The plaintiff’s claim is predicated upon the publication involving the plaintiff carried by the President magazine published and widely circulated by the defendant who are the publishers. This publication led to the termination of the appointment of the plaintiff by his employer, American International Insurance company (Nigeria) Limited. According to the plaintiff, the most damaging portion of the publication reads:
“However, in a chat with the President, Mr. J. E. Erhomosele, one of the brains behind the deportation “of Ritter and Chairman ASSBIFI, AIICO Chapter, the company is now under a new management that is poised to slot out the legacies of the Ritter days. There is a new dispensation here now. Ritter has been sent packing. Infact, he left the country unannounced. Government acted on our petition so there is no problem any more.”
The plaintiff immediately and thereafter demanded a retraction, but the defendant refused to do so, in spite of the fact that he did not grant the alleged ‘chat’. The plaintiff has suffered untold hardship as a result of his termination of employment and he has been exposed to ridicule, odium and contempt.
The defendant denied the allegations above, and stated that even if it authorised, issued or furnished the said publication, the words complained of are not defamatory, and cannot bear the meaning ascribed to them.
The plaintiff gave evidence and tendered many documentary evidence. The defendant however, did not adduce evidence, but his counsel addressed the court. The learned trial Judge evaluated the evidence before him, considered the addresses, found the case of the plaintiff proved, and found in his favour, awarding him the sum of N300,000.00 as damages.
Dissatisfied with the judgment, the defendant appealed to the Court of Appeal on four grounds of appeal. The Court of Appeal allowed the appeal in part, thus:
“In the final analysis, this appeal to the extent to which it challenges the right to enter judgment in favour of the plaintiff/respondent for damages suffered as a result of published malicious falsehood is hereby dismissed. But it succeeds in part, as to the sum of N300,000.00 awarded by the trial court as damages. That award is thus reduced to N150,000.00 (One Hundred and Fifty Thousand Naira).”
Learned counsel exchanged briefs of argument. The appellant was not represented but learned counsel for the respondent was present and adopted his brief at the hearing of the appeal. In its brief of argument, the appellant raised the following issues for determination:
“1. Whether the Court of Appeal was right in affirming the decision of the trial court in favour of the respondent in his alternative claim when there was no evidence of malicious falsehood.
- Whether the Court of Appeal was right in not dismissing in entirety the award of N300,000.00 (Three Hundred Thousand Naira) to the respondent by the trial court especially when the Court of Appeal came to the conclusion that the respondent’s probable money loss is not supported by evidence.”
The respondent in his brief of argument formulated only one issue for determination, which reads:
“Has the plaintiff/respondent established ‘malice’ against the defendant/appellant in this case”
I will adopt the two issues in the appellant’s brief of argument for the treatment of this appeal. Learned counsel for the appellant in canvassing argument under issue (1) submitted that the learned Justices of the Court of Appeal erred in law in affirming the decision of the trial court that the published statement complained of certain malicious falsehood against the defendant/respondent. Learned counsel submitted that the published words do not contain malicious or injurious falsehood against the respondent, and cited the case of Ratcliffe v. Evans (1892) 2 Q.B. 524 at 527 on the law governing tortuous claim of injurious falsehood, where the court stated the following:
“That an action will lie for written or oral falsehoods not actionable per se nor even defamatory, where they are maliciously published … where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage,”
Again, learned counsel referred to Harry Street’s Book, ‘Law of Torts’, 12th Edition at page 359, where he stated thus:
“Originally, this tort protected persons against unwarranted attacks on their title to land by virtue of which they might be hampered in the disposal of that land hence, it was called slander of title. Later, it was equally applicable to chattel in which case the tort was usually called “slander of goods”. By 1874, it was established that disparagement of the quality of property as well as aspersions on title to it were tortuous. Before the end of the century, Ratcliffe v. Evans had decided that the tort could be committed whenever damaging lies about a business were uttered; since then, the tort has become comprehensively styled injurious falsehood.
