(2018) LPELR-45828(CA) - lawpavilionpersonal.comlawpavilionpersonal.com/ipad/books/45828.pdf ·...
Transcript of (2018) LPELR-45828(CA) - lawpavilionpersonal.comlawpavilionpersonal.com/ipad/books/45828.pdf ·...
OCHUBA v. LAGOS STATE AGRICULTURALDEVELOPMENT AUTHORITY
CITATION: (2018) LPELR-45828(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON WEDNESDAY, 18TH APRIL, 2018Suit No: CA/L/319/2012
Before Their Lordships:
MOHAMMED LAWAL GARBA Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal
BetweenPETER OCHUBA - Appellant(s)
AndLAGOS STATE AGRICULTURAL DEVELOPMENTAUTHORITY (LSADA) - Respondent(s)
RATIO DECIDENDI
(201
8) LP
ELR-45
828(
CA)
1. DAMAGES - SPECIAL DAMAGES: Principles guiding the award of special damages"By way of a general restatement of the law on special damages, they are required tobe specially pleaded and strictly proved by a claimant who owes the initial evidentialburden of proof of assertions made by him, if judgment was to be entered in his favourby a Court, SPDCN Ltd. v. Isaiah (1997) 6 NWLR (Pt. 508) 236; Ngilari v. Mothercat Ltd.(1999) 13 NWLR (Pt. 636) 626; Walter v. Skyll Nig. Ltd (2001) 3 NWLR (Pt. 701) 438;Saleh v. B.O.N. Ltd. (2006) 6 NWLR (Pt. 976) 316; Kopek Constr. Ltd v. Ekisola (2010) 3NWLR (Pt. 1182) 618; N.N.P.C. v. Klifco Nig. Ltd. (2011) 10 NWLR (Pt. 1225) 209; O.M.T.Co. Ltd v. Imafidon (2012) 4 NWLR (Pt. 1290) 332. By specific pleadings, a claimant isrequired to provide essential particulars and details of the facts of the special damagessuffered and claimed with adequate clarity to enable the other party know precisely, thenature of the claim. Adim v. N.B.C. Ltd (2010) 9 NWLR (Pt. 1200) 543; Reynolds Constr.Co. Nig. Ltd v. Rockonoh Prop. Co. Ltd. (2005) 4 SC 1 (2005) 10 NWLR (Pt. 934) 615;N.B.B.B. Manuf. Co. Ltd. v. African Continental Bank Ltd (2004) 1 SC (Pt. 1) 32, (2004) 2NWLR (858) 521. Strict proof required for special damages does not mean an unusual orextra ordinary proof beyond and above the required standard of preponderance ofevidence or balance of probabilities in all civil cases. See Nzeribe v. Dave Engr. Co. Ltd(1994) I SCNJ, 161 @176-7; Dumez Nig. Ltd v. Ogboli (1972) 1 All NLR (Pt. 1) 241. Strictproof simply imports production of cogent, credible, admissible and sufficient evidencethat would readily and easily support and make the items of the special damagesclaimed, certain, accurate and quantifiable. It is proof that is characterized by evidencethat ties each item of the special damages claimed to the particulars of the factspleaded by a claimant in his specific pleadings of the damages. Adecentro Nig. Ltd. v.Council of O.A.U. (2005) 5 SC (Pt. 1) 13, (2005) 15 NWLR (Pt. 948) 290; F.B.N. Plc v.Associated Motors Ltd. (1998) 10 NWLR (Pt. 569) 227; Okorokiro v. Chukwe (1992) 1NWLR (Pt. 216) 175; Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; Basil v. Fajebe(1990) 6 NWLR (Pt. 155) 172; B.E.O.O. Ind. Nig. Ltd v. Maduakoh (1975) 12 SC 91 @108.Another settled principle of law on the claim for special damages is that they cannotproperly be awarded on mere failure by a Defendant to deny them in the pleadings, butthe claimant must still prove them as required by the law before he would be entitled toan award by the Court. Himma Merchants Ltd. v. Aliyu (1994) 3 NWLR (Pt. 347) 667;Anazodo v. Pazmeck Inter. Trade Nig. (2007) LPELR-5147 (CA), (2008) 1 NWLR (Pt. 1084)529; Sabbach Bros. v. BWA Ltd (2006) 1 ALL NLR, 240; Anthony v. Giwa (2011)LPELR-5103 (CA); Reynolds Constr. Co. Nig. Ltd v. Edomwonyi (2003) 4 NWLR (Pt. 811)513; Arab Constr. Ltd v. Isaac (2012) LPELR-9787 (CA); N.N.P.C. v. Klifco Nig. Ltd (supra)also reported in (2011) 4 MJSC, 142 @ 174."Per GARBA, J.C.A. (Pp. 11-13, Paras. B-E) -read in context
(201
8) LP
ELR-45
828(
CA)
2. DAMAGES - SPECIAL DAMAGES: Whether a claim for loss of use is a claim for specialdamages that must be specifically pleaded and proved"It must be pointed out that the claim for loss of use being in the class of specialdamages cannot be awarded merely because the Respondents did not raise it in itspleadings or on the ipse dixit of a Claimant, even if unchallenged. Boshali v. AlliedComm. Exporters Ltd (1961) ALL NLR, 917; Odulaja v. Haddad (1973) 11 SC, 357; NMSLv. Afolabi (1978) 2 SC 79; Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393, (1992) SCNJ,98. The Appellant had the duty to adduce credible evidence to show that he was indeedentitled to the claim of N5,000 daily from the period of 21st November, 2007 to 20thJuly, 2008 as loss of use of the vehicle which he denied the Respondent the opportunityto repair. Apart from the ipse dixit of the Appellant, there was other credible and cogentevidence to support and prove the claim for the period in question and the High Courtwas right to have made an award for thirty (30) days within which the Appellant'svehicle would have been repaired by the Respondent if he had not prevented it from sodoing by unreasonably insisting on his chosen company. In the case of TranskompletNig. Ltd. v. Galadima (1998) LPELR-6478(CA) it was held that:-"Any evidence no matter how unchallenged or uncontroverted which falls short of whatis required to prove special damages must be rejected."The case of Arinze v. State (1990) 6 NWLR (Pt. 155) 158 was referred to by the Court forthe position. Perhaps, I should point out that what the High Court did in the award for 30days for loss of use is not an assessment of amount or quantum of the sum claimed bythe Appellant, but rather on the pleadings and evidence by the Respondent that thedelay in repairs of the Appellant's vehicle occurred as result of his refusal to allow therepairs to be carried out by a company proposed by the Respondent and so he is notentitled to the claim for the whole of period of eight (8) months he claimed. Ordinarily, aCourt cannot use its own criteria or assessment of the quantum of special damagesoutside or apart from what was claimed and satisfactorily proved by credible and cogentevidence of the Claimant.Therefore a trial Court cannot make its own individual or arbitrary assessment of what itconceives the Claimant may be entitled to, but the law requires that it should only acton the hard facts and evidence accepted by it as establishing the amount or sumclaimed as justification for the award. UBN, Plc. v. Ajabule (2011) 18 NWLR (1278) 152,(2011) LPELR-8239 (SC); Texaco Nig. Plc. v. Iloka (2011); C.A.P. Plc. v. Vital Inv. Ltd(2006) 6 NWLR (Pt. 976) 220. The Appellant here did not satisfactorily prove hisentitlement to the loss of use for the whole of the period he claimed."Per GARBA, J.C.A.(Pp. 35-38, Paras. E-A) - read in context(2
018)
LPELR
-4582
8(CA)
3. EVIDENCE - ADMISSIBILITY OF EVIDENCE: Duty of both trial and appellate Courtwhen an objection is raised to the admissibility of avidence"It may be recalled that the first complaint by the Appellant is that the High Court didnot consider his objection to the admissibility of the Exhibits D1-D6 on the ground thatthey were made by persons interested in the matter, relying on Section 91(3) of theEvidence Act. The Appellant is correct that the High Court did not at the time he raisedthe objection to the admissibility of said documents consider it before admitting them inevidence as Exhibits. Again, the Appellant had raised the objection in his final address,at pages 98-103 of the Record of Appeal, but the High Court did not consider or avert toit in its judgment. The law requires that all relevant issues or points raised by the partiesin the course of the proceedings of a case; either by way of objection or submissions,should be pronounced upon by the Court either at the time they were raised or in thefinal determination of the case. X.S. Nig. Ltd v. Taisei (WA) Ltd (2006) 15 NWLR (1003)533; Orji v. PDO (2009) 14 NWLR (Pt. 1161) 310; State v. Ajie (2000) 11 NWLR (Pt. 678)434. Objection to the admissibility of any piece of evidence, parole or documentary,timeously raised before a trial Court by a party is a relevant and material issue or pointon which the Court has the duty to make a pronouncement before admitting it inevidence and using or relying on it to making finding(s) of facts in the case. Where thetrial omits or chooses to defer the pronouncement on the objection to the final decisionof the case, it must before using and relying on the evidence in respect of which theobjection was raised, to base its finding, make a categorical or specific pronouncementon the objection, in the final decision. Although the admission of the evidence in spite ofthe objection to its admissibility may constitute overruling the objection, the trial Courthas the primary duty to specifically and clearly state or give reasons for the decision tooverrule the objection and to admit the evidence. A trial Court cannot ignore anobjection to the admissibility of a piece of evidence, admit the evidence and thenproceed to use or rely on it to make finding(s) on