OKANU v. OKANU & ANOR

CITATION: (2018) LPELR-45021(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON THURSDAY, 5TH JULY, 2018Suit No: CA/OW/19/2012

Before Their Lordships:

RAPHAEL CHIKWE AGBO Justice, Court of AppealAYOBODE OLUJIMI LOKULO-SODIPE Justice, Court of AppealTUNDE OYEBANJI AWOTOYE Justice, Court of Appeal

BetweenMATHEW OKANU - Appellant(s)

And1. OSITA OKANU2. JONATHAN ONYEACHO - Respondent(s)

RATIO DECIDENDI

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1. ACTION - STATEMENT OF CLAIM/WRIT OFSUMMONS: Whether a statement of claimsupercedes a writ of summons"It is trite law that a statement of claimsupercedes a writ of summons. See ABOYEJI VMOMOH & ORS (1994) 4 NWLR PT.341 p.646EYA & ORS V OLOPADE & ANOR (2011) 11NWLR (PART 1259) 505. In GARAN V OLOMU(2013) NWLR PT 1365 p.227, Ngwuta JSC.aptly explained it this way. "The writ subsistsuntil the statement of claim is filed. Thestatement of claim is confined to the cause ofaction endorsed on the writ. Once thestatement of claim is filed, it supercedes thewrit; See UDECHUKWU V OKWUKA (1956)I.E.C.S 70 (1956) S.C.N.L.R 189. Whenappellant amended his statement of claim theamended process spoke from the date of theoriginal statement of claim which supercededthe writ. Once the order to amend thestatement of claim was granted, the originalstatement of claim was discarded with effectfrom the date it was filed. See ROTIMI VMACGREGOR (1974) 11 S.C. 133 AT 152;SNEADE V WOTHERTON BARYTES AND LEADMINUG CO. LTD (1904) IKB 295 at 297ADEWUMI V AG. EKITI STATE (2002) 92 LRCN43 at 64."Per AWOTOYE, J.C.A. (Pp. 21-22,Paras. F-E) - read in context

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2. ACTION - CLAIM(S)/RELIEF(S): Whetherthe Court can grant a relief not claimed"A relief not claimed cannot be granted bythe Court. See ALIMS NIGERIA LTD V UBA(2013) S6 NWLR PART 1351 p. 613."PerAWOTOYE, J.C.A. (P. 23, Para. B) - read incontext

3. APPEAL - INTERFERENCE WITH AWARDOF DAMAGES: Circumstances in which anappellate court will interfere with award ofdamages made by a trial Court"Learned counsel for the appellant'scontention was that the trial Court awardedto the plaintiff a sum of money beyond whathe claimed. This in my respectful view is avalid ground for challenging an award ofdamages by a trial Court. Where a trial Courtacted under misapprehension of the facts ofthe case, an appellate Court can interferewith the award of damages so made by thetrial Court. See AHMED & ORS V CBN (2013) 2NWLR PART 1339 p. 524; ONWU & ORS V NKA& ORS (1996) 7 NWLR PART 458 p.1."PerAWOTOYE, J.C.A. (P. 21, Paras. B-D) - read incontext

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4. DAMAGES - GENERAL DAMAGES: Meaning,nature and scope of general damages"Now, general damages need not bespecifically claimed. Fabiyi JSC explained itthus in UBN PLC V AJABULE & ANOR (2011)LPELR SC. "General damages are said to bedamages that the law presumed and theyflow from the type of wrong complainedabout by the victim. They are compensatorydamages for harm that so frequently resultsfrom the tort for which a party has sued thatthe harm is reasonably expected and neednot be alleged or prove. They need not bespecifically claimed. They are also termeddirect damages necessary damages."RHODES - VIVOUR JSC in CAMEROONAIRLINES V OTUTUIZU (2011) 4 NWLR 9Pt1238) 512 put it this way. "General damagesare thus losses that flow naturally from theadversary and it is generally presumed bylaw, as it need not be pleaded or proved. SeeUBN LTD V ODUSOTE BOOKSTORE LTD (1995)9 NWLR PT. 421 p. 558. General damages isawarded by the trial Court to assuage a losscaused by an act of the adversary."PerAWOTOYE, J.C.A. (Pp. 20-21, Paras. B-A) -read in context

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TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the

Leading Judgment): This is the judgment in respect of the

appeal of the 2nd defendant/appellant against the decision

of Imo State High Court sitting at Nkwerre Judicial Division

in consolidated Suit No. HON/6/99 and HON/8/2000

delivered on 14/10/2010.

