AFRICAN CONTINENTAL BANK PLC & ANOR V.
VICTOR NDOMA-EGBA
CITATION: (2000) LPELR-10532(CA)
In The Court of Appeal
(Enugu Judicial Division)
On Tuesday, the 9th day of May, 2000
Suit No: CA/E/125/98
Before Their Lordships
DENNIS ONYEJIFE EDOZIE
OKWUCHUKWU OPENE
SIMEON OSUJI EKPE
Justice, Court of Appeal
Justice, Court of Appeal
Justice, Court of Appeal
Between
1. AFRICAN
CONTINENTAL BANK
Appellants
PLC
2. MR. I. S. OMENYE
And
VICTOR NDOMA-EGBA
RATIO DECIDENDI
1
Respondent
1 JUDGMENT AND ORDER - AWARD OF
COST: What determines an award of cost
"It is also trite that an award of costs should
not be punitive, arbitrary and unreasonable
but where a trial court decides to award cost
which is on a high side as in the instant case
or a punitive cost, the court must state the
reason for doing so. It is also trite that an
award of costs should not be punitive,
arbitrary and unreasonable but where a trial
court decides to award cost which is on a high
side as in the instant case or a punitive cost,
the court must state the reason for doing so. I
agree with the respondent that there is no
statutory or regulatory tariffs available to our
courts to guide them in assessment of costs as
in the Supreme Court, but all the same, the
award of costs should be reasonable and the
trial court should exercise its discretion
judicially and judiciously." PER OPENE, J.C.A.
(Pp. 22-23, Paras. G-B) - read in context
2 DAMAGES - AWARD OF DAMAGES:
Whether general damages can be awarded
where there is a breach of contract
"It is settled that in award of damages for
breach of contract that it is not proper to
award general damages and that it is only
special damages that are claimable and that
2
the particulars and evidence in support of all
awards are required. See Chief J. A. Ojomo
v.lncar(Nig.) Ltd. (1993) 9 SCNJ 130; (1993)
7 NWLR (Pt.307) 534; Ijebu Ode Local
Government v. Adedeji Balogun & Co. Ltd.
(1991) 1 NWLR (Pt.166) 136; Mobil Oil (Nig.)
Ltd. v. Abraham Akinfosile (1969) 1 NMLR
217; Universal Insurance Company Ltd. v. T.
A. Hammond (Nig.) Ltd. (1998) 9 NWLR
(Pt.565) 340 at 367. In P. Z. and Co. Ltd. v.
Ogedengbe (1972) 1 All NLR (1990 Edition)
202 cited by the learned senior counsel,
Madarikan JSC very aptly and fully expounded
the law as follows:- "In the preparation of the
claim for as well as in the consideration of an
award in consequence of a breach of contract,
the measure of damages is the loss flowing
naturally from the breach and is incurred in
direct consequence of the violation. The
damages
recoverable
are
the
losses
reasonably foreseeable by the parties and
foreseen by them at the time of the contract
as inevitably arising if one of them broke faith
with the other. In the contemplation of such a
loss, there can be no room for claims which
are merely speculative or sentimental unless
these are specially provided for by the terms
of the contract. It is only in this connection
that damages can be properly described as
"special" in the conception of contractual
awards, and it must be borne in mind that
damages normally recoverable are based on
3
the normal and presumed consequences of the
breach complained of. (See Koufos v. C.
Czarnikow Ltd. (1967) 3 WLR 1491). Thus,
the term "general" and "special" damages are
normally inept in order of breach of contract.
We have had occasion to point this out before
(See Agbaje v. National Motors Ltd. S.C.20/68
dated 13th March, 1970) and we must make
the point that apart from damages naturally
resulting from the breach, no other form of
general damages can be contemplated." PER
OPENE, J.C.A. (Pp. 14-16, Paras. F-A) - read
in context
3 DAMAGES - SPECIAL DAMAGES: Whether
special damages must be proved strictly
"A claim in special damages must, to succeed,
be proved strictly and the court is not entitled
to make its own estimate on such an issue.
