Reviewer: Stephen Ubimago
In the Supreme Court of Nigeria Holden at Abuja On Friday 16th of December, 2011 Suit No: SC.221/2005 Before their Lordships: Mahmud Mohammed Muhammad Saifulah Muntaka -Coomassie John Afolabi Fabiyi Olufunlola Oyelola Adekeye Mary Ukaego Peter-Odili Between: Union Bank of Nigeria Plc – Appellant And Alhaji Adams Ajabule Adamaco Nigeria Limited – Respondents
This appeal arose from the decision of the Court of Appeal, Benin Judicial Division delivered on 1st July, 2005 in which the court dismissed – except for the award of general damages where the appeal was allowed by the reduction of the general damages from N5, 000,000.00 to N2, 000,000.00 – the appeal brought by the Appellant in this appeal against the judgment of the High Court of Justice of Ondo State sitting at Akure.
The 2nd Respondent as a customer of the Appellant maintained two current accounts at the Appellant’s branch of the bank at Akure in Ondo State. On his part, the 1st Respondent is the Chairman/ Managing Director of the 2nd Respondent. On the request of the 2nd Respondent for credit facilities, the Appellant granted the 2nd Respondent an overdraft facility and a warehouse refinancing facility.
The two separate credit facilities were secured by a Tripartite Deed of Legal Mortgage on the 1st Respondent’s Mariatun House (Formerly No 40) Isewe Street, Clerk Quarters Owo, Ondo State as well as Hypothecation of the 2nd Respondent’s stock of motor batteries. When the 2nd Respondent failed to repay the credit facilities granted by the Appellant in spite of repeated demands, the Appellant then took steps to enforce its rights under the Deed of Hypothecation of the Stock of Motor Batteries in the custody of the 2nd Respondent. When the 2nd Respondent refused to allow the Appellant to take over the control and management of the Respondents’ business premises, the Appellant proceeded by force and sealed the premises which the Respondents challenged by their action at the trial court on 11th August, 1999.
The case was heard on pleadings comprising of statement of claim, statement of defence and counter-claim and a reply to the statement of defence and counter-claim. In its judgment delivered on 17th December, 2003, the trial court found for the Plaintiffs/Respondents and granted all their Claims for declaratory reliefs, general damages in the sum of N5, 000,000.00 and special damages in the sum of N1, 580,000.00 against the Defendant/Appellant for the illegal sealing of the premises of the 2nd Plaintiff/Respondent.
The Defendant/Appellant’s counter-claim, on the other-hand, was dismissed. Also dismissed was the Appellant’s appeal to the Court of Appeal except for the reduction of the general damages awarded by the trial court from N5, 000,000.00 to N2, 000,000.00. Still dissatisfied with the judgment of the Court of Appeal, the Defendant/ Appellant appealed to the Supreme Court.
Issues: The Defendant/Appellant raised three issues which were adopted by the Respondent in its brief of argument. (I) Whether the Court of Appeal was right in affirming the finding of the trial court as to the existence and contents of the Central Bank Guideline between 1996 and 1999 when the document was not tendered in evidence by the Respondents. (Ground 1 of the notice of appeal). (ii) Whether the Court of Appeal was right when it upheld the finding of the trial court that based on the evidence of PW3 the Appellant was responsible for sealing up of the 2nd Respondent’s premises on 3rd August, 1999. (Ground 2 of the notice of appeal). (iii) Whether on the pleadings and evidence there is any legal basis for the award of special damages to the Respondents or in the alternative, whether the Respondents discharged the burden of proof required to succeed in their claim for special damages.( Ground 3 of the notice of appeal). (iv) Whether the Respondents’ are entitled to the award of general damages which was upheld by the Court of Appeal and reduced to the sum of N2,000,000.00 (Two million naira) having regard to the settled principles of law.
Arguments: Counsel to the Appellant argued that the parties, having joined issues at the trial court on pleadings on the existence of the Central Bank Guidelines pegging interest rates at 21% between 1996 and 1999, the Court of Appeal was in error in affirming the decision of the trial court on the existence and contents of that document, which was not in evidence at the trial court on the evidence of DW2 alone described as an admission against interest of the Appellant.
