Union Bank Of Nigeria Plc V. Alhaji Adams Ajabule & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C

This appeal arose from the decision of the court of Appeal, Benin Judicial Division given on 1st, July, 2005 in which the court dismissed, except for the award of general damages where the appeal was allowed by the reduction of the general damages from N5,000,000.00 to N2,000,000.00, the appeal brought by the Appellant in this appeal against the judgment of the High Court of Justice of Ondo State sitting at Akure.

The 2nd Respondent as a customer of the Appellant maintained two current Accounts at the Appellant’s branch of the Bank at Akure in Ondo State. On his part, the 1st Respondent is the Chairman/Managing Director of the 2nd Respondent. On the request of the 2nd Respondent for credit facilities, the Appellant granted the 2nd Respondent an overdraft facility and a warehouse Refinancing facility. The two separate credit facilities were Secured by a Tripartite Deed of Legal Mortgage on the 1st Respondent’s Mariatun House (Formerly No.40) Isewe Street, Clerk Quarters Owo, Ondo State as well as Hypothecation of the 2nd Respondent’s stock of Motor Batteries.

When the 2nd Respondent failed to repay the credit facilities granted by the Appellant inspite of repeated demands’ the Appellant then took steps to enforce its rights under the Deed of Hypothecation of the Stock of Motor Batteries in the custody of the 2nd Respondent. When the 2nd Respondent refused to allow the Appellant to take over the control and management of the Respondents’ business premises, the Appellant proceeded by force and sealed the premises which the Respondents challenged by their action at the trial Court on 11th August, 1999.

The case was heard on pleadings comprising of statement of Claim, Statement of Defence and counter-claim and a Reply to the Statement of Defence and counter claim.

In its judgment delivered on 17th December, 2003, the trial court found for the plaintiffs/Respondents and granted all their claims for declaratory reliefs’ general damages in the sum of N5,000,000.00 and special damages in the sum of N1,580,000.00 against the Defendant/Appellant for the illegal sealing of the premises of the 2nd plaintiff/Respondent. The Defendants/Appellants counter claim, on the other-hand, was dismissed. Also dismissed was the Appellant’s appeal to the court of Appeal except for the reduction of the general damages awarded by the trial court from N5,000.000.00 to N2,000,000.00.

Still dissatisfied with the decision of the court of Appeal, the Defendant/Appellant has now appealed against it on the leave granted by this court on 14th July, 2005. In the Appellant’s brief of argument, the following four issues for determination of the appeal were raised and the same issues were also adopted in the Respondents’ brief of argument. The issues are –

(i) Whether the Court of Appeal was right in affirming the finding of the trial Court as to the existence and contents of the Central Bank Guideline between 1996 and 1999 when the document was not tendered in evidence by the Respondents (Ground 1 of the Notice of Appeal)

(ii) Whether the Court of Appeal was right when it upheld the finding of the trial Court that based on the evidence of PW3 the Appellant was responsible for sealing up of the 2nd Respondent’s Premises on 3rd August, 1999 (Ground 2 of the Notice of Appeal)(iii) Whether on the Pleadings and evidence there is any legal basis for the award of special damages to the Respondents or in the alternative, whether the Respondents discharged the burden of Proof required to succeed in their claim for special damages (Ground 3 of the Notice of Appeal)

(iv) Whether the Respondents are entitled to the award of general damages which was upheld by the Court of Appeal and reduced to the sum of N2,000,000.00 (Two Million Naira) having regard to the settled Principles of law. (Grounds 5, 7 & 8 of the Notice of Appeal).”

Starting with issue t in the Appellants brief of argument, its learned counsel had argued that the parties having joined issues at the trial court on pleadings on the existence of the central Bank Guidelines pegging interest rates at 21% between 1996 and 1999, the Court of Appeal was in error in affirming the decision of the trial Court on the existence and contents of that document which was not in evidence at the trial Court on the evidence of DW2 alone described as an admission against interest of the Appellant. Learned Counsel asserted that the evidence of DW2 does not relieve the Respondents of the burden to prove the contents of the document if the decision in the case of Asafa Foods Factory v. Alraine (Nig.) Limited (2002) 12 NWLR (Pt.781) 353 at 370 – 371 and Kano v. Oyelakin (1993) 3 N.W.L.R. (Pt.282) 399 at 422, are taken into consideration resulting in making the decision of the Court of Appeal perverse and liable to be set aside in allowing the appeal on this issue alone as the case of Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt.1025) 423 at 607 relied upon by the Respondents, is not applicable to the present issue.