The original plaintiff in the consolidated Suit was Sunday

Okanu. This was in respect of HON/6/99. He instituted the

action against his senior brother and claimed as follows:

“(a) Declaration that “ALA UZO OHIA” situate at

Okwu village Nkwerre in the Nkwerre L.G.A. in a

family land, jointly inherited by the 2nd defendant

and plaintiff who are brothers of full blood, from their

father.

(b) Declaration that the plaintiff and the 2nd

defendant are jointly entitled to the statutory right in

respect of the piece or parcel of land known as “ALA

UZO OHIA” situate at Okwu village in Nkwerre L.G.A.

of Imo State within jurisdiction.

(c) Declaration for the purported sale of the said land

“ALA UZO OHIA” by the 2nd defendant to the 1st

defendant without the consent of the plaintiff is

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illegal null and void and of no effect whatsoever.

(d) N500,000.00 (Five hundred thousand Naira)

General damages for the continuing trespass of the

1st defendant.

(e) Perpetual injunction restraining the 1st defendant

by himself, his heir, agents, servants and/or workers

from further trespass to the said land, entering

thereon or doing anything whatsoever on same

including continue to erect any permanent structures

on the said land.”

The plaintiff in Suit No. HON/8/2000 was the 1st defendant

in the original Suit i.e. HON/6/99. He filed a counter-action

against the plaintiff and 2nd defendant who were brothers

and claimed thus:

1. That the land situate and lying at Okwu Village

Nkwerre and known as “ALA UZO OHIA” sold to the

plaintif by the 1st defendant which said land has been

fully developed by the plaintiff is the bona fide

property of the plaintiff and that the plaintiff is

entitled to the certificate of occupancy to the said

property.

2. In the alternative the sum of N5,000,000.00 against

the defendant being special and general damages for

the fraudulent breach of sale of the said land to

the plaintiff.”

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The two suits were consolidated by order of Court.

The learned trial judge after hearing the parties gave

judgment in the following terms.

“Whether the 1st defendant is entitled to his claim

r ight o f occupancy or in the a l ternat ive

N5,000,000.00 damages for the fraudulent breach of

the sale of the land. As held earlier in this judgment,

the deceased claimant is entitled to void the sale of

the land by the 2nd defendant without his consent.

This therefore, means that the 1st defendant cannot

succeed in the 1st arm of his claim for declaration of

right of occupancy. As regards the alternative claim

for damages for the breach of the sale, I have earlier

held that the 1st defendant is entitled to be

compensated by the 2nd defendant for his losses on

the land. The 1st defendant claim special damages of

N3,000,000.00. In his deposition, he deposed to the

contractors charges for the developments on the land

and annexed same to the deposition but failed to

tender the bill or the charges of the contractor. Since

the 1st defendant did not prove the special damages

strictly as required by law, no special damages can be

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awarded to him. See BADMUS VS ABEGUNDE 1999

72 LRCN 2912 at 2925 cited by the claimants counsel.

However the 1st defendant claims N5,000,000

damages. When there is a breach of rights, the law

implies some damages. When there is a breach of

rights, the law implies some damages recoverable

arising from such breaches. See ZOBAM COY NIG

LTD VS TOFA GENERAL ENTERPRISES LTD 2006 ALL

FWLR (Part 317 515 at 527.

In the circumstances judgment is hereby entered as

follows:

The claimant as now substituted is entitled to

judgment in reliefs (a), (b) and (c). Relief (d) of the

claimant is dismissed as the 1st was on the land by

virtue of the purported sale by the 2nd defendant

which sale is now set aside. As regards the claim for

injunction, it is also granted but can only take effect

when the 2nd defendant has paid to the 1st defendant

damages to be here in after awarded to him for the

fraudulent sale.

