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BRIG-GENERAL B.A.M ADEKUNLE (RTD.)
ROCKVIEW HOTEL LIMITED
COURT OF APPEAL
1 NWLR (Pt.853)161
IBRAHIM TANKO MUHAMMAD, JCA (Presided and delivered the leading judgment)
ZAINAB ADAMU BULKACHUWA, JCA
ALBERT GBADEBO ODUYEMI, JCA
Mr. Robert Clerke With, Mr. James Okoli – For Appellant
Mr. Tony Ogbulafor – For Respondent
PRACTICE AND PROCEDURE – DAMAGES – Award of damages made by trial court – general principles governing same – when appellate court will interfere.
PRACTICE AND PROCEDURE – DAMAGES – Double compensation – avoidance of same by courts.
PRACTICE AND PROCEDURE – DAMAGES – General damages – award of same by trial court.
PRACTICE AND PROCEDURE – DAMAGES – General damages – grant of – discretionary nature of – when can be set aside on appeal.
PRACTICE AND PROCEDURE – DAMAGES – General damages – award of same in actions based on contract and actions based on torts by trial court – distinction between.
PRACTICE AND PROCEDURE – DAMAGES – Special damages – grant of same by trial court.
PRACTICE AND PROCEDURE – Admitted facts – proof of – whether necessary.
PRACTICE AND PROCEDURE – Award of damages made by trial court – general principle governing interference with same by appellate court.
PRACTICE AND PROCEDURE – Pleadings without evidence in support – rule governing same.
WORDS AND PHRASES – ‘Damages’ – meaning of.
WORDS AND PHRASES – ‘General damages’ and ‘special damages’ – meaning and distinction between.
IBRAHIM TANKO MUHAMMAD, JCA: (Delivering the leading judgment):
The plaintiff claimed that sometime in early June, 1999, the defendant lodged in its premises and accumulated a bill of the sum of six hundred and forty-eight thousand naira (648,000.00) only, resulting from room rate, food, beverages, telephone and other services. The defendant gave a written undertaking to the plaintiff’s General Manager on the 24th of June 1999 to the effect that he will pay all his outstanding hotel bills on 4th July 1999. The defendant failed to keep to his promises of settling his outstanding hotel bills. A demand letter for the immediate payment of the outstanding bills was written to the defendant by the plaintiff’s General Manager. Plaintiff averred further that the defendant in response to the letter written to him by its General Manager gave the General Manager a letter of authority to sell the defendants land located at Plot 2515 Asokoro Extension Abuja and deduct whatever money the defendant was owing the plaintiff from the proceeds of the sale. However, on close scrutiny of the papers in respect of the land, it was discovered that the land had no certificate of occupancy. On 26th June 1999, the defendant, it was further averred, handed over to the plaintiff’s General Manager a note that the defendant wanted the plaintiff to present to the Manager of Arab Bank Ltd. Apapa branch for payment of the debt owned by the plaintiff to the defendant. Upon contacting the said Manager of Arab Bank Ltd. Apapa branch on phone it was confirmed to the plaintiff’s General Manager that the defendant did not have money with the branch of that bank. Consequent upon that the plaintiff instructed it’s solicitors to write officially demanding for the payment of the said debt by the defendant. Inspite of repeated demands, the defendant failed, neglected or refused to settle the said debt and that the defendant had no defence to the matter.
The plaintiff took a writ of summons from the High Court of the Federal Capital Territory Abuja (lower court). The claim indorsed on the writ and section 14 of the statement of claims read as follows:
“Whereof the plaintiff claims the sum of two million naira (N2,000,000.00) only against the defendant made up as follows:
(a) The sum of six hundred and forty-eight thousand naira (N648,000.00) only being the cost of defendant’s room, food, beverages, telephone and other services while he stayed at the hotel;
(b) The sum of one million, five hundred and fifty-two thousand naira (N1,552,000.00) only as general damages;
(c) The defendant also claims from the defendant (sic) interest on the sum of six hundred and forty-eight thousand naira (N648,000.00) only at the rate of 21% per annum from 25th June 1999 until final judgment and thereafter at the rate of 10% per annum on the judgment sum and until the final liquidation of the judgment debt and costs.”