For the Respondents however, it was contended that the documentary evidence on record comprising letters of offer Exhibits 43 and D1 and the Deed of Hypothecation Exhibit A2 containing the terms of agreement between the parties, have put the maximum rate of interest agreed as 21% which shifted the burden of proving any rate of interest to the contrary, on the Appellant; that the position of the Respondents on the issue of interest was strengthened by the evidence of the Appellant’s witness DW2, an employee of the Appellant, on which by the cases of Woluchem & Ors. v. Gudi & Ors. (1981) 5 S.C. 291 and Niger Construction Limited v. Chief A.A. Okungbemi (1987) 11 – 12 S.C.N.J. 133 at 135, the Respondents were perfectly entitled to rely upon to strengthen their case; that having regard to the decision of this Court in the case of Inakoju & Ors. v. Adeolu & Ors. (2007) 143 L.R.C.N. 1 at 93. the Courts below were right in finding that the existence of the Central Bank Guidelines pegging the interest rates chargeable on loan/overdraft granted by banks between 1996 and 1999, had been proved on the evidence of DW2. Learned Counsel pointed out that since there is no appeal against the specific findings of trial Court and affirmed by the Court of appeal that the maximum rate of interest agreed between the parties was 21%, this appeal should be dismissed on this issue.

The central complaint of the Appellant in this first issue for determination is whether the Court below was right in affirming the finding of the trial court as to the existence and contents of the Central Bank Guideline between 1996 and 1990, when the document was not tendered in evidence by the Respondents. It is significant to note that the finding on the existence and contents of the central Bank Guideline between 1996 and 1999, was made by the trial Court at page 78 of the record only after very a careful consideration of the relevant documentary evidence fixing the maximum rate of interest agreed between the Appellant and the Respondents at 21% as confirmed in the evidence of the Appellant’s witness DW2 under cross-examination which the Appellant picked to complain up on in the issue at hand. The comprehensive finding on the rate of interest agreed between the parties as found by the trial court in its judgment at page 78 reads –

“A careful Perusal of Exhibit A2 Deed of Hypothetication of Goods, Exhibit A3 – offer letter dated 18th November 1996 and Exhibit D1 – offer letter dated 9th September, 1997 and Exhibit A1- The Tripartite Legal Mortgage, in my humble opinion constitute agreement in respect of the loan/overdraft/credit facilities granted by the Defendant bank to the Plaintiff. In Exhibit A2, A3 and D1 the maximum rate of interest is 21%.

Exhibit A1 – Tripartite Legal Mortgage particularly paragraph 1 of the Preamble subjects itself to the terms and conditions in the offer letter. There are Prima facie two offer letters in this suit they are Exhibits A3 and D1. The terms and conditions as they relate to rate of interest fixed the rate of interest at 21%.

Reference to the terms and conditions in Exhibit A1 can only be reference to terms and conditions in either Exhibit A3 or Exhibit D1 or both. Since one of the terms and conditions on Exhibit A3 and D1 fixes rate of interest at 21% the rate of interest in Exhibit A1 by necessary implication is 21%.

The evidence of DW2 also confirms this assertion when under cross-examination he testified to the following effect:

‘As stated in Exhibit A2 the maximum rate of interest is 21%. That was in 1998.”

Under Re-examination DW2 testified to the effect that: it is the costs of funds and Central Bank Monetary Guidelines issued from time to time dictate the rate of interest.’

The above testimony contradicts the testimony of DW1 who gave evidence to the effect that between 1996 and 1999 there was no Central Bank Guidelines. The evidence of DW2 is evidence against interest and is admissible against the Defendants; it amounts to an admission as to the existence of Central Bank regulations.

This shows that at all material time between 1996 and 1998 there was in existence Central Bank Guidelines fixing interest rate at 21% and a fortiori there was CBN guideline between 1998 and 1999.”

