CORAM

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JAMILU YAMMAMA TUKUR JUSTICE OF THE COURT OF APPEAL

MOHAMMED DANJUMA JUSTICE OF THE COURT OF APPEAL

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO JUSTICE OF THE COURT OF APPEAL

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PARTIES

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GREMA WAWA APPELANT(S)

APPELLANTS 

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FIRST CITY MONUMENT BANK PLC RESPONDENT(S)

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING LAW, PRACTICE AND PROCEDURE, TORT

 

 

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SUMMARY OF FACTS

The Appellant being the claimant at the trial Court filed this action over an alleged wrongful and unauthorized withdrawal of the sum of N35,300.45 from his account and claimed damages. The defendants did not make any defense.

The trial Court entered judgment in favour of the Claimant/Appellant in default of appearance and pleading. The trial Court awarded in favour of the Appellant the refund of N35,300.45, the sum of N20,000.00 as general damages and the sum of N30,000.00 as the cost of the suit against the Respondent.

The Appellant being dissatisfied with the judgment of the lower Court brought this appeal.

 

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether the Honourable Lower Court followed the principle guiding the award of N20,000.00 (Twenty Thousand Naira) in favour of the Appellant?

 

 

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RATIONES DECIDENDI

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GENERAL DAMAGES – MEANING OF GENERAL DAMAGES

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General damages are damages which the law implies or presumes to have accrued from the wrong complained of. General damages are presumed to flow from the immediate, direct and proximate result of the wrong complained of. It is only when the above conditions are in place that the Court awards general damages. See the case of ADAMU v. I.G. OF POLICE & ORS (2013) LPELR-22812 (CA).

In the case of CAMEROON AIRLINES v. OTUTUIZU (2011) LPELR-827 (SC), it was stated that:

“General damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved. See UBN Ltd v. Odusote Bookstores Ltd. 1995 9 NWLR Pt. 421 P. 558. General damage is awarded by the trial Court to assuage a loss caused by an act of the adversary”.

Per RHODES-VIVOUR, JSC (P. 31, Paras. C-D).

The grant of general damages is purely discretionary. It is purely within the prerogative of the trial judge who after considering the entire facts of the case and evidence tendered in proof of same, can decide the sum of money that will be awarded as general damages. – Per Mohammed Danjuma, JCA

 

 

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ADMISSION – WHEN A CLAIM OR RELIEF IS DEEMED ADMITTED.

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In the case at hand, the fulcrum of the Appellant argument is that the defendant failed to file statement of defence and thus deemed to have admitted the claimant’s claim. This indeed is the position of law and clearly noted by the lower Court.

Now, when is an averment in a pleading deemed admitted by the adverse party? A fact is deemed admitted when it is not specifically admitted or denied by implication. See BUHARI v. INEC & ORS (2008) 19 NWLR PT. 1120 P. 246.

Furthermore, in the case of OKOEBOR v. POLICE COUNCIL & ORS (2003) LPELR-2458 (SC) (PP. 22 Paras. A), the Supreme Court stated thus:

“The basic principle of law is that where a defendant fails to file a defence, he will be deemed to have admitted the claim or relief in the statement of claim…”

And in the case of EGESIMBA v. ONUZURUIKE (2002) LPELR-1043 (SC), the Apex Court held that:

“Where the only pleading filed is the statement of claim, absence of statement of defence means that no issue is joined”.

Per AYOOLA, JSC (P. 14, Paras. E-F).

Respondent’s failure to deliver a notice of intention to defence means only one thing-that the Respondent has no defence to the Appellant’s claim before the lower Court. Therefore, failure to file or deliver a notice of intention to defend as provided by the rules is tantamount to an admission by the Respondent of the Appellant’s claim and it is settled law that facts admitted need no proof. – Per Mohammed Danjuma, JCA

 

 

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NOTICE OF INTENTION TO DEFEND – WHEN A RESPONDENT FAILS TO FILE A NOTICE OF INTENTION TO DEFEND

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In the instant case, the Respondent failed to file the notice of intention to defend even though hearing notice was served on him. See Page 21 of the record of appeal. It follows that the Respondent does not have a reply to the Claimant/Appellant’s claims and the learned trial Court erred in his refusal to grant the claims of the claimant as set out in his statement of claim. And where this happens, this Court has the powers to reset the amount awarded as general damages by the trial Court. See the case of OKOKO v. DAKOLO (2006) 14 NWLR PG 411 AT (P. 434), PARAS. F and DUMEZ (NIG.) LTD v. OGBOLI (1972) 3 SC 196. – Per Mohammed Danjuma, JCA

 

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DEFENCE – FAILURE TO FILE A DEFENCE TO A CLAIM – FACTS NOT CONTROVERTED NEED NO FURTHER PROOF

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It is settled that the failure to file a defence to a claim implies that the Defendant has no defence to the Plaintiff’s claim. Accordingly, the failure to file a notice to defend amounts to an admission and facts not controverted needs no further proof. Reference is made to the cases of AKAHALL & SONS LTD v. NDIC (2017) LPELR-41984(SC); O.A.N. OVERSEAS AGENCY (NIG) LTD v. BRONWEN ENERGY TRADING LTD & ORS (2022) LPELR-57306(SC). In this case, the failure of the Respondent to file a notice of intention to defend despite the fact that hearing notice was served on him shows that he does not have a defence and as such is deemed to have admitted the claims of the Appellant. Accordingly, the lower Court was in error for failing to grant the claims of the Appellant as set out in his statement of claim. – Per A. A. I. Banjoko, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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Borno State High Court (Civil Procedural Rules) 2012

 

 

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