The defendant denied almost all the allegations made by the plaintiff. Learned counsel for the plaintiff applied for setting the suit down for hearing. Hearing commenced on 9th May 2000 with the plaintiff calling one witness. On 23rd May, 2000, learned counsel for the plaintiff addressed the lower court. Judgment was delivered on 26th July 2000 in favour of the plaintiff.
The defendant felt aggrieved with the lower courts’ judgment and he appealed to this court on two grounds of appeal.
Parties filed and exchanged briefs of argument. Learned counsel for the appellant formulated two issues for determination:
“(i) Was the learned trial Judge correct in making an award of N500,000.00 as general damages in favour of the respondent against the appellant in the circumstances of this case?
(ii) Was the award of N645,000.00 on the footing of claims amounting to special damages justified when the items of damages were not specifically pleaded and particularized in the pleadings and were not proved by cogent and credible evidence at the trial?”
Learned counsel for the respondents formulated his own issues as follows:
“1. Whether the respondent needs to prove during the trial a fact that has been expressly admitted by the appellant as defendant?
At the hearing of the appeal learned counsel for the appellant adopted and relied on his brief of argument. He urged the court to allow the appeal. Learned counsel for the respondent adopted his brief and urged the court to dismiss the appeal and affirm the lower court’s decision.
The submission of learned counsel for the appellant in his brief on issue No.1 is that general damages are not awarded on any speculation or sentiment. They must be based on sound and established legal principles. The respondent had suffered no legally compensable injury to entitle him to any award of general damages. Learned counsel cited Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47, 65, Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370 at 382. The award by the learned trial Judge of N500,000.00 as general damages amounted to double compensation in view of the award of N645,000.00 against the appellant in respect of the specific items of loss claimed by the respondent. F.C.E. v. Anyanwu (1997) 4 NWLR (Pt. 501) 533 at 561. Learned counsel urged this court to set that award of general damages against the appellant aside.
Learned counsel for the respondent argued the issue of award of general damages under his second issue. He submitted that the award was proper. The considerations taken by the learned trial Judge were not irrelevant. The amount awarded was neither inordinately low nor inordinately high. The respect the respondent gave to the appellant was high having regard to his status in the society. The respondent by that had been made to suffer unnecessary loss and embarrassment which could only be compensated by award of adequate damages in favour of the respondent. The respondent did not get double compensation from the award of specific amount claimed and the award of general damages. This appeal, learned counsel argued, is not in pari materia with the F.C.E v. Anyanwu (supra) cited by the appellant. It is further submitted for the respondent that an appellate court shall not disturb the award of damages by the trial court, moreso when the learned trial Judge based his award of general damages on his findings of fact. The award of the general damages by the trial court is not initiated by any circumstances in the exceptions U.T.B (Nig.) Ltd. v. Ozoemena (2001) 7 NWLR (Pt. 713) 718.
This issue calls for the consideration of the general principles governing the grant of damages. Permit me to repeat what I said my lords, in the case of Adodo v. Ismaila (1998) 11 NWLR (Pt. 573) 214 at pages 222-225 paragraphs H-A:
“Let me quickly and briefly mention that the word “damages” means the pecuniary compensation obtainable by a successful party in an action for a wrong which is either a tort or a breach of contract. ‘General damages’ have been defined as damages such as the law will presume to be the direct natural or probable consequences of the act complained of whereas ‘special damages’ are such damages as the law will not infer from the nature of the act complained of. They are exceptional character wise and must be specifically pleaded and strictly proved. The difference between the two types of damages is that whereas in the former case the court can make an award when it cannot point out any measure of assessment except what it can hold in the opinion of a reasonable man. In the latter case, all the losses claimed on every item must have crystallized in terms and value before trial. Akinfosile v. Mobil (1969) NCLR 253; Ijebu-Ode Local Government Area v. Adedeji Balogun and Co. Ltd. (1991) 1 NWLR (Pt. 166) 135; Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) 325; Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530; Orient Bank (Nig.) Plc. v. Bilante International Ltd. (1997) 8 NWLR (Pt. 515) 37.”