It is also submitted that the essence of this tort is to guard against any form of disparagement of either the plaintiff’s proprietary interest or the person of the plaintiff in respect of any trade, profession, or calling carried on by him at the time of the publication. Another submission, still by learned counsel for the appellant is that, the respondent cannot claim under injurious falsehood, because it is only when the publication is calculated to cause pecuniary damage to the plaintiff that he can recover under this head of claim, and that the test that should guide the courts, is whether a reasonable man who read the said publication would say that the said publication was calculated to disparage either the respondent or his proprietary interest and infact likely to cause him pecuniary damage. Reliance was placed on the case of De Beers Abrasive Products Ltd. & (Anor. v. International General Electric Co. of New York Ltd. (1975) 2 All ER page 599. Reliance was also placed on the case of R. J. Reuter Co. Ltd. v. Mulhens (1954) CH 50 at 74 for the essential elements of the tort of injurious or malicious falsehood which are:
(a) That the words complained of were untrue
(b) That they were published maliciously.
(c) That the plaintiff has thereby been caused damage.
Learned counsel for the respondent has replied that the principle in Reuter’s case (supra) has been misplaced by the appellant, as the case does not help the appellant’s case, rather, it is supportive of the entire respondent’s case.
I will at this juncture look at and possibly reproduce the material averment in the plaintiff/respondent’s statement of claim, and the evidence in support to determine whether the above essential elements have been established. The material averments are:
“5. The facts of this case which subsequently led to the termination of the plaintiff by his employers arose from a publication carried by the President Magazine published and widely circulated by the defendant.
- In the said President Magazine of 14th November, 1989, Volume 1 Number 27 of (November 20, 1989) the defendant carried a publication at page 12 in respect of a petition dated 17th March, 1989 jointly written by ASSBIFI and NUBIFIE (senior and junior workers Unions of AIICO respectively) to the Chief of General Staff concerning some wrong doings in AIICO against the corporate interest of Nigeria. Of particular interest and directly relevant to this suit is the last three paragraphs of the said publication which gave a ‘false impression’ that the President Magazine’ recently had a “chat” with the chairman (i.e. the plaintiff herein) of ASSBIFI, AIICO’s Chapter, when in actual fact there was no such ‘chat’ as falsely alleged by the defendant. The plaintiff will rely on his own copy of this Petition dated 17/3/89 at the hearing of this suit.
- The most damaging of all the paragraphs upon which the plaintiff’s employers (AIICO) relied on to terminate the plaintiff’s services was the third penultimate paragraph of the said publication in President Magazine wherein the defendant falsely stated:
The words have already been reproduced in the earlier part of this judgment.
“8. As a result of the above false and malicious publications by the defendant, the management of AIICO, who are the immediate employers of the plaintiff, issued the plaintiff a query in respect of the ‘publication’. The plaintiff will rely on the said query and his reply in which the plaintiff specifically denied ever granting the said press statement at the hearing of the suit.
- That on the date of the publication by the President
Magazine, the AIICO unit and its president in person of Mr. Erhomosele in utter dismay, sent a letter immediately to the Editor/Publishers of the President Magazine demanding a retraction of the said paragraph of their story …
- Barely two hours after the plaintiff’s reply to his query, his employers (AIICO) handed him with a letter suspending him from duty. The plaintiff will rely on this letter at the hearing of this suit.
- As a result of the recalcitrant attitude of the defendant in publishing a retraction, the management of AIICO, the employers of the plaintiff proceeded to terminate the services of the plaintiff who was then a senior staff on a basic salary of … with other benefit, has been left unemployed thereby resulting in an untold hardship to him and his family. The plaintiff will rely on his termination letter at the hearing of this suit.”
In its statement of defence, the defendant denied the above averments thus:
“2. The defendant denies paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the statement of claim.
- The defendant denies issuing, furnishing, authorizing or being responsible for the publication alleged to have been made in paragraph 5 of the statement of claim. If the defendant issued, furnished or authorised the said publication (which is denied), the defendant avers that the words complained of are not defamatory of the plaintiff and could not bear the meaning ascribed to them in paragraph 7 of the statement of claim.”