The rule requires that anyone making a claim
in special damages must prove strictly that he
did suffer such special damages claimed. This
means that the claimant is required to
establish his entitlement to that type or class
of damages by credible evidence of such
character as would satisfy the court that he is
indeed entitled to that award. See Nzeribe v.
Dave Engineering Co. Ltd. (1994) 9 SCNJ 161
or (1994) 8 NWLR (pt.361) 124; U.B.N. Ltd.
v. Odusote Book Stores Ltd. (1995) 9 NWLR
(pt.421) 558." PER OPENE, J.C.A. (P. 17,
4
Paras. B-E) - read in context
OPENE,
J.C.A.
(Delivering
the
Leading
Judgment): In the High court of Cross River State
holden at Calabar, the respondent as plaintiff
brought an action against the appellants as
defendants jointly and severally claiming the sum
of N5,000,000.00 as special and general damages
for breach of contract "for that defendants who are
the plaintiff's bankers have refused to furnish the
plaintiff at his request and expense statements of
account held as a customer of the defendants
whereof the plaintiff has suffered damage in his
profession."
Pleadings were duly filed and exchanged and the
matter went into a full trial at the end of which the
learned trial Judge Binang, J. in a reserved
judgment delivered on 30th July, 1997 entered
judgment in favour of the plaintiff/respondent
against the defendants jointly and severally in the
sum of N3,300,000.00 (Three Million, Three
Hundred Thousand Naira) being special and general
damages for breach of contract.
Aggrieved and dissatisfied with this judgment the
appellants have now appealed to this court.
Both the appellants and the respondent through
their counsel filed and exchanged briefs of
argument.
In the appellants' brief of argument, 4 Issues were
5
distilled from the eleven grounds of appeal filed by
the appellants, they are:"(i) Whether the judgment against the second
defendant in the circumstances of this case is
sustainable.
(ii) Whether an award of special and general
damages for breach of contract is sustainable when
the plaintiff did not give any particulars of special
damages claimed and when there are judicial dicta
of both the Court of Appeal and Supreme Court
that a claim for general damages for breach of
contract is inappropriate.
(iii) Whether the plaintiff proved any loss to
warrant an award of N3.3million in his favour as
special and general damages for breach of contract.
(iv) Whether an award of N25,000.00 to the
plaintiff as costs is warranted or defensible in the
circumstances of this case."
The respondent did not formulate any issue in his
brief of argument but rather adopted the 4 issues
identified in the appellants' brief for determination
of this appeal.
In respect of issue No.1, Chief Udechukwu SAN, the
learned counsel for the appellants has argued that
the action commenced by the respondent is an
action by a current account customer against his
bank, the 1st defendant claiming damages for loss
allegedly accruing from a breach of contract in the
form of alleged failure by the 1st defendant to
supply statements of account to the plaintiff at his
request and expense and that the proper parties to
this action are the plaintiff and his banker, the 1st
6
defendant and no other person. He argued that the
2nd defendant is not a banker and that there is no
privity of contract of banker/customer between the
2nd defendant and the plaintiff and that the 2nd
defendant is merely an agent and an employee of
the 1st defendant branch at Calabar at the material
time and as an agent of a known principal that the
2nd defendant cannot be and should not have been
sued on the contract in question.
He referred to Niger Progress Ltd. v. North-East
Line Corporation (1989) 3 NWLR (pt.I07) 68 at 84.
He also argued that the learned trial Judge's finding
that there is no way that this matter can be
disposed of without reference being made to the
second defendant is not a justification for making
the 2nd defendant a party in the suit founded upon
breach of contract and in relation to a transaction
in which the defendant is merely an agent qua
employee of a known principal. In support of this
contention he cited the following cases:- Dommit
Khonam v. Elizabeth Fife John (1939) 15 NLR 12 at
13; Niger Progress Ltd. v. N.E.L Corporation
(supra).
He then urged the court to hold that the judgment
against the 2nd defendant in this case is not
sustainable.