As regards the counter claim of the 1st defendant in

suit No. HON.8.2000, the claim 1 for declaration of

right of occupancy is hereby dismissed, In respect of

the alternative claim for damages, I award

N4,000,000.00 (four million Naira) damages to the

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1st defendant for losses suffered by him for the

fraudulent purported sale of the land to him by the

2nd defendant.

I make no order as to costs.”

Miffed by the above decision the appellant on 14/1/2011

filed Notice of Appeal challenging it on two grounds.

He later with leave of Court on 12/3/2015 filed amended

Notice of Appeal which was deemed filed on 22/1/2018. The

Amended Notice of Appeal contains four grounds of appeal

which read thus:

“GROUND ONE- ERROR IN LAW

The learned trial judge erred in law when he held

thus:

In respect of the alternative claim for damages, I

award N4,000,000 (four million Naira) damages to

the 1st defendant for losses suffered by him for the

fraudulent purported sale of the land to him by the

2nd defendant.

PARTICULARS OF ERROR

1. That the general damages awarded by learned trial

judge against the appellant was manifestly too high

and erroneously assessed.

2. The trial Court simply awarded the said damages of

N4,000,000 (four Million Naira) without giving reason

as to how it arrived thereat.

3. The trial Court in awarding the said damages took

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into account irrelevant matters.

4. That the said damages awarded by the trial Court

were unjustifiable, unfair and unreasonable. There’s

no evidence on record on which the trial Court based

its award.

5. The 1st Defendant/Respondent had a duty not to

increase the damages recoverable by his own

voluntary and unnecessary act.

6. The 1st Defendant/Respondent had a duty to do all

in his power to minimize his loss.

7. The 1st Defendant/Respondent breached or did not

discharge this duty of acting reasonably.

8. The general damages of N4,000,000 was awarded

by the learned trial Court against the appellant out of

sympathy /sent iment born of extraneous

considerations and not on the basis of legal evidence

of probative value adduced before the Court.

9. Injustice would result if the Appeal Court does not

interfere.

GROUND TWO:

The judgment is against the weight of evidence.

GROUND THREE:

The lower Court erred in law holding as follows:

Having made the 1st defendant to part with his

money and develop the property, the 2nd defendant is

bound to compensate the 1st defendant for his

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losses on the land to the detriment of the 2nd

defendant/appellant.

PARTICULARS OF ERROR

1. The 2nd defendant/appellant and the 1st defendant

agreed for the sum of N150,000.00 (one hundred and

fifty thousand naira) for the sale of the land, which

the 1st defendant/respondent paid to the 2nd

defendant/appellant.

2. During negotiations for the sale transaction

between the 2nd defendant/appellant and the 1st

defendant/respondent, the then claimant, Sunday

O k a n u s e n t e m i s s a r i e s t o t h e 1 s t

defendant/respondent not to buy the land in dispute

but he ignored the warning.

3. There is also evidence that when the 1st

defendant/respondent made the initial deposit for the

purchase of the land, he was warned by Sunday Okanu

not to go further in the land transaction but he

refused.

4. The 2nd defendant/appellant, his wife and son

made several attempts to pay him N2,000,000.00

agreed upon as the cost of the land and survey work

done on it but the 1st defendant/respondent made

himself unavailable.

5. The 1st defendant/respondent insisted on

developing the land in spite of all entreaties, made to

him.

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6. The lower Court made an order for interlocutory

injunction restraining the 1st defendant/respondent

from further developing the land but he ignored the

order.

7. The lower Court made the order complained of due

to its failure to consider these facts and evidence

borne out of the Court’s records.

GROUND FOUR

The lower court erred in law by stating thus:

Relief (d) of the claimant is dismissed as the 1st

defendant was on the land by virtue of the purported

sale by the 2nd defendant which sale is now set aside.

As regards the claim for injunction, it is also granted

but can only take effect when the 2nd defendant has

paid to the 1st defendant damages to be herein after

awarded to him for the fraudulent sale.

PARTICULARS OF ERROR:

1. Relief (d) of the claimant at the lower Court ought

to be granted following the grant of reliefs a, b and c.

2. The continued stay and activities of the 1st

defendant/respondent on the land violated an earlier

order made against him by the lower Court.

3. Relief (e) of the claimant at the lower Court ought

not be stayed until the payment of the award of four

million naira (N4,000,000.00) to the 1st

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defendant/respondent by the 2nd defendant/appellant

as same was not proved.