which its final decision in a case maybe predicated as that would constitute an infringement of a party's right to a fairhearing in the conduct of the proceedings. Buhari v. I.N.E.C. (2008) 19 NWLR (Pt. 1120)246; Onuoha v. Nwabueze (2002) 2 NWLR (Pt. 750) 172.Since the High Court has failed to consider the objection, this Court has the power andjurisdiction to do so in this appeal since it by way of a rehearing under Order 7, Rule 2 ofCourt of Appeal Rules, 2016 and possesses the full jurisdiction of the High Court in thedetermination of the appeal pursuant to Section 15 of the Court of Appeal Act, 2004.Uduma v. Arunsi (2012) 7 NWLR (Pt. 1298) 55; Ekpemupolo v. Edremoda (2009) 8 NWLR(1142) 166. Before proceeding to consider the objection to the admissibility of theExhibits D1-D6 based on Section 91(3) of the Evidence Act, it is expedient to find out ifthe High Court has used or relied on the said Exhibits to make finding(s) whichmaterially influenced its final decision on the Appellant's case or any material partthereof. This is necessary because in the event that the said Exhibits were not used orrelied on by the High Court for findings upon which its judgment was based orpredicated, then the admission of the Exhibits even if wrong in law, would have no legalconsequence on the decision since the law is that mere wrongful admission or exclusionof evidence, ipso facto, would not ordinarily lead to the reversal of a lower Court'sdecision by an appellate Court. See Section 251 of the Evidence Act; 2011, Buhari v.Obasanjo (2005) 13 NWLR (Pt. 941) 1; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561;Dele v. State (2011) 1 NWLR (Pt. 1229) 508; Ojengbede v. Esan (2001) 18 NWLR (Pt.746) 771."Per GARBA, J.C.A. (Pp. 19-22, Paras. C-E) - read in context
(201
8) LP
ELR-45
828(
CA)
4. EVIDENCE - STATEMENT MADE BY INTERESTED PARTY: Position of the law on theadmissibility of documents or evidence by a person interested"Section 91(3) of the Evidence Act, 2004 (applicable at the time of trial, now Section83(3) of the 2011 Act) provides that:-"(3) Nothing in this section shall render admissible as evidence any statement made bya person interested at a time when proceedings were pending or anticipated involving adispute as to any fact which the statement might tend to establish."A "person interested" for the purpose of these provisions means a person who has apecuniary or other material interest in the result of the proceedings, a person whoseinterest is affected by the result of the proceedings, and therefore, would have atemptation to pervert the truth to serve his personal or private ends. It does not meanan interest in the sense of intellectual observation or an interest purely due tosympathy. It means an interest in the legal sense, which imports something to begained or lost.A person who merely acts in the discharge of his official duty or performance of officialfunction in respect of a matter that may be the subject of a case before a Court of law orwhich may result in a legal action, does not become a person interested within thecontext of the provisions so as to render any statement made by him inadmissible, Inthe case of H.M.S. Ltd v. F.B.N. (1991) 1 NWLR (Pt. 167) 290 @ 312, the apex Court perKaribi-Whyte, JSC, had held that:"Thus the general principle is that the document made by a party to a litigation orperson otherwise interested when proceedings are pending or is anticipated is notadmissible Barkway v. South Wales Transport Co. Ltd (1949) 1 K.B. 54. The disqualifyinginterest is a personal not merely interest in an official capacity - See Bearmans Ltd. v.Metropolitan Police District Receiver (1961) 1 NLR 634. Where however the interest ofthe maker is purely official or as a servant without a direct interest of a personal nature,there are decided cases that the document is not thereby excluded. - See Evon v. Noble(1949) 1 K B. 222. See: The Atlantic and the Battyk (1946) 62, T.L.R. 461. Re Powe,Powe v. Barclays Bank Ltd. (1956) P. Galler v. Galler (1955) I W.L.R. 400.?The nature of the disqualifying interest will depend upon the nature of duty undertakenby the servant. Where from the nature of the duty he can be relied upon to speak thetruth, and that he will not be adversely affected thereby, the document has always beenadmitted in evidence. This is because the rationale of the provision is that he must be "aperson who has no temptation to depart from the truth on one side or the other - aperson not swayed by personal interest, but completely detached judicial, impartial,independent."See also Anyaebosi v. T. T. Briscoe Nig. Ltd (1987) 3 NWLR (59) 84; Asuquo v. Asuquo(2009) 16 NWLR (Pt. 1167) 225; Okenwa v. Mil. Gov. of Imo State (1997) 6 NWLR (Pt.507) 136; Republic Bank Nig. Ltd. v. C.B.N. (1998) 13 NWLR (Pt. 551) 306; N.S.I.T.F. v.Klifco (2010) 13 NWLR (Pt. 1211) 307.In the premises of the above position of the law, the persons who wrote the queries andreplies in Exhibits D1-D6 cannot properly be considered as persons interested within thecontemplation of Section 91(3) of the 2004 Evidence Act so as to render the Exhibitsinadmissible in evidence. The ground of the objection by the Appellant, apparently, iswanting in merit and is overruled."Per GARBA, J.C.A. (Pp. 24-27, Paras. D-D) - read incontext
(201
8) LP
ELR-45
828(
CA)
5. EVIDENCE - ADMISSIBILITY OF EVIDENCE: The legal basis governing theadmissibility of evidence"By the provisions of Section 6 of the Evidence Act, 2004, ordinarily, admissibility ofevidence was governed primarily, by relevance to the issues for decision in judicialproceedings of a Court. Once a piece of evidence is relevant, subject to other conditionsthat may be prescribed by the evidence law, it is admissible in evidence and once apiece of evidence has no relevance or connection with the issues or facts of a case, thenit is of no moment to the case and so it would be fruitless to admit in evidence. A pieceof evidence which is not relevant is on that basis, not admissible or is inadmissible inevidence. See Elias v. Disu (1962) 1 SCNLR, 361, (1962) 1 ALLNLR 214; Igbinovia v.State (1981) 2 SC, 5; Ogonzie v. State (1997) 8 NWLR (Pt. 515) 566; Oyetunji v. Akanji(1986) 5 NWLR (Pt. 42) 461; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386;Agbahomovo v. Eduyegbu (1999) 3 NWLR (Pt. 594) 170; Torti v. Ukpabi (1984) 1 S.C.370."Per GARBA, J.C.A. (Pp. 27-28, Paras. F-E) - read in context
6. JUDGMENT AND ORDER - AWARD OF INTEREST: Position of the law as regardsaward of post judgment interest"There is also the complaint by the Appellant that the High Court did not award postjudgment interest on the sums awarded in his favour in the judgment.By the provisions of Order 35, Rule 4 of the High Court of Lagos State Civil ProcedureRules, 2004 (applicable to the Appellant's case) a Judge of that Court at the time ofmaking any judgment or order, may order interest at a rate not less than 10% perannum to be paid upon the judgment. Clearly, the provisions vests a discretionarypower on the High Court to order, as it deems fit, that interest at the rate of not lessthan 10% be paid upon a judgment entered by it in favour of a party. Since the power isdiscretionary in the Court, like all other judicial discretion, it is to be exercised judiciallyand judiciously taken into consideration, the peculiar facts and circumstances of thecase leading to the judgment. Bullet Int. Nig. Ltd v. Adamu (1997) 3 NWLR (Pt. 493) 348;Kasunmu v. Shitta-Bay (2006) 1LR (P7 NWt. 1008) 372; Dokubo Asari v. F.R.N. (2007) 12NWLR (Pt. 1048) 320; Sanni v. Agara (2010) 2 NWLR (Pt. 1178) 371. In the presentappeal, since judgment was entered by the High Court and damages; special andgeneral, were awarded to the Appellant, the justice of the case requires that the sumsawarded shall attract the post judgment interest at the rate provided for by the Rules ofthe Court. From the tenor of the judgment by the High Court, it was an omission ratherthan an error on its part not to have awarded interest on the sums awarded to theAppellant in the judgment entered in his favour. The Appellant is entitled to interest onthe sums awarded in the judgment by the High Court and it is ordered to be paid on thesums at the rate of 10% from the date of the judgment until the judgment debt is fullypaid by the Respondent."Per GARBA, J.C.A. (Pp. 42-43, Paras. A-D) - read in context
(201
8) LP
ELR-45
828(
CA)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the
Leading Judgment): The Appellant; a Legal Practitioner,
had sued the Respondent before the High Court of Lagos
State in Suit No. ID/1761/2008 wherein he claimed the sum
of Three Million, Six Hundred and Five Thousand Naira
( N 3 , 6 0 5 , 0 0 0 . 0 0 ) a s s p e c i a l a n d g e n e r a l ,
aggravated/exemplary damages for negligence and
damages caused to his car and injuries suffered by him
from the Respondent's driver on the 20th October, 2007.