The respondent who appears in person in his
respondent's brief argued that the 2nd defendant
was at all times material to the action, the 1st
defendant's manager at her Calabar branch, where
all the events took place, that the appellants have
argued that the proper parties to the action are the
7
plaintiff and the 1st defendant and that the 2nd
defendant is merely an agent and that in light of
the peculiar facts of this case that the argument
will avail the appellants if, and only if, they concede
that the suspected fraudulent and unauthorised
dealings with the plaintiffs related accounts which
dealings he also suspected in respect of the present
account were within the 2nd defendant's scope of
authority as 1st defendant's agent otherwise the
2nd defendant is personally liable and that the
concession has not been made. He referred to
Ashibuogwu v. The Attorney-General, Bendel State
& Anor (1988) 1 NWLR (Pt.69) 138.
It is his contention that the case of Niger Progress
Ltd. v. N.E.L Corporation (supra) is inapplicable as
it dealt with the question of whether or not any
agency existed in respect of the supply of vehicle
and not the scope of an agent's authority in an
employer-employee situation as is the case here
and that the 2nd defendant was properly joined.
The facts of this case are very straight forward and
it is also not in dispute that the plaintiff/respondent
at the material time was a current account
customer of the 1st defendant/appellant bank while
the
2nd
defendant/appellant
was
the
1st
defendant/appellant branch Manager at Calabar.
This action arose as a result of a claim that the 1st
defendant/appellant failed to supply statements of
account to the plaintiff/respondent at his request
and expense. The 1st defendant/appellant and 2nd
defendant/appellant
were
sued
jointly
and
severally.
8
It is also not in dispute that throughout the whole
transaction that culminated in the filing of this suit
that the respondent dealt with the 2nd appellant,
its Calabar branch manager, in that capacity. The
question is, can the 2nd appellant be sued with his
employer for a breach of contract founded on the
relationship between a current account customer
and his Bank?
The learned trial Judge in his judgment at page 109
of the record of proceedings observed as follows:"The 1st defendant is a non juristic person to act
through a juristic person. The plaintiff had given
evidence that he was dealing with the 2nd
defendant all along who was at the time of this
action, the branch manager at Calabar Branch
Office of the 1st defendant. There is no way this
matter can be disposed of without reference being
made to the 2nd defendant. He is therefore a
necessary party."
It can easily be seen that there is no way that the
finding cannot be faulted. The 2nd appellant was
the 1st appellant's branch manager at Calabar and
in the course of this transaction, the respondent
dealt with him all through and in dealing with this
matter there is no way that it can be disposed of
without reference being made to him but can this
make him a necessary party to the action? With
due respect to the learned trial Judge, the fact that
there is no way that the matter can be disposed of
without reference being made to him cannot of
course make him a party. The action before the
court is for a breach of contract resulting from the
9
relationship of the bank and its customer and there
is no privity of contract of banker/customer
between the respondent and the 2nd appellant.
The 2nd appellant was just carrying out his duties
as an employee of the 1st appellant and he is at
best an agent of the 1st appellant, a known
principal and it is settled that an agent of a known
principal cannot be sued for a breach of contract as
it has not been shown that he has acted not within
the scope of his authority. See Carlen (Nig.) Ltd. v.
University of Jos & Anor (1994) 1 SCNJ 72;(1994)
1 NWLR (Pt.323) 631; Niger Progress Ltd. v. North
East Line Corporation (supra).
The respondent has referred to the appellant's
argument that the proper parties to this action are
the respondent and the 1st appellant and then
submitted that in the light of the peculiar facts of
this case that that argument will avail the
appellants if, and only if, they concede that the
suspected fraudulent and unauthorized dealings
with the respondent's related accounts which
dealings he also suspected in respect of the present
account were within the 2nd appellant's scope of
authority as the 1st appellant's agent otherwise the
2nd appellant is personally liable and that this
concession was however not made.
He then referred to Ashibuogwu v. A. G. Bendel
State & Anor. (supra) at 154 where Kayode Eso
JSC observed:"A principal, whether disclosed or otherwise is in a
position to plead all defences available to him, but
in the case of fraud, where the agent acts within
10
the scope of his authority, actual or apparent, the
act of fraud on the part of the agent binds the
principal."
I have considered the respondent's submission and
also the case cited above but I am quite at loss to
see how they go to support the respondent's case
and I may say that it rather supports the
appellants' case.
