(2018) LPELR-45292(CA)

Transcription

1 JULIUS BERGER (NIG) PLC & ANOR v. IKWUJE & ORS CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ABUBAKAR DATTI YAHAYA PETER OLABISI IGE TANI YUSUF HASSAN 1. JULIUS BERGER NIGERIA PLC 2. SHEHU MUSA 1. MR. RAPHAEL IKWUJE & 2 ORS 2. ANGELA IKWUJE 3. GRACE EDET OKO ON FRIDAY, 29TH JUNE, 2018 Suit No: CA/A/538/2013 Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. DAMAGES - MEASURE OF DAMAGES: Measure of damages where a vehicle which is involved in an accident through the negligence of another is a total loss or write off "Now the classification or categorization of damages claimable in torts action has clearly defined onus or standard of proof a claimant must attain to prove his or her entitlement to any of the two classes of damages namely Special Damages and general damages. Black's Law Dictionary 10th Edition page 472 defines "general damages" es:- "damages that the law presumes follow from the type of wrong complained of; specific; compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. General damages do not need to be specifically claimed - Also termed direct damages, necessary damages." Special damages is defined on page 474 of the said Law Dictionary to be:- "Damages that are alleged to have been sustained in the circumstances of particular wrong. To be awardable, special damages must be specifically claimed and proved." See also:- 1. SAIDU H. AHMED & ORS V. C.B.N. (2013) 2 NWLR (PART 1339) 524 AT 545H per FABIYI, JSC who said:- "Special damages have been defined as those which are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. Twin Coach Co. v. Chance Vought Aircraft Inc. 2 Storey 588,163 A-2d 278,286. Such are damages which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract, and must be reasonably foreseeable. Special damages must be specially pleaded and proved. (Black's Law Dictionary, Sixth Edition, page 392)." 2. XTOUDOS SERVICE NIGERIA LTD & ANOR VS TAISEI (W.A.) LTD & ANOR (2006) CM 409 AT per MAHMUD MOHAMMED, J5C (later CJN, RTD.) who said:- "The other, general damages which averred as having been suffered the law will presume to be natural or probable consequences of the act complained of but the quantification thereof is at the discretion of the Court." Now the Appellant had contended that actual loss and the pre-accident value of the car must be proved and that it cannot be done vide photographs of the damaged car but by pleading and credible evidence. The Respondents argued that the special damages which was the cost of the car was actually pleaded and proved vide the photographs and purchase receipt when the car was bought in They relied on paragraph 15 and 16 of the Plaintiff's Joint Statement of Claim wherein they pleaded as follows:- "15. The 2nd and 3rd Plaintiffs aver that consequent upon the 2nd defendants dangerous driving with excessive speed and negligent act of ramming into the Toyota Camry (1992 V6 Model) car with registration number FM 78 LND from the back] the Toyota Camry (1992 V6 Model) car with registration number FM 78 LAID was violently flung from the service lane where the 2nd Plaintiff was driving on at the material time against the middle boulder of the dual carriage way, thereby causing severe damage to the Toyota Camry (1992 V6 Model) car with registration number FM 78 LND as well as it occupants, the 2nd and 3rd Plaintiff. 16. The Plaintiffs avers that the effect of the 2nd Defendant's dangerous driving, excessive speed and negligent act of ramming into the Toyota Camry (1992 V6 Model) car with registration number FM 78 LND from the back severely and completely damaged the 1st Plaintiff's Toyota Camry (1992 V6 Model) car with registration number FM 78 LND beyond any reasonable economic repairs. The Plaintiffs shall at the trial of this suit found and rely on the photographs of the damaged Toyota Camry (1992 V6 model) car with registration number FM 78 LND taken after the incident." The car actually belonged to the 1st Respondent the husband of 2nd Respondent who drove the car at the time of the accident. Where as in this case the Respondents particularly the 1st and 2nd Respondents strongly stated that the Toyota Camry (1992 v6 Model) car belonging to 1st Respondent was damaged by the Appellants, the Respondents have a bounden duty to plead the actual worth or value of the car as at 21st day of April, 2011 when the Appellants caused the accident that led to the complete damage of the 1st and 2nd Respondents car as alleged. That is not all the Respondent must show that they led credible evidence of the value of the accident car after the accident to enable the trial Court make the award of Special Damages claimed by the Respondents in the sum of N1,800, It is not enough to tender photographs of the damaged car neither does it amount to proof of the allegation to rely on bare report of investigation by the Police. There was no evidence of Vehicle Inspection Officer or any person versed in the market price of the type of Camry car involved in the accident as at 21/4/2011 or even after the date of the accident. For example the Respondents tendered Exhibit 20 to show that they bought a new engine for the sum of N80, It means the car was refurbished after purchase. Surely it cannot be said that the Camry car 1992 model bought for N1,800, in July, 2009 will have the same value or worth two years later when it was involved in the accident that is on The car would have been hit by wear and tear and depreciation no matter how small or little. The very vital pieces of evidence necessary to support the claim of Respondents for Special Damages in the sum of N1,800, which was the purchase price of the car in 2009 are significantly lacking or absent. All these missing links and lacuna in the evidence of the Respondents pertaining to the actual loss or pre accident value of the car at the time of accident and its value when it had accident which made it impossible, according to Respondents to carry out any reasonable repair on the car ought to have weighed heavily in the mind of the learned trial Judge in making his award of special damages.. Exhibit 15 the purchase receipt of the car in 2009 cannot represent or proved the value of the said car to still be N1, 800,000 plus other damages the learned trial Judge would have found in favour of the Respondents. See:- 1. S.W. UBANI-UKOMA V G. E. NICOL (1962) 1 ALL NLR 107 AT