In his evidence in chief, the plaintiff/respondent gave the following evidence in support of his pleadings:
” … I bought and read the President Vol. 1 No. 27 of G November 20, 1989 … I never granted an interview as regards the last paragraph of exhibit A. When I read exhibit A, I as President of AIICO Senior Staff Association, we wrote a protest letter to the Editor of the President Magazine stating the obvious that I never granted an interview or that as alleged in exhibit A and I requested a retraction of the said publication. My employer, AIICO queried me in respect of the publication in exhibit A. This is the query given to me by my employer … I answered the query and I was then suspended from duty.
This is the letter suspending me from duty … When I sent a protest letter to the defendant, I made a photo-copy of the protest letter which we keep in the file. We do not use carbon copy in that it can fade. This is the photo copy … There was no retraction of exhibit A. My protest letter as in exhibit D was not replied to, my employer then terminated my appointment in connection with exhibit A. This is a copy of the letter of termination. As at 2nd January, 1990, I was a senior staff manager grade III with AIICO, my annual income was then about N31,260.00. As a result of the termination of my employment, I have been suffering untold hardship including the loss of an opportunity for a one year course abroad that had already (sic) being arranged for me by my employer. The President Magazine is widely read both in Nigeria and outside Nigeria.”
In the course of cross-examination, the plaintiff said, inter alia. thus:
“It is true that I wrote a petition to the then Chief of Staff complaining of sabotage against Mr. Ritter, the then Managing Director of AIICO, my petition made allegation of financial impropriety against the said Mr. Ritter. This is the copy of the petition. I wrote to the then Chief of General Staff … Exhibit C was copied to the News Agency of Nigeria on behalf of the Press. Exhibit C was copied to the Press in 1982 and as such, the press knew about the on goings in the company. This is the reply of the Chairman, Board of Directors of AIICO … This is the document we wrote to some people which document is referred to in exhibit F … Exhibit I which is dated 12/1/83, is copied to the News Agency of Nigeria. I cannot remember that immediately after exhibit F. AIICO planned a retrenchment.
I cannot remember writing to our National Body in respect of the planned retrenchment in AIICO. I see this document. I am aware, that AIICO planned a rationalisation or retrenchment. This was before exhibit F. I am aware that AIICO effected the retrenchment. This was done before exhibit F was written. Exhibit E did not refer to the offensive publication.”
As can be seen from exhibit B, the employers of the plaintiff/respondent did not at all waste time in issuing a query to him in respect of the publication complained of in exhibit’ A’. The memo, exhibit B reads inter alia as follows:
“We refer to the publication in “The President Magazine” of 20th November, 1989, No. 28, page 12, where you had a chat with one Moshood Fayemiwo on the company’s affairs without express clearance from the Management. Management view this action of yours as a violation of the provisions of a Collective Agreement, Article 4 and the provision of Employee Handbook titled Employment and Condition of Service Page 16(36). Will you show cause before the close of business today why disciplinary action should not be taken against you. By copy of this memo, your General Secretary is being informed of your action.”
There seems to be a discrepancy in the above reproduced memo, for although it bears the date of 15th November, 1989, the content referred to the ‘publication of 20th November, 1989.’ The question to ask here, is, did the plaintiff’s employer write exhibit B before the publication of 20th November, 1989, that is in controversy I cannot see a date in exhibit ‘A’ but perhaps one can reconcile the date on exhibit B with the averment in paragraph (6) of the statement of claim which referred to the magazine of 14th November, 1989. If one does that, then one can easily and confidently say the memo was written a day after the said president magazine came out on the news stand. At any rate, that AIICO took immediate action on the publication the very next day after, shows the gravity of the matter as far as it is concerned. On the same date, the plaintiff’s employers also sent a memo to him suspending him from work. The memo contains the following. inter alia:
“Further to my letter of 15th November, 1989, you are hereby placed on suspension with immediate effect to enable management carry out necessary investigation. In line with the provision of the Collective Agreement, Article 4(ii)(a), you will be entitled to half of your basic salary plus your full transport and housing allowances during the period of suspension.”
The above again reflects the gravity with which AIICO took the publication.
