Union Bank of Nigeria Plc. V. Ikechukwu Onuorah & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
On the 24th day of January, 1995 the Hon. Justice Saleh Chief Judge of the Abuja High Court entered Judgment in favour of the 1st and 2nd Respondents herein. Dissatisfied with the said Judgment, the Appellant appealed to this Court by a Notice of Appeal dated 30th January, 1995 and filed in the Registry of the Lower Court. That Notice of Appeal was amended by leave of the Court of Appeal on 11th of March 1997.
FACTS
The 1st Respondent, Ikechukwu Onuarah is a Director or Proprietor and Financial Director of a Company known as Patcos Nigeria Limited. The 3rd Respondent is the Deputy Sheriff of the High Court of the Federal Capital Territory, Abuja. The 2nd Respondent was dragged into this action by the 1st Respondent on the ground that a property belonging to the 2nd Respondent was wrongly attached in Execution of the Judgment sometime in 1989 in which the Appellant obtained judgment against the company called PATCOS NIGERIA LIMITED in suit NO. FCT/HC/CV/129/89.
When the said Pateos Nigeria Limited failed to satisfy the Judgment sum, the Appellant applied to the 3rd Respondent to cause a writ of Attachment to issue in execution of the said Judgment. In the course of levying execution a Mercedes Benz Saloon car with Registration No. LA4M along with a block moulding machine were attached in satisfaction of the judgment debt.
The 1st Respondent who is the Director and sole shareholder of the said Patcos Nigeria Limited was aggrieved by the attachment alleging that the properties attached belonged to him and the 2nd Respondent and not to Patcos Nigeria Limited. To challenge the attachment, the 1st Respondent filed a motion on Notice NO:M/906/93. This motion was however struck out by the High Court. Thereafter the 3rd Respondent auctioned the properties and the 1st Respondent filed suit NO:FCT/HC/CV/80/94, Ikechukwu Onuorah & John Gada v. Union Bank of Nigeria Plc & Sheriff High Court, Abuja.
By his Statement of claim the 1st Respondent claimed against the Appellant and the 3rd Respondent:
(a) A declaration that the purported sale is irregular, invalid, null and void and very fraudulent.
(b) Court Order for delivery by Defendant to plaintiffs the properties or their values.
(c) Court Order on defendants to pay jointly and severally N1 million being special and general damages for wrong occasioned by illegal attachment.
In the court below the 1st Respondent was the sole witness for the plaintiff and he stated that when he came back from a journey on 7/12/93, he visited his site where he discovered that his vehicle and block making machine had been removed by the Appellant and 3rd Respondent (1st and 2nd Defendants respectively). He thereafter went to the High Court where he saw the properties as attached in execution. 1st Respondent claimed that at the time of the attachment he was not personally indebted to the Appellant and so he filed a motion alleging that he was not a judgment debtor. That the block making machine was the property of 2nd Respondent on hire. 1st Respondent admitted that he is the sole signatory to the account of Patcos Nigeria limited with the Appellant, Union Bank Plc and that his company Patcos Nigeria Limited was indeed indebted to the Appellant.
The Defendant contended before the trial High Court that the 1st Respondent’s properties were attached in satisfaction of the Judgment in his favour against the company where the 1st Respondent was the sole director and signatory to the Account (Patcos Nigeria Limited); the Appellant proceeded against the properties because the 1st Respondent and Patcos were more or less one.
The Defendant had further contended that the Suit No: FCT/HC/CV/80/94 leading up to his present Appeal was not properly constituted as the 1st and 2nd Respondents as plaintiffs failed to fulfill the condition precedent as enshrined in Section 34(1), (2), (3) of the Sheriff and Civil Process Act Cap 407 LFN. That the action was premature and so the court lacked jurisdiction to entertain the same.
The learned trial Judge had held in the judgment:
”I have already said that Plaintiff has not proved any special damages which he incurred if any. Having failed to adduce that evidence it means (sic) none was incurred and consequently plaintiff cannot be entitled to anything. As to general damages there are sufficiently a number of cases on assessment of general damages. I will give plaintiff the sum of N15,000.00 as general damages. Total judgment against the 1st Defendant is N365,000.00. Second Defendant has in the circumstance of this case completely covered by statement”.
The Appellant in a Brief of Argument filed on 21/7/98 raised three issues for determination which are:-
1. Whether the action was competent in view of non-compliance with Section 34 of Sheriffs and Civil Process Act Cap 407 LFN 1990.
