United Bank for Africa Plc. V. Eye-gymineral Resources Ltd & Anor (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal against the decision of High Court of Justice Enugu State (the lower Court” for short) delivered on 28th July 2005 (Coram Udeh J). By their statement of claim the Respondents as Plaintiffs at the lower court, Instituted this action against the appellant then as defendant thereat, claiming against the defendant jointly and severally as follows:-
(i) The sum of Fifty million Naira (N50,000,000.00) as specific and general damages for injuries inflicted on the plaintiffs by the defendant when the defendant on 28-9-99 negligently and; or maliciously disobeyed the Instructions of the 1st Plaintiff on Cheque No. 000525451 and issued Bank Cheques instead of Bank Drafts for payment to NNPC at Makurdi.
(ii) Interest on the sum claimed at the rate of 21% from 1-11-99 until the final payment is made.
(iii) Cost of this action.
At the lower court the appellant, then respondent United Bank for Africa Plc, Enugu Main Branch. The respondents who are Plaintiffs at the lower court, the 151 plaintiff being Eye-Gym Mineral Resources Ltd, a Limited liability Company, and chief (Dr.) Ezeanowayi I. Nnuba the 2nd plaintiff the M.D. and C.E.O. of the 1st Plaintiff.
Briefly put, the facts of this case as could be gathered from the pleadings by the parties and the reliefs sought are that the 151 Plaintiff who is an Independent Petroleum Products Marketer has been a customer of the Defendant (now Appellant) at its Enugu Main Branch. The 2nd Plaintiff as Managing Director/Chief Executive Officer (C.E.O.) of the 1st Plaintiff on 28th September 1999, acting on the instruction of the Plaintiff, instructed the defendant to make out a bank draft in favour of Pipe line & Products Co. Ltd. (i.e. PPMC Ltd) Remittance Account and another bank draft in favour of Petroleum Equalization fund (Management Board) and that the two drafts should be made payable at Makurdi Branch in Benue State. The defendants did not comply with the Plaintiff instructions but instead prepared local cheques which can only be honoured within Enugu. The 2nd Plaintiff discovered the defendants non-compliance at Oturkpo after he had gone 3/4 (three quarter) of the journey to Makurdi. When the 2nd Plaintiff told the Manager of the defendant at Enugu of the anomaly, he asked him to go ahead and present the instruments to the beneficiaries promising to contact the Benue branch of the defendants Bank at Makurdi to honour the cheques from the beneficiaries. The cheques were dishonoured for immediate value which was a clear indication that the defendant failed to issue instructions to their Makurdi branch. Two witnesses were called by the plaintiffs and one witness for the defence. In the end, the learned trial judge entered judgment against the defendant in favour of the Plaintiffs for the sum of N7, 786,352.00 being specific and general damages for injuries inflicted on the Plaintiffs by the defendant. Also an Order for payment of interest of 5% per annum on the judgment sum from the date of judgment until the entire judgment sum is liquidated.
Dissatisfied with the judgment of the lower court dated 28th of July 2005, the defendant appealed to this Court vide his Notice of Appeal dated 28th of July, 2005.
Both parties have in compliance with the rules of this Court, filed their respective briefs of argument.
The appellants herein filed its brief of argument dated and filed the 14th of September 2007. The Respondents brief dated 14th May, 2008 was deemed field on 8th of October 2008. In the appellant’s brief, three Issues for determination were formulated.
The Issues are:-
(a) Did the Plaintiffs lead evidence to prove that the damages claimed were causally connected with failure by the defendant to issue bank drafts to the plaintiffs and that the damages are recognized by law (Grounds 1 & 3).
(b) Whether the Plaintiffs waived their right to sue in respect of non-Issuance of bank drafts in view of the agreement subsequently entered into between the parties to avoid loss or mitigate damage that the plaintiffs should pay in the bank cheques at Makurdi and that the instruments would be given immediate value upon presentation, just as bank drafts are treated, (Ground 2)
(c) Whether the plaintiffs proved that they were entitled to award of damages for psychological trauma and loss of good will (Ground 4).
