CORAM

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IFEOMA JOMBO-OFO JUSTICE, COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL

ADEBUKOLA I. BANJOKO JUSTICE, COURT OF APPEAL

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PARTIES

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EKONDO MICROFINANCE BANK LTD ……..……. APPELLANT

APPELLANTS 

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1. GODDY ISONG ALBERT

2. MRS. OKAN WILLIAM

3. ONYAM AJE RESPONDENTS

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING LAW, CONTRACT, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The 1st Respondent as claimant at the trial court claimed that on the 10th day of March, 2017 he went to the 1st Defendant’s branch at Ofatura, Adun in Obubra LGA within jurisdiction to lodge the sum of N1, 000,000 (One Million Naira) in a fixed deposit with the 1st Defendant where he met the 2nd and 3rd Respondents as well as one Bassey Odik who, at the material time, were staff of the Appellant acting in the capacities of manager, accountant and account officer respectively, and that the said staff agreed to fix the money for him for one year on an interest of N200,000.00 per annum and another monthly take home of N16,700.00.

Upon maturity in March 2018, the 1st Respondent demanded for the sum of N1,000,000 and interest as agreed only for the 3rd Respondent to request that he should be given time to source for the money and that their other demands fell on deaf ears.

The trial in the commenced de novo before the trial court and the 1st Respondent as sole witness testified. Thereafter, judgment was delivered by the learned trial judge in favour of the 1st Respondent.

 

 

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HELD

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Appeal dismissed

 

 

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ISSUES

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Whether the trial court was right when it relied upon the 1st Respondent’s Statement on oath dated 7th May, 2018 which was executed before the 1st Respondent’s Counsel in his chambers contrary to the express provisions of Sections 112 and 117(4) of the Evidence Act, 2011?

Whether the trial court was right in awarding special damages in the sum of N1, 400,400.00 (One Million Four Hundred Thousand, Four Hundred Naira) only against the Appellant without deducting the sum of N80,000.00 (Eighty Thousand Naira) only previously refunded to the 1st Respondent?

Whether the award of N500, 000.00 (Five Hundred Thousand Naira) general damages by the trial court to the 1st Respondent against the Appellant does not amount to double compensation?

 

 

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RATIONES DECIDENDI

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DOCUMENTS – DOCUMENTARY EVIDENCE IS THE BEST PROOF OF THE CONTENTS OF DEPOSED DOCUMENTS

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It is a clear provision of law and by Section 112 of the Evidence Act, 2011 that an affidavit which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner, or before a partner or clerk of his legal practitioner, shall not be admitted. It is also clear from the case of BUHARI VS. INEC (Supra) cited by the 1st Respondent’s Counsel that this case is different from it. In that case, the depositions made in favour of the Appellant were made and sworn to before a notary public who has an interest in the subject matter; the legal practitioner representing the Appellant and thus lacked the competence to notarize any document used in the petition.

It is also trite that documentary evidence is the best proof of the contents of such document, and no oral evidence will be allowed to discredit or contradict the contents thereof, except where fraud is pleaded. See the case of AG BENDEL STATE VS. UBA LTD (1986) 4 NWLR (PT. 337) 547 AT 563. – Per M. B. Idris, JCA

 

 

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PLEADING – WHEN A PLEADING IS WITHOUT EVIDENCE IN PROOF

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It is trite that a pleading without evidence in proof is fatal to a judicial proceeding. See the case of KARIMU VS. LAGOS STATE GOVERNMENT (2012) 5 NWLR (PT. 1294). – Per M. B. Idris, JCA

 

 

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GENERAL DAMAGES – AWARD OF GENERAL DAMAGES IS AT THE DISCRETION OF THE COURT – WHERE APPELLATE COURT CAN INTERFERE WITH THE AWARD OF DAMAGES BY A TRIAL COURT

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It is trite that general damages need not be pleaded and proved. The award of general damages is at the discretion of the trial court, which is based on what is considered adequate loss or inconvenience by a reasonable person which flows naturally, as generally presumed by law, from the act of the defendant. It does not depend upon calculation made and figure arrived atfrom specific items. See generally, the cases of YALAJU – AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD (1990) LPELR (3511) 1 AT 47 and ROCKONOH PROPERTY CO. LTD VS. NITEL PLC (2001) LPELR (2951) 1 AT 11 – 12. The assessment of the quantum of general damages is at the discretion of the court. The attitude of the Appellate Court is to refrain from interfering with the exercise of discretion by the trial court in the absence of proof that it was wrongly exercised. An appellate court will therefore not interfere with the award of damages by a trial court except 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 the misapprehension of facts.

(d) Where the court took into consideration irrelevant matters and disregarded relevant matters while considering its 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 the damages.

See the case of B. B. APUGO & SONS LTD VS. OHMB (2016) LPELR (40598) 1 AT 61 – 62.

It is a well settled law that general damages are the kind of damages which the law presumes to flow from the wrong complained of. They are such as the court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See the cases of LAR VS. STIRLING ASTALDI LTD (1977) 11/12 S. C. 53 and OMONUWA VS. WAHABI (1976) 4 S. C. 37. – Per M. B. Idris, JCA

 

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DAMAGES – WHETHER A COURT CAN AWARD BOTH SPECIAL AND GENERAL DAMAGES – DOUBLE COMPENSATION

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Although the law guards against double compensation, that principle does not rule out the award of both general and special damages in a deserving situation. This occurs where a party is able to show or where it is glaring from the surrounding circumstances of the case and nature of injury suffered by the party that special damages would not adequately compensate for all the loss, the court must go ahead to award both special and general damages and this cannot be termed double compensation. See the case of MISS PROMISE MEKWUNYE VS. EMIRATES AIRLINES (2019) LPELR – 46553 (SC). – Per M. B. Idris, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act, 2011 

2. Oaths Act

 

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