2. Whether the award of N350,000.00 as damages for value of the Mercedes Benz car was justifiable in law or was in accordance with the principle for award of special damages.
3. Whether the respondent is entitled to the sum of N15,000 awarded to him by the trial court as general damages
In a joint Brief of the 1st and 2nd Respondents which was filed on 25/5/05, the Respondents raised three issues:
1. Whether the provision of S.34 of the Sheriffs and Civil Process Act is relevant in this matter when there was no claim before the court bothering on interpleader Summons.
2. Whether the award of N350,000.00 as damages for value of the 1st Respondent Mercedes car was justifiable in law.
3. Whether the Respondent is entitled to the sum of N15,000 awarded to him as general damages by the trial court.
The 3rd Respondent in a Brief of Argument filed on 21/7/98 adopted the issues as couched by the Appellant. For ease of reference I shall use the issues for determination framed by the Appellant.
ISSUE NO 1
Mrs. Adesina learned counsel for the Appellant contended that the action was commenced in violation of Section 34 of Sheriffs and Civil Process Act. That since the claim in this case is made in respect of a property attached in execution under process of a court, the owner of the attached property must bring an application to the Sheriff/Registrar to issue a summons. That the 1st Respondent failed to comply with Section 34 before commencing this action or applying for such summons to be issued and failure to do this amounts to a failure to comply with a condition precedent to bringing an action robs the court of its jurisdiction. She referred to Amadi v. A.G Federation (1993) 6 NWLR (pt. 692) 700; O.A.U. Ile-Ife v. Oliyide & Sons Ltd (2001) 1 NWLR (pt. 712) 450 at 460.
Learned counsel further stated that assuming without conceding that the issue of the competence of his action was not canvassed or considered at the trial court, the issue may be taken in this court even at the Supreme Court (i.e at any stage of proceedings) based on the principle that an issue of competence which goes to the root or jurisdiction of a court may be taken at any stage of a proceeding. She cited I. Akinbode v. Chief Registrar (2003) 4 NWLR (Pt.808) 585 at 591; O.A.U. Ile-Ife v. Oliyide & Son Ltd (supra) 461.
That the issue of failure to comply with a statutory condition precedent renders an action incompetent. She cited Ajibi v. Olaewe (2003) 8 NWLR (pt. 822) 237 at 247 Urume v. Agboro (2001) 11 NWLR (pt. 723) 206 at 209.
The Brief of Argument of the 1st and 2nd Respondent was taken as argued since they were absent and no counsel present on their behalf at the date of hearing. In that Brief it was argued for them that the claim before the trial court did not in any way relate to interpleader summons. Learned counsel, Mr. Oloringorisa had referred to paragraphs 10 and 11 of Amended statement of claim of the plaintiff (now Respondents). That paragraph 11 of that statement of claim was specifically admitted by the Appellant in paragraph 1 of the Statement of Defence. That what has been admitted need not to be proved. He cited Honike Suminu v. Hall (1994) 2 SCNJ 98.
Learned counsel for the 1st and 2nd Respondents stated on that the law is that jurisdiction is determined by the claim of the plaintiff before the court. He referred to Anka v. Lokoja (2001) 4 NWLR (pt.702) 178 at 182; NV Scheep v. MV “S. Araz” (2000) 15 NWLR (pt 691) 622 at 634.
Learned counsel went on to say that once the attached properties was no longer in possession or custody of the Sheriff, the provision of S.34 relating to stay of action can no longer be applicable and so the remedy available to the person whose property has been unlawfully attached lies in damages. He referred to order 11 rule 29(2) part II of the Judgment Enforcement Procedure Rules CA1 407 LFN 1990.
Mr. Okoye learned counsel for the 3rd Respondent said 3rd Respondent adopted the arguments of the Appellant.
In answer to the question raised in this issue I shall refer to S.34 of the Sheriffs and Civil Process Act which provides as follows:-
S.34(1):
“If claim is made to or in respect of any property attached in execution under process of a court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the Sheriff, as well before as after any action brought against him, issue a summon calling before the court the party at whose instance the process is issued and the party making the claim.
2. Upon the issue of the summons, any action brought in any court in respect of the claim or of any damage arising out of the execution of the writ shall be stayed.
