Akaolisa V. Akaolisa (2021)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

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.