Judgment
UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): The Respondent’s late father and the Appellant were brothers and sons of late John Akaolisa, who granted to the Appellant a residential portion of land around 1960. The Appellant erected his residential house thereat. The Respondent’s late father, Patrick Akaolisa inherited his own portion from John Akaolisa as the 1st son.
The Respondent, since the death of Patrick Akaolisa, has been residing exclusively with his family on the said land until when the Appellant, because the Respondent relocated to Aba in Abia State, encroached into the compound of the Respondent and pulled down the fence, a building and cut down orange and mango trees with fruits thereon. This caused the suit to be filed at the trial Court by the Respondent as Plaintiff.
The trial Court awarded the sum of N300,000.00 as special damages and N200,000.00 as general damages to the Respondent as Plaintiff, for trespass. On appeal by the Appellant, the lower Court set aside the award of special damages of N300,000.00 and increased the award of general damages to N500,000.00. This is the basis of the present appeal before this Honourable Court. The Appellant formulated 2 issues for determination as follows: 1.
Whether the Justices of the Court of Appeal were right in their decision to increase the sum of N200,000 awarded by the trial Court as general damages to N500,000.00 in favour of the plaintiff when there was no appeal against the said award by the Plaintiff? 2. Whether the Justices of the Court of Appeal were right to resolve the issue of adequacy of the amount awarded as general damages raised suo motu by them without hearing the parties particularly the Appellant?
The Respondent’s Counsel on the other hand formulated a lone issue for the determination of this appeal thus: Whether the Court of Appeal had the powers to increase the amount awarded to the Respondent as general damages by the trial Court.
The Respondent’s lone issue has appositely and comprehensively captured the issue for determination in this appeal and shall be used.
It is the submission of the learned Counsel to the Appellant that since the Respondent did not appeal against the award of damages, it is settled law that the Court cannot grant him more than his relief. He relied on METAL CONSTRUCTION (W/A) LTD V. ABODERIN (1998) 8 NWLR (PT.563) 541. Thus, that the Court below was wrong to increase the sum of N200,000.00 awarded as general damages to the Respondent by the trial Court to N500,000.00 without an appeal by the Respondent.
Similarly, he submitted that the increase of the amount awarded as general damages cannot be a substitute for the failed claim of special damage. He cited in support I.B.B. IND. LTD & ORS V. MUTUNC COMPANY (NIG) LTD (2012) 6 NWLR (PT. 1297) AT 498.
Furthermore, it was submitted that for the lower Court to raise suo motu the issue of the adequacy of the award of N200,000.00 and increase same to N500,000.00 without giving the Appellant the opportunity to be heard is against decided authorities. He relied on OSHODI V. EYIFUNMI (2000) 13 NWLR (PT.684) 298. He therefore urged this Court to allow the appeal and set aside the award.
The Respondent’s learned Counsel on the other hand quoting the lower Court’s judgment and reasoning for the increase in general damages relied on Section 15 of the Court of Appeal Act, Order 4 Rules 3 and 4 and Order 6 Rule 5 of the Court of Appeal Rules, 2011, as the basis for the increase of the award of general damages by the lower Court. He equally relied on EMIRI V. IMIEYEH (1999) 4 NWLR (PT.599) RATIO 7.
On the increase of the award of general damages by the lower Court, he submitted that the primary object of an award of damages is to compensate a party for the harm done to him and it is at the discretion of the Court. He relied on BRITISH AIRWAYS V. ATOYEBI (2014) 13 NWLR (PT. 1424) AT 286. He finally submitted that the lower Court acted within its statutory power and was justified to have increased the general damages awarded to the Respondent to N500,000.00, and has prayed this Court to dismiss the appeal for lacking in merit.
In the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation. See Per OGUNBIYI, JSC, ELF PETROLEUM V.
UMAH & ORS (2018) LPELR-43600(SC) (PP.27-28, PARAS. C-A). Similarly, where a party is demanding for or claiming general damages, the Court awards same at its discretion. See AKINTERINWA V. OLADUNJOYE (2000) 1 NWLR (PT 659) 93 AT 115. Per Chukwunweike Idigbe, JSC, in WAHABI V. OMONUWA (1976) LPELR-3469(SC) (P. 18, PAR-AS. B-D) stated also that the quantification of general damages in terms of money is a matter for the Court.
The appeal of the Appellant is predicated majorly on the reasoned decision of the lower Court, when after dismissing the claim of special damages by the Respondent, held at page 207 of the record in its judgment thus: “I have dispassionately and deeply considered the circumstances and facts of this case, and I feel that the award of N200,000.00 as general damages to the respondent is ridiculously too low and erroneous. Therefore, I am impelled to intervene and increase it.
Hence, the sum of N500,000.00 (Five hundred thousand Naira) only is awarded as general damages to the respondent against the appellant.”
It is clear from the formulated issues of the Appellant that his appeal is anchored on nothing more than an exercise of the lower Court’s discretion to award general damages. Similarly, by the judgment of the lower Court, it is deducible that the lower Court judicially, judiciously, reasonably and justifiably exercised this discretion to award the general damages of N500,000.00 to the Respondent.
The Appellant has also queried the exercise of the lower Court’s discretion to award general damages of N500,000.00 to the Respondent suo motu or without calling for the attention or contribution of the parties.
A judicial discretion is the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law. In other words, it is in Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. To make such exercise of discretion look judicial and judicious, it has to be based on prudence, rationality, sagacity, astuteness, considerateness and reasonableness. See Per Ibrahim Tanko Muhammad, JSC, in AKINYEMI V. ODU’A INVESTMENT CO. LTD (2012) LPELR-8270(SC) (PP. 32-33, PARAS. F-B).