per TAYLOR, F.J.; 2. THE SHELL PETROLEUM DEVELOPMENT COY OR NIGERIA LTD VS KWAMEH AMBAH (1999) 3 NWLR (PART 593) 1 AT 14 per WALI, JSC who said:- "The amended pleading did not aver that the respondent's claim is for the continual loss of income resulting from the destruction of the items listed therein for the period The claim still remains for compensation as a result of permanent destruction of the items by the appellant. Evidence given which is not in line with the facts pleaded goes to no issue and of no help to the party that produces it. See Emegokwue v. Okadigbo (1973) 4 SC 113; N. I. P. C Ltd. v. Thompson Organisation Ltd. (1969) 1 NWLR 99; Ukiw v. Samuels (1963) 2 AER 879 and Okafor v. Okitiakpe (1973) 2 SC 49. Where there is a claim for total destruction of property, the measure of damages will be value of the property at the time of its destruction. See Liesboscli Dredger v. S. S. Edison (1933) AC 449 and Darefooh v. Karan 7 WACA 113. This is based on the principle of restitutio in integrum. The total amount claimed by the respondent as compensation for the permanent destruction of items listed in the still further amended statement of claim is N27,000. This has not been contested by the appellant in this appeal. The amended sum of N297, 000 awarded as special damage to the respondent by the Court of Appeal cannot be allowed to stand as it is not based on the facts pleaded by them. It is inappropriate. For the reasons stated herein this appeal must succeed on the amount awarded as special damage. It is accordingly allowed and the amount is reduced to N27, 000 in line with the respondent's claim." However in the case of OANDO (NIG) PLC V ADIJERE West Africa LTD (2013) 15 NWLR (PART 1377) 374 AT 404A - H TO 375 A - E per A KA'AHS, JSC the Supreme Court said:- "There is no doubt that if there had been evidence of an expert of the value of the burnt down truck, it would have been the best type of evidence but we must not lose sight of the fact that a second hand vehicle may well cost more than what it was purchased for when it was new because of inflationary trends where vehicle are imported and even the cost of assembling the knocked down parts could be prohibitive, thereby making the imported products cheaper than those assembled n the country. Nnaemeka-Agu, J.S.C. (of blessed memory) had this in mind when he discussed the best evidence of value in N.E.P.A. v. Alli (supra) at pages where he said:- "This raises the difficult but important question of what is the best evidence of value in the circumstances of this case? In the case of The Ironmaster (1859) Swab. 441 it was held that in the absence of a clear market value, the best evidence of value is the opinion of those who knew the vessel shortly before the incident or damage. The next best evidence is the opinion of those who are well conversant with the type of chattel destroyed generally, while the original cost, the cost of repairs due and the sum at which insurance had been taken out, though sometimes evidence of value, are of inferior weight. These principles were approved in The Hormonides (1903) P See: also, The Olyde (1856) Swab. 23. The cases and others in the class show that the price of the goods less depreciation which was applied in Leisboon case (supra) is not the only method of proving the value of a chattel destroyed. They also show that the opinion of a person, such as P.W.4. Who is well conversant with the chattel involved is also an acceptable evidence involved is also an acceptable evidence of value. It should have been accepted in this case, moreso in this country in which it is a matter of common knowledge that because of the rapid depreciation of the Naira, a chattel could be sold for much higher price than it was bought after it had been used for a number of years. So, the value by PW4 should have been accepted: there is therefore, nothing to remit to the court below for assessment." In Ubani-Ukoma v. Nicol (1962) 1 All NLR 107, (1962) 1 SCNLR 176 Taylor FJ held at page 111 the value to be on a used chattel that - "In an action sounding in negligence actual, damage must be proved, but the value of a used article or chattel is not an item of special damage in the sense that it can be exactly quantified like the cost of repairs or the expenses of hospital treatment. It is open to either party to call evidence and the Court must do the best it can on the material before it... The market value of any article is the sum it would fetch under the state of things for the time being existing. It is a matter of estimation on which opinions often differ." Since this was a case of complete loss the principle to be invoked in assessing the value of the vehicle is that of restitutio in integrum which means that the crossappellant should recover such sum as will place him so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on him. The damages to be awarded therefore need not be based on the value of the chattel at the time of destruction. The lower Court was wrong to set aside the award of N3.5 million for the complete loss of the tanker. The cross-appeal therefore succeeds and the award made by the learned trial Chief Judge of Plateau State for the total loss of the burnt down tanker is hereby restored. The cross-appellant is entitled to the award of N3.5 million being the amount he requires to replace the completely burnt down trailer." The Appellant in this appeal did not appeal against the findings of the learned trial Judge to the effect that the Appellant's Driver was negligent and he caused the avoidable accident. They did not also appeal against the award of General Damages made against them by the lower Court. I am of the view that this Court can having regard to the pleadings and pieces of evidence proffered on both side and in the circumstance reduce the award made in favour of the Respondents as special damages. The Respondent particularly the 1st and 2nd Respondents in doubt are entitled to special damages which I assess at N1,000, having regard to the award of N500,000 general damages already made in favour of the Respondents. The appeal succeeds in part. The award of N1,800,000 made in favour of Respondents by lower Court is hereby reduced to the sum of N1,000,000 as special damages due to the negligent act of the Appellant in causing extensive damage to the Respondents car."per IGE, J.C.A. (Pp , Paras. A-A) - read in context