The Respondents formulated also 3 Issues for determination in this appeal, as follows:-
(i) Whether there was a duty of care on the part of the Defendant which he failed to observe.
(ii) Whether Plaintiffs are entitled to damages by the said breach.
It is the submission of the learned counsel for the Appellants on Issue No.1, the law requires that a claim for special damages must be specifically pleaded and strictly proved. In other words, the Plaintiff should sufficiently particularise it to enable the Court decide whether all or part of it can be granted and should establish his entitlement to special damages claimed by credible evidence See: Neka BBB MFG. Co. Ltd v. ACB. Ltd (2004) 2 NWLR (pt. 858) 521 at 557, Joseph v. Abubakar (2002) FWLR (pt. 19) 1525, 1542. Okoronko v. Chukwueke (1992) 1 NWLR (pt. 216) 175 Learned counsel to the Appellant submitted that no credible evidence was led to establish that the Plaintiff had allocation of petroleum products to lift on 1st and 4th October, 1999.
Learned counsel to the Appellant submitted further that, the second claim for special damage is said to be the amount allegedly spent to save the 1st plaintiffs licence from being revoked (N5 million). This claim, it is submitted 151 not particularised as required by law. Learned counsel furthered that, it is not enough as laid down in Joseph v. Abubakar and Okoronko v. Chukwueke supra, to state that the 2nd Plaintiff was in Abuja from 5th to 6th October 1999, to solve the embarrassing problems arising from the failure of these instruments to save the 1st Plaintiffs licence from being revoked without further details. There should be far more detail of what transpired at Abuja and a breakdown of the sum of N5 million to satisfy the requirements of the law. Besides no concrete evidence was laid to strictly prove the allegation of loss in monetary terms suffered by the plaintiffs, such as letter or other document from Abuja indicating that there was a breach by the 1st Plaintiff qua private petroleum marketer and threatening revocation of the dealer’s licence or other sermons, punishment, traceable to the conduct or default of the defendant. Learned counsel submitted that the lower Court seriously erred in granting the claim for special damages which was neither properly pleaded nor satisfactorily proved.
Learned counsel further submitted that in respect of dishonoured and rejection of the bank cheques, section 13S-7 of the Evidence Act imposes a duty on the Plaintiffs to prove the allegations in paragraphs 13, 14 and 15 of the Statement of Claim. The allegations are very vague and imprecise. Learned counsel to the Appellant submitted further that section 47(1) and 173 of the Bills of Exchange Act provides that a bill of exchange (including a Cheque) is dishonoured by non-payment when presented for payment and payment is refused or cannot be obtained. The surest evidence of presentation and dishonour of a cheque is by tendering the instrument in Court.
Learned counsel further submitted that the notice to produce served on the defendant is to lay the foundation to adduce secondary evidence, if the document is not produced and not for invocation of the provisions of sections 149(d) of the Evidence Act. See: Awuse v. Odili (2005) 16 NWLR (pt. 952) 416, 481-2. This court is urge to resolve Issue 1 against the Respondents.
On Issue No. 2. Learned counsel to the Appellant submitted that, by paragraphs 4, 5 and 6 of the amended statement of defence contain all the facts for the defendant to rely on the defence of Waiver. In fact paragraphs 9, 10, 11 and 12 of the statement of claim confirm the said averments of the defendant see (pages 3 – 5 & 15 of the record) In effect, the parties agreed that the original instruction of the plaintiffs should be replaced by a new arrangement whereby the plaintiffs agreed to use the bank cheques to settle their bills for petroleum products at Makurdi, provided the cheques were given immediate value, as bank drafts are treated. In other words the plaintiffs gave up their right to sue in respect of the defendant’s failure to issue bank drafts as initially instructed, but to rely on the subsequent agreement that the bank cheques should be treated as bank drafts.
Learned counsel to the appellant submitted that for waiver to be effective the law does not require that there should be consideration for the forbearance moving from the party to whom it is given. All that is necessary is that it must be clear and unequivocal and that the other party must have altered his position in reliance on it, or at least acted on it. See: Chitty on Contracts Vol.1 (25th Ed) page 825 paragraph 1500 et seg Learned counsel submitted on definition of waiver as a defence in a Civil action, See: Eze v. Okechukwu (2002) 18 NWLR (pt. 799) 348, 367-8.