Thus, the grant of general damages by a trial court is discretionary and can hardly be set aside on appeal except where:
(a) the trial court has acted under a mistake of law,
(b) the trial court has acted in disregard of known principles or acted on no principles at all;
(c) the trial court has acted under a misapprehension of facts;
(d) the trial court has taken into account irrelevant matters or failed to take account of relevant matters;
(e) injustice would result if the appeal court does not interfere;
(f) the amount awarded by the trial court is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damages.
See: Union Bank of Nigeria Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 at 585-586; Shell Petroleum Development Company Nig. Ltd. v. His Royal Highness Chief GBA Tiebo VII and 4 ors. (1996) 4 NWLR (Pt. 445) 657 at page 688 paragraph H; Allied Bank v. Akubueze (1997) 6 NWLR (Pt. 509) 374; (1997) 6 SCNJ 166 at page 142, Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1 at page 19, D-F; 27, E-F.
Special damages, on the other hand, are granted by a trial court as a matter of right subject to strict proof of each item specified. Jaber v. Basma 14 WACA 140; Ijebu Ode v. Adedeji Balogun and Co. Ltd. (supra), Shell Development Company (Nig.) Ltd. v. Tiebo VII (supra)
Another distinction of substance is that in the award of general damages for actions based on contract and actions based on torts, different considerations govern the award of damages in each case. See U.B.A Ltd. v. Tejumola (1986) 4 NWLR (Pt. 38) 815 at 825 H-826A. The principles governing the grant of general damages in torts cannot be interchangeable with the principles governing the grant of damages in actions based on contracts. Karibi-Wyhte, JSC in Okongwu v. N.N.P.C (1989) 4 NWLR (Pt. 115) 296 at page 315 E-F observed:
“Counsel to the appellant was in error to have relied on cases enunciating principles for the recovery of damages in actions in tort as applicable to breaches of contract.”
Generally, the principle of assessment of damages for breach of contract, which is applied by the courts, is restitutio in integrum. In the appeal, the learned trial Judge awarded to the respondent the sum of N500,000.00 as general damages. In his reasoning process for the award, the learned trial Judge stated, inter alia:
“I shall now turn to consider the claims of N552,000.00 as general damages. The law is that general damages is the loss which flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstance of the case ……. I do note the trust, the confidence the honour and the respect with the plaintiff received and treated the defendant. I also do note the rather unfortunate manner in which he ought to reciprocate those fine gestures (sic) which thus causing injury to their innocent but pure sense of judgment, the off short of (sic) which is capable of transforming them to be suspicious of all their future customers who may stand in need of such gestures. For all these I find that the sum of five hundred thousand naira as adequate.”
It is my understanding from the above dictum that the justification for the award of the general damages is to ameliorate or rather, compensate the respondent in reciprocating the trust, confidence, honour and respect the respondent had for the appellant. I am afraid, that may not be the correct principle within which the law for general damages operate in the gamut of contractual relations as against relations in torts.
I agree with learned counsel for the appellant in his submission that the most charitable that can be said about the reasoning and conclusion of the learned Judge as quoted above is that such considerations do not constitute proper grounds in law for the award of general damages. Generally, general damages are not awarded as a matter of course but on sound and solid legal principles and not on speculation, sentiments or as Father Christmas. See: Idigbe, JSC, in: Odumosu v. African Continental Bank Ltd (1976) 11 S.C 55. Certainly, such general damages are never awarded as a largesse or out of sympathy born of extraneous considerations rather than legal evidence of probative value adduced for the establishment of an actionable wrong or injury.
