BOUYGUES NIGERIA LIMITED v. O. MARINE SERVICES LIMITED (2012)

BOUYGUES NIGERIA LIMITED v. O. MARINE SERVICES LIMITED

(2012)LCN/5225(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of March, 2012

CA/PH/172/2002

RATIO

NEGLIGENCE: REQUIREMENTS TO MAKE A NEGLIGENCE COMPLETE AND ACTIONABLE

Negligence is complete and actionable when three conditions are met
(1) the defendant owed a duty of care to the plaintiff.
(2) the duty of care was breached
(3) the plaintiff suffered damage arising from the breach. See OYIDIABU V. OKECHUKWU (1972) 5 SC 19; UTB V. OZOEMENA (2007) 3 NWLR (PT. 1022)488; DONOGHUE V STEVENSON (1932) AC 562. PER. TUNDE OYEBANJI AWOTOYE, J.C.A

ON WHEN THE DUTY OF CARE IS SAID TO EXIST

ON WHOM LIES THE BURDEN OF PROVING NEGLIGENCE

It needs be stressed that the burden of proof of negligence falls on the plaintiff who alleges it see ABUBAKAR V. JOSEPH (supra) at 38. According to Tobi JSC in ABUBAKAR V. JOSEPH (supra) at 39.
“Facts are important in every case before the court as they are the fountain head of the law. If there is any case in which facts are of great importance. It is the case of negligence. In a case of negligence the facts which gave rise to the negligence must be comprehensively and delicately pleaded. The facts must be pleaded in minute details almost to the letters of the alphabet. Nothing should be left unpleaded.” PER. TUNDE OYEBANJI AWOTOYE, J.C.A

MEASUREMENT OF DAMAGES IN AN ACTION FOR NEGLIGENCE

It is trite law that the measure of damages in an action for negligence is founded on the principle of RESTITUO IN INTEGRUM which means that successful plaintiff must be made by the court to recover such sum as will restore him to the SAME POSITION he was before he suffered the loss. See IYERE v. BENDEL FEED & FLOUR MILL LTD (2009) 3 WRN 139 AT 184. But what the plaintiff claimed are special damages I therefore, cannot make my own estimate in respect thereof. See NZERIBE V. DAVE ENG. CO. (1994) 8 NWLR (PT. 360) 124 at 140. See also DUMEZ (NIG.) LTD V OGBOLI (1972) 1 ALL NLR 241; JABBER V BASMA (1952) 14 WACA 140. PER. TUNDE OYEBANJI AWOTOYE, J.C.A

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

BOUYGUES NIGERIA LIMITED Appellant(s)