According to the facts in the statement of claim, the
Appellant was driving his Mercedes Benz car at Apongbon
Bridge, on Lagos Island, on the said date when the
Respondent's Trailer Vehicle driven by its driver, ran into
the back of his car and damaged it, causing him personal
injuries.
After settlement of pleadings, the case proceeded to trial
during which the Appellant testified in proof of his claims
and a sole witness gave evidence in support of the defence
by the Respondent.
1
(201
8) LP
ELR-45
828(
CA)
In a judgment delivered on the 15th July 2011, the High
Court found in favour of the Appellant, held and ordered
thus:-
"As stated earlier in this judgment, this Court has
found in negligence for the Claimant and has held
that the Defendant is vicariously liable. I cannot find
that the Defendant has been able to prove strictly all
of the heads of claim for special damages and I so
hold. As stated earlier, I will grant a fraction of what
the Claimant is asking for in the area of taxi fares and
hereby award N150,000 only for a 30-day period
under that head.
The award of general damages is discretionary and
such discretion must be exercised judicially and
judiciously. In the circumstances of this case I
therefore award general damages in the sum of
N250,000 for the negligence of the Defendant."
Not satisfied with some parts of the judgment, the
Appellant brought this appeal by the Notice of Appeal
dated and filed on 30th September, 2011, containing six (6)
grounds of dissatisfaction from which he distilled three (3)
issues for determination by the Court in the Appellant's
brief filed on 21st January, 2014.
2
(201
8) LP
ELR-45
828(
CA)
The issues are in the following terms:-
"i. Whether the respondent's failure to reply on points
of law to the appellant's submissions precisely on the
following issues: (a) admissibility of Exhibits D1-D7;
(b) mitigation of loss, (c) special claims/damages (d)
post judgment interest etc amount to the
respondent's admission or concession of those issues
(as raised and argued upon by the appellant at the
trial Court) and that the trial Court as a consequence
ought to have found for the appellant on the issues.
(Grounds 1, 2 and 6).
ii. Whether the trial Court, after holding that the
appellant was entitled to the special claim of loss of
use of N5,000.00 per day as claimed and proved, was
right to have awarded the same only for 30 days
instead of (between 21/11/2007 to 31/07/2008 and up
to the day of judgment) and further refused to award
other heads of special claims/damages. (Grounds 4
and 5).
iii. Whether the trial Court, on the facts and
circumstances of this case, was right to have held
that the respondent was ready to repair the
appellant's car and that the appellant did not mitigate
his loss (Ground 3)."
3
(201
8) LP
ELR-45
828(
CA)
In the Respondent's unpaginated brief filed on the 4th
October 2017, deemed on 14th February, 2018, the
following issues are said to arise for determination in the
appeal:-
"1(a) Whether the trial Judge was right in law when
she held that the appellant has not been able to prove
strictly all the heads of claim for special damages.
(b) If the answer to the above is in the affirmative,
whether the Court of appeal should not upset the
award of the special damages."
I intend to consider the Appellant's issues which subsume
the Respondent's issues.
The arguments of the Appellant on Issue (i) are that the
High Court did not consider his objection to the
admissibility of Exhibit D1-D7 in evidence and that the said
Exhibits are inadmissible. A.G. Leventis, Plc v. Akpu
(2007) 9 MJSC, 134 on duty of a Court not to act on
inadmissible evidence and Agbo v. State 25 NSCQR, 137
@ 166 on duty of a Court to consider all issues raised by
the parties before it, were referred to and the Court is
urged to expunged the Exhibits D1-D7. It is also the case of
the Appellant that the Respondent did not plead the fact
that the Appellant did not
4
(201
8) LP
ELR-45
828(
CA)
mitigate his loss and so the High Court is said to be wrong
to have held that the Appellant did not mitigate his loss.
Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt.
658) 609 and Kosile v. Folarin (1989) 3 NWLR (Pt.
107) 1 were cited in the brief andOando v. Adijere
(2013) 5-7 MJSC (Pt. 11) 40, at the hearing of the
appeal. The Appellant said the Respondent did not
challenge the N5,000.00 loss of use, the length of time it
was claimed or other special damages claimed and the post
judgment interest claimed and so the Respondent is
deemed to have conceded or admitted them on the
authority ofAdesanya v. Otuewu (1993) 1 NWLR (Pt.
270) 414 and Adeniran v. Alao (2002) 1 MJSC, 1 @ 28.
Under Issue (ii), the Appellant said that by the authority of
Kosile v. Folarin (supra) the High Court ought to have
awarded the N5,000.00 per day for loss of use up to date of
judgment as claimed by the Appellant and further reliance
was placed on Cappa & D'Alberto Ltd v. Akintilo (2003)
4 SC (Pt. II) 1 @ 12. According to the Appellant, it was
because the High Court did not understand the claim for
loss of use that it erroneously awarded
5
(201
8) LP
ELR-45
828(
CA)
it for only 30 days instead of the period claimed by him,
which was strictly proved as required by the law. Verbose
and repetitive submissions were made to show that the
High Court was wrong in not awarding the sum and the
period claimed for loss of use of the Appellant's vehicle and
reference was made to numerous judicial authorities on
diverse principles of law, including taking judicial notice of
the depreciating value of the Naira.
The Appellant also submitted that the Respondent did not
challenge or controvert the special damages of N70,000.00,
N15,000 being cost of evaluation of repairs of his vehicle
after the incident and N1.5 Million as cost or value of the
vehicles at the time of the incident, which were all pleaded
and proved by him, but not awarded by the High Court.
Garba v. Kur (2003) FWLR (Pt. 148) 1277 @ 1288 and
West African Shipping Agency v. Kalla (1978) 11
NSCC, 114 @ 120, among other cases were referred to. It
is the contention of the Appellant that since the High Court
acknowledged, at page 143 of the Record of Appeal that the
parties did agree that his vehicle was "a write off", it had
the duty to
6
(201
8) LP
ELR-45
828(
CA)
award the sum of N1.5 Million claimed and proved for
replacement or as cost of the vehicle.
On the claim for the loss of N70,000.00, the Appellant cited
and relied on Cameroon Airlines v. Otutuizu (2011) 2-3
MJSC (Pt. II) 56 @ 89-90.
