➥ CASE SUMMARY OF:
Union Bank of Nigeria Plc v Clement Nwankwo (2019) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.287/2006
➥ JUDGEMENT DELIVERED ON:
Friday, 11th January, 2019
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ SPECIAL DAMAGES MUST BE PROVED TO THE LAST KOBO
The law is settled that where a party claims special damages, the burden is on him to prove the special damages to the last kobo. He has to do this by leading credible evidence most of the time by documents which show the actual loss he has suffered. See Arisons Trading & Engineering Co. Ltd (2009) LPELR 554 (SC). Unchallenged ipse dixit evidence is not an automatic proof of special damages. — P.A. Galumje, JSC.
⦿ SPECIAL DAMAGES SUCCEEDS ONLY ON ACTUAL LOSS
It is indeed trite that a claim for special damages must not only be specifically pleaded item by item with corresponding monetary value of the claimed item, the items as particularized must further be proved by credible evidence for the Court to grant the claim. Where special damages have not been specifically pleaded and proved, same shall not be granted. It follows that a claim for special damages succeeds only in respect of actual and not estimated or anticipated loss or profit. See Dumez V. Ogboli (1972) 2 SC 45, Okunzua V. Amosu (1992) 6 NWLR (Pt. 248) 416 at 432 and Anyanwu V. Uzowuaka (2009) 13 NWLR (Pt 1159) 445. — M.D. Muhammad, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Paul Adamu Galumje, J.S.C.
⦿ FOR THE APPELLANT
Mr. Aliyu Umar, Esq.
⦿ FOR THE RESPONDENT
Mr. S. O Simon, Esq.
➥ CASE HISTORY
The 1st Respondent herein, who was the plaintiff at the Benue State High Court holden in Gboko, is a customer of the Appellant and operates a current account no. 203146817 at the Appellant’s Gboko Branch. He carries on the business of sale, stock and purchase of frozen fish in Gboko. On the 10th March, 1999, the Appellant granted an overdraft facility of Two Million Naira (N2,000,000.00) in favour of the 1st Respondent to assist him in his business. This overdraft facility was to expire on the 7th of March, 2000. The first defendant serviced the account satisfactorily as a result, he was granted another facility of N500,000,00 known as “Temporary Excess” on the 14th October, 1999 and this was to expire within six weeks. This facility was credited into the 1st Respondent’s account.
On 22nd of October, 1999 the 1st Respondent drew a cheque of N150,262.50 on his current account with an endorsement at the back directing the manager of the Appellant to prepare a draft of N15,000.00 payable to Niyi Idowu Comm. Ent. The draft was an advance payment for the supply of 30kg or 4,000 cartons of skumbia fish which the 1st Respondent had negotiated with Niyi Idowu Comm. Ent., a company based in Lagos. According to the 1st Respondent, he was to buy the 4,000 cartons of fish at N1,850 per carton and sell at N2,700.00 per carton, thus making a gain of N850 per carton. He estimated his overall gain to be N3,400,000. The Appellant refused to honour the cheque which it endorsed on its face, “Drawers attention required”.
The 1st Respondent could not raise money elsewhere to meet his contractual obligation with Niyi Idowu Comm. Ent. as such the supply of the skumbia fish was frustrated. On the 22nd October, 1999 when the draft was dishonoured, the overdraft facilities had not expired, and the 1st Respondent had in his account the sum of N319,713.33 an amount sufficient enough to satisfy the cheque of N150,000.
1st Respondent felt aggrieved with the appellant’s action, and therefore took out a writ of summon dated 27th October, 1999 and a statement of claim dated 26th of October, 1999, in which he claimed from the Appellant, inter alia, the following relief: – (a) A declaration that the refusal of the Defendant to honour the plaintiffs cheque as at 22-10-99 amount to a breach of contract between the plaintiff and the defendant.
In a reserved and well considered judgment, delivered on the 26th February, 2001, Ikyegh J. (as he then was) found the Appellant liable for breach of contract when it dishonoured the 1st Respondent’s cheque and went on to award N200,000 general damages against the Appellant and in favour of the 1st Respondent. The learned trial Judge found all the other claims not proved and accordingly dismissed them. The counter claims were found to be premature, as the facilities had not expired at the time the counter claims were instituted. The 2nd Respondent who also counter claimed the certificate of occupancy which was used as collateral for the facilities, had his counter claim dismissed as well.