AND

O. MARINE SERVICES LIMITED Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal against the decision of the Mustapha J. of the Federal High Court sitting in Port Harcourt Division delivered on 5/3/2002.
The plaintiff, now the respondent/cross-appellant claimed before the court below as per its Amended Statement of Claim and Reply to counter-claim as follows.
“i. The sum of N 16,416,300 representing the cost of replating the barge and fully restoring it to its sea worthy pre-accident condition.
ii. The sum of representing the lost hire income from the barge from 24/6/97 to the date filing of the Writ at N40,000.00 per day = N3,960,000 and the sum of N40,000.00 per day till the date of judgment and settlement of judgment debt thereon.
iii. The cost of salvage of the still submerged barge based on an estimate from Deep See Brothers N2,394,000.00”
The defendant. (now appellant/cross-respondent also counter claimed as per paragraph 35 of its Amended Statement of Defence and Counter claim as follows:-
“35. WHEREFORE the defendant counter-claims against the plaintiff the sum of N11,599,449.30 being special and general damages made up as follows:-
(a) cost of the salvaging and refloating of the submerged barge – N7,225,000
(b) Cost of support service in re (a) above – N3,202,879.30
(c) cost of 2 divers services and hiring of equipment – N 20,2000
(d) Cost of dive inspection – N 26,250.00
(e) Part advance payment of cost of dredging sand – N300,000.00
Part advance payment of cost of dredging/salvaging of barge N200,000.00
Cost of towing salvaged barge from Bonny Jetty to Nissco Jetty Port Harcourt – 84,000.00
(h) Mooring charges at Nissco jetty for 99 day at N1680 per day N166,320.00
GENERAL DAMAGES comprising value of %00 tons of de Defendant’s sand lost on board the submerged barge and Purchased at the rate of N750 per ton – N375,000.00
The learned trial judge after hearing the parties dismissed the entire counter claim and held as follows
“In the final analysis, I hold that the plaintiffs case succeeds and that judgment is hereby entered in favour of the plaintiff against the defendant in the sum of N16,416,300 representing the cost of replating the Badge and fully restoring it to its sea worthy pre-accident condition.”
It is against the above decision that the defendant filed a notice of appeal containing seven grounds of appeal. The plaintiff/respondent subsequently on 22/10/2002 sought and obtained the order of this court to Cross-Appeal.
After transmission of record of appeal each of the parties filed brief of the parties filed brief of argument.
In its brief of argument settled by Dr. J.O. Ibike SAN, the appellant formulated three issues for determination. The issues are
“(a) ISSUE NO.1 Whether the award damages for replating of the submerged barge and costs in favour of the plaintiff is justifiable? (distilled from originals grounds 1, 2, 3, and 4).
(b) ISSUE NO. 2 Whether the verdict of negligence entered against the defendant is justifiable (distilled from original grounds 5 and 7 and additional grounds 8 and 9) and
(c) ISSUE NO.3 Whether the dismissal of the counterclaim is right and, if not, whether verdict ought to have been entered in favour of the defendant in its counterclaim (distilled from original ground 6 and additional grounds 10 and 11)”
On Issue No. 1 learned senior counsel submitted that the trial court misapplied the ratio in the Supreme Court decision in LCC CARETAKER COMMTTTEE &. ANOR V. UNACHUKWU & ANOR (1978) ANLR 92. He added that for a plaintiff to be entitled to an award of damages for loss of sustained in negligence it was incumbent on the party to allege and prove that the loss was actually sustained by him.
He stated that it was only the owner of the good that would have actually sustained the loss as a result of the negligence. He stated further referring to several pages in the record of appeal that it was beyond question that the trial court rightly held that the plaintiff was not the owner of the submerged barge. He submitted that the plaintiff did not establish LOCUS STANDI entitling it to recover the said award of damages.
He also challenged the assessment or measure of damages awarded by the trial court. He relied on UBANI – UKOMA v. NICOC (1962) 1 All NLR 105 at 110 where the supreme court per Taylor F.J. restated the principle of law on the measure of damages to be awarded thus:-
“In an action sounding in negligence actual damage must be proved, but the value of a used article is not an item of special damage in the sense that it can (sic) be exactly quantified like the costs 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.”
He submitted that there was no evidence placed before the trial court from which it could rationally arrive at the finding of fact that barge was in such a post salvage state to be reparable or replatable or restorable to its pre-accident condition. He urged the court to resolve issue No.1 in the appellants favour.
On issue No.2 learned senior counsel submitted that the verdict on negligence pronounced against the defendant/appellant was legally unsustainable. He submitted that the plaintiff did not prove the primary liability of the principal tortfeasor. He cited OBI v. BIWATER SHALLABEAR (NIG) LTD (1997) 1 NWLR (pt.484) and other cases.
He stated further that the plaintiff did not prove particulars of negligence pleaded before the trial court. He referred to paragraph 13(c) of the Amended Statement of Claim.
He finally urged the court to resolve issue No.2 in favour of the appellant.