What is most relevant in the findings of the trial court above in support of the case of the Respondents as affirmed by the court below is the maximum rate of interest chargeable on the loan/overdraft/credit facilities granted by the Defendant/Appellant to the plaintiffs/Respondents. That interest rate was found to have been fixed at the rate of 21% even in the absence of the disputed existence of the central Bank Guideline also fixing the rates at 21% as given in the oral evidence of DW2 being attacked by the Appellant in this issue. Therefore since the rate of interest as agreed between the parties being 21% happened to be in line with the central Bank Guideline as testified by the Appellant’s witness himself DW2, the trial court and the court below were on strong ground in finding that the Respondents could take advantage of that evidence in support of their case in line with the decisions in several cases including the leading one on the subject, Woluchem & Ors. v. Gudi & Ors. (1981) 5 S.C. 291. As the evidence in support of the Respondent’s case on the rate of interest agreed between the parties is overwhelming on the other documentary evidence, the failure to tender a copy of the Central Bank Guideline in evidence, though desirable, is certainly not fatal to the case of the Respondents whose claims were not entirely dependent on the existence and contents of said Central Bank Guideline.

The second issue for determination is whether the Court below was right when it upheld the finding of the trial Court based on the evidence of PW3, that the Appellant was responsible for sealing up the 2nd Respondent’s premises on 3rd August, 1999. It was argued on this issue that the Plaintiffs/Respondents did not plead sufficient facts to support the evidence of PW3 upon which the trial Court found that the Appellant was responsible for sealing the premises of the 2nd Respondent; that on the authority of many cases including F.A.T.B. Limited v. Partnership Investment company Limited (2003) 18 N.W.L.R. (Pt.851) 35 at 57; Nnaji v. Coastal Servi (Nig) Limited (2004) 11 N.W.L.R. (Pt.885) 552 at 570-571 and Ojeugbede v. Esan (2001) 18 N.W.L.R. (Pt.746) 771, the evidence of PW3 ought to be expunged from the record to result in making the findings of the courts below perverse warranting allowing the appeal on this issue.

It was argued on this issue by the Respondents that the facts of sealing of the 2nd Respondents premises are contained in Exhibit D10, a petition written by the Appellant, the contents of which were virtually admission by the Appellant thereby relieving the Respondents of the burden of proof of the fact that its premises had been sealed by the Appellant. The cases of Ebuke v. Amona (1988) 3 S.C.N.J. (Pt.11) 207 at 209 and Karimu Olujinle v. Bello Adeagbo (1988) 4 S.C.N.J.1 at 15, were cited and relied upon by the Respondents.

The law is indeed well settled that parties are bound by their pleadings and that evidence not supported by pleadings cannot be allowed at the trial Court.

Indeed it is the law that where such evidence was admitted then an Appellate Court is duty bound to expunge such evidence which must not be considered in the determination of the appeal. See F.A.T.B. Limited v. Partnership Inv. Co. Limited (2003) 18 N.W.L.R. (Pt.851) 35 at 57.The question now is whether the Appellant has made out a case to warrant the application of the law in the present case. The fact that the Appellant was responsible for sealing the premises of the 2nd Respondent as found by the trial Court and affirmed by the Court below, was adequately pleaded in the Respondents’ Statement of Claim and Reply to the Statement of Defence and Counter-Claim in paragraphs 28, 29 and 30 of the Statement of Claim where it was pleaded that on 3rd August, 1999, the Appellant came to the premises of the 2nd Respondent and forcibly sealed the premises. Those paragraphs read with paragraph 6 of the Plaintiffs/Respondents’ Reply to the Defendant/Appellant s Statement of Defence and Counter-Claim dealing with the petition written to the Ondo State Commissioner of Police by the Appellant Exhibit D10 which was quoted in the Appellant’s brief of argument’ in my view, are enough to support the evidence of PW3 and the concurrent findings of the two courts below that Appellant was indeed responsible for sealing the premises of the 2nd Respondent. In any case the contents of Exhibit D10 authered by the Appellant’ are complete admission of the Appellants responsibility in sealing the premises of the Respondents.

The third issue is whether on the pleadings and evidence, the award of special damages to the Respondents by the trial Court and affirmed by the Court below can be sustained. In this respect, it was submitted by the Appellant that the facts pleaded in paragraphs 33 and 34 of the statement of claim, do not contain full particulars required by law to establish the claim for special damages having regard to the decision of this Court in Benin Rubber Products Limited v. Ojo (1997) 9 N.W.L.R. (Pt.521) 388 at 411; that the average of N20,000.00 sale per day claimed by the Respondents fell short of the requirement of the law and that in the absence of credible evidence in proof of the special damages claimed, taking into consideration of the case of Osuji v. Isicoha (1989) 3 N.W.L.R. (Pt.111) 623 at 626, the award on special damages has no leg to stand upon, claimed the learned Counsel who urged the Court to allow the appeal on this issue.