Learned counsel to the Appellant further submitted on the issue of Mitigation of damage, the law imposes a duty on the plaintiff to take steps to avoid any losses, which are avoidable. Persons against whom wrongs have been committed are not entitled to sit back and suffer loss which could be avoided by reasonable efforts or to continue an activity unreasonably so as to increase the loss. This well established rule finds it’s most authoritative expression in the speech of Vis Court Halolane LC in the leading ease of British Westinghouse Co. v. Underground Rly (1912) AC 673, 689. See also Mc Gregor on Damages (14th Ed) page 153 paragraph 213, Onwuka V. Omogui (1992) 3 NWLR (pt.230) 393, 422 Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (pt. 658) 668 683, Okongwu v. NNPC (1989) 4 NWLR (pt. 115) 296, 319-320.
Learned counsel to the Appellant submitted that the Plaintiffs were fully aware before leaving Enugu for Makurdi that the instruments in their possession were bank cheques but instead of mitigating their loss, if any, they proceeded to inflate their claims unjustly. Learned counsel added that the easiest way of mitigating their loss, if any, was to return the cheques to Enugu branch to obtain bank drafts. The second was to collect local cheques from the defendants Makurdi branch in view of the agreement struck between the parties to ensure that the plaintiffs did not suffer any loss. The third option was for the plaintiffs to settle their bills with bank cheques as agreed by the parties. The plaintiffs refused to pursue any of these options but chose to make a claim for N50 million. The Law does not allow a plaintiff to use the court of justice as machinery or enquire for unlawful enrichment and injustice. This court is urge to resolve Issue No.2 against the respondents.
On Issue No.3 Learned counsel to the appellant submitted that the loss of good will, the plaintiffs should not succeed unless the facts in support are sufficiently pleaded and proved by concrete evidence and this the plaintiffs failed to do.
Learned counsel to the appellant submitted further with respect to the claim for mental and psychological trauma, it is not by itself sufficient damage to ground an action. It is allowable in torts in which injury to feelings generally forms a subsidiary element in the damages. See: Me Gregor Damages (14th Ed) pages 43 – 44 paragraphs 63.
Learned counsel further submitted that the 2nd plaintiff does not enjoy legal right whether in contract, or tort, which should accord him locus standi to bring an action for a wrong allegedly committed by the defendant. This court is urge to resolve Issue 3 against the plaintiff. Also to allow the appeal.
In reply, the learned counsel to the Respondents proffered arguments to their Issues no. 1 and 2 together. Learned counsel submitted that the tort of negligence as a civil wrong consist of breach of a legal duty to take care which results in damage See Section 217 Cap 150 Revised Laws of Enugu State of Nigeria 2004. Section 219 (6) of the law provides that the failure amounts to a breach of the duty to take care as provided in that section and results in damage to the person to whom he owes such duty.
Learned counsel to the Respondents further submitted that the defendant was under a duty to carry out the plaintiffs’ instructions requiring the defendant to issue instruments that would be acceptable for immediate value in Makurdi and not instruments which will not be accepted for immediate value outside Enugu. See: ORHE v. N.E.P.A. (1998) 59 LRCN. Royal Ade Nig. Ltd & Anor v. N.O.C.M Plc (2004) vol. 117 LRCN 2894 at 3904 E E.
Learned counsel to the Respondents further submitted that the negligent act of the defendant would not have happened in the ordinary course of events without negligence on the part of somebody other than the plaintiffs and the circumstances point to the negligence in question being that of the defendant rather than any other person. See: Royal Ade Nig. Ltd & Anor v. N.O.C.N. Plc supra.
Learned counsel to the Respondents further submitted that the plaintiffs suffered damages by way of injuries to their good will and many people from Petroleum Industry who hold them at high esteem now see them as fraudsters and irresponsible and as a result shun them in all business dealings.