3. On the hearing of the summons, the court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the Sheriff upon any claim of damages arising or capable of arising out of the execution of the writ by the Sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it thinks fit”
The provisions above stated which are under S. 34 of the Sheriffs and Civil Process Act is for interpleader Summons which are not relevant for our purpose here. Indeed what is related to the matter in hand is order 11 rule 29(2) part II of the Judgment Enforcement Procedure Rules Cap 407 Laws of the Federation 1990 which provides:-
“The party prosecuting the judgment shall be liable for any damages arising from any illegal or irregular proceeding taken at his instance but this provision shall not exempt any officer or bailiff from any liability to which he would otherwise be liable”.
Having quoted these provisions of the law it can be seen that the attached properties was no longer in possession or custody of the Sheriff, the provision of S.34 relating to stay of action can no longer be applicable. The remedy of a person where the property has been unlawfully attached lies in damages as in the case at hand.
It is not in doubt that the jurisdiction of the court or its competence is determined by the claim of the plaintiff and in paragraph 11 the plaintiff averred:
“The plaintiff shall contend at the trial that the said car and the block making machine are no longer in the High Court premises, which confirmed the fear that the properties had been sold by the Defendant”.
That paragraph of the Statement of claim was specifically admitted by the Appellant in paragraph 1 of the Statement of Defence and it is trite that what is admitted needs no proof. I rely on Honike Suminu v. Hall (1994) 2 SCNJ 98; Anka v. Lokoja (2001) 4 NWLR (pt.702) 178 at 182 and NV Scheep v. MV “S.Araz” (2000) 15 NWLR (pt.691) 622 at 634.
In the light of all I have stated above the arguments of Mrs. Adesina in contest of the competence of the process at the court below as contravening Section 34 of the Sheriffs and Civil Process Act cannot stand and the trial court had the necessary jurisdiction to adjudicate since Section 34 of that law is not applicable. The issue No 1, I resolve in favour of the 1st and 2nd Respondents.
ISSUE No.2 :
Learned counsel for the Appellant said the established principle is that special damages will only be awarded if strictly proved. She cited Joseph v. Abubakar (2002) 5 NWLR (pt. 759) 185 at 206; Igbinovia v. Okomu Oil Palm Plc (2002) 17 NWLR (pt.796) 386 at 405 – 409.
She further stated that before special damages can be proved, it has to be particularly pleaded, the underlying philosophy being that the other party should not be taken by surprise. She cited R.E.A.N Plc v. Anumnu (2003) 6 NWLR (pt.815) 52 at 110 – 111.
Mrs. Adesina of counsel stated on that from the totality of the plaintiff’s claim nowhere in the pleading did plaintiffs particularly plead any special damages as to entitle it to the judgment in the sum awarded. That the Plaintiffs ought to have pleaded the value of the Mercedes benz, the year the said car was purchased, depreciation from the date of purchase, the current market value and tender in evidence proof as pleaded. That the law is that evidence on facts not pleaded are inadmissible. She referred to
A. G. Leventis Nigeria Ltd v. Akpu (2002) 1 NWLR (pt.747) 182 at 205
Oloshe v. Ogunbode (2002) 1 NWLR (pt.749) 611.
She further contended that even if pleaded which is not the case, the only evidence on the value of the car was the mere ipse dixit of the 1st Respondent which is not enough proof. She referred to Eseigbe v. Agholo (1990) 7 NWLR (pt. 161) 234 at 250.
She urged the court to set aside the award of N350,000 as the value of the car as held by the trial High Court.
In response learned counsel for 1st and 2nd Respondents said a good pleader does not plead evidence but facts. That it is at the trial that the evidence can be brought to support the fact pleaded. He cited order 25 rule 4(1) of the High Court Civil Procedure Rules 1989; Ndinwa v. Nwaebo (2001) FWLR (pt. 51) 1903 at 1910; Igbinovia v. Agboifo (2002) FWLR (pt. 103) 505 at 514 Adejumo v. Ayantagbe (1989) 3 NWLR (pt. 110) 417; Onwuka v. Omogui (1992) 3 SCNJ 98 at 102.
It was contended for the 3rd Respondent that since the appeal is on the issue of damages alone as per the Amended Notice of Appeal, this court should set aside the award of special and general damages by the lower court and affirm the decision of the lower court as it concerned the 3rd Defendant.