In the same case above, page 32, paragraphs B-F, he explicated further that: “Discretion,” they say, “knows no bound.” In its general usage, it is that freedom or power to decide what should be done in a particular situation… the general meaning of the word to include: “analysis, appraisal, assessment, choice, consideration, contemplation, decision, determination, discrimination, distinction, designation, election, evaluation, examination, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review, right of choice, sanction, selection, self determination, suffrage, etc.”
Except on grounds of law, an appellate Court will not reverse a discretionary order of a trial Court merely because it would have exercised the discretion differently. But, if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised, in that due weight was not given to relevant consideration, the order may be reversed. Thus, the guiding principle is that discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials.
Nevertheless, an appellate Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion:- a. Where the discretion was exercised based on wrong in sufficient material or b. Where no weight or insufficient weight was given to relevant consideration or c. Where the Tribunal acted under misconception of law or under misapprehension of fact and d. In all other cases where it is in the interest of justice to interfere. See Per MUHAMMAD, JSC, in AKINYEMI V. ODU’A INVESTMENT CO. LTD (2012) LPELR-8270(SC) (PP. 33-35, PARAS. B-D).
By the excerpted reasoning and decision of the lower Court above, where it dispassionately and deeply considered and assessed the circumstances of the present appeal, it is my firm opinion that an appellate Court has that unfettered power and discretion to assess general damages and to award same suo motu without calling on the parties to address it. I lean on the decision of Per Nnaemeka-Agu, JSC, in ONWUKA & ANOR V. OMOGUI (1992) LPELR-2719(SC) (PP. 49-50, PARAS.
G-D), wherein he held: “The question whether the Court of Appeal itself had the power to have assessed and awarded the damages claimed ought also to have been answered in the affirmative. 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. As such is the position, there is now no need for this Court or the Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the Court of trial…” See also ONWUKA & ANOR V.
OMOGUI (1992) LPELR- 2719(SC) (PP. 34-36, PARAS. G-A). I make bold to state that the assessment and evaluation of general damages, being a discretionary judicial act or exercise, does not need to be appealed against, provided already it is before the Court to look into it. When award of damages is involved, it is both the case and facts of the Appellant and the Respondent that are considered and not only that of the Appellant. Thus, to insist that there must be an appeal on it before it is considered will work out injustice and will be tangential and one-sided.
For fairness and justice, the Court must look into the appeal of the Appellant and also the case of the Respondent at the lower Court in assessing and awarding damages, Otherwise, the Appellant, who has appealed, will always be right, if the Respondent’s case will not also be considered, assessed and evaluated until there is an appeal on it.
This appeal is therefore grossly unmeritorious, wasteful and fails. It is hereby dismissed.
Apart from the fact that this appeal is a concurrent decision on damages of the two Courts below, the Appellant intrepidly went ahead to appeal to this Apex Court. While the Appellant got judgment against him at the trial Court in the sum of N300,000 for special damages, N200,000 as general damages and N30,000 as costs, totaling N530,000.00, he appealed to the lower Court and got general damages against him in the sum of N500,000 and cost at N50,000, totaling N550,000.00. Yet, he unacceptably approached the Apex Court. I greatly wonder what he came to seek for in the Supreme Court?
How much has he spent in pursuing and prosecuting this paltry and suboptimal appeal and the time involved? How much time and chance has he blocked for other more important and contentious appeals? How much is he expecting to get from the judgment of this Court? It is glaring that he is not far from frustrating the Respondent and to choke the fast delivery and course of justice. Of course, this is the practice of many, that instead or accepting a defeat, they fight bloody and irrationally for no cause instead of accepting an olive branch.
Consequently, I award the cost of N500,000 against the Appellant.
MUSA DATTIJO MUHAMMAD, J.S.C.: I have read the lead judgment of my lord UWANI MUSA ABBA AJI JSC just delivered. I am in entire agreement with the reasoning and conclusion in the judgment that the appeal, being lacking in merit, be dismissed.
The facts that brought about the appeal are lucidly expressed in the lead judgment. I rely on the facts as so captured to make, by way of emphasis alone, this brief contribution.
The lower Court has revisited the general damages awarded in favour of the Respondent against the Appellant thus the instant appeal. Whereas the Appellant contends that the lower Court lacks the jurisdiction of varying the general damages the trial Court ordered, the Respondent, to the contrary, submits otherwise.
The lower Court’s powers as donated by law, learned Respondent counsel rightly argues, is discretionary and available facts on record does not warrant interference with the Court’s judicious and judicial exercise of its discretion.
Section 15 of the Court of Appeal Act by virtue of which the lower interfered with the trial Court’s award of general damages reads:- “The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks for the determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally 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 and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by the Court of competent jurisdiction.” On the seemingly endless occasions this Court interpreted the section it held that it applies where certain conditions are met.
These are:- (a) That the lower Court as the trial Court have jurisdiction in the matter before the appellate Court. (b) That the real issue raised by the claim of the Appellant at the lower Court or trial Court is capable of being distilled from the grounds of appeal. (c) That all necessary materials are available to the Court for consideration. (d) That the need for expeditious disposal of the case or suit to meet the end of justice must be apparent; and (e) That injustice or hardship will follow if the case is remitted to the Court below.
Once these conditions are manifest, it becomes necessary for the lower Court to interfere with the trial Court’s decision. See AG KWARA STATE & ANOR V. LAWAL & ORS (2017) LPELR-4234 (SC), YUSUF V. FRN (2017) LPELR-43830 (SC) and APC & ORS V. KARFI & ORS (2017) LPELR-47024 (SC).