The respondent's claim is for a breach of contract
and he is also alleging fraud and the case that he
cited says that
"in the case of fraud, where
the agent acts within the scope of his authority,
actual or apparent, the act of fraud on the part of
the agent binds the principal."
If the act of fraud on the part of the agent binds
the principal, why do you then sue the principal
and also the agent? I think that this submission
does not at all support the respondent's case in any
way.
This issue is therefore resolved in the appellants'
favour as the judgment against the 2nd appellant is
not sustainable. In respect of issue No.2 which
questions whether the plaintiff was entitled to the
damages of N3.3million awarded by the trial court.
The learned senior counsel in the appellants' brief
stated that there are judicial dicta of the Court of
Appeal and the Supreme Court that a claim for
general damages for breach of contract is
inappropriate.
He referred to Universal Insurance Company Ltd. v.
T. A. Hammond (Nig.) Ltd. (1998) 9 NWLR (pt.565)
340 at 367; Mobil Oil (Nig.) Ltd. v. Abraham
11
Akinfosile (1969) 1 NMLR 217; Ijebu Ode Local
Government v. Adedeji Balogun & Co. Ltd. (1991) 1
NWLR (Pt.166) 136.
He submitted that in the latter case that the
Supreme Court emphasised that it is improper and
indeed misleading to dichotomise damages in cases
of breach of contract into special and general
damages and that in cases of breach of contract,
assessment of damages is calculated on the loss
sustained by the injured party which loss was
either in contemplation of the contractors or is an
unavoidable consequence of the breach.
He also submitted that the plaintiff/respondent in
his statement of claim give no particulars in respect
of special damages and that what he did in this
case is to claim a lump sum of N5 Million which he
said is special and general damages for breach of
contract without any effort made to show what
relationship this figure has with the actual loss of
his bargain or the market value of the benefit
which he had been deprived of due to the alleged
breach which merely consists of alleged refusal by
the defendants/appellants to deliver to him
statements of account at his request and expense.
It is also contended that the respondent did not
prove any such special damages which is specially
provided for by the terms of contract and that it is
clearly wrong for the trial court to award the sum
N3.3Million as special and general damages for
breach of contract.
The respondent in his submission stated that the
appellants' arguments are misconceived and that
12
the present case is clearly one in which the
damages awardable are at large and that the court
may within reason make award of any sum as
circumstances of the breach appear to warrant
although there has been no actual proof of loss. He
referred to the case of Balogun v. National Bank of
Nigeria (1978) Vol. II N.C.C. 135 (1978) 3 SC 1 55
and stated that even though the case dealt
specifically with a banker wrongfully dishonouring
the cheque of a solicitor customer that the
principles are applicable where the banker fails in
his duties to a customer especially one in trade or
in business as the respondent, a busy legal
practitioner and that the duty breached is of a
nature that makes quantification of the damage
difficult. He submitted that the respondent did not
in the circumstances of this case need to quantify
his loss and that all that was necessary which was
proved was that the loss flowed directly and
naturally from the respondent's failure to keep
their own side of the bargain.
It is also submitted that although the distinction
between special and general damages in cases of
breach of contract is still being made and that it is
improper and misleading to dichotomise damages in
cases of breach of contract and that in cases of
breach of contract that assessment of damages is
calculated on loss sustained by the injured party
which loss was in the contemplation of the contract
or is an unavoidable consequence of the breach.
He referred to:- Ijebu Ode Local Government v.
Balogun & Co. Ltd. (supra); Shell BP v. Jammat
13
Engineering (Nig.) Ltd. (1974) 4 S.C. 33; UBN v.
Nnoli (1990) 4 NWLR (Pt.145) 530; Eliochin Nig.
Ltd. v. Mbadiwe(1986) 1 NWLR (pt.14) 47; A.R.E.C.
Ltd. v. Amaye (1986) 3 NWLR (Pt.31) 653. It was
then submitted that the learned trial Judge was
right and justified in awarding the respondent the
sum of N3.3 Million as damages. In this action, the
respondent claimed the sum of five million naira
being special and general damages for breach of
contract for that the defendants who are the
plaintiff's bankers have refused to furnish the
plaintiff at his request and expense statements of
account held as customer of the defendants
whereof the plaintiff has suffered damages in his
profession.