on issue No 3 learned senior counsel submitted that the trial court failed to avert its mind to settled facts from the pleadings. He referred to paragraph 28-34 of the Amended statement of Defence which were not refuted by the plaintiff. He submitted that a material allegation in a counter claim not traversed by the opponent when the opponent had reasonable opportunity to do so in his pleadings should be deemed admitted.He relied on MBA v. AGU (1999) 12 NWLR (Pt. 629) 1 and other cases.
He finally urged the court to resolve the issue in favour of the appellant.
He urged the court to allow the appeal, dismiss the plaintiffs claims and grant the counter claim of the defendant or remit the counter claim back to the trial court for assessment of damages or for re-hearing before another Judge of competent jurisdiction.
The Respondents brief was settled by Ayode I. Salami learned counsel for the Respondent. He adopted the three issues formulated by the appellant for determination.
On issue No.1, learned counsel referred to the evidence of witnesses extensively and submitted that the evaluation of evidence by the learned trial judge was unimpeachable. He argued further that the evidence of PW1 in support of the repainting of the Barge was not challenged and this amounted to concession that it was true. He relied on C.E.C. V. IKOT (1999) 12 SC, PT11 p.133 at 140.
He submitted further that inferring the concept of “ownership” into the ratio of the supreme court in L.C.C. v. NNACHUKWU (1978) 3SC.199 at 102 was a very erroneous appreciation and application of the Law. He stated that the clear pre-accident status quo between the parties was that the plaintiff had a sea-worthy Barge in its custody where it put in the services of the defendant. He contended that the appellant were taking inconsistent positions and this posture had been criticized by the Supreme Court in AKUNELIRI V. OKENWA (2001) FLWR (PT. 35) SC 604 at 615. He added that ownership of the Barge was never material and was not in issue.
He submitted further that parties were bound by their pleadings and that the plaintiff only asked for cost of replating the sinken Barge and not its replacement. He finally urged the court to resolve the issue in Respondent’s favour.
On issue No. 2, learned counsel referred to the evidence adduced by witnesses and submitted that there were many material contradiction in the defendant’s case and the trial court law no choice but to prefer pw3’s consistent and credible evidence. He urged the court not to interfere with the sound finding of negligence against the defendant as it was supported by evidence on Record.
On issue No. 3 learned counsel submitted that the plaintiff traversed every paragraph of the counter-claim and so issue of admission should not arise. He relied on AKPADIAHA V. OWO (2001) FWLR (PT. 57) PG. 940 at 947.
He contended that the defendant never established by credible evidence the duly of care to remove the sunken barge. He urged the court to affirm the decision of the lower court and resolve this issue in the Respondent’s favour.
As aforestated the plaintiff cross-appealed. In its cross appellants’ brief are sole issue was formulated.
The sole issue is
“Was the Hon. Court Justified in refusing the plaintiff/cross-appellant claim for special damages in the form of loss of income, particularly after clear findings of palpability in negligence against the defendant/cross respondent?”
Learned counsel submitted that after holding the defendant/cross-Respondent wholly liable in negligence for the sinking of the barge. It was mandatory for the trial court to have accepted as sufficient proof the unchallenged evidence led in proof of the plaintiff/cross-appellant loss of income. This was particularly in view of the fact that the datis for quantifying the special damages was based on the credible evidence of Exhibit A3 which was an L.P.O. issued by defendant/cross-respondent affixing the N40,000 per day hire rate for the barge. He urged the court to set aside the finding of the lower court on this aspect.
The cross-respondents brief was settled by Dr. J.O. Ibik SAN. He adopted the sole issue formulated by the cross-appellant learned counsel for the cross-respondent restated the facts which he considered pertinent to this cross appeal thus:
23. On 27th September 1999, after PW2 had testified in chief, ETAMAN NIG. LTD which claims ownership of the submerged barge applied to be joined as 2nd plaintiff in the proceedings. The Respondent did not oppose the application for joinder but the Appellant contested that the owner of the barge a necessary patty and accordingly opposed the application.
24. In a reserved Ruling delivered on 20th April 2000 the lower court dismissed the motion for joinder. Neither the Respondent not the said applicant appealed against the said Ruling. The relevant pages of the record are 72 to 78, 90 to 93 and 96 to 100.”
Learned senior counsel argued very strongly that the cross-appeal lacks merit. He urged the court to dismiss the cross-appeal.
I have carefully considered the arguments canvassed on both sides as well as the contents of the record of appeal.
The issues as formulated by learned counsel in this case can be condensed into one i.e. Is the judgment of the court below right with regard to findings and assessment of damages?
I shall view this appeal in the light of the above sole issue.
Negligence is complete and actionable when three conditions are met
(1) the defendant owed a duty of care to the plaintiff.
(2) the duty of care was breached
(3) the plaintiff suffered damage arising from the breach. See OYIDIABU V. OKECHUKWU (1972) 5 SC 19; UTB V. OZOEMENA (2007) 3 NWLR (PT. 1022)488; DONOGHUE V STEVENSON (1932) AC 562.