3

4 PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja Division in Suit No: FCT/CV/5765/2011 delivered by HON. JUSTICE O. A. MUSA on 20th March, The Respondents had approached the lower Court vide their Writ of Summons issued out of the said Court on 29th June, 2011 wherein they asked for the following reliefs to wit:- "1. The sum of N1, 800, (One Million Eight Hundred Thousand Naira) only being the cost of replacing the Toyota Camry (1992) v6 model) car damaged beyond economic repairs; 2. The sum of N500, (Five Hundred Thousand Naira) only being the cost of the medical treatment in the various hospitals and traditional healing homes till date; 3. The sum of N10, 000, (Ten Million Naira) only as general damages for pains, agony shock, loss and Psychological trauma that the Plaintiffs have suffered and are still suffering due to the recklessness of the Defendant; 4. Cost of litigation in the sum of N350, (Three Hundred and Fifty Thousand Naira) only." 1

5 Pleadings were duly exchanged at the end of which the matter proceeded to hearing. At the end of trial and after addresses of learned Counsel were adopted the learned trial Judge gave a considered judgment and found as follows:- I have taken my time and evaluated these exhibits especially Exhibit A15 which is receipt of payment of the Toyota Camry car sold at the rate of N1,800, (One Million, Eight Hundred Thousand Naira) only and I believe this is the strict proof that the law requires of a party that is claiming special damages. In addition, from the record of the Court and Exhibit A4, AT, A6, A7 and 48, it can be seen that the said Toyota Camry car has seriously damaged as a result of the accident with the airbag bursting out. I must say before I proceed that I distant myself with the submission of the defendants' counsel that the claim for N1, 800, only for the cost of replacing the Toyota Camry 1992 v6 model will fail for back of proof of the pre-accident reasons adduced therein because the Plaintiffs tendered Exhibit A 15 which is the receipt of payment showing the value of the said car bought. Having said thus, I now proceed to claim No.2 2