In the case at hand, the three conditions have been met. The lower Court’s exercise of its discretion in the review of the general damages granted by the lower Court is therefore unassailable. Parties have testified at trial to the facts on which basis the lower Court, having perused the record, concluded on the need to reconsider the award. The Appellant cannot contend that he has not been heard on the facts which, from the record, the lower Court as empowered by law, reconsidered and made its inferences.
I am further unable to discern what miscarriage of justice the decision appealed against occasioned to warrant allowing the appeal.
For the foregoing and more so the detailed reasons contained in the lead judgment I hereby dismiss the unmeritorious appeal.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading before now, the draft of the leading judgment which my Lord, Abba Aji, JSC, just delivered. I agree with His Lordship that, being unmeritorious, this appeal should be dismissed.
This contribution is limited to the question whether, in the instant case, the Court of Appeal, [hereinafter referred to as “the lower Court”] had the power to assess general damages and to award same without calling on the parties to address it.
The rule has always been that a Court is not entitled to raise and determine an issue suo motu without hearing from the parties, Odiase v Agho (1972) 3 SC 71; Adegoke v Adibi (1992) 5 NWLR (pt 242) 410; Atanda v Akanmi (1974) 3 SC 109; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. A violation of this canon is, indeed, an invasion of the right to fair hearing, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566.
It has, actually, been elevated to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207; Wilson v Wilson (1969) ALR 191. However, the lower Court cannot be rightly accused of raising the issue of damages suo motu. True, indeed, Section 15 of the Court of Appeal Act and Section 22 of the Supreme Court Act donated these Courts, the Court of Appeal and this Court, respectively, with the jurisdiction and powers over such matters, like general damages, as if they were the trial Court, Ediagbonya v Dumez Nig.
Ltd [1986] 3 NWLR (pt 31) 753; Soleh Boneh (Nig) Ltd v Ayodele and Anor [1989] 1 NWLR (pt 99) 549, 559. There is, therefore, nothing sacrosanct about general damages which only the trial Court can deal with. The correct approach, therefore, ought to be that unless an issue of the credibility of witnesses as to damages arises in the proceedings, the appellate Court, on entering or affirming a judgment in favour of the plaintiff, has the power to assess and award damages to which he is entitled.
The English Law position, per Denning, L.J, in Ward v James (1966) 1 QB 273, 301 – 303, adopted by this Court in Onwuka and Anor v Omogui [1992] 3 NWLR (pt 230) 393; (1992) LPELR -2719 (SC) 49-50; G-D, is still good law.
It is for these reasons which I adopt as part of my reasons in this contribution, and the more elaborate, reasons in the leading judgment that I, too, shall enter an order dismissing this appeal. Appeal dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.S.C. (DISSENTING): I have had the privilege to read before now, a draft of the lead judgment of the majority decision of the Court just delivered by my learned brother HON. JUSTICE UWANI MUSA ABBA AJI JSC. With the greatest respect and humility, I have to depart from the reasoning and conclusions contained therein.
This is a case of trespass to land between relatives. The Appellant who is the uncle of the Respondent encroached on a portion of the Respondent’s land while he had relocated with his family to another State. The Appellant pulled down the Respondent’s fence, building, cut down Orange and Mango trees. The Respondent sued the Appellant for trespass and damages. At the trial Court, judgment was in favour of the Respondent who got reliefs of Three Hundred Thousand Naira (N300,000.00) as special damages and Two Hundred Thousand (N200,000.00) as general damages.
At the Court below, the Appellant appealed against the judgment of the trial Court. The Court below held that special damages was not pleaded or proved and set aside the award of special damages. The Court below increased the award of general damages to Five Hundred Thousand Naira (N500,000.00). The Appellant being further dissatisfied has appealed to this Court, solely on the basis of the increase in general damages to the Respondent.
Thus the sole issue in contention in this appeal is whether in the circumstances of this case, the Court below had the power to increase the amount awarded to the Respondent as general damages by the trial Court.
The Appellant’s counsel argued that the Court below was wrong to have granted the Respondent more than what he was given by the trial Court since he didn’t appeal against the award of damages. Counsel submitted that the increase of the general damages to N500,000.00 cannot be substituted for the failed claim of special damages. Counsel cited Metal Construction (W/A) Ltd. v. Aboderin (1998) 8 NWLR (Pt. 563) Pg. 541; I.B.B. IND Ltd. & Ors v. Mutunc Company (Nig.) Ltd. (2012) 6 NWLR (Pt. 1297) pg. 498.
Appellant’s counsel insisted that the lower Court was in error to have raised suo motu the issue of increase of general damages to N500,000.00 without giving the Appellant a right of hearing on the issue. Counsel cited Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) Pg. 289.
In reply, the Respondent’s learned Counsel argued that the ratio for the increased award of damages by the Court below is the provision of Section 15 of the Court of Appeal Act, Order 4 Rules 3 and 4 and Order 6 Rule 5 of the Court of Appeal Rules, 2011 and therefore the Court below acted within its statutory power. Counsel citedEmiri v. Imieyeh (1999) 4 NWLR (Pt. 559) Ratio 7.
Counsel submitted that the award of damages is at the discretion of the Court and it is to compensate for the harm done to the Respondent. Counsel cited British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) Pg. 286.
OPINION I have dispassionately and deeply considered the circumstance and facts of this, and I feel that the award of N200,000.00 as general damages to the Respondent is ridiculously too low and erroneous. Therefore, I am impelled to intervene and increase it. Hence, the sum of N500,000.00 (Five hundred thousand Naira) only is awarded as general damages to the Respondent against the Appellant. [This appeal is predicated on the increase in the award of general damages by the lower Court suo motu.
