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:
- 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?
- 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.