Discretionary Power of Trial Courts in Assessing Quantum of General Damages

In the Supreme Court of Nigeria

Holden at Abuja

On Wednesday, the 4th day of June, 2025

Before Their Lordships

John Inyang Okoro

Helen Moronkeji Ogunwumiju

Tijjani Abubakar

Haruna Simon Tsammani

Mohammed Baba Idris

Justices, Supreme Court

SC/374/2018

Between

EZUGWU EMMANUEL ANENE                                         APPELLANT

And

MTN NIGERIA COMMUNICATIONS PLC                                         RESPONDENT

(Lead Judgement delivered by Honourable Mohammed Baba Idris, JSC)

Facts

The Appellant filed an action against the Respondent, seeking a declaration that the uncountable deductions of N50.00 in his airtime by the Respondent as service charge without him subscribing to the service, breached his quiet enjoyment of the airtime he paid for, an order restraining the Respondent from further deduction from his airtime, and an order directing the Respondent to refund all such deductions made by the Respondent so far. The Appellant also prayed for damages in the sum of N50 million for the hardship and discomfort he suffered, as a result of the deductions.

After the conclusion of trial, the trial court delivered judgement in favour of the Appellant, and awarded him general damages in the sum of N5 million for the disruption of the quiet enjoyment of his airtime, and the consequent hardship and discomfort he suffered as a result of the same. The trial court also awarded him costs, in the sum of N500,000.00. Aggrieved, the Respondent appealed to the Court of Appeal which reduced the sum awarded against the Respondent in favour of the Appellant by the trial court as general damages to N400,000.00 and reduced the costs to N100,000.00. Dissatisfied with these reductions, the Appellant appealed to the Supreme Court. The Respondent also dissatisfied with the part of the judgement delivered in favour of the Appellant, filed a cross-appeal. The parties filed and exchanged their respective briefs of argument, in respect of the main appeal and the cross-appeal. The Appellant as Cross-Respondent in the cross-appeal also filed a Notice of Preliminary Objection, which was argued in his Cross-Respondent’s brief of argument.

Issues for Determination in Main Appeal

The Supreme Court adopted the issues distilled by the Appellant in its resolution of the appeal:

1. Whether from the evidence before the courts as well as the concurrent findings of facts of both courts, the court below was justified in interfering the award of N5,000,000.00 as general damages in the circumstances.

2. Whether the reduction of the N5,000,000 general damages to N400,000.00 was not so ridiculous as to have defeated the very essence of damages in the case and amount thereby to an unjustified substitution of the trial court’s award in view of the evidence before the lower court.

3. Whether the lower court was not wrong to have interfered with the N500,00.00 cost of action by reducing and pegging same to N100,000.00 without any reason therefore.

Arguments

In the arguments of Counsel for the Appellants on the 1st and 2nd issues, Counsel submitted that the award of general damages made by the trial court was justified and not excessive, taking into account all relevant factors in the peculiar circumstances of the case. Counsel argued that the Court of Appeal’s interference in the quantum of general damages awarded to the Appellant, was wrong.

On the 3rd issue, Counsel for the Appellant submitted that the Court of Appeal wrongly interfered with the cost of the action awarded by the trial court without finding the cost excessive, unreasonable or contrary to law. Counsel argued that the High Court of the Federal Capital Territory (Civil Procedure) Rules 2004 under which the matter was tried permits the quantum awarded as cost in the circumstance, and that the Court of Appeal was wrong to have reduced and pegged the award to only N100,000.00 without any reasons known to law.

Responding on the 1st issue, Counsel for the Respondent submitted that the essence of damages is restitution, whilst the measure of damages is the sum of money that would restore the injured (to the extent money can) to the position he should have been, had the injury not occurred. Counsel argued that the general damages awarded in favour of the Appellant by the trial court was excessive and in breach of the law on restitution and measure of damages, and the Court of Appeal is under the obligation to interfere with the award as it did, as the award exceeded the greatest possible loss that could have possibly resulted from the injury to the Appellant.

Arguing further, Counsel to the Respondent submitted that issue 2 in the Appellant’s brief of argument was competent, because the grounds forming it are also part of the grounds upon which issue 1 is based.

On the 3rd issue, Counsel for the Respondent argued that costs are awarded only for genuine and reasonable out-of-pocket expenses, and not to punish the unsuccessful litigants. Counsel submitted that the cost awarded by the trial court in favour of the Appellant was excessive, and amounted to double compensation and a transfer of the incidence of prosecuting the suit to the Respondent, and the Court of Appeal righty interfered with the same.

Court’s Judgement and Rationale

Deciding the 1st and 2nd issues in the main appeal together, the Supreme Court held that the award of general damages is purely within the discretion of the trial court, relying on ELF PETROLEUM v UMAH & ORS (2018) LPELR – 43600 (SC). The Court held that general damages are presumed by law to be the direct and probable consequence of an act, and once generally averred in the pleadings, it need not be specifically pleaded or proved by evidence, and unlike special damages, it is generally incapable of substantially exact calculation. The Court held further that upon a general appraisal of a matter, the trial court may in its discretion, award as general damages what it determines to be just and appropriate, as the power to award damages by the trial court is exercised in the circumstances of a judicious estimation of the loss to a victim once a breach has been established.