The point of dispute between the Appellant and the 1st and 2nd Respondents on the other side is that the sum of N350,000.00 awarded to the Appellant as the value of the Mercedes benz belonging to Appellant which was sold for the settlement of the judgment debt in which Appellant was not a party in the proceedings leading thereto. The Appellant said the 1st and 2nd Respondent did not adequately prove the necessary facts leading to the value of the car and award of N350,000 in lieu of a return of the vehicle. In the Statement of claim of 1st Respondent as plaintiff he averred for the purpose of this aspect:-
1. The 1st Plaintiff is and was at all times the owner of and entitled to the possession of a Mercedes Benz saloon car Registration NO. LA 4M with Engine No.11593810017 -146 Chassis No.123030/10 – 023707 (hereinafter referred to as “The car”. The Plaintiff pleads the vehicle particulars of this car and shall rely on them at the trial.
13. wherefore the Plaintiff claims
(b) An order for the delivery up by the Defendants to the plaintiffs the said properties or payment of its value.
Interestingly in the Amended Statement of Defence nowhere was paragraph I and 13 (b) specifically or even generally referred to in traverse.
In evidence 1st Respondent as PW1 said:-
”My vehicle is Mercedes Benz 200 saloon. It is registered as NO. LA4 M. I have purchase receipt, licence and insurance. If I see the licence I will identify it by the number and the name”
The vehicle registration was admitted as Exhibit 1. The Insurance Certificate was admitted as Exhibit 2. PW1 further said at the trial court:-
“Value of my car currently is N350,000.00”.
Curiously PW1 was not cross-examined in relation to the Mercedes and the value which PW 1 or 1st Respondent proffered. Also it is noted that the Defendant/Appellant did not proffer any evidence either by themselves or any witness. All the defendant/Appellant did in the court below was tender certain documents viz from across the bar through their counsel.
It is therefore pertinent to refer to related principles guiding the award of special damages in which the matter of the Mercedes Benz and it’s value can be pigeon holed. I would cite the case of Joseph v. Abubakar (2002) 5 NWLR (pt 759) 185 at 206 where it was held:-
“Special damages will only be awarded if strictly proved and for this, the plaintiff ought to sufficiently particularise it to enable the court decide whether all or part of it can be granted. In order words, to succeed in claim for special damages, it must be specifically pleaded and strictly proved. This however does not mean that the law requires an extraordinary measure of evidence or that the law lays down or require a special category of evidence to establish entitlement to special damages. It does not mean that awards for special damages are established beyond reasonable doubt. All that is required is that the plaintiff should establish his entitlement to the special damages claimed by credible evidence”.
Similar views were expressed in Igbinovia v. Okomu Oil Palm Plc (2002) 17 NWLR (pt. 796) 386 at 405 – 409.
Bearing all that it mind and considering that the 1st and 2nd Respondents as plaintiffs pleaded the fact that 1st plaintiff’s Mercedes Benz was wrongfully taken in execution of the judgment and sold. This pleading was not referred to by the Defendant/Appellant in their defence and it can then be safely taken as admitted since any pleading not contested is taken as admitted. I know the exact value of the vehicle was not stated in the pleading of the plaintiffs even though they had averred in prayer that the court below makes an order for their car to be given back to them or in the alternative the value. The exact amount as to valve was made in evidence and it was not controverted either by cross- examination of the only witness PW1 or the defence proffering their own evidence in contest. Therefore it is my considered view seeing all that was before the learned trial Judge including the documents like the licence and insurance certificates etc which were pleaded, the trial Judge had enough upon which he could come to the conclusion which he did that:-
“As regards the second claim and in respect of the Mercedes Banz I hold judgment creditor responsible that plaintiff be paid value of his car as claimed which was not disputed”. I place reliance on Igbinovia v. Agboifo (2002) FWLR (pt. 103) 505 at 514; Adejumo v. Ayantagbe (1989) 3 NWLR (pt.110) 417. Since it is too late in the day for the Appellant to impugn the standard of proof made available at the court below and what the Respondents 1st and 2nd produced was sufficient to discharge the onus placed on them I have no difficulty in finding in favour of the 1st and 2nd Respondents in this issue No.2.
ISSUE NO 3
Learned counsel for the Appellant said the award of N15,000 general damages was not based on any known or clear principle of award of damages. That the award is erroneous and should be set aside. He referred to NNB Plc v. Musa Abubakar & sons (2004) 17 NWLR (pt. 901) 66 at 82.