The plaintiff for him to succeed in an action in negligence, must plead sufficient particulars of the negligence alleged adduce credible evidence to show the duty of care owed by the defendant, the breach of that duty by the defendant and the damage suffered as a result. See UTB V. OZOEMENA (supra).
Duty of care is said to exist where there is sufficient relationship of proximity as between the defendant and the plaintiff who suffered the damage such that a reasonable man can conclude that carelessness on the part of the defendant likely caused the damage. See ABUSOMWAN v. MERCANTILE BANK LTD (1987) 3 NWLR (Pt.60) 196 ANYAH v. IMO CONCORD HOTELS LTD (2002) 18 NWLR (pt. 799) 377; ABUBAKAR v. JOSEPH (2008) 50 WRN.
The appellant attacked the decision of the court below in different areas. As per its Notice of Appeal filed on 8/3/2002 the ground of appeal of the appellant (shorn of the particulars are as follows:-
“GROUNDS OF APPEAL
(1) ERROR IN LAW
The learned trial judge erred in Law in awarding to the plaintiff damages in the sum of N16,416,300 claimed in paragraph 18 (1) of the amended statement of claim as representing the cost of replacing the barge and fully restoring it to its seaworthy pre-accident condition.
(2) ERROR IN LAW
Assuming (without conceding) that the plaintiff was entitled to recover damages qua owner of the barge as claimed in paragraph 18(i) of the Amended Statement of claim, the learned trial Judge erred in law in awarding the relief as claimed or at all.
(3) ERROR IN LAW
The learned trial judge erred in law in awarding the sum claimed in paragraph 18(i) of the Amended Statement of claim when the plaintiff neither pleaded nor proved the resultant physical condition of the barge after it submerged and thereby failed to place before the court credible evidence upon which to determine whether or not the submerged barge was restorable to its sea-worthy pre-accident condition; a fortiori any finding on that issue is speculative and untenable in law.
(4) ERROR IN LAW
Assuming (without conceding) that the resultant physical condition of the barge after is submerged was beyond economic restoration or salvage, the learned trial Judge erred in law in awarding the sum claimed in paragraph 18(i) of the Amended Statement of Claim when the plaintiff neither pleaded nor proved the scrap value thereby making it impossible for the court to take into consideration a vital element in assessing damages recoverable in the circumstances  as enunciated in such cases as ARMEL’S TRANSPORT LTD VS MARTINS (1970) 1 ALL N.L.R. 27
(5) ERROR IN LAW
The learned trial judge erred in law in holding the defendant liable in negligence
(6) ERROR IN LAW
The learned trial judge erred in law in dismissing the defendant’s counterclaim.”
In my respectful view the following pertinent question needs to be answered in resolving the sole issue formulated.
“(i) Was the defendant/appellant careless in the transaction in question?”
It needs be stressed that the burden of proof of negligence falls on the plaintiff who alleges it see ABUBAKAR V. JOSEPH (supra) at 38.
According to Tobi JSC in ABUBAKAR V. JOSEPH (supra) at 39.
“Facts are important in every case before the court as they are the fountain head of the law.
If there is any case in which facts are of great importance. It is the case of negligence. In a case of negligence the facts which gave rise to the negligence must be comprehensively and delicately pleaded. The facts must be pleaded in minute details almost to the letters of the alphabet. Nothing should be left unpleaded.”
The plaintiff in paragraph 8 -13 of its amended statement of claim pleaded the facts of negligence as follows:-
“8. Defendant employees now commenced this operation by piling some of the sand on one end of the barge and now stated scooping them up and carry to the shore to offload into the Tippers as described above
9. The Defendant pay-loader operator after scooping about 2 Tipper loads of 4 buckets each, all from one end of the barge, now was informed that the Tippers were struck in the mud.
10. The defendant pay-loader operator abruptly stopped work and moved his pay loader to shore and went and stated trying to rescue the Tipper that were struck in the mud.