6 which is the sum of N500, (Five Hundred Thousand Naira) only being the cost of the medical treatment in the various hospitals and traditional healing home till date. As stated earlier, this is also a special damage which must be specifically pleaded and strictly proved with credible evidence. See the case of ELF PET (NI6) LTD. vs. UMAH (2007) 1 NWLR (Pt. 1014) 44 C.A. See also MW T. (NIG.) LTD. vs. P. T. F. (Supra) Therefore, in the instant case, the Plaintiffs stated in paragraphs 18 and 19 of the joint statement of claim that after the accident, they were immediately rushed to the Nigeria Airforce Base Hospital at the Nnamdi Azikiwe International Airport, being the nearest hospital for emergency treatment and thereafter transferred to St. Mary's Hospital Gwagwalada for further medical attention and that 2nd and 3rd Plaintiffs sustained various degree of injury and the 3rd plaintiff is even undergoing both orthodox and traditional treatment to aid the healing process. The plaintiffs tendered Exhibits A1, A2, and A3 which are cash receipts from Nigeria Airforce Hospital which the total amount therein is less than Five Thousand i.e. 3

7 Three Thousand, Nine Hundred and Fifty Naira (N3, ) only. The plaintiffs did not tender any referral letter or receipt from St. Mary Hospital Gwagwalada to prove to the Court that they were there for treatment. In addition, as for the traditional treatment which the plaintiff averred that 3rd plaintiff is undergoing, there is nothing before the Court to prove it and no mention was made of the place or location of the traditional medicine house. In this respect, it is elementary law that the decision of Court must be based on the facts and material before it. See the case of EGWUNEWU vs. EGEAGWU (2007) 6 NWLR (Pt. 1031) 431 at 452, paras D - E where it was held thus: - "It has been held that the decision of a Court must be based only upon facts and material placed before the Court by the parties to the dispute." Therefore, from what is before the Court on this claim No. 2 is N2, that is captured in Exhibits A1, A2 and A3 respectively. Very quickly on claim No. 3 which is N10,000, (Ten Million Naira) only as general damages for pains, agony, shock, loss, and psychological trauma that the plaintiffs have suffered and are 4

8 still suffering due to the recklessness of the defendants, general damages unlike special damages does not require proof. In this regard, I refer to the case of GARI vs. SEIRAFINA (NIG.) LTD. (2008) 2 NWLR (Pt. 1070) 1 at 19-20, para A. Before I conclude, the defendants did not in my view place anything before the Court to show that PW4 is not a witness of truth. As such, the Court believe the witness testimony. To this end therefore, I resolve this issue two in favour of the plaintiffs against the defendants and enter judgment for the Plaintiffs and ordered as follows:- 1) The Defendants shall pay to the Plaintiffs the sum of N1,800, (One Million, Eight Hundred Thousand Naira) only being the cost of replacing the Toyota Camry (1992 v6 model) car damaged beyond economic repair. 2) The defendants shall pay to the plaintiffs the sum of N3, (Three Thousand Nine Hundred and Fifty Naira) only being the cost of medical treatment in Nigeria Airforce Hospital. 3) The Defendants shall pay to the Plaintiffs the sum of N500, Five Hundred Thousand Naira) only as general damages. 4) There shall be no order to cost." 5

9 The Appellants were aggrieved and have by their Notice of Appeal dated 8th July, 2013 and filed on 10th July, 2013 appealed to this Court on two grounds which are as follows:- "2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:- "The decision awarding N1, 800, (One Million and Eight Hundred Thousand Naira to the plaintiff. 3. GROUNDS OF APPEAL 1. The learned trial judge erred in law when he awarded the sum of N1, 800, (One Million and Eight Hundred Thousand Naira) to the plaintiffs as the cost of the plaintiffs Toyota Camry which was damaged in the accident between the plaintiffs and the 1st defendants vehicle on the 21st of April, 2011 when the plaintiffs failed to prove the actual loss suffered by reason of the damage to the vehicle. PARTICULARS i. the loss of the vehicle amounts to special damages which must be strictly proved. ii. in proving the loss arising from the damage to the vehicle, the only proof offered by the plaintiffs is the receipt showing the amount which the 1st plaintiff purchased the vehicle. iii. there is no allowance made for the depreciation and 6

10 factors affecting the value of the vehicle from the date of purchase to the date of the accident so as to reveal what was the pre-accident value of the vehicle. 2. The judgment is against the weight of evidence. 4. RELIEF SOUGHT FROM THE COURT OF APPEAL (a) an order setting aside the award of the sum of the sum of N1,800, (One million and eight hundred thousand Naira) made to the Plaintiffs. The Appellants' Brief of Argument dated 5th November, 2013 was filed on the 7th November, 2013 while the Respondents' Brief of Argument was dated and filed on the 9th December, The Appeal came up for hearing on 23rd May, 2018 when the learned Counsel to the parties adopted their Briefs of Arguments. The Appellants learned Counsel D. T. NWACHUKWU, ESQ distilled one issue for determination thus:- "Whether the Plaintiffs' Claim for the sum of N1,800, (One Million Eight Hundred Thousand Naira) as cost of replacing the Toyota Camry being a special damage strictly proved." The Respondents' learned Counsel SHUAIBU ISAH, ESQ also raised an issue for determination viz:- 7