Learned counsel to the Respondents submitted further that the appellant conceded to have repurchased the bank cheques when the cheques were returned to them. The Respondents indeed discharged the burden placed on them by Section 135 to 137 of the Evidence Act. See: Simon Bodi v. Ishaya D. Agyo 4 FR 44 at 58 on burden of proof Learned counsel to the Respondents submitted that the evidence led by plaintiffs were not challenged by way of Cross-examination or any contrary evidence given in rebuttal by defence. See Ijebu-Ode Local Government Authority v. Adedeji Balogun & Co. (1990) 2 LRCN 287 on effect of unchallenged and the controverted evidence.
On issue 2 learned counsel to the Respondents submitted that the Appellant ab initio failed to exercise due care to the instructions of their customer, the Respondents, and because of that they offered to pay money by way of compensation. The Appellant cannot now turn around to claim that the Respondent have waived their right to sue. See Auto import Export v. I.A.A. Adebayo (2006) 2 MJSC P. 190 (Paragraph C – D).
Learned counsel to Respondents further submitted that the Respondents have never expressly or by implication waived their right to recover damages for the injuries inflicted on them. See NBCI v. INTERGRATED GAS LTD (2005) 3 MJSC 40 at 62, 75 – 76.
Learned counsel submitted that the principal on Waiver set out by the Supreme Court is not met by the defendant in this case. This Court is urge to resolve Issue 2 in favour of the Respondents.
On Issue 3, learned counsel to the Respondents submitted on mitigation of damage that the Respondents took adequate steps to mitigate their loss at the stage when the 2nd plaintiff followed the directive of DW1 the Bank Manager. The uncontradicted evidence of PW1 and PW2 have successfully discharged the onus placed on them by proving the special damages awarded. The strict proof required is not the same as proof beyond reasonable doubt. See Usman v. Abubakar (2001) 16 WRN 160.
Learned counsel to the Respondent submitted further that the totality of the evidence of the plaintiff and the witness qualify for the award of general damages as set by Supreme Court in the case of Rockonoh v. Nitel Plc. (2001) 7 MJSC 21, Adekunle v. Rock View Hotels Ltd (2004) 1 NWLR (pt. 161). This Court can only interfere with the discretion exercised by the trial court on the Issue only in certain circumstances.
Learned counsel to the Respondents further submitted that the said cheques were returned to the defendant through Exhibit ‘B’. The only available way for trial court to resolve whether the cheques were dishonoured or not was for appellants to produce the cheques at the hearing of the said Suit at the trial court after Notice was served on them. This is inspite of the fact that Exhibit ‘B’ that conveyed the cheques to the appellant informed the appellant that they had instructed their lawyers to take up the breach by the appellant. This court is urge to discountenance the argument that the Respondents ought to mitigate their loss.
Learned counsel to the Respondent submitted further that the evidence of the Respondents on the claim for mental and psychological trauma was not contradicted or discredited upon Cross-examination by the appellant.
See: FBN Plc v. Nireko Ent. Ltd (2001) 11 NWLR (pt. 723) 182. Savannah Bank (Nig) Ltd. V. S.I.O Corporation (2001) 1 NWLR (pt. 693) 194.
Learned counsel to the Respondents finally submitted that he 2nd Plaintiff is the Managing Director and C.E.O. of the 1st Plaintiff. He is the blood and water and any thing that happened to the 1st Plaintiff has a direct impact on the 2nd Respondent. The Appellants negligent act can only be felt by the 2nd Respondent who is a living person and not the 1st Respondent.
This Court is urge to hold that the 2nd Respondent being the alter ego of the 1st Respondent has the locus standi to bring this action for wrongful act committed by the Appellant. This Court is urge to resolve Issues No.2 and 3 against the Appellant. This Court should dismiss the appeal.