A Court is said to raise on issue suo motu when neither of the parties raised it in the pleading as a ground of appeal and as an issue before the Appellate Court.]
It is trite that a Court has power to raise an issue suo motu in respect of any matter before it, however the power of the Court must be exercised judicially in respect of matters relevant and necessary for the determination of the dispute before it. See Sunday Gbagbarigha v. Mr. Adekumo Toruemi & Anor. (2012) 12 SCNJ Pg. 140; Blessing Toyin Omokuwajo v. FRN (2013) 3 SCNJ Pg. 384 ACB Ltd v. Crestline Services Ltd (1991) 6 NWLR Pt. 197, Pg. 301.
In this instant case, the Respondent at the Court below did not cross appeal against the award of general damages or complain against the award of the general damage as being insufficient. This simply means the issue of increase of general damages was not before the Court below, that is, the jurisdiction of the Court below was not activated in respect of that issue. Also, the Court below cannot raise the issue of increase in general damages suo motu without giving the parties opportunity to be heard on the issue.
If the Respondent had addressed the issue in its brief, the Appellant would have filed a reply on it. The parties did not address the Court below on the issue and the Court below never sought their opinion before deciding on the issue it raised suo motu. The Court is without power to raise and consider novel issues without hearing the parties. See Okoye v. Commissioner of Police (2015) 17 NWLR Pt. 1488 Pg. 276;Wagbatsoma v. FRN (2018) 8 NWLR Pt. 1621 Pg.199; Shasi v. Anor v. Smith & Ors (2009) 18 NWLR Pt. 1173 Pg. 330.
Thus, the Court cannot go outside the case made by the parties without allowing the parties an opportunity to be heard. When the Court raises an issue suo motu without parties addressing the Court on it, such a procedure is a fundamental flaw in adjudication. Such a proceeding is also a breach of the fundamental rights of parties to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and should be nullified. Kotoye vs C.B.N. (1989) 1 NWLR (Pt.98) Pg. 419 at 488 C-D; A.G. Rivers State v. Ude & Ors. (2006) 17 NWLR (Pt.1008) Pg. 436.
The two cardinal principles of natural justice are “audi altarem partem” which means the Court must hear both sides and “nemo judex in causa sua” – you cannot be a judge in your own cause. The procedure adopted by the Court below has done violence to the rule “audi altarem partem” – in that the opinions of the parties were not sought which meant lack of fair hearing. In recent Supreme Court’s decision in Mr. Smith Collins v. DHL International Nigeria Limited Appeal No.
SC.629/2017 delivered 7th May, 2021 which has similar facts wherein the Court below also raised an issue suo muto against the quantum of general damages and determined it without allowing the parties address the Court on it, this Court held coram: Dattijo Muhammad, Nweze, Ogunwumiju, Abdu Aboki with Tijjani Abubakar (JJSC) reading the lead judgment as follows: “The law is settled that a Court is not permitted to raise and issue suo motu and resolve it without hearing from the parties.
In the instant case, the decision of the lower Court interfering with the damages awarded by the trial Court was not properly canvassed and argued before the lower Court, the decision obviously overreached the Appellant. It was wrong for the lower Court to take such decision without granting the Appellant the opportunity to give his input. The Appellate jurisdiction of the lower Court is to hear and determine appeals from the High Court or other bodies as provided by law.
A finding or decision of the trial Court can only be set aside by the appellate Court where there is proper appeal challenging same. In the instant appeal since the issue of damages is not before the lower Court, the lower Court has no jurisdiction to embark on logical deduction. The finding of the lower Court is therefore perverse.
A Court has no right to ask question on its own and provide answer without hearing the parties no matter how simple such a question may appear” (underlining mine) It is apparent from this issue that for the jurisdiction of the Court to be activated on a particular issue, the issue must be before the Court. This was also the decision in State v. Kapine & Anor (2019) LPELR-49511 SC Per My Learned brother Abba Aji, JSC at Pg. 22-26, paras.
F-E as follows: “…The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises an issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard.
While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of its decision. This principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies and so the Court’s deliberation on it was an exercise in futility. It is not confined mainly to issues of fact. Justice is for all the parties and all must be given fair hearing. For the above reasons and those contained in the judgment of my learned brother, M. D.
Muhammad, JSC, I too, hereby come to the conclusion that the appeal ought to be allowed for retrial by another panel of the lower Court.”
In Akinyemi v. Odu’a Investment Co. Ltd (2012) LPELR- 8270 (SC) Pg. 33-35, Paras B-D this Court considered whether the Court of Appeal was right to set aside the trial Court’s discretion in awarding the pre and post judgment interests. The Supreme Court’s decision in line with what happened at the Court of Appeal reads as follows: “I agree with the Court below’s observation as above. It is true that the trial Court granted the plaintiff’s/appellant’s claim as per paragraph 21 of the statement of claim. Exhibit L portrays the professional scale.
This exhibit according to the findings of the lower Court did not form the basis of the contract between the parties (p. 151 of the record). There is also a finding that the trial Judge found that Exhibit B was the offer and Exh. C a counter offer. The appellant performed the contract bound by his acceptance in Exh. C. Where the trial Court went wrong is the erroneous view held by it on the contents of Exh. C by practically misconstruing the document and that payment should be made based on the computation of Exh.
L while there is evidence that other consultants were paid not strictly guided by Exh. L. The learned trial Judge, thus, drew a wrong conclusion from the evidence of the parties. I am in agreement with the Court below that any discretion exercised in this case based on the computation of Exh. L and interpretation of Exh.