The Respondents’ stand on this issue is that the claim of N20,000,00 per day as special damages arising from loss of earnings from the illegal sealing of the 2nd Respondents premises from 3rd August, 1999 until it was opened on the orders of Court after 79 days, had been fully proved as required by law. Learned Counsel referred to paragraphs 26 and 27 of the statement of claim which were said to have been admitted in paragraph 12 of the statement of defence and counter-claim, the requirement of proof had been satisfied taking into consideration of the cases of Shell Petroleum Development Company of Nigeria Limited v. Chief G. Tiebo VII & Others (2005) 127 L.R.C.N. 1274 and Akintunde v. Chief E. A. Ojikere (1971) N.M.L.R. 91 at 96.

What calls for determination in this issue is whether on the pleadings and evidence, there is any legal basis for the award of special damages. In otherwords what falls for determination is whether the Plaintiffs/Respondents discharged the required burden of proof placed upon them by law to succeed in their claim for special damages in the sum of N20,000.00 per day for 79 days their business premises remained sealed by the Appellant. In this respect, I must emphaised that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and as such a Court is not entitled to make an award of special damages based on conjecture or on some fluid and speculative estimate of alleged loss sustained by a Plaintiff’ See Dumez (Nigeria) Limited v. Ogboli (1972) 1 All N.L.R. 241; Osuji v. Isiocha (1989) 3 N.W.L.R. (Pt.111) 623 and Jaber v. Basma (1952) 14 WACA 140. Therefore, as far as the requirements of the law are concerned on the award of special damages, a trial Court cannot make its own individual or arbitrary assessment of what it conceives the plaintiff may be entitled to, what the law requires in such a case is for the court to act strictly on the hard facts presented before the court and accepted by it as establishing the amount claimed justifying the award. In the instant case therefore, in resolving the issue at hand, what falls for determination is whether the facts pleaded by the Plaintiffs/Respondents in paragraphs 26 and 27 of their statement of claim contain distinct particulars which were said to have been admitted in paragraph 12 of the Defendant/Appellant’s statement of defence in support of the claim. What was actually pleaded in paragraphs 26 and 27 of the statement of claim is –

“The Plaintiffs aver that inspite of the incidents referred to in paragraph (12 & 13) above coupled with the said outrageous interest rate, the Plaintiffs were still making reasonable and regular payments of their indebtedness to the Defendant’ For instance, the payments for the month of July, 1999 speaks for itself:

Date Amount Teller Number

1. 2-7-99 30,000.00 362234
2. 2-7-99 20,000.00 362235 Printing
3. 5-7-99 40,000.00 362235 Error
4. 7-7-99 20,000.00 362236
5. 8-7-99 60.000.00 362237
6. 13-7-99 20,000.00 362238
7. 13-7-99 15,000.00 362239
8. 14-7-99 20,000.00 362240
9. 16-7- 99 10,000.00 362241
10. 16-7-99 10,000.00 362242
11. 19-7-99 5,000.00 362243
12. 23-7-99 30,000.00 362245
13. 29-7-99 cheque Paid and cleared N50,000.00 (one hundred and fifty thousand Naira).

The said teller and cheque are hereby Pleaded.

27. In addition to paragraph (25) above some of the plaintiffs members of staff who confessed as having perpetrated the fraud discovered in the Plaintiffs Company have in the said month of July, 1999 made repayment of N45,000.00 to the Defendant vide the plaintiff’s account.”

On the otherhand, paragraph 12 of the Defendant/Appellant’s statement of defence and counter-claim which the Plaintiffs/Respondents’ learned Counsel claimed to had admitted the Plaintiffs/Respondents claim of special damages of N20,000.00 per day for the period their business premises remained sealed by the Appellant, reads –

“With reference to Paragraphs 26 and 27 of the statement of claim, the Defendant aver that these

payments were only made after the bank had called in the facilities as being due for payment vide its letters dated 22nd June, 1998, 5th August, 1998, 10th September, 1998, 9th February, 1999, 22nd February, 1999, but were not enough to liquidate the indebtedness.”