11 "Whether the trial Court was right in awarding the sum of N1, 800, (One Million, Eight Hundred Thousand Nairn) to the Plaintiffs as special damages being cost of replacing the Plaintiffs' damaged Toyota Camry car." This appeal can be decided on the lone issue raised by the Appellant for determination as the lone issue formulated by the Respondents is in tandem with the lone issue distilled by the Appellant. "Whether the Plaintiffs' Claim for the sum of N1,800, (One Million Eight Hundred Thousand Naira) as cost of replacing the Toyota Camry being a special damage strictly proved." The Appellants' learned Counsel made reference to paragraph 16 of the Joint Statement of Claim to submit that the Plaintiffs' case was anchored on negligence. He stated that the trite law is that claim for damages in cases of negligence as in this case is founded on the doctrine of restitutio in integrum. He relied on the case of LAGOS CITY CARETAKER COMMITTEE & ANOR V UNACHUKWU (1978) 3 5C 137 AT 139. That the Plaintiff was therefore duty bound to prove the actual loss arising from the damage to the said vehicle since in order to sustain the Plaintiffs' claim to 8

12 replacement of the damaged car. That this could be determined from the evidence before the trial Court the quantum of damages that stands as the Plaintiffs restitutio in integrum. That the Plaintiffs had relied heavily on Exhibits A4 - A8 so as to prove that the car was damaged beyond repairs or economic repairs cannot be established by tendering of pictures alone. That the trial Judge only relied on the pictures of the car to found that the "car was seriously damaged as a result of the accident with the airbag bursting out. That there is no evidence on record that the serious damage is such that it is irreparable as to entitle the Plaintiffs to an outright replacement of the car. That Plaintiffs did not call further evidence on this point. That there was no valuation report on the extent of the damage on the car neither was there any police report to establish that the car was damaged beyond repair. He relied on the case of NGILARI V MOTHERCAT LTD (1999) 13 NWLR (636) 647 per ONU, JSC. He submitted that the Respondents did not prove strictly the actual damage on the said car nor their allegation of total destruction. 9

13 That the award of N1, 800, as the cost of replacing the said car negates the principle of restitution in integrum. That the learned trial Judge rightly observed on page 173 of the record that the Plaintiff claim fall within the ambit of special damages. That the position of the law is that where a vehicle is a total loss or write off, the Plaintiff must show and prove preaccident market value of the vehicle less the value of the vehicle as a scrap (if any) plus damages for loss of earnings apart from any specific item of damage proved. He relied on the cases of 1. ARMEL'S TRANSPORT LTD V ATINUKE MARTINS (1970) ALL NLR 27 AT 32; 2. OHADUGHA VS GARBA (2000) 14 NWLR (PT. 687) 226 AT 243D. He referred to the evidence of PW2 who said the car was purchased in 2009 which was two years before the accident. That Exhibit A15 was tendered as purchase receipt. That PW2 equally stated he purchased a new engine worth N80,000 into the car. That Exhibit A20 goes to no issue as it was not pleaded. He relied on the case of ORIZU V ANYAEGBUNAM (1978) 5 SC 21. That there is also no evidence on record as to the value of the car after the accident, that is the scrap

14 10

15 value or the value of depreciation of the car and not withstanding according to Appellants' Counsel, the trial Judge erroneously relied solely on Exhibit A15, the receipt of purchase. That that receipt cannot sustain the claim for the replacement of the Toyota Camry car which was allegedly damaged beyond repair. He relied on the case of OTARU V IDRIS (1999) 4 SC (PT. 11) 81 AT 99. He finally urged the Court to set aside the award of the sum of N1, 800,000 awarded for replacement of the damaged car on the ground that the actual damage or loss was not proved and that the Respondents did not proof the preaccident value of the damaged Toyota Camry car. He urges this Court to allow the appeal and set aside the special damages of N1,800,000 awarded to the Respondents. In response to the above submissions the learned Counsel to the Respondents SHUAIBU ISAH, ESQ stated that the learned trial Judge was right in awarding the aforesaid sum of N1,800, as special damages being the cost of replacement of the Plaintiffs car damaged by the Appellants. He agreed that in order to succeed in the claims for special damages the claim must be expressly pleaded and 11