Exhibit D shows that the very day the publication came out, the plaintiff/respondent wrote the Editor of the ‘President’ seeking a retraction of the publication after denying the ‘chat’ thus:
” … While it is correct that the “Unions” mentioned in the story wrote to the Chief of General Staff on March 17, 1989, we want to state categorically that it is absolutely embarrassing and incorrect that our Unit President, Mr. J. E. Erhomosele granted audience of any manner or description to either “The President” or Moshood Fayemiyo either recently or since the existence of the said letter to the CGS. It is in this light that we see the last two or three paragraphs of your story as mischievous, unprofessional, unintelligible and misinforming, as Mr. J. E. Erhomosele has never met Moshood Fayemiwo or any member of staff of “The President” for that matter, in his life. In this connection, we challenge Moshood Fayemiwo or any member of your staff to call at our offices any time between 8.00 a.m. and 5.00 p.m. on or before Thursday, November 16, 1989 to identify Mr. Erhomosele with whom you claimed to have had a chat. Your failure to come around for this identification and to publish this refutal or retraction of the last two or three paragraphs of your said story will mean a go-ahead for us to institute legal proceedings against you on this damaging and mischievous publication which is very much embarrassing, not only to the Government of this country (which has already acted on our letter to it), American International Insurance Company (Nigeria) Limited (which has already re-organized its management) but also to our Union that neither sent a copy of the said petition to you nor granted you audience on same.
We await anxiously the publication of the required refutal in your next edition as well as seeing you in our offices as required for the purpose of identifying the man with whom you had a chat.”
Obviously, the defendant/appellant did neither of what was requested in exhibit D, as is reflected in paragraph (15) of the statement of claim and the plaintiff/respondent’s evidence.
On 2nd January, 1990 the plaintiff/respondent’s employers terminated his appointment vide exhibit E.
Against the backdrop of pieces of evidence reproduced above, the answer to the point on the meeting of the essential elements, which I have already raised earlier in the judgment, can be seen. Now, as to whether the words complained of were untrue, it is instructive to note that even though in the course of cross examination, the petition exhibit F signed by the respondent was tendered through him, he did say that he did not say the things in exhibit “A” credited to him. The appellant on the other hand did not offer evidence to challenge or disprove the respondent’s case on the authenticity of the content of exhibit ‘A’ or its source. In the absence of such evidence, the trial Judge could only determine the case before him on the basis of the material before him. As for ingredient (a) above, I think the plaintiff/respondent has by both his oral and documentary evidence proved that the words complained of were untrue. The pieces of evidence have already been reproduced above. The refusal of the defendant/appellant to cause its staff to appear in the plaintiff/respondent’s office to identify him as is contained in exhibit D is a pointer to this, for I believe if he had had the chat with the respondent, the appellant would have taken up the offer, most especially in the face of threat to institute legal action against the defendant/appellant. It is instructive to note that the evidence of the plaintiff/respondent in this respect was not challenged in the course of cross-examination. The only fact that came out was the petition to the then Chief of General Staff which was admitted as exhibit F. It is a fact that the plaintiff/respondent was one of the signatories of exhibit F and a vital portion of the content of exhibit F reads:
“We have in AIICO’s board of management, one Mr. H. R. Ritter (Managing Director), an American citizen. Since assuming office eleven (11) years ago, he has caused distortion in Nigerian economy and has completely undermined the Nigerian Nation/Government and the law of the land. He has persistently boasted that he understands and knows more about the Nigerian Government and her people better than any Nigerian does. He is the only American Managing Director that has stayed in service in AIICO Nigeria for up to eleven (11) years, haven been brought in since 1978 … ”
Truly, there was a petition alleging many improprieties against a Mr. Ritter, and the consequence of the allegations may have resulted in the sack of the said Mr. Ritter, but then that is not to say that the allegations were passed on directly to the staff of the appellant company. Exhibit F was a petition addressed to the Chief of Staff but copied to some top government functionaries and is even marked confidential. The content of exhibit F, may have spread to various establishments but it is not the same as saying these allegations were conveyed to a Mr. Fayemiwo directly by the plaintiff/respondent on a one to one basis vide a chat/interview or whatever. ‘Chat’ in the shorter Oxford English Dictionary is defined as ‘familiar and easy talk or conversation’, and ‘to talk in a light and informal manner to converse familiarly’.