While paragraphs 26 and 27 of the Plaintiffs/Respondents’ statement of claim clearly dealt with the efforts made by the Plaintiffs/Respondents in the settlement of their indebtedness with the Appellant in the month of July, 1999, there is certainly nothing in those paragraphs averring facts, even remotedly, in support of the relief of special damages of N20,000.00 per day being the alleged loss of earnings suffered by the plaintiffs/Respondents for the 79 days period their business premises remained sealed by the Appellant. In similar vein, paragraph 12 of the Defendants/Appellant s statement of defence and counterclaim, dealt specifically with the facts that the payments made into the account of the Plaintiffs/Respondents in July, 1999 were made only after repeated demands on them by the Appellant to settle their debt and that those payments were not even enough to off-set the indebtedness of the Plaintiffs/Respondents. It is therefore quite plain on the face of that paragraph 12 that it contains no admission whatsoever’ of the Plaintiffs/Respondents’ daily earning of N20,000.00 per day to support their claim for the loss suffered as special damages within the period of the closure of their business premises by the Appellant.

Although the Plaintiffs/Respondents also pleaded in paragraphs 33 and 34 of their statement of claim that they were making average sale of N20,000.00 per day before their business premises was sealed up on 3rd August, 1999 and therefore suffered loss of earning of the same amount of N20,000.00 per day for the period their business premises remained sealed, there was no credible evidence on record to support the averments. In otherwords, the precise loss of earnings suffered by the plaintiffs/Respondents per day during the period beginning 3rd August, 1999 to the actual date their business premises was opened, was neither pleaded nor credible evidence led to establish the actual loss of earnings suffered during the period. This of course shows that the entire case of the plaintiffs/Respondents on the relief of special damages claimed by them, was built entirely on estimated sale and expected earnings per day which are not enough to satisfy the requirement of pleading precisely the actual amount of loss suffered and strictly proving the same by credible evidence in proving their claim for special damages. That claim or relief, ought to have failed and dismissed by the trial court. The court below was therefore in error in affirming the trial court’s award of special damages of N20,000.00 per day to the plaintiffs/Respondents. In the circumstances of this case, the decisions of the two courts below which were arrived at in the absence of pleading of the particulars of special damages and credible evidence to prove the same, were perverse and therefore liable to be set aside. Accordingly for the foregoing reasons, the appeal is allowed on this issue. The special damages of the sum of N1,580,000.00 awarded to the plaintiffs/Respondents by the trial court and affirmed by the court below, is hereby set aside and replaced with an order dismissing the claim.

The last and final issue for determination in this appeal is whether the Respondents were entitled to the award of general damages by the trial Court which was upheld by the Court of Appeal. The contention of the Appellant on this issue is that the award of general damages was made in error as the amount of loss suffered by the Respondents in the present case was quantifiable and ascertainable on dairy basis as stated in Kerewi v. Odegbesan (1957) 1 N.W.L.R. 89 and Union Bank of Nigeria Limited v. Odusote Bookstores Limited (1995) 9 N.W.L.R. (Pt. 421) 588; that since the Respondents had claimed N20,000.00 per day as loss of earning suffered during the same period of sealing of their premises, it was wrong for the Court below to uphold the award of general damages; that since it was stated in Duyile v. Ogunbayo & Sons Limited (1988) 1 N.S.C.C. (Vol. 19) 385 at 391, that a Company can only be injured as to its earnings and not as to its feelings, the general damages award made to the 2nd Respondent for pain and suffering from ridicule’ was made in error as that was not the basis of the claim of the Respondents. The case of Adebayo v. Brown (1990) 3 N.W.L.R. (Pt.141) 661 at 675, was relied upon in support of this argument particularly when no evidence was led to show that 2nd Respondent suffered any personal loss following the sealing up of its premises.

Finally, learned Counsel urged this Court to set aside the award of general damages which on the face of special damages awarded, amounted to double compensation which is not permissible in law if the case of Oshinjinrin v. Elias (1970) All N.L.R. 158, is taken into account.

As for the Respondents on this last issue, it was pointed out that the closure of the 2nd Respondent by the Appellant caused embarrassment to the 1st Respondent who was not only the chairman and Managing Director of the 2nd Respondent but also the guarantor and mortgagor who provided security for the facilities granted to the 2nd Respondent; that the quantum of loss suffered in this respect is not quantifiable as asserted by the Appellant. On the meaning of general damages, learned counsel referred to the case of union Bank of Nigeria Limited v. Odusote Bookstore Limited (1996) 42 L.R.C.N. 1539 at 1699 and urged the court to dismiss the appeal on this issue as the conduct of the Appellant in resorting to self-help in the present case, justified the award of general damages claimed by the Respondents.