C will obviously amount to a wrongful exercise of discretion which should not be allowed to stand in the interest of justice” This Court went further “…designation, determination, discrimination, distinction, election, evaluation, examination, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review, right of choice, sanction, selection, self-determination, suffrage etc.” A judicial discretion however, is the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law.
In other words, it is a Court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. To make such a discretion look judicial and judicious it has to be based on prudence, rationality, sagacity, astuteness, considerateness and reasonableness. The principles established by our Courts on the attitude of appellate Courts towards the exercise of judicial discretion have been enunciated in several cases such as the case of University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143 where this Court held as follows: “A declaratory judgment is discretionary.
It is a form of judgment which should be granted only in circumstances in which the Court is of the opinion that the party seeking it is, when all the facts are taken into account fully entitled to the exercise of the Court’s discretion in his favour.”See further: Onuoha v. Okafor (1985) 2 SCNLR 244; Ekwurumm v. Ifejika (1960) SCNLR 320; Egbunike v. Muonweokwu (1962) 1 SCNLR 97; The settled law and practice is that except on grounds of law an appellate Court will not reverse a discretionary order of a trial Court merely because it would have exercised the discretion differently.
But, if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant consideration, the order may be reversed. See: Saffieddine v. COP (1965) 1 All NLR 54, Enekebe v. Enekebe (1964) 1 All NLR, 102; Awani v. Ereiuwa II (1976) 11 SC 307; Odusote v. Odusote (1971) 1 All NLR 219. Thus, the guiding principle is that discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials, See. University of Lagos & Anor v.
Aigoro (supra).” It is clear from the decision of this Court in Akinyemi v. Odu’a Investment Co. Ltd (2012) LPELR-8270 (SC) Pg. 33-35, Paras B-D that the Court which exercised its discretion in granting pre and post judgment interest was the trial Court and not the Appellate Court. Also, the exercise of the discretion of the trial Court was what was in contention before the Court of Appeal. Thus, the jurisdiction of the Court of Appeal was activated by the parties.
The power of the Court of Appeal to do what the trial Court could do but failed to do is provided in Section 15 of the Court of Appeal Act. However, that power can only be exercised when it is asked to do so. Finally, the issue in Akinyemi v.
Odu’a Investment (supra) was not whether the Court below could exercise its discretion suo motu on an issue not before it but it was whether the trial Court which had unfettered discretion rightly exercised its discretion in the award of pre and post judgment interest. It is important to re-iterate that the position of the law is that only the trial Court has unfettered discretion in the award of damages. The appellate Court’s interference in the award of damages must be called for. The Court is under a duty not to give over and above what a party has claimed.
Whilst a Court may have jurisdiction to make monetary award less than what a party claims, the Court lacks competence to award more than what is in the claim. See Esso Petroleum Co. Ltd v. Southport Corporation (1956) AC 218; Ebba v. Ogodo (1984) 1 SCNLR Pg. 372; BIMT Ventures Ltd v. Linpark Nig. Ltd (2009) LPELR-8731 (CA); Bellview Airlines Ltd. v. Aluminium City (2007) LPELR- 8465 (CA). In IfeanyiChukwu Osundu Co. Ltd v.
Joseph Akhigbe (1999) 11 NWLR Pt. 625 Pg. 1, this Court held that an appellate Court will not make it its business to interfere with general damages awarded by the trial Court unless it is satisfied that the trial Judge acted, in the award of such damages, upon some wrong principle or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages. The jurisdiction of the Court below was activated in Osundu v. Akhigbe (supra) because both parties appealed and cross-appealed at the Court below on the issue of damages awarded by the trial Court.
In Acme Builders Ltd v.
Kaduna State Water Board & Anor (1999) 2 NWLR Pt. 590 Pg. 288 this Court held that where a trial Judge in assessing general damages proceeds upon a wrong principle or on no principle of law and makes an award which is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionable in comparison with the greatest loss that would possibly flow from the said breach of contract and without stating whether the amount awarded is for loss of business or loss of profit or anticipated profits and the measure or basis of its assessment, such an award would not be allowed to stand.
However, the jurisdiction of the Court below was activated because the part of the decision of the trial Court appealed against was general damages for breach of contract, loss of profit as well as claims for interests. In Onwuka & Anor v. Omogui (1992) LPELR-2719 (SC) Pgs. 49-50, Paras G-D. The fact that led to the issue of invoking the powers of the appellate Court to look into damages was that the trial Court did not assess damages at all at trial because the trial Court found that the tort of negligence was not successfully established.
The Court below found the appeal had merit and ordered that the case be returned to the trial Court to be heard de novo to assess the quantum of damages. The Supreme Court held that the Court below ought to have exercised its powers pursuant to Section 15 of the Court of Appeal Act to assess and award damages, having found the Appellant’s case was successful and he was entitled to damages.
This Court activated its power as provided in Section 22 of the Supreme Court Act to award damages since it agreed that the tort was established, the Appellant was entitled to damages and the Court below should have exercised its powers under Section 15 of the Court of Appeal Act. There is no doubt that Section 15 of the Court of Appeal Act and Section 22 of the Supreme Court Act each empowers these Appellate Courts to exercise their jurisdiction as if they were the Court of first instance.
In most cases, however, an appellate Court will only be confined strictly to the reliefs sought in the claim. See Osuji v. Ekeocha (2009) 16 NWLR Pt. 1166 Pg. 81; Ativie v. Kabelmetal Nig. Ltd (2008) 10 NWLR Pt.1095 Pg. 39; Cappa & D’alberto Nig. Plc v. NDIC (2021) LPELR- 53379 (SC)Pgs. 6-7, paras. F-A. Thus, the powers in Section 15 and 22 of the Court of Appeal and Supreme Court Acts respectively can only be activated when the relief is sought or claimed. The Court is under a duty not to give more than what is in the claim. The Nigeria Air Force v.