The Appellant appealed to the Court of Appeal which Appeal was allowed in part. He has further appealed before this Court.
➥ ISSUE(S) & RESOLUTION
I. Whether the sum of N200,000.00 only awarded to the Respondent as general damages was not a fair and just compensation to the Respondents in the circumstances of this case?
RULING: IN APPELLANT’S FAVOUR.
A. “Learned counsel for the Appellant has clearly indicated in his argument in support of [this] issue for determination of this appeal that the appellant has no quarrel with the award of N200,000.00 by the trial Court, and award which was confirmed by the lower Court. Learned counsel for the Respondents refused to join issues with the learned counsel for the Appellant on this issue. That which is settled needs not be flogged. [This] issue is according resolved in favour of the Appellant.”
II. Whether the lower Court was right in awarding special damages based on speculation, projection and anticipatory profit?
RULING: IN APPELLANT’S FAVOUR.
A. “The profit margin alluded to by the 1st Respondent in speculative and based on future transactions. How sure was the 1st Respondent that the market forces were going to remain static throughout the transaction and that the transportation of the fish from Lagos to Gboko would remain incidence free?”
B. “The Appellant was not a party to the negotiation to buy fish from Niyi Idowu Commercial Enterprises. Even though the Appellant knew that the 1st Respondent was carrying out the business of sale and stocking of fish, there is no evidence that this particular transaction was brought to its knowledge at the time the cheque was presented by the 1st Respondent with instruction to prepare a draft in favour of Niyi Idowu Commercial Enterprises. Even if the Appellant knew, there was no way it could have been held liable for a contract in which it was not a party. This is where I agree entirely with the learned counsel for the Appellant that the special damages claimed by the Respondents and awarded by the lower Court was too remote as a consequence of the act of the Appellant and that it could not have been foreseen at the time the 1st Respondent’s cheque was dishonoured.”
“This appeal shall be and it is hereby allowed. The judgment of the lower Court is hereby set aside. In its place, the judgment of the trial Court is hereby restored. Parties shall bear their respective costs.”
➥ MISCELLANEOUS POINTS
** Per Onnoghen, JSC:
“I agree with the submission of learned counsel for appellant and my learned brother Galumje J.S.C. in the lead Judgment that the special damages claimed by 1st respondent and awarded by the lower Court in its said Judgment was too remote as a consequence of the act of the appellant in dishonouring the cheque in issue as same could not, from the facts on record, have been foreseen by the parties to the transaction, it was not within the contemplation of the parties at the time appellant refused/neglected to honour the said cheque. Secondly, it is also clear from the facts that the loss allegedly suffered and claimed by 1st respondent as resulting from the dishonor of the cheque is not only speculative but grounded on futuristic occurrence of an event a contemplated profit arising from his business.”
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ SPECIAL DAMAGES CANNOT BE AWARDED ON ANTICIPATED LOSS
In Young vs Chevron (Nig) Ltd 2013 LPELR 22126, the plaintiff set out the particulars of the crops that were destroyed in his farm and the expected earnings from those crops which he pleaded and gave evidence that the employees, agents, contractors and servants of the defendant had destroyed by setting fire to his farm. The learned trial Judge found that the plaintiff had not proved the items of special damages, as the pleadings and depositions merely contain speculations as to the number of plants and the expected income. On appeal, the Court of Appeal held: – “A Court is not expected to believe and act on evidence that is manifestly incredible or unreliable, merely because the plaintiff said so; the evidence itself must be credible evidence, before it can be acted on by a Court of law. What if the Appellant had claimed that the farm produce he lost was worth a Billion Naira, with nothing whatsoever to substantiate his claim, will a reasonable man expect the lower Court to hand it to him just like that? No, he would have to show some proof that he is entitled to such an amount, and that is what was required of him some evidence to back up his claims.”
➥ REFERENCED (OTHERS)