4. Reliefs (e) is a consequential claim which would

give effect to reliefs a, b and c already granted by the

lower Court.

5. The 2nd defendant/appellant is greatly prejudiced

by this order as it is unreasonable, excessive and

unnecessary.

After transmission of record of appeal to this court, parties

filed and exchanged briefs of argument.

APPELLANT’S BRIEF OF ARGUMENT

The Appellant Brief of Argument was filed on 29/01/2004. It

was settled by his counsel P. U. NNODUM ESQ.

Learned Counsel to the appellant formulated a lone issue

for determination:

(1) Whether the lower Court was justified in the award of

N4,000,000.00 (four million naira) damages to the 2nd

respondent.

Learned Counsel to the appellant submitted that since the

trial Court found that the claim of (Three Million Naira)

N3,000,000.00) special damage was not proved, it was

wrong for it to have awarded damages to the 2nd

respondent to the tune of (Four Million Naira) whereas the

total claim for general damages was N2,000,000.00 (Two

Million Naira)

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And that the trial Court who in grave error to have awarded

a party a sum of money beyond what he claimed because

the Court was not a father Christmas.

He submitted that the loses referred to by the trial Court as

general damages on the land were the same losses

articulated and set out by the 2nd respondent (as claimant)

in paragraphs 21(6) of the amended statement of claim in

suit No. HON/8/8000 as particulars of special damages; for

instance cost of purchase of land, charges, perfection of

title deeds etc totaling (three million naira) N3,000,000.00

(See page 3 of the record).

He further submitted that it was the law that award of

general damages is improper where the quantum of loss

was ascertainable and it was also wrong to take into

consideration in awarding general damages matters which

should have been considered in awarding special damages.

He relied on the cases of UBN LTD V ODUSOTE

BOOK STORES LTD (1995) 9 NWLR (PART 421) 558,

586 PARA H P. 600 PARA D.

Learned Counsel to the Appellant contended that there

were guiding principles which would matter as appellate

Court interfere with an award by a trial Court, where it

was clearly shown.

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(a) That the trial Court acted upon wrong principles of law

(b) That the amount awarded by the trial Court was

ridiculously too high or too low; or

(c) That the amount was entirely erroneous and

unreasonable estimate having regard to the circumstances

of the case. He relied on the case of UBN PLC V

AJABULE (2011) 18 NWLR (PART 1278) 162, (181,

PARAS D-F)

Learned Counsel to the appellant contended that from the

state of the 2nd respondent pleading at the trial Court, he

became aware from the onset that the land he purchased

was being questioned by the family members of the

appellant and he ought to have warned himself of the risk

of developing same and the doctrine of caveat emptor

postulated that a purchaser should be aware of what he

was purchasing since it was for a party to a contract to take

all necessary precautions in order to avoid entering into a

bad bargain. He contended further that the 2nd respondent

ought to have taken steps to mitigate loss to himself. He

relied on the cases of AGEH V. TORTYA (2003) 6 NWLR

(PART 816) 385 (PP 395-396, PARAS P

A-D OKONGWU V N.N.P.C. (1989) 4 NWLR (PART

115) 296, 305, PARAS C-D.

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Learned counsel to the appellant submitted that general

damages was not awarded as a matter of cause but on

sound and solid legal principles and not on speculations,

sentiment or as father Christmas and could not also be

awarded as a largesse or out of sympathy borne of

extraneous considerations but rather on legal evidence of

probation value adduced for the establishment of an

actionable wrong or injury. He relied on the case of

ADEKUNLE V ROCKVIEW HOTEL LTD (2004) 1 NWLR

(PART 853) 161 (175-178, PARAS H-B.

Learned Counsel to the appellant finally submitted that

there was no basis for the findings of the trial Court

reproduced above because the appellant and the 2nd

respondent agreed for the sum of One hundred and fifty

thousand naira (N150,000.00) for the sale of the land in

dispute which the appellant paid him and evidence also

revealed that for the sale transaction, the deceased

claimant sent emissaries to the 2nd respondent not to buy

the land in dispute but he ignored the warning.

Learned Counsel to the appellant urged this Court to

resolve this issue in favour of the appellant.