On Issue (iii), the Appellant submitted that the High Court
was wrongly swayed by the Exhibits D1-D7 which are
inadmissible to find that the Respondent was ready to
repair the Appellant's vehicle after the incident, in breach
of the Appellant's right to fair hearing. Then citing Omoha
v. State (1989) 1 NSCC (2000) 411 @ 417-8 on factors
to be considered in the determination of the veracity and
credibility of a witness, Appellant argues that the sole
witness who testified for the Respondent did not know the
facts of the incident involving his vehicle or other vehicles
and disowned the letter written by the Respondent to him;
Exhibit C1, admitting liability for the damage to the
Appellant's vehicle. He said the High Court ought to have
critically satisfied itself that there is no danger in believing
the witness or acting on his evidence and was wrong to
have
7
(201
8) LP
ELR-45
828(
CA)
believed his evidence which was contradictory on material
facts of the Respondent's defence without alluding to the
contradictions. Inter alia, U.N.I.C. Ltd (1999) 3 NWLR
(Pt. 593) 17; Ajie v. State (1976) 2 SC, 43 @ 44-5 and
Ezemba v. Ibeneme (2004) 10 MJSC, 54, were cited and
arguments were made on Respondent's admission of the
Appellant's case on pleadings and again, on the issue of
mitigation of loss by the Appellant, showing that the vehicle
was in the custody of the Police as a possible exhibit, after
the incidents and relying on Obasuyi v. Business
Ventures Ltd (supra) and Adisa v. Afuye (1994) 1
NWLR (Pt. 318) 75 @ 85. The High Court was said not to
have properly evaluated the evidence and on the authority
ofPopoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 @
33-4, the Court is said to be entitled to intervene to set
aside the perverse decision as defined in State v. Ajie
(2000) 11 NWLR (Pt. 679) 434 @ 449.
Finally, the case of A.G. Leventis Ltd. v. Akpu (supra)
were referred to on when an appellate Court may upset the
award of damages by a trial Court, and in conclusion, the
Court is urged to, pursuant to Section 16
8
(201
8) LP
ELR-45
828(
CA)
of the Court of Appeal Act, re-appraise the evidence, allow
the appeal and grant/award all the Appellant's reliefs as
claimed.
In the Respondent's five (5) pages brief, it submitted that
parties are bound by their respective pleadings and the
evidence which is to be placed on an imaginary scale by a
Court in order to find out which side out weights the other.
Reference was made to page 142 of the Record of Appeal
where the High Court made findings on the special
damages of N70,000.00 and N1,270,000.00 claimed by the
Appellant and it is said that:-
"the failure by the Respondent to reply on points of
law to the mitigation of loss, special claims and post
judgment interest would only be relevant if the
evidence placed before the Court by the appellant is
not faulty."
Also,
"we submit that what the appellant engaged in under
issue one is called indulgence in technicality. The
submissions as to whether the failure of the
respondent to rely to the heads of claim amounts to a
concession or an admission of the appellant's
submission on the issues did not do damage to the
case of the
9
(201
8) LP
ELR-45
828(
CA)
parties. The Appellant know very well that his
evidence is inherently faulty."
The case of Afolabi v. Adekunle (1983) 2 SCNJ, 141 was
cited on the need for Courts to eschew technicalities in
favour of substantial justice and it is submitted that the
findings of fact made by the High Court were well founded
on law and the evidence before it. The Court is urged to
dismiss all the issues in the Appellant's brief and uphold
the Respondent's argument.
In addition, it is said that it is not every error or mistake in
a judgment that necessarily results in an appeal being
allowed, and that it is only when it occasions a miscarriage
of justice that an appellate Court would interfere, on the
authority of A.G. Leventis Ltd. v. Akpu (supra) which
also stated when an appellate Court may interfere with the
award of damages by a Lower Court. The Court is urged to
resolve the Appellant's issues against him and dismiss the
appeal.
A calm consideration of the complaints raised in the issues
formulated by the Appellant, though argued in a windy
round and about and
10
(201
8) LP
ELR-45
828(
CA)
obfuscating manner, would show that they are predicated
on the allegation of improper evaluation of the evidence
and case of the Appellant on the special damages claimed
by him.
By way of a general restatement of the law on special
damages, they are required to be specially pleaded and
strictly proved by a claimant who owes the initial evidential
burden of proof of assertions made by him, if judgment was
to be entered in his favour by a Court, SPDCN Ltd. v.
Isaiah (1997) 6 NWLR (Pt. 508) 236; Ngilari v.
Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626; Walter
v. Skyll Nig. Ltd (2001) 3 NWLR (Pt. 701) 438; Saleh
v. B.O.N. Ltd. (2006) 6 NWLR (Pt. 976) 316; Kopek
Constr. Ltd v. Ekisola (2010) 3 NWLR (Pt. 1182) 618;
N.N.P.C. v. Klifco Nig. Ltd. (2011) 10 NWLR (Pt.
1225) 209; O.M.T. Co. Ltd v. Imafidon (2012) 4 NWLR
(Pt. 1290) 332. By specific pleadings, a claimant is
required to provide essential particulars and details of the
facts of the special damages suffered and claimed with
adequate clarity to enable the other party know precisely,
the nature of the claim. Adim v. N.B.C. Ltd (2010) 9
NWLR (Pt. 1200) 543; Reynolds Constr. Co.
11
(201
8) LP
ELR-45
828(
CA)
Nig. Ltd v. Rockonoh Prop. Co. Ltd. (2005) 4 SC 1
(2005) 10 NWLR (Pt. 934) 615; N.B.B.B. Manuf. Co.
Ltd. v. African Continental Bank Ltd (2004) 1 SC (Pt.
1) 32, (2004) 2 NWLR (858) 521. Strict proof required
for special damages does not mean an unusual or extra
ordinary proof beyond and above the required standard of
preponderance of evidence or balance of probabilities in all
civil cases. See Nzeribe v. Dave Engr. Co. Ltd (1994) I
SCNJ, 161 @176-7; Dumez Nig. Ltd v. Ogboli (1972) 1
All NLR (Pt. 1) 241. Strict proof simply imports
production of cogent, credible, admissible and sufficient
evidence that would readily and easily support and make
the items of the special damages claimed, certain, accurate
and quantifiable. It is proof that is characterized by
evidence that ties each item of the special damages claimed
to the particulars of the facts pleaded by a claimant in his
specific pleadings of the damages. Adecentro Nig. Ltd. v.
Council of O.A.U. (2005) 5 SC (Pt. 1) 13, (2005) 15
NWLR (Pt. 948) 290; F.B.N. Plc v. Associated Motors
Ltd. (1998) 10 NWLR (Pt. 569) 227; Okorokiro v.
Chukwe (1992) 1 NWLR (Pt. 216) 175; Joseph v.
Abubakar (2002) 2 NWLR (Pt. 759)
12
(201
8) LP
ELR-45
828(
CA)
185; Basil v. Fajebe (1990) 6 NWLR (Pt. 155) 172;
B.E.O.O. Ind. Nig. Ltd v. Maduakoh (1975) 12 SC 91 @
108.
Another settled principle of law on the claim for special
damages is that they cannot properly be awarded on mere
failure by a Defendant to deny them in the pleadings, but
the claimant must still prove them as required by the law
before he would be entitled to an award by the Court.
Himma Merchants Ltd. v. Aliyu (1994) 3 NWLR (Pt.
347) 667; Anazodo v. Pazmeck Inter. Trade Nig.
(2007) LPELR-5147 (CA), (2008) 1 NWLR (Pt. 1084)
529; Sabbach Bros. v. BWA Ltd (2006) 1 ALL NLR,
240; Anthony v. Giwa (2011) LPELR-5103 (CA);
Reynolds Constr. Co. Nig. Ltd v. Edomwonyi (2003) 4
NWLR (Pt. 811) 513; Arab Constr. Ltd v. Isaac (2012)
LPELR-9787 (CA); N.N.P.C. v. Klifco Nig. Ltd (supra)
also reported in (2011) 4 MJSC, 142 @ 174.
The pleadings of the Appellant for the special damages are
in paragraphs 8, 23, 36, 40, 43 and 44 of the statement of
claim dated the 25th and filed on the 26th November, 2008.