It is my view that such an award has no legs to stand moreso when the same court awarded almost all the sum claimed under the head of special damages. It is beyond dispute that if the award on general damages is sustained, it would certainly amount to double compensation in view of the award made on special damages. The law is very certain that courts of law always avoid allowing such awards. Elias, CJN, once said it in N.R.C v. Odumuyiwa (1974) 1 S.C 13:
“We think that the respondent’s case lies on contract and that without pronouncing ourselves on whether or not general damages may never be awarded pari passu with special damages in the same suit, we consider that the damages awarded (other than general damages) under the other heads of claim in the plaintiff/respondent’s statement of claim are adequate as fair estimate of the loss arising out of his wrong suspension by the defendant/appellant.”
My learned brother Orah, JCA observed as well:
“The law frowns against double compensation and will not allow a litigant who made claim for special performance or specific losses suffered by him to add another figure under the head of general damages …….. Indeed, the award of general damages is improper where the quantum of loss is ascertainable. This will amount to double damages or double compensation.”
See: F.C. E. v. Anyanwu (supra); Adodo v. Ismaila (supra); Ekpe v. Fagbemi (1978) 3 S.C 209, Artra Industries Ltd. v. N.B.C.I (1997) 1 NWLR (Pt. 483) 574; Armels Transport Ltd v. Transco Ltd. (1974) 9 NSCC, 582; (1974) 11 S.C 237.
The general principle of the law on award of damages made by a trial court is that an appellate court does not interfere. However, an appellate court will interfere and reverse a trial court on the amount awarded as damages where the appellate court is convinced that the trial court acted upon wrong principles of law. On that premise, I found the award of general damages made by the lower court to be without basis and amounts to double compensation in view of the award of special damages. Accordingly, the first issue succeeds. I hereby set aside the lower court’s order for the payment of general damages in the sum of N500,000.00 (five hundred thousand naira) in favour of the respondent, payable by the appellant.
“Was the award of N645,000.00 on the footing of claims amounting to specifically pleaded and particularized in the pleadings and were not proved by cogent and credible evidence at the trial?”
The arguments for the appellant are that the award of N645,000.00 on the footing of claims amounting to special damages cannot be justified when the items of damages were not specifically pleaded and particularized in the pleadings and were not proved by cogent and credible evidence at the trial. There is nothing to show at a glance how the respondent arrived at the aggregate sum of N648,000.00. The submission of learned counsel for the respondent is that it is trite law that issues admitted need not be proved. The appellant in his own handwriting authorized his bankers to pay the respondent the sum of six hundred and forty-eight thousand naira only (N648,000.00). The appellant did not at any time contend that he is not owing the respondent or that he did not lodge in the hotel. The fact that the appellant filed a statement of defence and led no evidence in its support presupposes that they have abandoned the averments contained therein. Argued further for the respondent is that the averment contained in paragraph 5 of the statement of defence does not amount in any way to denial of the debt. The award of N645,000.00 instead of N648,000.00 by the learned trial Judge, is a mere slip which can be corrected by the appeal court or by the trial Judge himself – relied on the case of Intra Motors (Nig.) Plc. v. Akinloye (2001) 17 WRN 78;(2001) 6 NWLR (Pt. 708) 61. Learned counsel for the respondent’s final submission is that the attitude of the courts is to shun technicalities and to do substantial justice in the cases before them.
From the pleadings of the plaintiff/respondent, paragraph 14 claims as
“14 Whereof the plaintiff claims the sum of two million naira (N2,000,000.00) only against the defendant made up as follows:
(a) The sum of six hundred and forty eight thousand naira (N648,000.00) only being cost of the defendant’s room, food, beverages, telephone and other service while he stayed in the hotel.”
In his statement of defence, the defendant/appellant in paragraphs 3 and 7 of his statement of defence averred as follows:
“3. The defendant denies paragraphs 4, 5, ……….. and 14 of the statement of claim and puts the plaintiff to the strictest proof thereof.