11. The Pay-loader was acting as a stabilizing factor on the deck of the barge as the Defendant had moved the sand to one end of the barge. The sudden and complete removal of the pay-loader by defendant operator now caused the barge to start tilting gradually towards the side the sand was disproportionately heaped and finally go under completely.
12. Plaintiff says the accident was caused as a result of the defendant’s negligence and those of its personnel.
PARTICULARS OF NEGLIGENCE
(a) Defendant pay-loader operator in a monumental display of incompetence and negligence never border to care about the obvious effect of the uneven payload of sand on the Dec of the barge.
(b) Defendant pay loader operator never took any step to balance out the weight distribution of the sand payload before taking off his payloader that had hitherto been acting as a stablilising factor to maintain an even keel of the barge.
(c) This disproportionate sand payload that was negligently left unchecked by the pay loader operator caused the Barge to tilt unevenly and finally go down. Plaintiff shall rely at the trial the customary marine log books kept by the barge supervisor and other witness to this incidents including the defendant’s employees.
13. This unbalanced barge was now left for hours to the mercy of the ocean current and tidal waves. Plaintiff tug boat crew repeatedly drew defendant employee’s attention to this obviously precarious situation of the barge but all efforts and entreaties to get Defendant pay loader operator to take immediate remedial step proved in vain as he was more concerned with freeing the Defendant’s Tippers struck in the mud.
PIAINTIFF SHALL RELY ON:
i. Defendant’s letter of 26th June, 1997
ii. Plaintiffs letter of 1st July, 1997
iii. Plaintiffs letter of 7th July, 1997.”
In reaction the defendant did not deny the scoping of the sand from one end of the barge to the other but averred that the plaintiff  failed to pump out seawater or rescue the barge with the tug boat see paragraph 16 – 18 of the Amended statement of Defence and counter-claim of the defendant.
The learned trial judge painstakingly went through the evidence adduced by both Parties.
The witness of the defendant Dauda Zubair, a checker employed by the defendant witnessed the whole incident and wrote a report which was tendered, and exhibited as Exhibit H1. In the report he said could not imagine what went wrong. I am of the respectful view that the learned trial judge rightly relied an Exhibit H1 to discountenance the contention of the defendant with respect to the uncoupling of tug boat from the barge. It was an after thought. I am convinced that the evaluation of the evidence adduced by the trial court on what transpired is unimpeachable. I agree with the learned trial judge that the plaintiff proved negligence on the part of the defendant. The pay loader’s operator was ordered to leave the barge to go and rescue the tippes by the 2nd DW himself. See page 118 of record of appeal. I hold that the operator of the pay loader was an agent of the defendant acting within the course of his employment. Now to the damages awarded. The learned trial judge in his judgment dismissed claims 19(ii) – (iv) of the amended statement of claim and awarded damages as per paragraph 19(i) of the amended statement of claim as follows:-
“I have reproduced the plaintiff’s claim before the court. In the case of LIVING STONE V RAWYARD COAL TO.1880 5 APP CAS. 25 at. P.39 Lord Blackburn defined measure of damages at the sum of money which will put the party who has suffered wrong in the same position, as he would have been if he had not sustained the wrong for which he is now asking compensation or reparation.
And in C.C.C. v. UNACHUKWU 1978 3 SC 199 at P 102 the supreme held that where a vessel is lost by collision due to the sole negligence of the culpable vessel, the owner of the former vessel are entitled to what is called RESTITUTIO IN INTEGRUM, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money in the same position as if the loss has not been inflicted on them. p.w.3 a diver by profession told the court that after about 12 months under water, the Barge would be  regarded as a scrap. The plaintiff are claiming the sum of N16 ,416,300 as the cost of replating the Barge and fully restoring it to its sea worthy condition on the assessment made by NIGERIA SHIPBUILDERS LTD. I agree that this is the only sum of money which will put the plaintiff  in the position as they could have been as if the Barge had not sank.”