Shekete (2002) 12 SCNJ Pg.35 at 52-53; Ezeonwu v. Onyechi & Ors (1996) 3 NWLR Pt. 438 Pg. 499; Osuji v. Ekeocha (supra). The only exception is where consequential reliefs not specifically stated but flowing from the outcome of litigation are granted through consequential orders which ought to have been granted by the trial Court can be granted by the appellate Court. In Odofin v. Agu (1992) 3 NWLR Pt. 229, Pg. 350 at 372, this Court restated this position of the law in the following terms: “Now a consequential order is one giving effect to a judgment or order to which it is consequential.
See Obayagbona v. Obazee (1970) 5 SC. 247. It is directly traceable to or flowing from that other judgment or order duly prayed for and made” My lord, an appeal is not at large. The general powers of the Court of appeal and the Supreme Court under Section 15 and Section 22 respectively cannot be exercised at random. See Rt. Ihedioha & Anor v. Owelle Rochas Anayo Okorocha & Ors (2015). See SCNJ 87, Comapgnie Generale De Geographsique (NIGLT) CGG Nig. Ltd V. Moses Aminu (2015) 3 SCNJ 338; Etsako Est L.G. V. Isa Oshiobugie Christopher (2014) 6 SCNJ 538.
This Court has always maintained that Section 15 of the Court of Appeal with power to enter a verdict which on the evidence would have been the correct verdict the trial Court ought to have entered. It empowers this Court to evaluate evidence which the trial Court failed to consider and make correct findings. It enables the Court of Appeal could have made after it allows an appeal. No doubt Section 15 enables the Court of Appeal to consider any issue arising from a decision notwithstanding that there is no appeal against some part of it if the parties had extensively and fully argued upon it.
Dantata & Anor V. Mouktar Mohammed (2000) 5 SCNJ 17, Nnadi Chikere & Ors V. George Okegbe & Ors (2000) 7 SCNJ 128. As I explained earlier there is a difference between the discretion exercised by the trial Court and that which can be exercised by an appellate Court while the trial Court had unfettered discretion, the appellate Court cannot interfere with the discretion exercise by the trial Court unless called upon to do so. Even where it decides to do so in the interest of justice, it must hear both parties on the issue.
In the instance of this case, the Respondent did not make an appeal nor were reliefs sought to set aside or review the quantum of damages to which the consequential prayers granted to him can be attached.
In the circumstances, this appeal has merit and the prayer of the Appellant urging this Court to set aside the decision of the Court below on the increase of general damages is hereby granted by me. Consequently, the orders relating to the increase of general damages is set aside. Appeal allowed. No order as to costs.
ADAMU JAURO, J.S.C. (DISSENTING): I had the advantage of reading in draft, the lead judgment of my learned brother, Uwani Musa Abba Aji, JSC just delivered. I however wish to respectfully differ from the reasoning and conclusion contained in the judgment. I shall therefore humbly proceed to state my views as follows: The Respondent as Plaintiff filed a Writ of Summons and Statement of Claim in the trial Court against the Appellant as Defendant and sought the following reliefs: a.
“N10,000,000.00 (Ten million Naira being special and general damages for trespass committed in the Plaintiff’s compound which is situate and being at Ndiojukwu Village, Uruagu, Nnewi. Particulars of special damage i. Cost of bags of cement at N1,700.00 per bag – N510,000.00 ii. Cost of 50 lengths of 1/2 inch iron rod at N2,500.00 per length – N125,000.00 iii. Cost of 5 trips of stone at N20,000.00 per trip – N100,000.00 iv. Cost of 10 trips of sand at N5,000.00 per trip – N50,000.00 v. Cost of 10 bundles of zinc at N12,000.00 per bundle – N120,000.00 vi.
Cost of labour nails, polines, planks, binding wire, e.t.c – N150,000.00 vii. Value of orange fruits from the uprooted orange tree for at least ten years at N20,000.00 per year – N200,000.00 viii. Value of mango fruits from the uprooted mango tree for at least ten years at N10,000.00 per year – N100,000.00 TOTAL – N1,355,000.00 GENERAL DAMAGES – N8,645,00.00 GRAND TOTAL – N10,000,000.00 b. PERPETUAL INJUNCTION restraining the Defendant, his servants, agents and/or privies from trespass or further trespass into the said land. c.
ANY OTHER relief the honourable Court may give in the interest of justice.”
Parties exchanged pleadings and the matter proceeded to trial. Upon the close of trial and final addresses by counsel for the parties, the learned trial Judge delivered judgment in favour of the Respondent and ordered as follows: a. “The defendant shall pay to the plaintiff the sum of N300,000.00 (Three Hundred Thousand Naira) being the value of the orange and mango trees uprooted in the plaintiff’s compound, on the items of special damages which have been strictly proved. b.
The sum of N200,000.00 (Two Hundred Thousand Naira) is hereby awarded as general damages in favour of the plaintiff and against the defendant. c. Perpetual injunction is hereby issued against the defendant, his servants, agents and/or privies from trespass or further trespass into the plaintiffs compound which is the subject matter of this suit. d. The defendant shall pay to the plaintiff costs assessed and fixed in the sum of N30,000.00 (Thirty Thousand Naira).”
The Appellant appealed to the Court below and in its judgment delivered on 30th September, 2014, the Court below allowed the appeal in part. In allowing the appeal in part, the Court below set aside the award of special damages granted by the trial Court in favour of the Respondent but increased the sum of N200,000 (Two hundred thousand Naira) awarded as general damages to N500,000 (Five hundred thousand Naira).