After putting a birds eye on the two sets of issues formulated by the parties for the determination of this appeal, I am incline to prefer the issues formulated by the learned counsel to the Respondents, which I intend to utilize in the determination of this appeal, not only for the precision in the use of language but because I consider the issues germane to the judicious determination of this appeal. It is settled already that the Court is entitled not being under a regimental duty to take all the issues canvassed by the parties in an appeal, to formulate or reformulate issue or issues formulated by a party or parties for the determination of an appeal, in order to give it precision and clarity. See 191 (1988) 12 SCNJ 191; Latunde & Anor v. Bella Lajunja (1989) 5 SC 59, (1989) 5 SCNJ 59; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria Ugbobia & 3 Ors (2003) 2 SCM 39 (2003) 1 SCNJ 463. Unity Bank plc & Anor v. Edward Bauri (2008) 2 SCM 193. Emeka Nwana v. Federal Capital Development Authority & 5 Ors (2004) 12 NWLR (pt. 889) 128 at 142 – 143 (2004) 7 SCNJ 90 at 99. Chief S.O. Agboreh & Anor. v. Dr. Anthony Mimra & Ors (2008) 2 SCM 55 at 71.
The Issues as formulated by the learned counsel to the Respondents are as follows:-
(i) Whether there was a duty of care on the part of the defendant (Appellant) which he failed to observe.
(ii) Whether there was a breach of that legal duty.
(iii) Whether the Plaintiffs (Respondents) are entitled to damages by the said breach.
In the determination of the appeal, Issues 1 and 2 shall be treated together as they are inseparable. Whether there was a duty of care on the part of the defendant (Appellant) which he failed to observe, and whether there was a breach of that legal duty. It is pertinent to state right away that there is a fiduciary relationship between the Appellants and the Respondents.
The appellant which is the Bank (United Bank for Africa Plc) Enugu branch, Manages money and all agreed banking transactions on behalf of the Respondents who are customers to the appellant. The appellant must exercise a standard of care in such management activity imposed by law or contract. The status of being a fiduciary gives rise to certain legal incidents and obligations, including the prohibition against investing the money or property investments which are speculative or otherwise imprudent.
Blacks Law Dictionary with pronunciations 5th Edition defines fiduciary or confidential relation as:-
“A very broad term embracing both technical fiduciary relations and those informal relations which exist where ever one man trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another.
A fiduciary relationship arises whenever confidence is reposed on one side, and domination and influence result on the other the relation can be legal, social domestic, or merely personal”.
This relationship between the appellant and the Respondents in the instant appeal is covered by Section 217 Torts Law (Cap. 150) Laws of Enugu State, 2004, which provides:-
“Negligence as Civil wrong shall consist of breach of a legal duty to take care which results in damage”
The Respondents (Plaintiffs at the lower court) maintained that the appellants (Defendants at the lower court) was under a duty to carryout their instructions requiring it to issue instruments that would be acceptable for immediate value in Makurdi and not instruments which will not be accepted for immediate value outside Enugu.
The appellants however maintained it did not fail to carry out the instructions issue to it by the Respondents. The appellant stated that the 2nd Respondent the Managing Director of the 1sl Respondent instructed it to issue two bank drafts payable at Makurdi for settlement of its petroleum products bills. The appellant raised bank cheques instead of drafts. The 2nd Respondent discovered the error and in discussion with the appellant agreed that the cheques should be used to settle the bills and that the appellant would direct the Makurdi branch to give immediate value to the cheques in the same way as drafts are treated. The appellants complied accordingly (Page 83 of the Record). There is no evidence that the cheques were ever lodged with Makurdi branch but were returned to Enugu for repurchase and issue of bank drafts (Exhibit B).
The Respondents maintained that the appellant was under a legal obligation to comply strictly with the instructions of the 1st Respondent as its customer and where the appellant fails, it is liable for any injury or losses that might accrue as a result of such failure. Orhe v. NEPA (Supra) The tort of negligence as a Civil wrong consist of breach of legal duty to take care which result in damage. See: 217 Cap 150 Revised Laws of Enugu State of Nigeria 2004. Also Royal Ade Nig. Ltd & Anor v. NOCM Plc (Supra).
The appellants disagree with the Respondent on the Issue of breach of Legal duty. The appellant maintained that on the Principle of Mitigation of damage, the law imposes a duty on the plaintiff to take steps to avoid any losses which are avoidable. Persons against when wrongs have been committed are not entitled to sit back and suffer loss which could be avoided by reasonable efforts or to continue an activity unreasonably so as to increase the loss.