For the 1st and 2nd Respondents it was contended that general damages are implied by law, in every breach of legal rights, its qualification being a matter for the court. That they are loses which naturally flow from Defendant’s act and its quantum need not be pleaded or proved as it is generally presumed in law. He cited Yau v. Dimka (2001) FWLR (pt. 62) 1987 at 2005 C- D; Issa v. Union Bank Ltd (1993) 4 NWLR (pt. 288) 502 at 510.
Learned counsel for the 1st and 2nd Respondents said an appellate court can interfere with an award of general damages only if the award is made on wrong principles of law or the amount awarded is so high or so low as to make it an entirely erroneous estimate. That the appellate court would in doing so look at the Judge’s appreciation of the facts on which he based the award. He cited Edigbonya v. Dumez (1986) 3 NWLR (pt. 31) 753.
Learned trial Judge had held in respect to the general damages:
”As to general damages there are sufficiently a number of cases on assessment of general damages. I will give plaintiff the sum of N15,000.00 as general (damages)”.
Appellant’s irritation to this award on general damages is that the award was not based on any reason or finding by the learned trial Judge. That it is trite that general damages by their very nature consists all items of loss which a plaintiff is required to specify in his pleadings and which if proved, the Judge cannot point at any measure by which they are to be assessed except the opinion and judgment of a reasonable man.
The 1st and 2nd Respondents position is different from that of the Appellant.
General damages are such as the law will pressure to be the direct natural or probable consequences of the act complained of while special damages on the other hand are such damages the law will not infer from the nature of the act complained of. The court can make an award of general damages even when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. See Joseph v. Abubakar (2002) 5 NWLR (pt.759) 185.
Also it was held in Yau v. Dimka (2001) FWLR (pt. 62) 1987 at 2005 that general damages are such damages that can be give when a Judge cannot pin point any measure by which they may be assessed, except the opinion and judgment of a reasonable man. Furthermore due to the indeterminate nature of the quantum in general damages, what will be awarded in one case by the trial court may vary from that awarded in another. That is the award would differ from individual to individual, being dependent on the trial court’s discretion. I placed reliance on Issa v. Union Bank Ltd (1993) 4 NWLR (pt. 288) 502 at 510.
There is therefore the need for self warning in that an appellate court can only interfere with an award of general damages as we are here called upon by the Appellant to do only if the award is made on wrong principles of law or the amount awarded is so high or so low as to make it an erroneous estimate. Again the appellate court would in doing so, look at the Judge’s application of the facts upon which he based the award. See Edigbonya v. Dumez (1986) 3 NWLR (pt.31) 753.
The 1st Respondent as PW1 had testified among other things:-
”Items that were wrongly attached are 1 Mercedes Benz model 200 saloon car, and a Block moulding machine. Mr. John Gado owns the Block moulding machine”. I got the machine as I am the Managing Director of AIKAY GROUP Company limited under a Hire Agreement…I see this and say it is the agreement…We mould blocks with the machine at Haitama. At the time it was purchased in 1981 it was N7,837.00 now it is about N60,000.00 I continued paying Mr. Gado the N250.00 daily for hiring the machine. This is in the Agreement Exhibit 5. I have receipts issued to me before and after the attachment. Here are the receipts in the name of AIKAY GROUP W.A. Ltd and our payment voucher attached to the receipt…. Value of my car currently is N350,000.00 since the car was taken, my business was paralysed and I have been hiring vehicles at N300.00 daily spending now there is no fuel… I want the court to give me…. In general to pay me N1 million as special and general damages to my reputation and my business”.
It can be seen that the learned trial Judge did not go outside what was before him and permissible by law and practice to come to the award of N15,000.00 general damages, which are damages which he found to naturally flow as the natural or probable consequences of the acts complained of. I see no reason why I should go against that or a justification for a fresh assessment since I do not have the advantage the learned trial Judge had of hearing first hand. See Joseph v. Abubakar (2002) 5 NWLR (pt. 759) 185; Yau v. Dimka (2001) FWLR (pt.62) 1987 at 2005.
This issue is resolved in favour of the 1st and 2nd Respondents.
In conclusion therefore there is no reason to upset the trial or decision of the court below. This appeal lacks merit and it is therefore dismissed. I affirm the decision of the court below and its orders made thereto.
I order N10,000 costs to the 1st and 2nd Respondents to be paid by the Appellant
Other Citations: (2007)LCN/2425(CA)