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2ND RESPONDENT BRIEF OF ARGUMENT

The 2nd Respondent’s Brief of Argument was filed on

1/3/2018 it was settled by his counsel COLLINS IWUORIE

ESQ.

Learned Counsel to the 2nd Respondent adopted the lone

issue formulated by the appellant’s counsel:

(1) Whether the lower Court was justified in the award of

N4,000,000.00 (Four Million Naira) damages to the 2nd

respondent.

Learned counsel to the 2nd respondent contended that

there were two types of damages special and general

damages and that the law was trite that every item

contained in the claim of special damage must be

specifically proved and tied to the claimant’s testimony and

in the cause of the trial, the 2nd respondent testified how

he spent the huge amount of money in his particulars for

special damages to the development of the land in dispute.

He relied on the case of ADIM V NBC LTD (2010) VOL.

187 L.R.C.N. at PAGE 90 RATIO 1, ADECENTRO LTD

V COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY

(2005) 5 KLR (PT. 196).

He submitted that the 2nd respondent, apart from

specifically pleading the special damages and proving same

in evidence during the trial he particularized the items of

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special damage with precise calculation within his pleading

and evidence. He relied on the case of XTOUDOS

SERVICES NIG LTD V TAISEI WEST AFRICA LTD

(2006) KLR (PT 221).

Learned counsel to the 2nd respondent contended that

contrary to the submission of counsel to the appellant that

the trial Court took into consideration in awarding general

damages matters which should have been considered in

awarding special damages; that the appellant counsel

misfired in using special and general damages

interchangeably and that the law was trite that where a

plaintiff failed to prove special damages he was entitled to

general damages. He relied on the case of S.P.D.C. V

TIEBO II (2005) 4 NSCR.

Learned Counsel to the 2nd respondent contended that a

Court of law had the discretion to award general damages

even though not claimed in as much as the party pleaded

and proved special damages and this was because general

damages was predicated on the proof of special damages.

He relied on the case of S.P.D.C. V TIEBO II (Supra).

He contended that contrary to the argument of the

appellant’s counsel that the said award of N4,000,000.00

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was neither claimed nor proved by the 2nd respondent but

the 2nd respondent claimed the sum of N5,000,000.00 in

the alternative which was split into N3,000,000.00 special

damages and N2,000,000.00 general damages (See page 9

of the record). He relied on the case of N.N.P.C. V.

CLIFCO NIG. LTD. (2011) ALL FWLR (PT 583) PG

1875.

Learned counsel to the 2nd respondent submitted that it

was a settled principle of law that a Court of law had no

jurisdiction to award a relief not claimed but the 2nd

respondent not only claimed in the alternative the sum of

N5,000,000.00 but also pleaded particulars of special

damages. Thus, the trial Court was right in awarding the

sum of N4,000,000.00 as damages to the 2nd respondent as

the latter specifically pleaded damages of N3,000,000.00

and that the law was trite that a Court had no jurisdiction

to entertain a suit which was not substantiated on a claim

of special damages but having claimed special damages

and pleaded same, the award of N4,000,000.00 to the 2nd

respondent by the trial Court was not in vacuum. He relied

on the cases of FATUNBI V OLANLOYE (2004) 12

NWLR (PT. 887) 229 AT 256; AGBU V CIVIL SERVICE

COMMISSION

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NASARAWA STATE (2013) ALL FWLR (PT 675) AT

PAGE 231.

Learned Counsel to the 2nd respondent finally submitted

that trial Court denied its jurisdiction in awarding the said

consent of money from the claims of the 2nd respondent

before the lower Court and that jurisdiction of a Court was

determined by the plaintiff’s claim. He relied on the case of

ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD V

GARBA (2002) 14 NWLR (PT 788) 538 AT 564.

Learned Counsel to the 2nd respondent urged this Court to

resolve this issue in favour of the 2nd respondent and

dismiss this appeal as lacking in merit.

APPELLANT’S REPLY BRIEF OF ARGUMENT

The Appellant’s Reply Brief of Argument was filed on

12/3/2018. It was settled by his counsel N. R. CHIBUISI

ESQ.