16 strictly proved. That special damages are those alleged to have been sustained in the circumstances of the particular wrong complained of. He relied on the cases of CALABAR EAST COOP V IKOT (1999) 14 NWLR (PT. 638) 225 AT 240C and U.B.N Plc V AJABULE (2011) 18 NWLR (PT. 1278) 152 AT 157. That the Respondents not only clearly pleaded the complete damage of the Toyota Camry car beyond economic repairs but equally went on to strictly prove the claim to the satisfaction of the trial Court. He relied on paragraphs 15 and 16 of the Joint Statement of claim and the oral and documentary evidence of the damaged car and its value. He relied on A4, A5, A6, A7 and A8 which are the photographs of the damaged car. That the Exhibits showed the car was completely damaged by Appellants. The learned Counsel also relied on Exhibit 24 which is the Police Investigation Report as proving that the Plaintiffs car was damaged beyond recognition as a result of the accident. That the purchase receipt for the car Exhibit A15 and receipt for purchase of used engine Exhibit A20 proved the value of the completely damaged car. That the Respondents satisfied the trial Court of the total loss 12

17 of the car and the value of the car as at the time of the accident to the satisfaction of the trial Court. That this Court has held consistently that where there is a successful claim for total destruction of property as in this case the measure of damages is the value of the goods at the time of the destruction. That in case of total loss or write off of a vehicle as in this case the Plaintiff is entitled to the value of the property at the time of the accident. He relied on the cases of:- 1. OHADUGHA V GARBA (2000) 14 NWLR (PART 687) 226 AT 243 F H; 2. ADISA V AFUYE (1994) 1 NWLR (PART 318) 78 AT 89; 3. CAPPA & D'ALBERTO LTD V AKINTILO (2003) 9 NWLR (PART 824) 49 AT 71 E G. That this Court will not interfere with the award made by lower Court except the award is entirely based on erroneous estimate or assessment of the damages the Plaintiff is entitled to relying on the cases of NEZAM V BPPC LTD (2000) 15 WRN-75 AT 85-and JULIUS BERGER PLC VS 7UP BOTTLING CO PLC (1997) 2 NWLR (PT. 489) 603 AT 611. He urges this Court to dismiss the appeal and affirm the judgment of the lower Court.

18 13

19 Now the classification or categorization of damages claimable in torts action has clearly defined onus or standard of proof a claimant must attain to prove his or her entitlement to any of the two classes of damages namely Special Damages and general damages. Black's Law Dictionary 10th Edition page 472 defines "general damages" es:- "damages that the law presumes follow from the type of wrong complained of; specific; compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. General damages do not need to be specifically claimed - Also termed direct damages, necessary damages." Special damages is defined on page 474 of the said Law Dictionary to be:- "Damages that are alleged to have been sustained in the circumstances of particular wrong. To be awardable, special damages must be specifically claimed and proved." See also:- 1. SAIDU H. AHMED & ORS V. C.B.N. (2013) 2 NWLR (PART 1339) 524 AT 545H per FABIYI, JSC who said:- "Special damages have been defined as those which are the actual, but not necessary, result of the injury 14

20 complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. Twin Coach Co. v. Chance Vought Aircraft Inc. 2 Storey 588,163 A-2d 278,286. Such are damages which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract, and must be reasonably foreseeable. Special damages must be specially pleaded and proved. (Black's Law Dictionary, Sixth Edition, page 392)." 2. XTOUDOS SERVICE NIGERIA LTD & ANOR VS TAISEI (W.A.) LTD & ANOR (2006) CM 409 AT per MAHMUD MOHAMMED, J5C (later CJN, RTD.) who said:- "The other, general damages which averred as having been suffered the law will presume to be natural or probable consequences of the act complained of but the quantification thereof is at the discretion of the Court." Now the Appellant had contended that actual loss and the pre-accident value of the car must be proved and that it cannot be done vide photographs of the damaged car but by pleading and credible evidence. 15