Learned senior counsel attacked the award on several grounds such as
(1) The plaintiff was not the owner of the barge.
(2) The cost of replacing the barge was neither proved nor pleaded to be the same amount as the cost of restoration of the barge.
(3) There was no evidence upon which to determine whether or not the barge was restorable.
(4) There was no proof of the scrap value making it impossible for the court to take into consideration a vital element in assessing damages recoverable as enunciated in ARMEL’S TRANSPORT LTD v. MARTINS (1970) 1 NLR 27.
The award of N16,416,300 damages was to hinged on the report of Nigeria shipbuilders Ltd admitted as Exhibit B.  Exhibit B is a letter dated 14/10/97 to the plaintiff from the Nigeria Shipbuilders Ltd. For ease of reference I shall quote its contents in extenso.
“14th October 1997
O. Marine Services Limited
144 Trans Amadi Industrial Layout
P.O. Box 4477
Port Harcourt.
ATTN: OKECHUKWU MOCHU – M.D:
Dear Sir,
REPLATING OF YOUR BARGE
We thank you for letter of 16/9/97 received yesterday by hand of Mr. Emmanuel Nkantah.
We have studied the Diving Inspection Report from M/S Deep- Sea Divers Limited on your sunken barge at the TSKJ Jetty, Bonny.
The state of the barge appears to us not to warrant lifting and replating due to the Divers report that the deck is compressed, as is one of the sides, the other being turn open. We would recommend therefore that you leave the barge where it is and  claim your insurance.
The ramp should be recovered as soon as possible, cleaned, and re-coated to preserve it.
In response to your request for the price for a construction of new 500 ton Barge, we have pleasure to quote a budget price as follows:
Dimensions
Length 35m
Beam  10m
Depth 2.5m
An approximate price for a barge of this size, constructed of 8mm steel plates for deck, sides bottom, and swimends, and 6mm plates for internal bulkheads including the fitting of your existing ramp, sandblasting, coating with primer, finish coat, and anti fouling, paint below waterline, and launching would be N17,100.200.00 including VAT.
Not: Steel plates, coating materials, and zinc anodes are to be supplied by yourselves.
We trust that this is of interest to you, and remain at your service.
Yours faithfully
For: NIGERIAN SHIPBULDERS LIMITED
C.L.R. HERMAN
General Manager.”
Going through Exhibit B, it is difficult to relate it to the claim of the plaintiff in paragraph 19(i) of the amended statement of claim. I am also unable to relate it to the N16,416,30 damages awarded.
Exhibit B does not state the cost of replating. It rather advises the plaintiff to “leave the barge and claim your insurance.”
Exhibit B then goes further to state the price of a new 500 ton barge. It states further that the barge in question is “constructed of 8mm steel plates for dech sides bottom, and swimends and 6mm plates for internal bulkheads including the fitting of your existing ramp sand blasting coating with prumer finish coat and antifouling paint below water line and launching.”
. There is nothing in evidence to show that the proposed new barge is the same type as the submerged barge.
It is trite law that the measure of damages in an action for negligence is founded on the principle of RESTITUO IN INTEGRUM which means that successful plaintiff must be made by the court to  recover such sum as will restore him to the SAME POSITION he was before he suffered the loss. See IYERE v. BENDEL FEED & FLOUR MILL LTD (2009) 3 WRN 139 AT 184.
But what the plaintiff claimed are special damages I therefore, cannot make my own estimate in respect thereof. See NZERIBE V. DAVE ENG. CO. (1994) 8 NWLR (PT. 360) 124 at 140. See also DUMEZ (NIG.) LTD V OGBOLI (1972) 1 ALL NLR 241; JABBER V BASMA (1952) 14 WACA 140.
How the plaintiff arrived at the sum of N16,416,300 is difficult to understand from the proceeding’s. I am of the respectful view that the award of N16,416,300 damages by the trial court cannot be justified in the face of the evidence adduced before the said court, I therefore set the award aside. See KUSFA v. UBC LTD (1994) 4 NWLR (Pt.336) 1; ALLIED BANK V. AKUBUEZE (1997) 6 NWLR (Pt.509) 374.
It has also been raised that since the plaintiff did not have proprietary interest in the barge the damages ought not to have been awarded. I respectfully disagree.