It is obvious from the evidence of the respondent and the content of exhibit D that no such chat took place, going by the definition of the word ‘chat’ above. The impression any reasonable man will have after reading the content of exhibit A particularly complained about is that, the plaintiff/respondent was responsible for divulging whatever information the defendant/appellant used in the article. One must however not lose sight of the fact that exhibit F was co-authored and signed by three other officials of AIICO, and not the plaintiff/respondent only.
On ingredient (b) supra, it is always very difficult to conceive whether a publication is done maliciously or not. I can only deduce that it was so done when even after writing the defendant/appellant exhibit D, and demanding a retraction of the article, it refused to do so, even at the threat of imminent legal action. As a matter of fact, there is nothing in their statement of defence to dissuade anyone that the publication was not malicious. It only contained an outright denial for the responsibility of the publication.
As for ingredient (c), there is ample evidence of damage caused to the plaintiff/respondent.
The plaintiff/respondent testified that he got a query memo the very next day after the publication of exhibit A. The content of the memo, exhibit B has already been reproduced above. One can clearly see from the said exhibit B that the respondent’s employers did not hide its displeasure of the publication in exhibit A, which involved the respondent. The reason for the query was patently clear, as it referred to the publication in the ‘President Magazine’ specifically and pointed to a violation of the collective agreement, which frowns at such action. Then on the same day, exhibit C was written suspending the respondent from work and putting him on half of his basic salary, (which to my mind must have caused the respondent some damage). Barely 18 days after exhibit C, the respondent’s appointment was terminated vide exhibit E, which finally nailed the coffin, and made him unemployed and stopped all the financial advantages accruable to him. If that has not caused damage to the respondent, I don’t know what can, for in my view, the publication that can be linked to the termination of the respondent’s appointment can be translated to damage. If the appellant had taken the trouble of retracting the publication as demanded by the respondent, it is possible that the respondent would still be in gainful employment under his employer, as it probably wouldn’t have taken the drastic step it took in throwing the respondent into the unemployment market. The termination of appointment can definitely be linked to the publication in exhibit A, as it was the cause of the query and suspension. All the above factors put together constitute and make up the ingredients to be met in satisfying the tort of injurious or malicious falsehood. In Clerk and Lindsel on torts 14th Edition at paragraph 1859, the Authors discussed the ingredient of defamation as follows:-
“The plaintiff must in the first place strictly set out and prove the words complained of as in an action for defamation. He must prove that they are false and he must prove that they are malicious. There may be something analogous to claim of privilege on the defendant’s part; he may say, for example that he only slandered the plaintiff’s title in defence of his own. In such a case it will be for the plaintiff to prove lack of good faith. Even, however should there be no duty or interest on the defendant’s part, the matter will not necessarily be concluded against him. Malice must still be found as a fact. That he had no good ground or reasonable occasion for the publication in question may be strong evidence of that fact, but it is nothing more. And mere knowledge of the falsehood of the statement at the time of uttering it, though strong evidence of actual malice is not conclusive. Finally, except in cases within section 3 of the Defamation Act, 1952 actual damage must be proved”.
The above discussion was definitely in the lower court’s mind when it affirmed the judgment of the trial court.
Another aspect of the case I would like to point out is the fact that, the defendant/appellant did not adduce evidence in its defence at the trial court. Learned counsel for the respondent has argued that the implication in law of an unproven defence is that the defence is deemed abandoned. He placed reliance on the cases of Broad line Enterprises Ltd. v. Monterey Maritime Corp. (1995) 9 NWLR (Pt. 417) page 1, Edosomwan V. Ogbeyfim (1996) 4 NWLR (Pt.442) page
266, and Awojugbagbe Light Industries v. Chinukwe (1995) 4 NWLR (Pt.390) page 379.