This court examined the entire circumstances of the dispute between the parties. The first step was that the 1st Respondent through the 2nd Respondent gave a written instruction to the appellants their bankers to raise two bank drafts for settlement of my bills of petroleum product at the NNPC depot at Makurdi Benue State. The appellant instead raised 2 bank cheques, which can only be cashed within Enugu. The 2nd Respondent at Otorkpo a town in Benue State which is about 3/4 be of the distance between Enugu and Makurdi discovered the instruments raised for him were not bank drafts. He called the Manager of the appellants who admitted it was an error on their part. The appellants then advise the 2nd Respondent to return the cheques to Enugu to be reissued with the correct instrument which is the requirement of the NNPC, the bank drafts. The 2nd Respondent insisted he had gone too far away in the journey. The appellants gave a second option to the Respondents to lodge the cheques with the Makurdi branch of the appellant, and the manager of the appellant will contact the Makurdi branch to give Value to that cheques. The Respondents instead took the local cheques raised by the appellant to the NNPC, and both were rejected and returned to the appellant who repurchased them and issued the draft.
From the facts of the case above, it is clear that the appellant may have been negligent, as the instructions given to it, was a written instruction.
I have stated earlier that there is a fiduciary relationship between the parties.
As a result the appellant owe the respondent a duty of care under the law.
The 2nd Respondent on behalf of the 1st Respondent also had a duty to mitigate the loss occasioned by the negligence of the appellant. The reason for this is not far fetched. The 2nd Respondent discovered the error on the instruments he had options to take to mitigate the losses incurred. Although he had reached v. of the journey between Enugu and Makurdi, he could return the cheques to Enugu to obtain bank drafts. He discovered the error because he had full knowledge of the requirement of the NNPC. He knew the instruments of value to the NNPC was bank drafts and not bank cheques.
Again because of the reluctance to take the first option, the 2nd Respondent would have taken the 2nd option as was agreed between him and the Manager of the appellant to collect local cheques on presentation of the local cheques in his possession to the Makurdi branch of the appellant.
The 2nd Respondent did not avail himself again of the 2nd option, but instead settled for the 3rd option available to him that is to settle their bills with the bank cheques in his possession. The 2nd Respondent, I had state knew the requirements of NNPC for the settlement of his petroleum bills.
He knew having discovered the error himself even on the way that he had wrong instruments. He knew or ought to have known that the NNPC may not bend their rules for that obvious mistake. The opinion of this court is that the 2nd respondent took a measure of risk on behalf of the 1st respondent.
The case of British Westinghouse Co. v. Underground Ply (1912) AC 673, 689, is the most authoritative on this subject. It was held:-
“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach, but this first principle is qualified by a second which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps”.
There are various Nigerian authorities that followed this decision.
The case of Onwuka v. Omogui (1992) 3 NWLR (pt. 230) 392, at 401 per Babalakin J.S.C. (as he then was).
“In Law, a plaintiff is under an obligation to minimize damages See cases of British Westinghouse Electric and Manufacturing Company Ltd V. Underground Electric Railways Company of London Ltd. (1912) A.C. 673 and Owners of Dredger Liesboseh v. Owners of Stemship Edison (1933) A.C. 449.
The evidence is that the Plaintiff/Respondent was the vehicle for conveyance of kerosene daily. It is therefore unreasonable for him to leave this vehicle idle in the Defendant/Appellants’ yard from 6/8/81 till 6th September, 1983”.
There are more recent Nigerian decisions which followed the British Westinghouse case (supra) See Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (pt. 658) 668, 683; Okongwu v. NNPC (1989) 4 NWLR (pt. 115) 296, 319 – 320.
Let me point out here that the trial court or lower court failed to appreciate the issue of mitigation of losses canvassed before it. At page 98 of the records, second paragraph, the court in sweeping remarks stated:-
“I believe the plaintiffs (respondents in this court) when they stated that as a result of the failure of the defendant to carry out their earlier instructions to issue bank drafts as a result of which the instruments were returned they lost their monthly allocation of petroleum products of 30,000 litres of PMS (petrol) 9,080 Litres of AGO (diesel) and 9,080 Litres of DPK (Kerosine) from NNPCIPPMC for the month of October 1999. Indeed the defendant failed in the duty of care it owed the plaintiffs as her customer, so I hold”.