It is therefore against the increment of the award of general damages that the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on 11th February, 2015.
The grounds of appeal albeit without their particulars are hereunder reproduced as follows: – “GROUND ONE The Justices of the Court of Appeal erred when it granted to the Respondent a relief which he did not ask or pray by increasing the amount awarded as general damages in favour of the plaintiff from N200,000.00 to N500,000.00 GROUND TWO<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The Justices of the Court of Appeal erred in law by raising the issue of the inadequacy of the amount awarded in favour of the Respondent (Plaintiff) as general damages and resolving it without inviting and hearing the parties on it.”
Flowing from the two grounds of appeal as reproduced above, CHIEF G. OSELOKA OSUIGWE, learned counsel for the Appellant formulated two issues for the determination of the appeal at paragraph 3 of the Appellant’s brief.
The issues are as follows: a) “Whether the Justices of the Court of Appeal were right in their decision to increase the sum of N200,000 awarded by the trial Court as general damages to N500,000 in favour of the Plaintiff when there was no appeal against the said award by the Plaintiff? b) Whether the Justices of the Court of Appeal were right to resolve the issue of adequacy of the amount awarded as general damages raised suo motu by them without hearing the parties, particularly the Appellant?”
Arguing issue no. 1, counsel submitted that the Respondent stated in his brief before the Court below that he was satisfied with the award of N200,000 as general damages granted by the trial Court.
That the Respondent had the option of filing a cross-appeal before the Court below if he was dissatisfied with the quantum of the award. It was his further submission that a decision of a Court not appealed against remains binding on the parties. Counsel therefore contended that neither a trial Court nor an appellate Court can grant a relief not sought by a party or grant more than a party claims. Reliance was placed on METAL CONSTRUCTION (W/A) LTD V. ABODERIN (1998) 8 NWLR (PT. 563) 541; EKPENYONG & ORS V. NYONG & ORS (1975) 2 SC (REPRINT) 65; OBIOMA V. OLOMU & ORS (1978) 3 SC 1; ABANG V.
EFFIOM (1976) 1 SC 17; EJOWHOMU V. EDOK-ETER MANDILAS LTD (1986) 5 NWLR (PT. 390) 1.
Counsel cited the case of I.B.B. IND. LTD V. MUTUNCI COMPANY (NIG) LTD (2012) 6 NWLR (PT. 1297) 487 and submitted that increase in the amount awarded as general damages cannot be a substitute for the failed claim for special damages. He urged this Court to resolve the issue in favour of the Appellant.
On issue no. 2, learned counsel submitted that by raising suo motu the issue of inadequacy of the amount awarded as general damages and resolving same against the Appellant, the lower Court breached the Appellant’s right to fair hearing. He submitted that the issue not being one that arose from the appeal before the Court, the lower Court ought to have called on the parties to address it in respect thereof and that the failure to do so occasioned a miscarriage of justice. The cases of OBUMSELI & ANOR V. UWAKWE (2009) 28 WRN 147; UNIVERSITY OF CALABAR V.
DR ESSIEN (1996) 12 SCNJ 304; OLATUNJI V. ADISA (1995) 2 NWLR (PT. 376) 167; ORO V. FALADE (1995) 5 NWLR (PT. 396) 385; OSHODI V. EYIFUNMI (2001) 11 WRN 86; OJE V. BABALOLA (1991) 4 NWLR (PT. 185) 250; IRIRI V. ERHURHOBARA (1991) 3 SCNJ 12; APITRA V. LILGC (2006) QQ ALL FWLR (PT. 3280 755 cited in support.
In final analysis, counsel urged this Court to set aside the increase of the sum of N200,000.00 awarded as general damages by the trial Court to N500,000.00 by the Court below.
IBE OBETA, ESQ., counsel for the Respondent’s on his part formulated a sole issue for the determination of this appeal to wit: “Whether the Court of Appeal had the powers to increase the amount awarded to the Respondent as general damages by the trial Court.”
On the sole issue, counsel for the Respondent submitted that by virtue of Section 15 of the Court of Appeal Act, Order 4 Rules 3 and 4 as well as Order 6 Rule 5 of the Court of Appeal Rules, 2011, the lower Court while entertaining an appeal before it, has the power like a trial Court to draw inferences of facts from the evidence adduced by the parties and to give and make any order(s) as the justice of the case demands. He relied on the cases of EMIRI V. IMIEYEH (1999) 4 NWLR (PT. 599) 442; ADO IBRAHIM & CO LTD V. BCC LTD (2007) 15 NWLR (PT. 1058) 564; CAPPA & D’ALBERTO LTD V.
AKNTILO (2003) 9 NWLR (PT. 824) 49.
He cited the case of BRITISH AIRWAYS V. ATOYEBI (2014) 13 NWLR (PT. 1424) 253 and submitted that general damages need not be specifically pleaded and that same arises by inference of law. That the Court below having agreed with the trial Court that the Appellant committed serious acts of trespass was thus within its powers to increase the sum granted. Relying on the cases of CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; A.C.B. LTD V.
B.B APUGO (2001) 5 NWLR (PT. 707) 483, counsel submitted that an appellate Court, though always reluctant to interfere with the award of damages, will be compelled to do so in the following circumstances: (a) where the Court acted under wrong principles of law; (b) where the Court acted in disregard of applicable principles of law; (c) where the Court acted in misapprehension of facts; (d) where the Court took into consideration irrelevant matters and disregarded relevant matters while considering the award; (e) where injustice will result if the appellate Court does not act; (f) where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of damages.