Learned Counsel asserted that the evidence of DW2 does not relieve the Respondents of the burden to prove the contents of the document if the decision in the cases of Asafa Foods Factory v. Alraine (Nig) limited (2002) 5 SC (Pt. 1) 1; (2002) 12 NWLR (Pt. 781) 353 at 370-371 and Kano v. Oyelakin (1993) 3 NWLR (Pt. 282) 300 at 422, are taken into consideration result- ing in making the decision of the court of appeal perverse and li- able to be set aside in allowing the appeal on the issues alone as the case of Inakoju v. Adeleke ( 2007) 1 SC (Pt. 1); (2007) 4NWLR (Pt. 1025) 423 at 607 relied upon by the Respondents, is not applicable to the present issue.
However, the Respondents contended that the documentary evidence on record comprising letters of offer, Exhibits A3 and D1 and the Deed of Hypothecation, Exhibits A2 containing the terms of agreement between the parties, have put the maximum rate of interest agreed as 21% which shifted the burden of proving any rate of interest to the contrary, on the Appellant that the position of the Respondents on the issue of interest was strengthened by the evidence of the Appellant’s witness DW2, an employee of the Appellant, on which by the cases of Woluchem & Ors. v. Gudi & Ors. (1981) 5 SC 291; (1981) 5 SC (Reprint) 178; and Niger Construction Limited v Chief A. A Okungbemi (1987) 11-12 SCNJ 133 at 132, the Respondents were perfectly entitled to rely upon to strengthen their case, that having regard to the decision of this court in the case of Inakoju & Ors. v. Aeleke & Ors. (2007) 1 SC (Pt. 1); (2007) 143 LRCN 1 at 93, the courts below were right in finding that the existence of the Central Bank Guidelines pegging the interest rates chargeable on loan/overdraft granted by banks between 1996 and 1999, had been proved on the evidence of DW2. Learned Counsel pointed out that since there is no appeal against the specific findings of the trial court and affirmed by the Court of Appeal that the maximum rate of interest agreed between the parties was 21%, that the appeal should be dismissed on this issue. Judgment: What is most relevant in the findings of the trial court above in support of the case of the Respondents as affirmed by the court below is the maximum rate of interest chargeable on the loan/ overdraft/credit facilities granted by the Defendant/ Appellant to the Plaintiffs/Respondents.
That interest rate was found to have been fixed at the rate of 21% even in the absence of the disputed existence of the Central Bank Guideline also fixing the rates at 21% as given in the oral evidence of DW2 being attacked by the Appellant in this issue. Therefore since the rate of interest as agreed between the parties being 21% happened to be in line with the Central Bank Guideline as testified by the Appellant’s witness himself DW2, the trial court and the court below were on strong ground in finding that the Respondents could take advantage of that evidence in support of their case in line with the decisions in several cases including the leading one on the subject, Woluchem & Ors. V Gudi & Ors. (1981) 5 SC 291; (1981) 5 SC (Reprint) 178.
As the evidence in support of the Respondent’s case on the rate of interest agreed between the parties is overwhelming on the other documentary evidence, the failure to tender a copy of the Central Bank Guideline in evidence, though desirable, is certainly not fatal to the case of the Respondents whose claims were not entirely dependent on the existence and contents of said Central Bank Guideline. It is settled law that general damages are always made as a claim at large. The quantum need not be pleaded and proved.
The award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act or conduct of the Defendant. It does not depend upon calculation made and figure arrived at from specific items. See Odulaja v Haddad (1973) 11 SC 357; (1973) 11 S.C. (Reprint) 216; Lar v Stirling Astaldi Limited (1977) 11-12 SC 53; (1977) 11-12 SC (Reprint) 106 and Osuji v lsiocha (1989) 6 S.C. (Part II) 158; (1989) 3 NWLR (Part 111) 623. On the whole, except for the appeal against the award of special damages in the sum of N l, 580,000.00 which succeeds resulting in the setting aside of that award by the courts below in favour of the Respondents and replacing that order with an order dismissing the Plaintiffs/Respondents’ claim in that regard, the appeal must fail on all the remaining three issues and the same is hereby dismissed. There shall be N50, 000.00 costs in favour of the Respondents.