The facts of this case is quite clear, it does not present any complexity. The appellant (then respondent at the lower Court) admitted its error to the present Respondents on the wrong instruments it issued, and indeed offered certain compensation precisely of the sum of N50,000.00 to assuage the loss or damages suffered by the respondents which was out rightly rejected by the respondents. On the whole, in the resolution of issues 1 and 2, by this court, since the appellant admitted its error and offered compensation to assuage the loss of damages suffered by the respondents, the appellant has partially admitted it was negligent. The Respondents especially the 2nd Respondent from what was earlier stated above had options or opportunity to mitigate the losses or damages suffered by them which he filed or refused to do which led to the gravity of damages suffered by the Respondents. Issue 1 and 2 is therefore partly resolved in favour of the Respondents.
On Issue 3, whether the Respondents are entitled to the damages granted to them by the lower court as a result of the breach. The judgment of the lower court at page 102 of the records is as follows:-
(1) Judgment be and is hereby entered against the defendant in favour of the Plaintiffs for the sum of N7, 786,352 being specific and general damages for injuries inflicted on the Plaintiffs by the Defendant when the defendant on 28th September, 1999 negligently and or maliciously disobeyed the instructions of the Plaintiffs on cheque No. 000525451 and Issued bank cheques instead of bank drafts for payment to NNPC at Makurdi.
(2) The defendant shall pay interest of 5% per annum on the judgment sum from the date of the judgment till the entire judgment sum is liquidated.
The breakdown of the damages awarded to the respondents at the lower court the sum of N7,786,352 will show that the sum of N5,000,000.00 was awarded to the respondents by the Court against the appellant in full settlement of the amount used by the respondents in making all connections to save his hence from being revoked. The trial court at page 101 of the records paragraph 1, the 8th line said:-
“I therefore believe the evidence of PW1 that he spent over N5 million in orders to save the 1st plaintiffs licence from being revoked. They are entitled to that claim for special damages:-
The law requires that a claim for special damages must be specifically pleaded and strictly proved.
In other words the plaintiff should sufficiently particularize it to enable the court decides whether all or part of it can be granted and should establish his entitlements to special damages claimed by credible evidence. In Neka BBB Mfg Co. Ltd v. ACB Ltd (supra) ratio 2 at page 527, on the meaning and requirement of strict proof of special damages:
“Special damages must be strictly proved. And the term” strict proof required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses which as exactly known or accurately measured before the trial. Strict proof does not mean unusual proof. It simply implies that a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculations possible. In the instant case there is no evidence of such a proof neither PW1 nor PW4 made any effort to prove the special damages claimed. (Imana v. Robinson (1979) 3 – 4 SC I referred to and applied; v.B.N. v. Odusote Bookstore Ltd. (1994) 3 NWLR (pt.331) 129″.
Also See Joseph v. Abubakar (2002) FWLR (pt. 91) 1525, Okoronkwo v. Chukwueka (1992) 1 NWLR (pt. 216) 175.
In the present case, the 2nd Respondent on behalf of the 1st Respondent said he traveled to Abuja a Couple of times, spent about N5,000,000.00 to use his connection to prevent the revocation of the licence of the 1st respondent as a result of this negligent act of the appellant. The term “use his connections” in spending the N5,000,000. 00 is not clearly defined by the 2nd Respondent on behalf of the 15t Respondent. There is no evidence of the breakdown in Naira and Kobo on how the amount was spent. There is no receipt from the Government indicating any charges for action of the 1st Respondent from the N.N.P.C. The only evidence before the court is that the 2nd Respondent had to travel to Abuja for over 5 times and had to use every connection at his disposal to prevent his licence from being revoked.
There was no evidence of breakdown in terms of traveling expenses, or for example bills of hotels. The meaning of connection is still undefined by the 2nd Respondent. The entire case of the respondents on the issue of the N5,000,000.00 Special damages claimed was built entirely on conjecture and this cannot be the basis for an award of special damages as was purportedly made by the trial court. This court has set aside the award of N5,000,000.00 special damages meant to prevent the purported threat to revocation of the licence to the 1st Respondent.