The only evidence available for the learned trial Judge to adjudicate on, was that of the plaintiff/respondent alone, and once the evidence was cogent and credible, the learned trial Judge had no option, but to rely on it and base his findings thereon. In all civil suits, the onus to prove a particular fact or a case in general is on the party who asserts, and since civil suits are determined on balance of probability and preponderance of evidence, a party who proves his case will obtain judgment based on such preponderance of evidence and balance of probability in his favour. See Elebute v. Odekilekun (1969) 1 All NLR 449, Elias v. Omo-Bare (1982) 5 Sc. 25, and Arase v. Arase (1981) 5 Sc. 33. In the instant case, the plaintiff/respondent satisfied these principles of law.
When a defendant refuses to adduce evidence in his defence, and rests his case on the evidence of the plaintiff, then he has himself to blame if the trial court finds for the plaintiff based on his evidence, as was done in the instant case. The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the other side would suffice to prove its case. See Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) page 352, and Nwabuoku v. Ottih (1961) 2 SCNLR page 232.
In affirming the findings of the trial court, the court below in its judgment stated thus: –
“For all I have said above, it is without hesitation that I say that the words complained of was untrue and they were published with malice. It was intended to inflict injury on the plaintiff/respondent and it did infact inflict it. The plaintiff/respondent lost his job as a result of the publication. That is a pecuniary loss.”
I endorse the above finding.
Learned counsel for the appellant has urged this court to reverse the concurrent findings of both the trial court and the court below that the non retraction of the publication by the appellant was the evidence of malice required to ground an action of malicious falsehood. This court will do nothing of the sort, for the law is settled that findings that are based on credible evidence will not be disturbed, unless the findings are wrong, perverse and not supported by evidence. Moreso, when they are concurrent findings of fact. See Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) page 1, Nkado v. Obiano (1997) 5 NWLR (Pt. 503) page 31, and Lawal v. Dawodu (1972) 1 All NLR page 270 cited by learned counsel for the respondent in his brief of argument. See also Patrick Ogbu and Ors. v. Fidelis Ani D (1994) 7 NWLR (Pt. 355), page 128, and Coker v. Oguntola (1985) 2 NWLR (Pt.5) page 87.
For the foregoing reasoning, I answer the above issue (1) in the affirmative, and grounds of appeal Nos. (1), (2) and (3) to which they are related fail.
On issue (2) supra, learned Counsel for the appellant has submitted that the court below was perfectly right in interfering with the award of N300,000.00 awarded to the respondent by the trial court. He placed reliance on the case of College of Education, Warri v. Odede (1999) 1 NWLR (Pt. 586) page 253. It was further submitted, that the court below though perfectly justified when it interferred with the award, fell into a grave error in not dismissing the award in its entirety, especially when it has come to the conclusion (and rightly in my view) that there was no evidence of the respondent’s probable money loss. The case of Fielding and anor. v. Variety Incorporated (1967) 2 Q.B. 841 cited by learned counsel for the appellant is relevant.
In treating this issue, I will refer/reproduce the salient averments in the statement of claim which reads:
“20. That as a result of the defendant’s malicious and mischievous publications, the plaintiff has been exposed to ridicule, odium, contempt and, above all, the plaintiff had been prematurely thrown into the world of unemployment as a result of the defendant’s false publications.”
In his evidence in support of the pleading, the plaintiff/respondent said he suffered untold hardship as a result of the termination of his employment. Everybody knows that loss of employment leads to loss of earnings which translates to monetary loss. The very fact that he did not say the amount he has lost does not retract from the fact that he has lost the salary and allowances he was earning every month at the time he was enjoying full employment. Surely, anyone who loses his monetary earnings suffer untold hardship, for it becomes difficult for him to keep body and soul together. In this wise, I agree with the learned Justice of the Court of Appeal when he said:
“That the plaintiff/respondent has suffered some money loss as a result of the published malicious falsehood is not in doubt. But what that probable monetary loss is, has not been supported by evidence. The circumstances of this case, in my respectful view, impose a duty on this court to interfere with the award of N300,000.00…”
To completely dismiss the award to the respondent will constitute a glaring injustice to him. For the foregoing reasoning, the answer to this issue is in the affirmative and so, ground (4) of appeal to which it is married fails.
In the final analysis, the appeal fails in its entirety as it lacks merit and substance. The judgment of the lower court is affirmed. I assess costs at N10,000.00 in favour of the respondent against the appellant.