The learned trial Judge in his judgment at p.112 of
the records entered judgment for the respondent as
follows:"Judgment is hereby entered for the plaintiff
against the defendants jointly and severally in the
sum of N3,300,000 (Three Million and Three
Hundred Thousand Naira) being special and general
damages for breach of contract."
The first complaint raised by the appellants is that
a claim for general damages for breach of contract
is inappropriate.
It is settled that in award of damages for breach of
contract that it is not proper to award general
damages and that it is only special damages that
are claimable and that the particulars and evidence
in support of all awards are required. See Chief J.
A. Ojomo v.lncar(Nig.) Ltd. (1993) 9 SCNJ 130;
14
(1993) 7 NWLR (Pt.307) 534; Ijebu Ode Local
Government v. Adedeji Balogun & Co. Ltd. (1991) 1
NWLR (Pt.166) 136; Mobil Oil (Nig.) Ltd. v.
Abraham Akinfosile (1969) 1 NMLR 217; Universal
Insurance Company Ltd. v. T. A. Hammond (Nig.)
Ltd. (1998) 9 NWLR (Pt.565) 340 at 367.
In P. Z. and Co. Ltd. v. Ogedengbe (1972) 1 All NLR
(1990 Edition) 202 cited by the learned senior
counsel, Madarikan JSC very aptly and fully
expounded the law as follows:"In the preparation of the claim for as well as in the
consideration of an award in consequence of a
breach of contract, the measure of damages is the
loss flowing naturally from the breach and is
incurred in direct consequence of the violation. The
damages recoverable are the losses reasonably
foreseeable by the parties and foreseen by them at
the time of the contract as inevitably arising if one
of them broke faith with the other. In the
contemplation of such a loss, there can be no room
for claims which are merely speculative or
sentimental unless these are specially provided for
by the terms of the contract. It is only in this
connection that damages can be properly described
as "special" in the conception of contractual awards,
and it must be borne in mind that damages
normally recoverable are based on the normal and
presumed consequences of the breach complained
of. (See Koufos v. C. Czarnikow Ltd. (1967) 3 WLR
1491). Thus, the term "general" and "special"
damages are normally inept in order of breach of
contract. We have had occasion to point this out
15
before (See Agbaje v. National Motors Ltd.
S.C.20/68 dated 13th March, 1970) and we must
make the point that apart from damages naturally
resulting from the breach, no other form of general
damages can be contemplated."It can be seen that
a claim for general damages should not be awarded
in this case which is a claim for breach of contract
and that the learned trial Judge was in a serious
error to have awarded it and went further to award
a lump sum of N3,300,000.00 as special and
general damages. As it stands now, it can not be
determined how much that is awarded as special
damages and the amount awarded as general
damages.
However, the matter did not stop there, a quick
perusal at the plaintiff's statement of claim shows
that he did not give any particulars in respect of
the special damages. It must be observed that
damages in respect of a breach of contract is such
as may fairly and reasonably be considered as
either arising naturally in the usual cause of things
from such a breach of contract itself or such as may
reasonably be supposed to have been in the
contemplation of both parties at the time they
made the contract as probable result of breach.
The respondent in his brief of argument has argued
that in the circumstances of this case that the
respondent need to quantify his loss and that all
that is necessary and which was proved was that
the loss flowed directly and naturally from the
appellants failing to keep their own side of the
bargain.
16
As I have already observed what the respondent
did in the instant case is to claim a lump sum of N5
million as special and general damages without
showing the relationship this figure has with the
actual loss of his bargain or the market value of the
benefit which he had been deprived of due to the
alleged breach.
A claim in special damages must, to succeed, be
proved strictly and the court is not entitled to make
its own estimate on such an issue. The rule
requires that anyone making a claim in special
damages must prove strictly that he did suffer such
special damages claimed. This means that the
claimant is required to establish his entitlement to
that type or class of damages by credible evidence
of such character as would satisfy the court that he
is indeed entitled to that award. See Nzeribe v.
Dave Engineering Co. Ltd. (1994) 9 SCNJ 161 or
(1994) 8 NWLR (pt.361) 124; U.B.N. Ltd. v.