21 The Respondents argued that the special damages which was the cost of the car was actually pleaded and proved vide the photographs and purchase receipt when the car was bought in They relied on paragraph 15 and 16 of the Plaintiff s Joint Statement of Claim wherein they pleaded as follows:- "15. The 2nd and 3rd Plaintiffs aver that consequent upon the 2nd defendants dangerous driving with excessive speed and negligent act of ramming into the Toyota Camry (1992 V6 Model) car with registration number FM 78 LND from the back] the Toyota Camry (1992 V6 Model) car with registration number FM 78 LAID was violently flung from the service lane where the 2nd Plaintiff was driving on at the material time against the middle boulder of the dual carriage way, thereby causing severe damage to the Toyota Camry (1992 V6 Model) car with registration number FM 78 LND as well as it occupants, the 2nd and 3rd Plaintiff. 16. The Plaintiffs avers that the effect of the 2nd Defendant's dangerous driving, excessive speed and negligent act of ramming into the Toyota Camry (1992 V6 Model) car with registration 16

22 number FM 78 LND from the back severely and completely damaged the 1st Plaintiff's Toyota Camry (1992 V6 Model) car with registration number FM 78 LND beyond any reasonable economic repairs. The Plaintiffs shall at the trial of this suit found and rely on the photographs of the damaged Toyota Camry (1992 V6 model) car with registration number FM 78 LND taken after the incident." The car actually belonged to the 1st Respondent the husband of 2nd Respondent who drove the car at the time of the accident. Where as in this case the Respondents particularly the 1st and 2nd Respondents strongly stated that the Toyota Camry (1992 v6 Model) car belonging to 1st Respondent was damaged by the Appellants, the Respondents have a bounden duty to plead the actual worth or value of the car as at 21st day of April, 2011 when the Appellants caused the accident that led to the complete damage of the 1st and 2nd Respondents car as alleged. That is not all the Respondent must show that they led credible evidence of the value of the accident car after the accident to enable the trial Court make the award of Special Damages claimed by the Respondents in the sum of 17

23 N1,800, It is not enough to tender photographs of the damaged car neither does it amount to proof of the allegation to rely on bare report of investigation by the Police. There was no evidence of Vehicle Inspection Officer or any person versed in the market price of the type of Camry car involved in the accident as at 21/4/2011 or even after the date of the accident. For example the Respondents tendered Exhibit 20 to show that they bought a new engine for the sum of N80, It means the car was refurbished after purchase. Surely it cannot be said that the Camry car 1992 model bought for N1,800, in July, 2009 will have the same value or worth two years later when it was involved in the accident that is on The car would have been hit by wear and tear and depreciation no matter how small or little. The very vital pieces of evidence necessary to support the claim of Respondents for Special Damages in the sum of N1,800, which was the purchase price of the car in 2009 are significantly lacking or absent. All these missing links and lacuna in the evidence of the Respondents pertaining to the actual loss or pre accident 18

24 value of the car at the time of accident and its value when it had accident which made it impossible, according to Respondents to carry out any reasonable repair on the car ought to have weighed heavily in the mind of the learned trial Judge in making his award of special damages.. Exhibit 15 the purchase receipt of the car in 2009 cannot represent or proved the value of the said car to still be N1, 800,000 plus other damages the learned trial Judge would have found in favour of the Respondents. See:- 1. S.W. UBANI-UKOMA V G. E. NICOL (1962) 1 ALL NLR 107 AT per TAYLOR, F.J.; 2. THE SHELL PETROLEUM DEVELOPMENT COY OR NIGERIA LTD VS KWAMEH AMBAH (1999) 3 NWLR (PART 593) 1 AT 14 per WALI, JSC who said:- "The amended pleading did not aver that the respondent's claim is for the continual loss of income resulting from the destruction of the items listed therein for the period The claim still remains for compensation as a result of permanent destruction of the items by the appellant. Evidence given which is not in line with the facts pleaded goes to no issue and of no help to the party that produces it. 19

25 See Emegokwue v. Okadigbo (1973) 4 SC 113; N. I. P. C Ltd. v. Thompson Organisation Ltd. (1969) 1 NWLR 99; Ukiw v. Samuels (1963) 2 AER 879 and Okafor v. Okitiakpe (1973) 2 SC 49. Where there is a claim for total destruction of property, the measure of damages will be value of the property at the time of its destruction. See Liesboscli Dredger v. S. S. Edison (1933) AC 449 and Darefooh v. Karan 7 WACA 113. This is based on the principle of restitutio in integrum. The total amount claimed by the respondent as compensation for the permanent destruction of items listed in the still further amended statement of claim is N27,000. This has not been contested by the appellant in this appeal. The amended sum of N297, 000 awarded as special damage to the respondent by the Court of Appeal cannot be allowed to stand as it is not based on the facts pleaded by them. It is inappropriate. For the reasons stated herein this appeal must succeed on the amount awarded as special damage. It is accordingly allowed and the amount is reduced to N27, 000 in line with the respondent's claim." However in the case of OANDO (NIG) PLC V ADIJERE West Africa LTD (2013) 15 NWLR (PART 1377) 374 AT 404A - 20