The Apex Court further held that for any party to succeed in showing that the court exercised its discretion wrongly, the party has the onus to establish that the court’s discretion was not exercised judicially and judiciously, but exercised in an arbitrary manner and without due regard for all relevant considerations. The Court held that the evidence led by the Appellant showed the several inconveniences suffered by the Appellant as a result of the arbitrary deductions by the Respondent, and the trial court after giving due consideration to these factors alongside the arbitrary deductions, exercised its discretion judicially and judiciously by awarding the sum of N5 million as general damages in favour of the Appellant instead of the N50 million claimed by the Appellant. The Apex Court found that the Court of Appeal should not have disturbed this exercise of discretion, by reducing the general damages to N400,000.00.

On the 3rd issue, the Apex Court held that the award of costs is at the discretion of the trial Judge. The Court referred to Order 52(3) of the High Court of the Federal Capital Territory (Civil Procedure) Rules. The Court held further that the discretion in awarding costs is guided by considerations such as the conduct of the parties, the complexity of the case and the time expended in litigation, and when costs are awarded by a trial court judicially and reasonably as it deems fit to compensate a successful party, the appellate court should be wary of interfering with the discretion of the trial court as to the amount of costs. The Apex Court relied on its decision in LAYINKA & ANOR v MAKINDE & ORS (2002) LPELR – 1770 (SC).

The Apex Court found that the trial court exercised its discretion judicially in awarding the sum of N500,000.00 as cost of litigation, instead of the N1,000,000.00 sought for by the Appellant, and the Court of Appeal had no business interfering with the same.

Thereafter, the Supreme Court proceeded to the Respondent’s (Cross-Appellant) cross-appeal, first considering the Appellant’s (Cross-Respondent) preliminary objection challenging the competence of the cross-appeal.

Issues for Determination in Cross-Respondent’s Notice of Preliminary Objection

1. Whether the failure to serve the Notice of Cross-Appeal on the Cross-Respondent, robs the Court of the jurisdiction to hear the cross-appeal.

2. Whether the unilateral modification of the title of the Cross-Appellant robs the Court of the jurisdiction to entertain the cross-appeal.

Arguments

On issue 1, the Cross-Respondent argued that he was not served with the Notice of Cross-Appeal, hence, the cross-appeal was incompetent, and the Supreme Court lacked the jurisdiction to entertain the same.

On issue 2, the Cross-Respondent contended that the Cross-Appellant at the trial Court is “MTN NIGERIA COMMUNICATIONS LTD”, but while lodging the Notice of Cross-Appeal, the Cross-Appellant unilaterally changed the title of the Cross-Appellant to “MTN NIGERIA COMMUNICATIONS PLC”, and this robbed the Court of jurisdiction.

In response, Counsel for the Cross-Appellant argued that the name of the Cross-Appellant given as it is before the Court is a misnomer, and thus, incapable of robbing the Apex Court of jurisdiction to entertain the appeal.

Court’s Decision and Rationale

On the 1st issue, the Apex Court found that it was on record and as contained in the affidavit of service deposed to by the Bailiff of the Supreme Court on 16th December, 2020, that the Notice of Cross-Appeal filed by the Cross-Appellant after the Supreme Court granted an earlier application filed by the Cross Appellant for extension of time to seek leave to cross-appeal, leave to cross-appeal and extension of time to cross-appeal, was served on the Cross-Respondent through his Counsel on 15th December, 2020 which by a combined reading of Order 2 Rule 2 and 3 of the Supreme Court Rules is good service.

On the 2nd issue, the Supreme Court held that a misnomer can only be said to occur when a correct party is brought to court under a wrong name. The Apex Court held further that there is a difference between a juristic personality suing under a mistaken name and when there is a total misrepresentation in the juristic personality of a party, especially when it has to do with the filing of a Notice of Cross-Appeal, which is an originating process before the Supreme Court. The Court held that it is a fundamental mistake to replace a private company with a public limited company, as they have two different status, and the mistake in replacing a private company with a public company could have easily been forgiven if it was made in the process of filing other processes in the course of the appeal, and not when filing the originating processes in the appeal.

The Court held that the modification by the Cross-Appellant of its name, and to a different personality from the one known at the trial court and even at the Court of Appeal and the main appeal filed by the Cross-Respondent, rendered the cross-appeal incompetent and liable to be struck out. The Cross-Respondent’s notice of preliminary objection was thus, upheld.

Appeal Allowed, Cross-Appeal Struck Out.

Representation

J. Ugwuanyi with M. Nwangwu for the Appellant.

O. Ogbonna, SAN with O. Aju and others for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)