Learned Counsel to the appellant contended that the 2nd

respondent brief of argument was not wholly based on the

record of appeal in this case as it contained matter which

was not verifiable from the record of appeal. Thus, the 2nd

respondent stance was at variance with the findings of the

lower Court. (See paragraphs 4.05, 4.07 and 4.08 of the

2nd respondent brief of argument) (See also page 246

of the record of appeal).

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He further contended that the legal effect of failure of the

2nd respondent to file a cross appeal or a respondent’s

notice of contention as provided for by Order 9 of the Court

of Appeal Rules 2007 was that the adverse findings made

by the lower Court against the 2nd respondent were extant

and binding on him and he could not make an argument

against those findings. To this end paragraph 9.06, 9.07

and 4.08 of the 2nd respondent brief of argument should be

discountenanced.

Learned counsel to the appellant submitted that the law

was trite that where a party claimed special damages, the

burden was on him to prove the special damages to the last

kobo and it was not a matter to be left to conjecture and he

had to do this by leading credible evidence in proof of

them. He relied on the case of ARISONS TRADING V

MIL. GOV. OSUN STATE (2009) ALL FWLR (PART

496) 1819, 1844E, 1854F. That, the 2nd respondent

struggled to justify the award by the lower Court in

paragraphs 4. 14, 4. 15 and 4. 17 of his brief of argument.

Learned counsel to the appellant submitted that the

computation above was erroneous as it could not be

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justified or did not arise from the judgment of the trial

Court which rightly refused the grant of the special

damages but went ahead to award general damages of

N4,000,000.00 when what the 2nd Respondent requested

for was N2,000,000.00 a general damages.

Learned Counsel to the appellant contended that despite

the finding of the trial Court that the 2nd respondent failed

to prove the special damages, what was left to be

considered was the general damages of N2,000,000.00 and

that the lower Court seemed to have misconceived the limit

of what was claimed before it.

Learned Counsel to the appellant urged this Court to allow

the appeal and set aside the decision/judgment of the trial

Court.

RESOLUTION OF ISSUE.

I have carefully considered the argument canvassed by

learned counsel on both sides. In spite of having been

served with appropriate processes the 1st Respondent

failed to file a brief of argument. I shall therefore

determine this appeal based on the briefs filed by appellant

and the 2nd Respondent respectively.

Learned counsel in this appeal are ad idem on the sole

issue for determination to wit.

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WHETHER THE LOWER COURT WAS JUSTIFIED IN

THE AWARD OF (Four Million Naira) DAMAGES TO

THE 2ND RESPONDENT.

It needs to be stated that the four million naira damages

granted in favour of the 1st defendant was general

damages. In granting the general damages the learned trial

judge explained it this way:

“In respect of the alternative claim for damages, I

award N4000,000.00(four million naira) damages to

the 1st defendant for losses suffered by him for the

fraudulent purported sale of the land to him by the

2nd defendant.”

This is the award being challenged by the appellant. This

award drew its foundation from the claim of the 1st

defendant as plaintiff in HON/8/2000 where he claimed

thus as per his statement of claim.

In the alternative the sum of five million naira against the

defendants are as follows:

(1) Three million naira (N3,000,000.00) special damages,

PARTICULARS OF SPECIAL DAMAGES:-

(1) For purchase of land = N150,000.00

(2) Charges, perfection of Title Deeds and Registration =

N150,000.00

(3) Works and cost of labour from Foundation to Floor slab

(German Floor) = N500,000.00

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(4) Works and cost of labour from Floor – slab

to linter level = N850,000.00

(5) Works and cost of labour from linter level to roofing =

N650,000.00

(6) Works and cost of labour for concrete wall fence and

Iron-gate. =N700,000.00

(7) Two million naira (N2,000,000.00) general damages for

breach of contract and trespass on the land.

Now, general damages need not be specifically claimed.

Fabiyi JSC explained it thus in UBN PLC V AJABULE &

ANOR (2011) LPELR-8239 SC.

“General damages are said to be damages that the

law presumed and they flow from the type of wrong

complained about by the vict im. They are

compensatory damages for harm that so frequently

results from the tort for which a party has sued that

the harm is reasonably expected and need not be

alleged or prove. They need not be specifically

claimed. They are also termed direct damages

necessary damages.”