Odusote Book Stores Ltd. (1995) 9 NWLR (pt.421)
558.In the instant case, besides the fact that the
respondent did not show the amount that he claims
as special damages, he also did not show the
particulars of his loss and adduce credible,
satisfactory and convincing evidence to establish
that he is entitled to his claim. Issue No.3 raises
the question whether the plaintiff proved any loss
to warrant an award of N3.3 million in his favour as
special and general damages.
The respondent in his brief of argument raised so
many questions which are whether the appellants
owe him a duty to furnish him with information
17
demanded to wit - statements of account and copies
of all cheques and other instruments drawn on the
account within the period specified and if such a
duty did not ordinarily arise whether it would not
arise in the circumstances of this case in which the
respondent as a customer reasonably suspected
fraudulent and unauthorised dealings in the
account and also if that duty existed, how did the
appellants perform it?
Further, if the appellant did not perform the duty
whether it did not occasion any loss or damage to
the respondent and if the respondent suffered any
loss or damage, how is he to be compensated? The
respondent's case is that the appellants have a duty
to furnish him with the statements of account and
copies of all cheques and other instrument drawn
on the account within the period specified. The
respondent in paragraph 13 of his statement of
claim at page 5 of the record averred as follows:"9. At the hearing, the plaintiff shall establish that
the defendants are under a duty to furnish the
plaintiff with periodic statement of account and
copies of all cheques and other instruments drawn
on the said account at the plaintiff's request."
At paragraph 15(iii) at page 7 of the record, he
stated as follows:"15. At the trial, the plaintiff shall show:(i)...
(ii)...
(iii) That the defendants are in further breach of
their statutory duty to the plaintiff in not furnishing
him with quarterly statements of his account."
18
The appellants in paragraph 9 of their amended
statement of defence at pages 23 and 24 of the
records averred:"9. Still in further reference to paragraph 12 of the
statement of claim, the defendants say that all
necessary Statement of Account up to the time of
the commencement of this suit were duly delivered
to the plaintiff. As to cheques, the bank has no
obligation to return paid cheques to the plaintiff. In
any event, the plaintiff did not indicate which
particular cheques he was asking for, and the bank
could not satisfy a blanket demand for paid
cheques.
9a. The defendants further state that the demand
in 1993 for cheques paid in 1991 was belated. The
plaintiff using the statement of accounts ought to
have specified the particulars of the cheques he
was asking to be returned to him and ought to have
made his demand within 15 days as specified on
the statements of account.
(b). As to other instruments, the bank had no
obligation to act on general and speculative
demand when the plaintiff failed to particularise
what instruments he was asking for."
At the trial, the respondent did not lead any
evidence to show that the appellants are in breach
of their statutory duty to furnish him with quarterly
statements of his account. In his evidence at page
55 of the record, he stated:"
The defendant 'as my bankers is duty bound to give
me my statements of account as many times as I
ask for it but he is entitled to debit my account.
19
This duty became even imperative when I have
alleged some fraud."
Under cross examination at page 65 of the record,
he stated:"The defendants were under obligation to furnish
me with copies of my instruments ... banks have
their tradition, this obligation was implied. I did not
sign any contract with the defendants, for the
supply of instruments."
It can be seen from the foregoing that the
respondent has failed to establish, that there is any
statutory duty on the appellant to furnish him with
quarterly statement of his account and as the
respondent had rightly stated it is a tradition for
the banks to supply their customers with their
statements of account but this does not make it a
statutory duty.
The respondent has failed to prove that there is a
duty or a contractual obligation on the part of the
appellants to furnish him at his request and
expense his statements of account or copies of
cheques and other instruments drawn on the said
account. It therefore follows that in absence of such
a contractual obligation that failure on the part of
the appellants to furnish the respondent with his
statement of account, copies of cheques and other
instruments drawn on the respondent's account
cannot ground a cause of action for breach of
contract for an award of an enormous sum of N3.3
million as special and general damages.