On the award of the general damages for the injury pain, trauma shock and loss of business good will having been in petroleum business since 1997, the trial court at page 102, second paragraph lines 3 stated:-
“In my opinion the Plaintiffs are entitled to general damages which I assess and put at N2.5 million to compensate them for the injury, trauma, shock and loss of business good will.”
I have earlier stated in this judgment that the trial judge, failed to consider the principle of mitigation of damages. The law is already settled and imposes a duty on especially the 2nd Respondent on behalf of the 1st Respondent to take steps to avoid any losses which are avoidable, which he did not.
I agreed with the submissions of the learned counsel to the appellant in this regard that for claim under this head to succeed there must be sufficient evidence in proof thereof, for example on the allege loss of goodwill because of the dishonoured cheques the respondents can only succeed when the facts in support are sufficiently pleaded and proved by concrete evidence I can not find such concrete evidence in the records before this Court.
Also to succeed on the claim for mental and psychological trauma medical evidence in proof of the mental distress is not by itself sufficient damage to ground an action.
It is allowable in torts in which injury to feeling generally forms a subsidiary element in the damages. See McGregor on Damages (14th Ed) pages 43 – 44 paragraph 63. On the whole, I find the award of N2.5 million on this head as being too excessive.
The next question is whether the Court of Appeal itself had the power to have assessed and award the damages claimed. In the case of Onwuka v. Omugui (Supra) ratio 8 at page 400 per Nnaemeka Agu JSC (as he then was) stated:-
“Section 16 of the Court of Appeal Act, 1976, as indeed section 22 of the Supreme Court Act, 1960, has given to the Court full jurisdiction and powers over such matters as if it were a court of trial. See on this Ediagbonya V. Dumez Nig. Ltd (1986) 3 NWLR (pt. 31) 753; Soleh Bonneh Nig. Ltd. V. Ayodele & Anor. (1989) 1 NWLR (pt. 99) 549 at 559. As such is the position, there is now no need for this Court or Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the Court of trial. The correct approach ought to be that unless an issue of credibility of witnesses as to damages arises in the proceedings the appellate court ought, on entering or affirming a judgment in favour of the plaintiff, to assess and award damages to which he is entitled. This was in fact the attitude adopted by the Court of Appeal in England per Denning L.J, in Ward v. James (1966) 1 Q.B. 273, pp 301-303”.
Section 15 of the Court of Appeal Act 2004, under the general powers of Court of Appeal provides that this Court “general shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance ”
I have carefully perused through all the evidence in this matter. In the whole events that led to this case, all that the respondents lost from the facts, was the lifting of the 3 (three) petroleum products for the period of October 1999. The Appellant earlier on in this judgment was found to have been partially negligent, hence its immediate response to compensate the respondents with the sum of N50,000.00 for the loss, as a result of their inability to lift the products for the month of October. I find N50,000.00 grossly inadequate compensation for the loss incurred by the Respondents for the 3 (three) petroleum products for the month of October.
The Respondents provided evidence at the lower Court, which I find to be satisfactory that at the time of the incident they had official margin of N4.70 per litre of all products as profit, making a total of about N286,352.00 for the 3 (three) Petroleum Products which they did not lift for the said period of October 1999. This Court is of the opinion that it is only reasonable that the respondents be awarded the said sum of N286,352.00 as damages for the loss of profit resulting from the appellants partial negligence, and this court has so awarded the Respondents that sum.
On the whole this Appeal succeeds in part, and this court makes the following orders:
(a) The award of damages made by Udeh J, in his judgment of the 28-7- 05 in favour of the respondents for the sum of N7,786,352.00 (Seven Million, Seven hundred and eighty six thousand, three hundred and fifty two naira) for specific and general damages against the appellant is hereby set aside by this court.
(b) This court has awarded the sum of two hundred and eighty six thousand, three hundred and fifty two Naira (N286,352.00) as damages to the 1st and 2nd Respondents respectively, against the appellant for the loss profit by the respondents for the 3 (three) petroleum products which they did not lift for the said period of October 1999.
(c) There is no Order as to cost.
Other Citations: (2009)LCN/3184(CA)