26 H TO 375 A - E per A KA'AHS, JSC the Supreme Court said:- "There is no doubt that if there had been evidence of an expert of the value of the burnt down truck, it would have been the best type of evidence but we must not lose sight of the fact that a second hand vehicle may well cost more than what it was purchased for when it was new because of inflationary trends where vehicle are imported and even the cost of assembling the knocked down parts could be prohibitive, thereby making the imported products cheaper than those assembled n the country. Nnaemeka-Agu, J.S.C. (of blessed memory) had this in mind when he discussed the best evidence of value in N.E.P.A. v. Alli (supra) at pages where he said:- "This raises the difficult but important question of what is the best evidence of value in the circumstances of this case? In the case of The Ironmaster (1859) Swab. 441 it was held that in the absence of a clear market value, the best evidence of value is the opinion of those who knew the vessel shortly before the incident or damage. The next best evidence is the opinion of those who are well conversant with the type of chattel destroyed 21

27 generally, while the original cost, the cost of repairs due and the sum at which insurance had been taken out, though sometimes evidence of value, are of inferior weight. These principles were approved in The Hormonides (1903) P See: also, The Olyde (1856) Swab. 23. The cases and others in the class show that the price of the goods less depreciation which was applied in Leisboon case (supra) is not the only method of proving the value of a chattel destroyed. They also show that the opinion of a person, such as P.W.4. Who is well conversant with the chattel involved is also an acceptable evidence involved is also an acceptable evidence of value. It should have been accepted in this case, moreso in this country in which it is a matter of common knowledge that because of the rapid depreciation of the Naira, a chattel could be sold for much higher price than it was bought after it had been used for a number of years. So, the value by PW4 should have been accepted: there is therefore, nothing to remit to the court below for assessment." In Ubani-Ukoma v. Nicol (1962) 1 All NLR 107, (1962) 1 SCNLR 176 Taylor FJ held at page 111 the value to be on 22

28 a used chattel that - "In an action sounding in negligence actual, damage must be proved, but the value of a used article or chattel is not an item of special damage in the sense that it can be exactly quantified like the cost of repairs or the expenses of hospital treatment. It is open to either party to call evidence and the Court must do the best it can on the material before it... The market value of any article is the sum it would fetch under the state of things for the time being existing. It is a matter of estimation on which opinions often differ." Since this was a case of complete loss the principle to be invoked in assessing the value of the vehicle is that of restitutio in integrum which means that the crossappellant should recover such sum as will place him so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on him. The damages to be awarded therefore need not be based on the value of the chattel at the time of destruction. The lower Court was wrong to set aside the award of N3.5 million for the complete loss of the tanker. The cross-appeal therefore succeeds and the award made 23

29 by the learned trial Chief Judge of Plateau State for the total loss of the burnt down tanker is hereby restored. The cross-appellant is entitled to the award of N3.5 million being the amount he requires to replace the completely burnt down trailer." The Appellant in this appeal did not appeal against the findings of the learned trial Judge to the effect that the Appellant's Driver was negligent and he caused the avoidable accident. They did not also appeal against the award of General Damages made against them by the lower Court. I am of the view that this Court can having regard to the pleadings and pieces of evidence proffered on both side and in the circumstance reduce the award made in favour of the Respondents as special damages. The Respondent particularly the 1st and 2nd Respondents in doubt are entitled to special damages which I assess at N1,000, having regard to the award of N500,000 general damages already made in favour of the Respondents. The appeal succeeds in part. The award of N1,800,000 made in favour of Respondents by lower Court is hereby reduced to the sum of N1,000,000 as special damages due to the 24

30 negligent act of the Appellant in causing extensive damage to the Respondents car. There will be no Order as to costs. ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother Ige JCA just delivered and I am in full agreement with it. The appeal succeeds in part only, in that the award of N1, 800,000 made in favour of the respondents as special damages is reduced to N1,000,000. No Order as to costs. TANI YUSUF HASSAN, J.C.A.: I read before now the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA. I agree with the reasoning and conclusion reached therein. 25

31 Appearances: M. N. NJAMMA, ESQ. with him, YUSUF KADIRI, ESQ. For Appellant(s) SHUAIBU ISAH, ESQ. For Respondent(s)