The respondent had referred to the case of Balogun
v. National Bank of Nigeria (1978) Vol. ii NSCC
20
135; (1978) 3 SC 155 at 164 which dealt
specifically with a banker wrongfully dishonouring
the cheque of a solicitor customer and submitted
that the principles applicable in that case is
applicable where a bank fails in its duties to a
customer like the instant case. If a banker
wrongfully dishonours his customers cheques, this
no doubt is actionable as the bank is duty bound to
honour the customer's cheque where there is
sufficient fund and the customer is entitled to
damages resulting from the bank's breach of its
duty to its customer. The present case is entirely
different from the case under reference as there is
no such duty owed by the bank to its customer. The
decision in Balogun v. National Bank of Nigeria
(supra) does not at all apply to the present case.
The learned trial Judge in his judgment at page III
of the records observed:"
Considering the customer banker relationship, the
2nd (sic) could have been move (sic) because of
this to give the plaintiff the information he asked
for.
... The 2nd defendant knew that the plaintiff is a
successful businessman who needs funds at all
times. The 2nd defendant knew all these and saw
that need to assist the plaintiff but deliberately,
negligently and recklessly decided to treat the
plaintiff as he did. The defendants have failed
woefully to perform their obligation to the plaintiff
... He is entitled to damages. He has proved his
claim as required by law."
The learned trial Judge had said it all that there
21
was need to assist the respondent to give him the
information that he asked for. It appears from the
foregoing that the offence that 2nd appellant has
committed is his failure to assist the respondent
and because of this the respondent is entitled to
damages.
It is pertinent to observe that ordinary failure to
assist the respondent, that is, to furnish him with
his statement of account or any document cannot
create any legal obligation; if the learned trial
Judge had addressed his mind to this, that what
was involved is an assistance and not a legal
obligation, obviously he would not have come to
the conclusion that the respondent is entitled to
damages and that he had proved his claim as
required by the law and that he is entitled to the
relief sought. The last issue relates to the award of
N25,000.00 costs which the appellants complain
that it is a windfall, totally unwarranted and
unjustifiable.
In the case of Wurno v. U.A. C. Ltd. (1956) SC NLR
99 at 100 - 101 cited by the respondent, the
Supreme Court observed:"The principle upon which this court acts on appeal
against costs is, that it does not interfere where the
costs are in the discretion of the trial Judge, as was
the case here, unless satisfied that he did not
exercise his discretion, or did not do so judicially."
It is also trite that an award of costs should not be
punitive, arbitrary and unreasonable but where a
trial court decides to award cost which is on a high
side as in the instant case or a punitive cost, the
22
court must state the reason for doing so.
I agree with the respondent that there is no
statutory or regulatory tariffs available to our
courts to guide them in assessment of costs as in
the Supreme Court, but all the same, the award of
costs should be reasonable and the trial court
should exercise its discretion judicially and
judiciously.
The respondent had submitted that there had been
a series of adjournments at the instances of the
appellants but there is nothing on the printed
records to show that it is the reason why the costs
were assessed at the enormous sum of N25,000.00.
There is also no evidence on the record that the
respondent had incurred a substantial out-of-pocket
expenses because this is one of the determining
factors in the award of costs. In the instant case an
award of the sum of N5,000.00 would have been
reasonable. I am therefore of the view that an
award of N25,000.00 is very unreasonable and
arbitrary. I hereby set aside this award.
In the final result, I am of the view that there is
merit in the appeal and it is accordingly allowed by
me. I hereby set aside the judgment of the High
Court of Cross River State holden at Calabar
delivered on 30/7/97 by Binang J. and dismiss the
plaintiff/respondent's action.
The appellants are entitled to costs which I assess
and fix at the sum of N5,000.00.
EDOZIE, J.C.A.: I had read before now the draft of
the lead judgment just read by my learned brother
23
Opene, JCA and I agree with the reasoning and
conclusion in allowing the appeal. The respondent's
case in the court below appears to be a novelty. A
banker may be mulcted in damages for breach of
contract for refusal to pay a customer's cheque
when the latter holds in hand an amount
equivalent to that endorsed on the cheque
belonging to the customer. See Balogun v. The
National Bank of Nigeria Ltd. (1978) 3 SC 155 at
164. But the respondent's case for which he
claimed 5 million naira against the appellants was
not based on wrongful dishonour of his cheque
rather it is for refusal of the appellants to furnish
him with the statement of his account. No evidence
was led to prove any loss sustained by the
respondent for such refusal nor any authority cited
by the court below in awarding the respondent the
colossal sum of N3,300,000.00 as special and
general damages for breach of contract.