They are as follows:-
"8. On the day of the Accident, the claimant who was
coming from his
13
(201
8) LP
ELR-45
828(
CA)
client house in Victoria Island lost the sum of
N70,000.00 given to him that very day by his said
client i.e. Senator F. K. Ogunwale to the people or the
area boys that were helping the claimant and other
victims that day as the claimant was the only person
in his car. The said N70,000.00 was a fee paid to the
claimant by the senator, his client. The money was
put in an envelope and kept in the front passengers
seat, the windscreen of the door of which was
shattered.
23. Eventually Mrs. Gbadamosi asked the claimant
what he wants in respect of his car. The claimant told
her that the accident affected the chassis of the car
and he would want another car of same grade with
that of the claimant's and that he has priced it at
Beggar, Lagos and it is N1,500,000 and told her to
cross check the price at Beggar. Mrs. Gbadamosi told
the claimant that she would communicate claimant's
demand to the Programme Manager and on the next
meeting she would inform the claimant the stand of
the defendant.
35. On 19/5/2008, the claimant approached an Auto
Centre, MOTOR PLUS INTERGRATED SERVICES LTD
and on it s request paid N15,000.00 for the evaluation
of the estimates of
14
(201
8) LP
ELR-45
828(
CA)
repairs of the claimant car. The estimated of the
claimant's car are hereby pleaded. The tyres of the
car are no longer safe for use or road worth due to
long months of non use while attached to the ground.
Also the battery (Diko brand), the sound system of the
care and other things of the car have been stolen at
the Police Station.
36. The receipt of the payment of N15,000.00 to
Motor Plus Integrated Services Ltd and the estimates
were served on the defendant via the letter dated
31/05/2008 but the defendant did not reach the
claimant or the Motor Plus people for the claimant's
care to be fixed. Not even the other three cars,
involved in the accident were repaired by the
defendant.
40. Since the accident, the claimant has been hiring
Taxi each day for his business/domestics at the rate of
N5,000.00 per day.
43. The claimant has been compelled by the situation
in which the defendant has put him to engage the
legal services of senior legal advisers and counsel to
prosecute his claim and have forwarded their bills for
settlement The claimant holds the defendant
responsible and liable for the payment of the said bill.
15
(201
8) LP
ELR-45
828(
CA)
44. WHEREFORE, the claimant claims from the
defendant the sum of N3,605,000.00 as special and
General, aggravated/exemplary damages from the
defendant.
I. Particulars of Special Claimant/Damages:
(a) Cash lost in the accident to Area boys N70,000.00
(b) Taxi fares for the lost of use to the claimant of the
Mercedes Benz Car 190 from 21/11/2007 to
31/07/2008 till the date of judgment and thereafter
N1,270,000.00
(c) Cost of evaluation of repairs of the accidented car.
N15,000.00
(d) Cost of the said car i.e. its replacement cost or
value as at the time of the accident N1,500,000.00
( e ) L e g a l C o n s u l t a n c y , S o l i c i t o r s a n d
Counsel/litigation fee N250,000.00
II. Particulars of General Claim/Damages:
Compensation/aggravated/exemplary damages for use
of Taxi without Air conditioner and loss of client's as
a result of non use of the claimant's car and
injury/shock to the claimant. N500,000.00
TOTAL N3,605.000.00."
In the Appellant's statement on oath deposed to on the 26th
November, 2008, the above paragraphs of the pleadings
were repeated, word for word, as the evidence in support of
the special damages pleaded and claimed.
16
(201
8) LP
ELR-45
828(
CA)
The Respondent's paragraphs 2, 13, 14, 15, 16 and 18 of
the statement dated the 13th but filed on the 18th March,
2009 denied the special damages claimed by the Appellant
against it, in the following terms:-
"The Defendant deny paragraphs 18, 19, 20, 21, 22,
23, 24, 25, 26, 27, 29, 29, 30, 31, 32, 33, 34, 35, 36,
37, 39, 39, 40, 41, 42, 43 and 44 of the Statement of
Claim and put the Claimant to the strictest proof of
same at the trial of this action.
13. In definite answer to paragraphs 17, 18, 19, 20,
21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 37, 32, 33, 34,
35 and 36 of the Claimant Statement of Claim. The
Defendant state that the engagement of Auto Centre,
MOTOR PLUS INTERGRETED SERVICES LTD by the
Claimant was without the Defendant’s consent.
14. The Defendant state that all it effort to assist in
the repair of the vehicles involved in the accident,
Claimant’s car inclusive, was frustrated by the
claimant who was making outrageous demands some
of which are that the Defendant should replace his
car or that an Auto Centre solely engage by him
should carry out the
17
(201
8) LP
ELR-45
828(
CA)
repair work with outrageous bill despite being
informed that the Drivers and their colleagues
involved in the accident will foot part of the bills for
the repairs to be carried out.
16. The Defendant state in reply to paragraphs 37, 38,
39, 40, 41, 42, 43 and 44 that all they did was advice
the Claimant to be flexible and reasonable in his
approach for the repair of his car.
18. The defendants deny and put the Claimant to the
strictest proof of paragraphs 40, 41, 42 and 44 as well
as the particulars of damages."
The averments were repeated in the Respondent's sole
witness' Deposition on oath filed on the same date with the
statement of defence; i.e. the 16th March 2009, as the
evidence in support of the denial.
At the hearing/trial of the case 15th June, 2010, the
Appellant adopted his statement on Oath as his evidence in-
chief in the case and tendered documents with consent of
the Respondent's counsel which were admitted in evidence
and marked as Exhibits C1-C14. Under cross-examination,
the Appellant explained that his vehicle was second hand,
brought from abroad which had not been used
18
(201
8) LP
ELR-45
828(
CA)
in Nigeria and registered by him. That he could not say who
precisely stole the N70,000.00 he kept in the vehicle at the
time of the incident because "area boys" were trying to help
the victims and his "mind was not there".
The deposition of the Respondent's witness was adopted as
evidence on 4th October, 2010 and even though the
Appellant objected to the admissibility of some documents
tendered by the Respondent, they were admitted in
evidence and tagged as Exhibits D1-D7 by the High Court.
It may be recalled that the first complaint by the Appellant
is that the High Court did not consider his objection to the
admissibility of the Exhibits D1-D6 on the ground that they
were made by persons interested in the matter, relying on
Section 91(3) of the Evidence Act. The Appellant is correct
that the High Court did not at the time he raised the
objection to the admissibility of said documents consider it
before admitting them in evidence as Exhibits. Again, the
Appellant had raised the objection in his final address, at
pages 98-103 of the Record of Appeal, but the High Court
did not consider
19
(201
8) LP
ELR-45
828(
CA)
or avert to it in its judgment. The law requires that all
relevant issues or points raised by the parties in the course
of the proceedings of a case; either by way of objection or
submissions, should be pronounced upon by the Court
either at the time they were raised or in the final
determination of the case. X.S. Nig. Ltd v. Taisei (WA)
Ltd (2006) 15 NWLR (1003) 533; Orji v. PDO (2009)
14 NWLR (Pt. 1161) 310; State v. Ajie (2000) 11
NWLR (Pt. 678) 434. Objection to the admissibility of any
piece of evidence, parole or documentary, timeously raised
before a trial Court by a party is a relevant and material
issue or point on which the Court has the duty to make a
pronouncement before admitting it in evidence and using
or relying on it to making finding(s) of facts in the case.
Where the tr ia l omits or chooses to defer the
pronouncement on the objection to the final decision of the
case, it must before using and relying on the evidence in
respect of which the objection was raised, to base its
finding, make a categorical or specific pronouncement on
the objection, in the final decision. Although the admission
of the evidence in spite of the objection to its
20
(201
8) LP
ELR-45
828(
CA)
admissibility may constitute overruling the objection, the
trial Court has the primary duty to specifically and clearly
state or give reasons for the decision to overrule the
objection and to admit the evidence. A trial Court cannot
ignore an objection to the admissibility of a piece of
evidence, admit the evidence and then proceed to use or
rely on it to make finding(s) on which its final decision in a
case may be predicated as that would constitute an
infringement of a party's right to a fair hearing in the
conduct of the proceedings. Buhari v. I.N.E.C. (2008) 19
NWLR (Pt. 1120) 246; Onuoha v. Nwabueze (2002) 2
NWLR (Pt. 750) 172.