The finding of the learned trial Judge on the pleadings and evidence adduced before him reads as follows:
“The plaintiff closed its case after the testimony of this witness. The defendant on his part did not give evidence nor call any witness in support of his statement of defence. The filing of his statement of defence without more, cannot constitute evidence. It is settled law that pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding his general traverse. I have in mind the case of Federal Capital Development Authority v. Alhaji Musa Noibi (1990) All NLR 475; (1990) 3 NWLR (Pt. 138) 270”.
I cannot agree more. It has for long been settled law that a statement of claim/defence, as the case may be, by a party with no evidence in its support amounts to abandonment of the averments contained therein however cogent and a trial court has no business in considering those averments. See Mallam Inusa Yaktor v. Governor of Plateau State and 2 Ors. (1997) 4 NWLR (Pt. 498) page 216 at page 229-230 paragraphs H-B. Isreal O. Aina v. United Bank for Africa Plc. and anor. (1997) 4 NWLR (Pt. 498) page 181 at page 191, paragraphs A-C.
There was therefore no evidence from the appellant to deny owing the respondent the sum claimed under paragraph 14(a). Thus the learned trial Judge was right in my view, when he accepted the figure claimed under the said paragraph. In the case of Meriden Trade v. Metal Construction (1998) 3 SCNJ 1 at page 11, Ogundare JSC stated:
“In case such as the one in hand where the plaintiff alleges that certain sum is owing to him, it is not enough for the defendant to deny that he owes that sum but must go on to deny that he owes any part thereof or else set out how much he owes …………..
As the allegation by the plaintiff that the defendant owed him the sum of ninety five thousand two hundred and twenty naira fifteen kobo (N95,220.15) had not been denied expressly or by implication by the defendant the allegation must be deemed to be indirectly admitted and the plaintiff was not obliged to establish it by evidence.”
But what is even more in this appeal is that documents were admitted at trial stage where the defendant/appellant admitted that he owes the amount claimed under paragraph 14(a) of the plaintiff’s statement of claim. That document in exhibit PW 1 ‘D’. This exhibit states:
“Brigadier B.A.M. Adekunle (Rtd),
2, Odutayo Street, Surulere, Lagos.
26 June 1999
Payment to Rockview Hotel Abuja.
Please pay the sum of (N648,000.00) six hundred and forty-eight thousand naira to Rockview Hotel Abuja and debit my account.
Brig. B.A.M. Adekunle.”
This, in my view, amounted to a clear and categoric admission by the defendant/appellant of the sum claimed under paragraph 14(a) of the plaintiffs/respondent’s statement of claim. This letter formed part and parcel of the documents admitted by the lower court and it is upon such evidence that the learned trial Judge said:
“I am therefore satisfied that the plaintiff has established his claim of N645,000.00 against the defendant and I so hold.”
Where a fact is admitted by a defendant the burden of proving it is relieved off the shoulders of the plaintiff. See section 75 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990. Mr. Emmanuel Agbanelo v. Union Bank of (Nig.) Ltd. (2000) 23 WRN 1; (2000) 7 NWLR (Pt. 666) page 534 at page 549 paragraph F; 556 paragraph H; 559 paragraph E. There is no where at any time when the appellant contended that he was not owing the said amount or that he does not lodge in the hotel even after his deposit of N400,000.00 was exhausted. On the issue of the award of N645,000.00 in place of N648,000.00 (a difference of (N3,000.00) it appears the respondent did not cross-appeal on that. This court lacks jurisdiction certainly, to comment on that particular issue as learned counsel for the respondent submitted on it as ‘mere slip’ by the lower court. I am satisfied that the award made by the learned trial Judge was based on legal evidence and was therefore right. I am loathe to temper with that part of the judgment.
In conclusion, this appeal succeeds in part and is accordingly allowed in part. That is to say: the appeal is allowed on the 1st issue and the award of general damages by the lower court in the sum of N500,000.00 to the respondent is hereby set aside. The other part of the appeal i.e. award of special damages to the respondent against the appellant is dismissed. Accordingly, I affirm the lower court’s decision on the payment of N645,000.00 (six hundred and forty five thousand naira only) made in favour of the respondent against the appellant. I order each party to bear own costs in this appeal.