I, also, allow the appeal with the consequential
orders in the lead judgment.
EKPE, J.C.A.: I have been privileged to read before
now the leading judgment just delivered by my
learned brother Opene JCA. I agree completely with
his reasoning and conclusion that the Appeal is
meritorious and accordingly is allowed. It is just for
the purpose of emphasis that I wish to add these
few words of mine.
The relief claimed by the respondent both in the
Writ of Summons and in the Statement of Claim is
24
"the sum of N5,000,000.00 (five million naira)
being special and general damages for breach of
contract." The respondent did not separately
quantify the amount he claimed as special damages
from that for general damages.
He merely lumped together the amount claimed as
special and general damages in his statement of
claim. Furthermore, he did not itemize or
particularize what were the special damages he
claimed.
Having started wrongly, it was no doubt going to be
an uphill task for the respondent to prove his claim
for special damages without amendment of the
statement of claim. The law is that a plaintiff who
claims special damages must specially plead and
particularise the items of special damages and
strictly prove them.
In Stroms Bruks Aktie Bolag v. Hutchison (1905)
AC 515 at 525 to 526 the Court stated thus:
"Special damages", on the other hand are such as
the law will not infer from the nature of the act.
They do not follow in the ordinary course. They are
exceptional in their character, and therefore, they
must be claimed specially and proved strictly."
See British Transport Commission v. Gourley
(1956) AC 185; Incar Nig. Ltd. v. Adegboye (1985)
2 NWLR (Pt.8) 453; Kalu v. Mbuko (1988) 3 NWLR
(Pt.80) 86. Strict proof can mean no more than
such proof as would readily lend itself to
quantification or assessment which in a given case
would be dictated by the peculiar circumstances of
the evidence available. See Odulaja v. Haddad
25
(1974) 4 ECSLR 627 at 630 or (1973) 1 All NLR
(Pt.2) 191. The learned trial Judge was also in
serious error to have awarded the respondent the
lump and unclassified sum of N3.3 million as special
and general damages for breach of contract. Also
there is the need to distinguish between claims for
general damages as opposed to that of special
damages in an action for breach of contract. Claim
for special damages is inappropriate in an action for
breach of contract. Lord Macnaghten in Stroms
Bruks Aktie Bolag v. Hutchison (supra) stated that
the division into general and special damages was
more appropriate to tort than to contract. In PZ &
Co. Ltd. v. Ogedengbe (1972) 1 All NLR (Pt.!) 202
at 205 to 206, Madarikan JSC after quoting with
approval the dictum of Alderson B. in Hadley v.
Baxendale (1854) 9 Exch. 341 at 354 added as
follows:
"Thus the term "general" and "special" damages are
normally inept in the categorization of damages for
the purpose of award in cases of breach of contract.
We have had occasion to point this out before; (See
Agbaje v. National Motors Ltd. S.C.20/68 dated
13th March, 1970) and we must make the point
that apart from damages naturally resulting from
the breach (of contract) no other form of general
damages can be contemplated."
Additionally, in awarding damages under the claim
for special and general damages care must be
taken by the trial court to avoid double
compensation. See Onaga v. Micho & Co. (1961) All
NLR 324 at 328; Ezeani & Ors v. Ejidike (1964) 1
26
All NLR 402 at 405. In my view the learned trial
Judge did not apply the above principles of law
when he awarded the sum ofN3.3 million as special
and general damages to the respondent for breach
of contract.
For the above and the detailed views of my learned
brother Opene JCA in the leading judgment, I also
do hereby allow the appeal. I abide by the orders
made in the leading judgment including the
consequential order as to costs.
Appeal allowed.
Appearances
O. R. Ulasi, Esq., (with him, A. C.
For Appellants
Akobundu [Mrs])
Respondent appears in person
27
For
Respondent