Since the High Court has failed to consider the objection,
this Court has the power and jurisdiction to do so in this
appeal since it by way of a rehearing under Order 7, Rule 2
of Court of Appeal Rules, 2016 and possesses the full
jurisdiction of the High Court in the determination of the
appeal pursuant to Section 15 of the Court of Appeal Act,
2004. Uduma v. Arunsi (2012) 7 NWLR (Pt. 1298) 55;
Ekpemupolo v. Edremoda (2009) 8 NWLR (1142) 166.
21
(201
8) LP
ELR-45
828(
CA)
Before proceeding to consider the objection to the
admissibility of the Exhibits D1-D6 based on Section 91(3)
of the Evidence Act, it is expedient to find out if the High
Court has used or relied on the said Exhibits to make
finding(s) which materially influenced its final decision on
the Appellant's case or any material part thereof. This is
necessary because in the event that the said Exhibits were
not used or relied on by the High Court for findings upon
which its judgment was based or predicated, then the
admission of the Exhibits even if wrong in law, would have
no legal consequence on the decision since the law is that
mere wrongful admission or exclusion of evidence, ipso
facto, would not ordinarily lead to the reversal of a lower
Court's decision by an appellate Court. See Section 251 of
the Evidence Act; 2011, Buhari v. Obasanjo (2005) 13
NWLR (Pt. 941) 1; Olayinka v. State (2007) 9 NWLR
(Pt. 1040) 561; Dele v. State (2011) 1 NWLR (Pt.
1229) 508; Ojengbede v. Esan (2001) 18 NWLR (Pt.
746) 771.
I have perused the judgment of the High Court and note
that there are only two (2) instances where the said
Exhibits
22
(201
8) LP
ELR-45
828(
CA)
D1-D6 were referred to by the High Court as follows:-
(a) at page 136 of the Record of Appeal where it listed them
as documents tendered by the Respondent (as Defendant);
and
(b) at page 140 of the Record Appeal it stated thus:-
"We have established here that the driver was
negligent. There is also no doubt that the driver and
his colleague were servants of the Defendant. Indeed,
after the accident, the Defendant issued the driver
and his colleague, one Mr. Abiola and one Mr.
Emmanuel with queries (Exhibits D1 and D4). The
driver and his colleague responded (Exhibits D2 and
D5) and they were issued with warning letters by the
Defendant (Exhibits D3 and D6). By the Defendant's
own showing, they were servants of the Defendant."
As can easily be observed, the reference to the Exhibits at
page 140 was made in further support of the earlier finding
by the High Court that the Respondent was liable for the
negligence of its servants and so vicariously liable for the
incident involving the Appellant's vehicle. The Exhibits
were not used or relied on for the finding of negligence and
liability by the Respondent, but rather as
23
(201
8) LP
ELR-45
828(
CA)
further support of that earlier finding made by High Court
based on other pieces of evidence placed before it by the
Appellant in proof of negligence by the Respondent's
servants or employees and its vicarious liability there for.
So even without the reference to the said Exhibits, the High
Court had made a finding on negligence and liability of the
Respondent and the finding which was/is in favour of the
Appellant would have been the same.
Be that as it may, Exhibits D1-D6 were official queries
issued by the Respondent to its employees and replies by
them, on the incident involving the Appellant's vehicle in
respect of which he sued the Respondent and so are
undoubtedly related and relevant to the case before the
High Court.
Section 91(3) of the Evidence Act, 2004 (applicable at the
time of trial, now Section 83(3) of the 2011 Act) provides
that:-
"(3) Nothing in this section shall render admissible as
evidence any statement made by a person interested
at a time when proceedings were pending or
anticipated involving a dispute as to any fact which
the statement might tend to establish."
24
(201
8) LP
ELR-45
828(
CA)
A "person interested" for the purpose of these provisions
means a person who has a pecuniary or other material
interest in the result of the proceedings, a person whose
interest is affected by the result of the proceedings, and
therefore, would have a temptation to pervert the truth to
serve his personal or private ends. It does not mean an
interest in the sense of intellectual observation or an
interest purely due to sympathy. It means an interest in the
legal sense, which imports something to be gained or lost.
A person who merely acts in the discharge of his official
duty or performance of official function in respect of a
matter that may be the subject of a case before a Court of
law or which may result in a legal action, does not become
a person interested within the context of the provisions so
as to render any statement made by him inadmissible, In
the case of H.M.S. Ltd v. F.B.N. (1991) 1 NWLR (Pt.
167) 290 @ 312, the apex Court per Karibi-Whyte, JSC,
had held that:
"Thus the general principle is that the document
made by a party to a litigation or person
25
(201
8) LP
ELR-45
828(
CA)
otherwise interested when proceedings are pending
or is anticipated is not admissible Barkway v. South
Wales Transport Co. Ltd (1949) 1 K.B. 54. The
disqualifying interest is a personal not merely
interest in an official capacity - See Bearmans Ltd. v.
Metropolitan Police District Receiver (1961) 1 NLR
634. Where however the interest of the maker is
purely official or as a servant without a direct interest
of a personal nature, there are decided cases that the
document is not thereby excluded. - See Evon v. Noble
(1949) 1 K B. 222. See: The Atlantic and the Battyk
(1946) 62, T.L.R. 461. Re Powe, Powe v. Barclays
Bank Ltd. (1956) P. Galler v. Galler (1955) I W.L.R.
400.
The nature of the disqualifying interest will depend
upon the nature of duty undertaken by the servant.
Where from the nature of the duty he can be relied
upon to speak the truth, and that he will not be
adversely affected thereby, the document has always
been admitted in evidence. This is because the
rationale of the provision is that he must be "a person
who has no temptation to depart from the truth on
one side or the other - a person not swayed by
26
(201
8) LP
ELR-45
828(
CA)
personal interest, but completely detached judicial,
impartial, independent."
See also Anyaebosi v. T. T. Briscoe Nig. Ltd (1987) 3
NWLR (59) 84; Asuquo v. Asuquo (2009) 16 NWLR
(Pt. 1167) 225; Okenwa v. Mil. Gov. of Imo State
(1997) 6 NWLR (Pt. 507) 136; Republic Bank Nig.
Ltd. v. C.B.N. (1998) 13 NWLR (Pt. 551) 306;
N.S.I.T.F. v. Klifco (2010) 13 NWLR (Pt. 1211) 307.
In the premises of the above position of the law, the
persons who wrote the queries and replies in Exhibits D1-
D6 cannot properly be considered as persons interested
within the contemplation of Section 91(3) of the 2004
Evidence Act so as to render the Exhibits inadmissible in
evidence. The ground of the objection by the Appellant,
apparently, is wanting in merit and is overruled.
The Appellant had also objected to the admissibility of
Exhibit D7, which was an estimate for repairs in respect of
Nissan Sunny, on ground that it was irrelevant.
By the provisions of Section 6 of the Evidence Act, 2004,
ordinarily, admissibility of evidence was governed
27
(201
8) LP
ELR-45
828(
CA)
primarily, by relevance to the issues for decision in judicial
proceedings of a Court. Once a piece of evidence is
relevant, subject to other conditions that may be prescribed
by the evidence law, it is admissible in evidence and once a
piece of evidence has no relevance or connection with the
issues or facts of a case, then it is of no moment to the case
and so it would be fruitless to admit in evidence. A piece of
evidence which is not relevant is on that basis, not
admissible or is inadmissible in evidence. See Elias v. Disu
(1962) 1 SCNLR, 361, (1962) 1 ALLNLR 214;
Igbinovia v. State (1981) 2 SC, 5; Ogonzie v. State
(1997) 8 NWLR (Pt. 515) 566; Oyetunji v. Akanji
(1986) 5 NWLR (Pt. 42) 461; Abubakar v. Chuks
(2007) 18 NWLR (Pt. 1066) 386; Agbahomovo v.
Eduyegbu (1999) 3 NWLR (Pt. 594) 170; Torti v.
Ukpabi (1984) 1 S.C. 370.
Apparently, since Exhibit D7 did not relate to the claims
made by the Appellant against the Respondent in respect of
his vehicle and the parties did not join issues in respect of
the Nissan Sunny vehicle in respect of which was prepared,
it was not relevant to the case before the High Court. This
is
28
(201
8) LP
ELR-45
828(
CA)
borne out by the fact that apart from listing it as one of the
documents tendered by the Respondent at the trial, the
High Court did not make any mention or reference to it in
the entire judgment appeal against the wrongful admission
of the said Exhibit D7 did not in any way affect or influence
the judgment by the High Court which would have been the
same even if it was not admitted in the first instance, or
expunged. The ground of the objection, though sustainable,
is of no benefit to the Appellant.