RHODES – VIVOUR JSC in CAMEROON AIRLINES V

OTUTUIZU (2011) 4 NWLR 9 Pt 1238) 512 put it this

way.

“General damages are thus losses that flow naturally

from the adversary and it is generally presumed by

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law, as it need not be pleaded or proved. See UBN

LTD V ODUSOTE BOOKSTORE LTD (1995) 9 NWLR

PT. 421 p. 558. General damages is awarded by the

trial Court to assuage a loss caused by an act of the

adversary.”

Learned counsel for the appellant’s contention was that the

trial Court awarded to the plaintiff a sum of money beyond

what he claimed. This in my respectful view is a valid

ground for challenging an award of damages by a trial

Court.

Where a trial Court acted under misapprehension of the

facts of the case, an appellate Court can interfere with the

award of damages so made by the trial Court. See AHMED

& ORS V CBN (2013) 2 NWLR PART 1339 p. 524;

ONWU & ORS V NKA & ORS (1996) 7 NWLR PART

458 p.1.

I have carefully perused the record of appeal and the

summary of the facts as framed by the learned trial Judge

in his judgment. It appears to me, his lordship mistakenly

relied on the endorsement on writ of summons of plaintiff

in HOS/8/2000 instead of paragraph 21(c) of his Amended

Statement of claim. It is trite law that a statement of claim

supercedes a writ of summons. See ABOYEJI V MOMOH

&

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ORS (1994) 4 NWLR PT.341 p.646 EYA & ORS V

OLOPADE & ANOR (2011) 11 NWLR (PART 1259)

505.

In GARAN V OLOMU (2013) NWLR PT 1365 p.227,

Ngwuta JSC. aptly explained it this way.

“The writ subsists until the statement of claim is

filed. The statement of claim is confined to the cause

of action endorsed on the writ. Once the statement of

claim is f i led, i t supercedes the writ ; See

UDECHUKWU V OKWUKA (1956) I.E.C.S 70 (1956)

S.C.N.L.R 189. When appellant amended his

statement of claim the amended process spoke from

the date of the original statement of claim which

superceded the writ. Once the order to amend the

statement of claim was granted, the original

statement of claim was discarded with effect from the

date it was filed. See ROTIMI V MACGREGOR (1974)

11 S.C. 133 AT 152; SNEADE V WOTHERTON

BARYTES AND LEAD MINUG CO. LTD (1904) 1 KB

295 at 297 ADEWUMI V AG. EKITI STATE (2002) 92

LRCN 43 at 64.”

The learned trial Judge was with due respect under a

misapprehension that the plaintiff claimed five million naira

as special and general damages as per his writ of Summons

but failed to take cognizance of the subsequent amendment

in the amended statement of claim

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which limited the claim for the general damages to two

million naira (N2,000,000.00). This was why his lordship

awards four million naira damages to the 1st defendant for

losses suffered by him in excess of the two million naira

general damages claimed. For this reason I shall interfere

with the award of damages by reducing it to the two million

naira damages claimed. A relief not claimed cannot be

granted by the Court. See ALIMS NIGERIA LTD V UBA

(2013) S6 NWLR PART 1351 p. 613.

The award of general damages by the lower Court apart

from the above cannot be faulted. The sale of the land by

the 2nd defendant was fraudulent and the 1st defendant

incurred undisputable losses as a result.

This appeal has merit. It is hereby allowed.

The judgment of the lower Court delivered on 14/10/2010

in Suit No. HON/6/99 and HON/8/2000 (CONSOLIDATED)

Between OSITA OKANU AND JONATHAN ONYEACHOR

& ANOR is hereby varied to read as follows:-

“In respect of the alternative claim for damages, I

award N2,000,000 (Two million Naira) damages to the

1st defendant for losses suffered by him for the

fraudulent purported sale of the land to him by the

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2nd defendant. I make no order as to costs.”

This shall be the judgment of the Court.

Parties are to bear their respective costs in this appeal.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree

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Appearances:

N. R. Chibuisi, Esq. For Appellant(s)

Peter Anyiam-Osigwe, Esq. - for 1st RespondentK.O Anyaegbulam, Esq. - for 2nd Respondent. ForRespondent(s)

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