The plaintiff was dissatisfied with the reduction of the award made to him by the learned trial court by the Court of Appeal and so it cross-appealed on the following sole ground of appeal, which reads as follows.
”The learned Justices of the Court of Appeal misdirected themselves in law when they held per Aderemi, J.C.A., while relying on the legal principles in His Highness, Uyo I v. Nigerian National Press Limited (1974) 6 S.C.103 to reduce the trial court award in damages in “the following manner.
“…
Particulars … ”
(a) Specifically, the Court of Appeal failed to follow the current principles of law relating to the reviewing of damages as held in Allied Bank of Nig. Limited v. Akubueze (1997) 6 NWLR (Pt.
509) page 374 at page 383; (sic) Uyo v. Nigerian National Press Limited (1974) 6 S.C. page 103 and Imah v. Okogbe (1993) 9 NWLR (Pt.316) page 159 amongst others.
(b) The Court of Appeal with due respect misapplied the principles of law relating to its (appellate court) power to interfering with the award of damages made by trial court.
(c) The Court of Appeal usurped the jurisdictional and powers of the trial court that heard the evidence and made correct award.”
Learned counsel for the cross-appellant filed a brief of argument, which was not responded to by the cross-respondent. The brief of argument was adopted at the hearing of the appeal. A single issue for determination was raised by the cross appellant and the issue is –
“Was the Court of Appeal justified either in law or equity, to have reduced the awards of damages from N300,000.00 (Three Hundred Thousand Naira only) to N150,000.00 (One Hundred and Fifty Thousand Naira only) when no circumstances exist to so warrant”
In canvassing argument in support of this issue, learned counsel did not quarrel with the power of the Court of Appeal to review the award of damages, but his quarrel is with the fact that the review by way of reduction by the court below was not exercised in accordance with the settled principles of law. These principles were re-echoed in the case of Allied Bank of Nigeria Ltd. v. Akubueze (supra) and they are: –
“(a) the court below acted upon some wrong principle of law; or
(b) the amount of damages awarded was so extremely high or very small as to make it, in the judgment of the court, an entirely erroneous estimate of the damage to which the plaintiff is entitled”
Then there is the case of His Highness of Uyo v. Nigerian National Press Ltd. (1974) 6 S.C. 103 which referred to the case of Zik’s Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188, which reiterated these principles of law. Learned counsel has argued that the circumstances to warrant the reduction of the award of N300,000.00 made by the trial court to N150,000.00 did not exist. The excerpt of the respondent’s evidence reproduced in the cross- appellant’s brief has already been reproduced in the earlier part of this judgment. It is on record that the annual income of the respondent was N31,260.00, but then, there was no evidence on how many more years he had expected to enjoy the salary before his retirement. There are many missing gaps, like the respondent’s age, his retirement age and his expectant retirement benefit. The loss of an opportunity for a year course abroad was not buttressed with either oral or documentary evidence to show that the opportunity did actually exist. In a situation like this, there is usually correspondence from the institution, the party planned to attend, like offer and acceptance of a place etc.
A party claiming a relief should put all its cards on the table vide cogent evidence, as absence of such is bound to affect the award of damages where there is monetary relief.
I am not unmindful of the fact that the piece of evidence was not discredited, and that the appellant did not call evidence to debunk the respondent’s evidence, but the fact still remains that the respondent did not give sufficient evidence to warrant the first award, and so the interference of the court below is in order. I disagree with learned counsel that the Court of Appeal went beyond their brief, as no where in the defendant/appellant’s written brief before that court did they argue that the cross-appellant was not entitled to the award he got in the trial court. A careful perusal of pages 95 and 96 of the records, which contain the defendant/appellant’s brief of argument in the Court of Appeal, negates this stance by learned counsel, for I am of the view that those pages were all about that i.e. the propriety of the award by the learned trial Judge.
For the foregoing reasoning, I resolve this issue in favour of the cross-respondent, and so dismiss the sole ground of appeal to which it is married. The cross-appeal fails and it is hereby dismissed. I make no order as to costs.
SC.212/2001