Learned counsel further submitted that the sum of N200,000.00 granted by the trial Court was grossly low and would have been inadequate to put the Respondent back in the position he was in before the Appellant went into his compound and demolished a building, fence and cut down economic trees.
In response to the contention of the Appellant that the lower Court granted a relief not asked for because the Respondent did not to file a cross-appeal, counsel submitted that Order 4 Rule 4 of the Court of Appeal Rules, 2011 makes it unnecessary for the Respondent to file a cross-appeal or a Respondent’s Notice before the lower Court can exercise its powers.
On the contention of the Appellant that the lower Court raised and resolved the issue of inadequacy of the sum granted as general damages and therefore breached the Appellant’s right to fair hearing, it was submitted that the lower Court had no need to call for the addresses of counsel as it exercised its powers under Section 15 of the Court of Appeal Act. That in the determination of an appeal, the lower Court has the powers to make use of any fact contained in the record of appeal in reaching its decision. He referred to the cases of ADO IBRAHIM & CO LTD V. BCC LTD (supra); BADEJO V.
MINISTER OF EDUCATION (1996) 9-10 SCNJ 51; IBWA V. PAVEX INTERNATIONAL (2000) 7 NWLR (PT. 663) 105.
On the whole, he urged this Court to resolve both issues in favour of the Respondent and against the Appellant.
RESOLUTION The first issue is predicated on whether the Court below was right in interfering with the award of general damages made in favour of the Respondent by the trial Court in the absence of any cross-appeal activating the Court’s jurisdiction to carry out such appellate exercise.
There is no gainsaying that grievance and dissatisfaction with the judgment of a Court is articulated and conveyed to an appellate Court in ground or grounds of appeal. In other words, grounds of appeal are indexes of an Appellant’s complaints against the judgment of a Court. Accordingly, where there are no grounds of appeal, or there are no properly formulated grounds of appeal, an appellate Court will conclude that there is no appeal before it, because one of the vital pre-conditions that must be met before an appellate Court could entertain the appeal, as required by law, is missing.
See C.C.B. PLC. V. EKPERI (2007) 3 NWLR (PT. 1022) 493 AT 511 PARAS A-B.
In the instant appeal, the Appellant appealed the judgment of the trial Court before the Court below. The Respondent in whose favour the award of N200,000 as general damages was made did not complain against the inadequacy of such award by way of cross-appeal. The purpose of a cross-appeal is to correct an error standing in the way of the Respondent in the main appeal. See ANZAKU V. GOV. NASARAWA STATE (2005) 5 NWLR (PT. 919) 448; BUHARI V. INEC (2008) LPELR-814 (SC); UDOM V. MICHELETTI & SONS LTD (1997) LPELR-3310 (SC); ADERIBIGBE & ANOR V. ABIDOYE (2009) LPELR-140 (SC); AWOSIKA V.
STATE (2018) LPELR-44351 (SC); EZUKWU V. UKACHUKWU & ANOR (2004) LPELR-1217 (SC).
In the absence of such complaint by the Respondent regarding the inadequacy of the amount awarded as general damages, I am of the view that the said award made by the trial Court is unassailable, binding and conclusive.
Setting aside the award of special damages granted by the trial Court is not a latitude for the Court below to unilaterally increase the award of general damages granted to the Respondent in the absence of a complaint articulated via a cross-appeal. By so doing, to me, amounted to crying more than the bereaved. If the Respondent felt aggrieved with the sum granted as general damages, the law demands that he files a notice of cross-appeal challenging the said award.
By not so doing, the Court below as an appellate Court whose jurisdiction could only be validly activated by a notice of appeal, had no business to intermeddle with the adequacy or otherwise of the said award.
The law has crystalized decades before now that a Court not being a charitable organization cannot award more than what is claimed by a party. This Court cannot therefore allow the grant for a litigant, a relief he did not seek in Court. See AYANBOYE & ORS V. BALOGUN (1990) LPELR-668 (SC); AG FED V. A.I.C. LTD (2000) LPELR-628 (SC); OSUJI V. EKEOCHA (2009) LPELR-2816 (SC); SALUBI V. NWARIAKU (2003) LPELR- 2998 (SC); EYIGEBE V. IYAJI (2013) LPELR-20522 (SC); ILONA V. IDAKWO & ANOR (2003) LPELR-1496 (SC); ALIMS NIGERIA LTD V. UBA (2013) LPELR 19768 (SC); OYEYEMI & ORS V.
OWOEYE & ANOR (2017) LPELR-41903 (SC).
The Court below therefore acted without jurisdiction when it increased the award of general damages made in favour of the Respondent by the trial Court in the absence of a notice of cross appeal filed by the Respondent.
I am also of the view that calling the parties to come address it on the adequacy or otherwise of the sum awarded as general damages cannot arise in the absence of a complaint by any of the parties. Even where the Court below had called the parties to address it on such question of fact, it does not clothe the Court below with the requisite jurisdiction to delve into a question of fact not raised before it by way of cross appeal. It is worthy of note that when an issue is not placed before the Court of Appeal, it has no business whatsoever to deal with it.
A Court of Appeal is not a knight errand looking for skirmishes all about the place. If a party has not complained about the award of damages made by the trial Court, it is not the duty of an appellate Court as such to examine the record of proceedings of the trial Court in order to see if there is any point in favour of the party which will lead to an alteration of the said award of damages.
In my final analysis of the issues raised in this appeal, with all respect, I am also of the view that the increase of the award of general damages without a cross-appeal is wrong, the appeal is meritorious and therefore accordingly allowed. Parties are to bear their respective costs.