Over all, the objection to the admissibility of Exhibits D1-D7
raised by the Appellant is of no substance and dismissed.
The Appellant has complained that the High Court was
wrong in finding that he did not mitigate his loss on the
ground that the Respondent did not plead the issue of non
mitigation of loss by him and did not challenge the claim
for loss of use at N5,000.00 daily from 21st November,
2007 to 31st July, 2008. In dealing with the head of claim
for loss of use, the High Court in its judgment has stated
and held, at page 142 of the Record of Appeal that:-
29
(201
8) LP
ELR-45
828(
CA)
"The Claimant also claims the sum of N1,270,000 as
taxi fares for the loss of use to the claimant of the
Mercedes Benz car 190 from 21/11/2007 to 31/7/2008
till the date of judgment and thereafter. What exactly
does this mean? Taxi fares from 21/11/2007 to
31/7/2008 till the date of judgment and thereafter?
What does this mean? That prayer is not clear. He is
asking for taxi fares for over 8 months from
21/11/2007 to 31/7/2008 and then till the date of
judgment and thereafter?
In any case, in his statement on oath, the Claimant
testified that since the accident occurred on
20/10/2007, he had been hiring a taxi each day for his
business/domestics at the rate of N5,000 per day. No
receipts were put before the Court to support this
claim but it is not in every case that receipts must be
produced. Furthermore, it is trite that a person
wronged must always take all reasonable steps to
mitigate his loss caused by another's wrong. A
claimant cannot be allowed to claim or recover
damages for any loss which he could have avoided but
has failed through unreasonable action or inaction to
avoid. There is no doubt that the claimant would have
had to spend
30
(201
8) LP
ELR-45
828(
CA)
some money on taxis, but for an 8 months period at
N5,000 a day? It is almost the replacement cost of the
Mercedes Benz 190 as testified by the Claimant. The
Claimant clearly ought to have mitigated his loss - the
claim for N1270,000 as taxi fares is outrageous to say
the least and I so hold. I will only grant a fraction of
that amount."
It then reasoned at page 144 of the Record of Appeal thus:-
"Indeed soon after the accident, by Exhibit C1, the
Defendant gave an undertaking in writing to repair
the vehicle to the Claimant's satisfaction but
disagreement over who was to carry out the repairs
kept the car grounded in the Police Station since the
accident! The Claimant had a duty to mitigate his loss
but did not. Consequently he cannot be entitled to
compensation for any remote damage arising from his
neglect and refusal to take mitigating steps - UBA
PLC v. BTL INDUSTRIES LTD (2006) 19 NWLR (Pt.
1013) 61. In the case of UDEAGU v. BENUE CEMENT
CO. PLC (2006) 2 NWLR (Pt. 965) 600, the Court of
Appeal held that it is trite that a person wronged
must always take all reasonable steps to mitigate the
loss to him caused by
31
(201
8) LP
ELR-45
828(
CA)
another party's wrong or breach. A claimant cannot
be allowed to claim or recover damages for loss which
he could have avoided but has failed through
unreasonable action or inaction to avoid. Insisting on
Motor Plus repairing his care and because of
disagreement with the Defendant, leaving the car at
the Police Station from October 2007 till date,
allowing the car to be vandalized and reduced to a
rusty scrap is to say the least, unreasonable and I so
hold."
The principle of law stated by the High Court above on the
duty of a party to mitigate a loss caused him by the wrong
of another, is firmly established by the, authorities of
Obasuyi v. Business Ventures Ltd and Kosile v.
Folarin (both supra) cited and heavily relied on by the
Appeal in his argument of the issue. In particular, the facts
in the case Kosile v. Folarin are different from the facts of
the Appellant's case in the sense that it involved a claim in
detinue by the Respondent at the apex Court, who was
Plaintiff before the trial Court, for the seizure and detention
of a vehicle purchased by him on hire purchase from the
Appellant.
32
(201
8) LP
ELR-45
828(
CA)
On ground of refusal to release the vehicle and its
detention by the Appellant, the Respondent sued for, inter
alia, loss of earning from the vehicle from the time of
seizure up to date of judgment. The facts of the Appellant's
case are not that his vehicle was seized and detained by the
Respondent, but that after the incident, the Appellant
reported the matter to the Police even when the
Respondent had formally written and undertaken in Exhibit
C1 to repair the vehicle to his satisfaction, soon after the
incident.
It was the Appellant who took his vehicle to the Police, see
paragraph 11 of the Statement of Claim and Statement on
Oath respectively, where it was left for further action by
the Police and up to the time of the action by the Appellant
and judgment by the High Court, it remained there.
However, the Appellant and Respondent are one on the fact
that the Respondent offered to repair the Appellant's
vehicle, but he refused to let it do so at the proposed
mechanics' workshop and insisted on a company which he
chose for the repairs. In addition, the Respondent had also
initiated an amicable settlement of
33
(201
8) LP
ELR-45
828(
CA)
the matter between it and the Appellant before he filed the
action, but he insisted on having his way without
concession, in the efforts to settle and so the vehicle
remained with the police. In paragraphs 16 and 17 of the
Statement of Defence the Respondent has averred that the
delay in carrying out the repairs of the Appellant's vehicle
"was squarely the Claimant's fault by reason of his refusal
to fully co-operate with the Defendant that was ready to
assist in the repair...." At page 27 of the Record of Appeal,
the position of the Respondent's witness, which has no
numbered paragraph, evidence was given in support of the
pleadings on the Appellant's refusal to co-operate in the
repairs of his vehicle by the Respondent. The Appellant in
paragraphs 18 each of the Statement of Claim and
Statement on Oath, admitted that the Respondent has
requested that he arrange for the release of the vehicle
from the Police to enable them carry out the repairs, but
did not do so because he found the request irritating. From
the peculiar facts of the Appellant's case, the High Court is
right that the Appellant had a duty to mitigate the loss
arising from the damage caused by
34
(201
8) LP
ELR-45
828(
CA)
the incident involving his vehicle by cooperating with the
Respondent for the repairs of the vehicle immediately after
the incident and when requested for by the Respondent in
fulfillment of its undertaking to do so. For the Appellant to
have insisted on the company he chose to carry out the
repairs was quite unreasonable, in the peculiar
circumstances of the case. It is the facts and circumstances
of a given case that would be the primary determining
factor on the duty of a party to mitigate loss from wrong
committed against by another party and facts and
circumstances of the Appellant's case demanded that he
ought to have mitigated his loss by allowing the repairs of
his vehicle to have been undertaken by the Respondent
soon after the incident as it had undertaken to do.
It must be pointed out that the claim for loss of use being in
the class of special damages cannot be awarded merely
because the Respondents did not raise it in its pleadings or
on the ipse dixit of a Claimant, even if unchallenged.
Boshali v. Allied Comm. Exporters Ltd (1961) ALL
NLR, 917; Odulaja v. Haddad (1973) 11 SC, 357;
NMSL v. Afolabi (1978) 2 SC
35
(201
8) LP
ELR-45
828(
CA)
79; Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393,
(1992) SCNJ, 98. The Appellant had the duty to adduce
credible evidence to show that he was indeed entitled to
the claim of N5,000 daily from the period of 21st
November, 2007 to 20th July, 2008 as loss of use of the
vehicle which he denied the Respondent the opportunity to
repair. Apart from the ipse dixit of the Appellant, there was
other credible and cogent evidence to support and prove
the claim for the period in question and the High Court was
right to have made an award for thirty (30) days within
which the Appellant's vehicle would have been repaired by
the Respondent if he had not prevented it from so doing by
unreasonably insisting on his chosen company. In the case
of Transkomplet Nig. Ltd. v. Galadima (1998)
LPELR-6478(CA) it was held that:-
"Any evidence no matter how unchallenged or
uncontroverted which falls short of what is required
to prove special damages must be rejected."
The case of Arinze v. State (1990) 6 NWLR (Pt. 155)
158 was referred to by the Court for the position.