It is settled law that general damages are always made as a claim at large.

The quantum need not be pleaded and proved. The award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act or conduct of the Defendant. It does not depend upon calculation made and figure arrived at from specific items. See Odulaja v. Haddad (1973) 11 S.C. 357; Lar v. Stirling Astaldi Limited (1977) 11- 12 S.C. 53 and Osuji v. Isiocha (1989) 3 N.W.L.R. (Pt. 111) 623.

In the case at hand, at the trial court, the Respondents claimed the sum of N5,000,000.00 as general damages for the illegal sealing of their premises at No. 28A Ondo Road Akure in Ondo state by the Appellant. The Respondents clearly stated the circumstances giving rise to this claim in paragraphs 35 and 36 of their statement of claim as follows –

“35. The Plaintiffs aver that by reason of the illegal sealing of their business Premises, they have been exposed to Public ridicule, odium and that their reputation have been greatly damaged.

36. Further to Paragraph (35) above, the Plaintiffs aver that by reason of the said illegal sealing, which is unconstitutional, illegal and ultra vires, that the Plaintiffs are entitled to damages.

It is certainly undisputed from these paragraphs of the statement of claim that the Respondents’ claim for general damages arose directly from the conduct of the Appellant in unconstitutionally and illegally sealing the 2nd Respondent’s premises which subjected the Respondents to public ridicule and odium resulting in greatly damaging the reputation of the Respondents in general and subjecting the 1st Respondent to humiliation and embarrassment in the hands of the Police in the course of investigating the petition or complaint of the Appellant against the Respondents to the police. Having regard to the decision of this Court in chief Ojukwu v. Governor of Lagos state (1986) 1 N.W.L.R. (Pt. 18) 62 in which this court condemned in strong terms that self help has no place in our civilized world as it is against the observance of the Rule of Law in a democratic set up like ours, certainly, the Respondent’s claim for general damages in the present case is quite in order as found by the court below.Consequently, I see no reason to disturb the award of N2,000,000.00 as general damages by the court below to the Respondents. The law is trite that where general damages are claimed, if the issue of liability is established as in the present case, the trial Judge is entitled to make his own assessment of the quantum of such general damages and, on appeal, such general damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low or that they were awarded on an entirely wrong principle of law as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. See the cases of Zik Press Limited v. Ikoku (1951) 13 WACA 188; Idahosa v. Orosanye (1959) 4 F.S.C. 166; Bola v. Bankole (1986) 3 NWLR (pt.27) 141 and Ijebu-Ode Local Government v. Balogun and company Limited (1991) 1 N.W.L.R. (pt. 156) 136. The trial court in its judgment at pages 87 to 88 of the record, found there was credible, unchallenged and uncontroverted evidence in support of the claim for general damages and therefore awarded the entire sum of N5,000,000.00 claimed by the Plaintiffs/Respondents. However on appeal the court below was of the view that the amount of N5,000,000.00 awarded as general damages in the circumstances of this case, was manifestly too high to justify its reduction to the sum of N2,000,000.00. In the absence of a cross-appeal from the Respondents against this decision of the court of Appeal reducing the amount of general damages awarded by the trial court, there is no reason whatsoever to interfere with the decision of the court below. Consequently, the appeal must fail on this last issue as well, because the argument of the Appellant that the award would amount to double compensation having regard to the award of special damages in the same case cannot stand in view of the decisions of this court in the cases of Eliochin (Nig.) Limited v. Mbadiwe (1986) 1 NWLR (pt. 14) 47, Odiba v. Azegbe (1998) 61 L.R.C.N. 4605 at 4626and Ezeani v. Egidike (1954) 1 All N.L.R. 402. In any case, having allowed the appeal on the award of special damages which I have just set aside, the complaint of double compensation is no longer alive in the present case.

On the whole, except for the appeal against the award of special damages in the sum of N1,580,000.00 which succeeds resulting in the setting aside of that award by the courts below in favour of the Respondents and replacing that order with an order dismissing the Plaintiffs/Respondents claim in that regard, the appeal must fail on all the remaining three issues and the same is hereby dismissed.

There shall be N50,000.00 costs in favour of the Respondents.

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SC.221/2005