ZAINAB ADAMU BULKACHUWA, JCA:I have read before now the lead judgment just delivered by my learned brother Muhammad JCA. I agree fully with his reasoning and conclusion and adopt them in full in partly allowing the appeal.
The award of N645,000.00 as special damages by the trial court are in my view justified, for the appellant had admitted to owing the amount claimed particularly if one considers exhibit D, a document tendered by the respondent which is a letter by the appellant to his bankers directing them to pay to the respondent the sum of N648,000.00 is an admission of fact by the appellant and the respondent needs not adduce further evidence in proof thereof.
I however agree with the appellant that award of N500,000.00 as general damages would amount to double compensation in view of the special damages awarded by the trial court.
I, in the circumstance allow the appeal in part and abide by all the consequential orders in the lead judgment including orders as to costs.
ALBERT GBADEBO ODUYEMI, JCA:I have had the opportunity of reading in advance, the judgment just delivered by my learned brother Ibrahim Tanko Muhammad, JCA.
I agree entirely with the reasonings and conclusions therein which I adopt as mine.
In consequence, I uphold the appeal on the issue affecting the award of general damages by the lower court while I dismiss the appeal on the issue affecting the award of special damages.
I also award no costs in view of the partial success of the appeal.
Cases referred to in the judgment:
Adodo v. Ismaila (1998) 11 NWLR (Pt. 573) 214.
Agbanelo v. U.B.N (Nig.) Ltd. (2000) 23 WRN 1; (2000) 7 NWLR (Pt. 666) 534.
Aina v. U.B.A Plc. (1997) 4 NWLR (Pt. 498) 181.
Akinfosile v. Mobil (1969) NCLR 253.
Allied Bank v. Akubueze (1997) 6 SCNJ 166; (1997) 6 NWLR (Pt. 509) 374.
Armels Transport Ltd v. Transco (Nig.) Ltd. (1974) 9 NSCC 582; (1974) 11 S.C 237.
Artra Industries Ltd. v. N.B.C.I (1997) 1 NWLR (Pt. 483) 574.
Ekpe v. Fagbemi (1978) 3 S.C 209.
Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47.
F.C.D.A v. Noibi (1990) All NLR 475; (1990) 3 NWLR (Pt. 138) 270.
F.C.E. v. Anyanwu (1997) 4 NWLR (Pt. 501) 533.
Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530.
Ijebu-Ode Local Government Area v. Adedeji Balogun AND Co. Ltd. (1991) 1 NWLR (Pt. 166) 135.
Intra Motors (Nig.) Plc. v. Akinloye (2001) 17 WRN 78;(2001) 6 NWLR (Pt. 708) 61.
Jaber v. Basma 14 WACA 140.
Meridien Trade Corporation Ltd. v. Metal Construction (W.A) Ltd. (1998) 4 NWLR (Pt. 544) 1;(1998) 3 SCNJ 1.
Momodu v. Uniben (1997) 7 NWLR (Pt. 512) 325
N.R.C v. Odumuyiwa (1974) 1 S.C 13.
Odiba v. Azege (1998) 9 NWLR (Pt. 566) 370.
Odumosu v. A.C.B. Ltd (1976) 11 S.C 55.
Okongwu v. N.N.P.C (1989) 4 NWLR (Pt. 115) 296.
Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1.
Orient Bank (Nig.) Plc. v. Bilante International Ltd. (1997) 8 NWLR (Pt. 515) 37.
Shell Petroleum Development Company Nig. Ltd. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 657.
U.B.A Ltd. v. Tejumola (1986) 4 NWLR (Pt. 38) 815.
U.B.N Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558.
U.T.B (Nig) Ltd. v. Ozoemena (2001) 7 NWLR (Pt. 713) 718.
Yaktor v. Gov., Plateau State (1997) 4 NWLR (Pt. 498) 216.
Statute referred to in the judgment
Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 s. 75.