36
(201
8) LP
ELR-45
828(
CA)
Perhaps, I should point out that what the High Court did in
the award for 30 days for loss of use is not an assessment
of amount or quantum of the sum claimed by the Appellant,
but rather on the pleadings and evidence by the
Respondent that the delay in repairs of the Appellant's
vehicle occurred as result of his refusal to allow the repairs
to be carried out by a company proposed by the
Respondent and so he is not entitled to the claim for the
whole of period of eight (8) months he claimed. Ordinarily,
a Court cannot use its own criteria or assessment of the
quantum of special damages outside or apart from what
was claimed and satisfactorily proved by credible and
cogent evidence of the Claimant.
Therefore a trial Court cannot make its own individual or
arbitrary assessment of what it conceives the Claimant may
be entitled to, but the law requires that it should only act
on the hard facts and evidence accepted by it as
establishing the amount or sum claimed as justification for
the award. UBN, Plc. v. Ajabule (2011) 18 NWLR
(1278) 152, (2011) LPELR-8239 (SC); Texaco Nig. Plc.
v. Iloka (2011); C.A.P. Plc. v. Vital Inv. Ltd (2006) 6
NWLR (Pt. 976) 220.
37
(201
8) LP
ELR-45
828(
CA)
The Appellant here did not satisfactorily prove his
entitlement to the loss of use for the whole of the period he
claimed.
The same thing applies to the claim for the sum of N1.5
Million as special damages for replacement of the
Appellant's vehicle. As rightly observed by the High Court,
the Appellant's car was 17 years as at the time of the
incident and he did not state the amount he bought it in
2006 when it was imported from abroad. The Appellant had
also used it for about or more than one (1) year before the
incident on the 20th October, 2007 and it was no longer "a
new tokunbo" vehicle, but a Nigerian registered second
hand vehicle at the material time. Not being a new tokunbo
vehicle, it was not worth and could not be valued at the
price of N1.5 Million orally claimed by the Appellant as the
price of a new tokunbo vehicle of the same grade at Berger,
Lagos. The N1.5m claimed by the Appellant was not the
pleaded and proved value of his vehicle at the time of the
incident, but rather, the cost of a new second hand
(tokunbo) vehicle which was never used, many months after
the incident. In fact, the Appellant did not plead nor proved
38
(201
8) LP
ELR-45
828(
CA)
the real value or worth, in money terms, of his vehicle at
the time of the incidence for him to claim its cost for
replacement as a used second hand (tokunbo) vehicle. On
the basis of these facts, the mere fact that the Respondent,
did not deny the price mentioned by the Appellant without
more, or put forward another price, does not constitute
credible evidence that the Appellant's second hand/more
than one (1) year old in-use, vehicle was worth the price
value of a new tokunbo vehicle which was imported into
Nigeria, but was never used and registered, to amount to
strict proof the sum claimed to entitle him to the award as
special damages.
The next item of special damages claimed by the Appellant
was the N70,000.00 he said he kept on the front seat of his
vehicle at the time of the incident and that it was fees paid
by a client. Apart from the ipse dixit of the Appellant, there
was no other piece of credible evidence to strictly prove the
claim for the Appellant to be entitled to the award, as the
Appellant did not produce the receipt he issued for the
professional fees to show the amount, the date and time
the
39
(201
8) LP
ELR-45
828(
CA)
fees were paid to him or call the client to testify as to the
said fees asserted to have been paid by him to the
Appellant on the date in question.
In the absence of credible evidence to prove and support
the entitlement of the Appellant to the alleged missing
N70,000.00 claimed as special damages, the High Court is
right that there was failure of proof on the claim.
The Appellant has also claimed, as an item of special
damages, the cost of evaluation of repairs of his vehicle put
at N15,000.00 which evaluation was done in May 2008,
after he had refused to allow the Respondent to repair it as
it had undertaken to do immediately after the incident. As
rightly stated by the High Court in its judgment, the
Appellant did not claim for repairs of the vehicle in the case
against the Respondent, but he claimed, as seen in both
Statement of Claim and evidence, for cost of replacement
on the ground or because according to him, in paragraph
23 of the Statement of Claim and Statement of Oath
respectively;
"Eventually Mrs. Gbadamosi asked me what I want in
respect of my car. I told her that the accident
40
(201
8) LP
ELR-45
828(
CA)
affected the chassis of the car and I would want
another car of the same grade with that of my car and
that I have priced it at Beggar, Lagos and it is
N1,500.000."
The averment and deposition in these paragraphs which
represented the Appellant's claim against the Respondent
show that before the Appellant ordered for the evaluation
of the vehicle, he knew that he did not want repairs but
wanted another car because the chassis was affected. In
spite of that, he still later embarked on an evaluation of the
repairs which the Respondent had undertaken to do on the
vehicle and wants the Respondent to be responsible for the
self imposed and unnecessary evaluation of repairs of the
vehicle for which he wanted a replacement.
Even if unchallenged, the claim for the cost of the
evaluation of the repairs of the Appellant's vehicle lacks the
credibility and cogency in the peculiar circumstances of the
case, to constitute strict proof thereof to entitle the
Appellant to the award. In the premises, I do not find
sufficient justification for the Court interfere with the
decision by the High Court on the head or item of the
claim.
41
(201
8) LP
ELR-45
828(
CA)
There is also the complaint by the Appellant that the High
Court did not award post judgment interest on the sums
awarded in his favour in the judgment.
By the provisions of Order 35, Rule 4 of the High Court of
Lagos State Civil Procedure Rules, 2004 (applicable to the
Appellant's case) a Judge of that Court at the time of
making any judgment or order, may order interest at a rate
not less than 10% per annum to be paid upon the judgment.
Clearly, the provisions vests a discretionary power on the
High Court to order, as it deems fit, that interest at the rate
of not less than 10% be paid upon a judgment entered by it
in favour of a party. Since the power is discretionary in the
Court, like all other judicial discretion, it is to be exercised
judicially and judiciously taken into consideration, the
peculiar facts and circumstances of the case leading to the
judgment. Bullet Int. Nig. Ltd v. Adamu (1997) 3
NWLR (Pt. 493) 348; Kasunmu v. Shitta-Bay (2006)
17 NWLR (1008) 372; Dokubo Asari v. F.R.N. (2007)
12 NWLR (Pt. 1048) 320; Sanni v. Agara (2010) 2
NWLR
42
(201
8) LP
ELR-45
828(
CA)
(Pt. 1178) 371. In the present appeal, since judgment was
entered by the High Court and damages; special and
general, were awarded to the Appellant, the justice of the
case requires that the sums awarded shall attract the post
judgment interest at the rate provided for by the Rules of
the Court. From the tenor of the judgment by the High
Court, it was an omission rather than an error on its part
not to have awarded interest on the sums awarded to the
Appellant in the judgment entered in his favour. The
Appellant is entitled to interest on the sums awarded in the
judgment by the High Court and it is ordered to be paid on
the sums at the rate of 10% from the date of the judgment
until the judgment debt is fully paid by the Respondent.
In the final result, this appeal succeeds only in respect of
the award of interest on the sums awarded as damages in
favour of the Appellant.
It fails in respect of all the other issues/points canvassed by
the Appellant and is dismissed in that part, accordingly.
Parties shall bear their respective costs of prosecuting the
appeal.
43
(201
8) LP
ELR-45
828(
CA)
YARGATA BYENCHIT NIMPAR, J.C.A.: I read the draft
of the leading judgment of my learned brother, Mohammed
Lawal Garba, JCA which was just delivered. The judgment
exhaustively resolved all the issues raised by the parties. I
have nothing more to add.
I adopt the judgment as mine in partially allowing the
appeal in respect of interest on the sums awarded as
damages in favour of the Appellant.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I
agree with the judgment just delivered by my learned
brother, MOHAMMED LAWAL GARBA, JCA and I am in
agreement with the succinct reasoning and conclusion
arrived therein. I have nothing more to add.
I abide by the order as to costs and all other consequential
orders in the leading judgment.
44
(201
8) LP
ELR-45
828(
CA)
Appearances:
Appellant appear in person For Appellant(s)
Respondent not represented For Respondent(s)
(201
8) LP
ELR-45
828(
CA)