A plaintiff who has possessory right other than proprietary right to the damaged property can claim damages in respect thereof. See SAMPSON V. THOMSON (1877) 3 AC 279, 290.This appeal succeeds. The award of N16,416,3000 representing the cost of replating the barge and fully restoring it to its sea worthy pre-accident condition is hereby set aside.
The plaintiff also cross-appealed. Learned counsel for the plaintiff cross-appellant formulated one issue for determination as aforestated. He challenged the refusal of the trial court to award special damages in the form of loss of income particularly after finding of culpability in negligence against the defendant/cross-respondent.
By paragraph 18(ii) of the amended statement of claim of the plaintiff claimed.
“The sum representing the cost hire income from the barge from 24/6/97 to the date of filing of the writ at N40,000 Per day = N3,960,000 and the sum of N40,000 per day till the date of judgment and settlement of judgment debt thereon.”
But the learned trial judge refused the claim because the plaintiff was not the owner of the Barge and there was nothing before the court to show that plaintiff hired the barge to the defendant.
I agree with the cross-appellant that having regard to the content of L.P.O No. 900615 dated 17 – 6 – 97, the defendant was to pay the plaintiff, the sum of N40,000 per day for the barge see exhibit A3.
The barge sunk on 23/6/97. The duration of the contract as per Exhibit A3 was from 1816/97 to 2 – 7 – 97. I am convinced it is fair to award loss of income from 23 – 6- 97 to 2 -7 – 97 on the barge, at N40,000 per day and I so do. An appellate court has the power to re-evaluate evidence which was wrongly rejected or evaluated. See INAKOJU V ADELEKE (2007) 4 NWLR (PT. 1025) 423. I am of the strong view that the refusal of the claim for loss of income by the trial court was wrong in the face of Exhibit A3. It is hereby set aside. The respondent ought to have taken steps to mitigate its loss by recovering the barge after it was submerged. See ONWUKA V OMOGUI (1992) 3 NWLR (Pt. 230) 392 at 401 where Babalakin JSC said “In law, a plaintiff is under an obligation to minimize damages. See the cases of BRITISH WESTING HOUSE ELECTRIC AND MANUFACTRUING COMPANY LTD V. UNDER GROUND ELECTRIC RAILWAYS COMPANY OF LONDON LTD (1912) AC 673 and owners of DREDGER HESBOSEH v OWNERS OF STEMSHIP EDISON (1933) AC 449.” See also OKONGWU.V NNPC (1989) (PT. 115) 296, 319 – 320.
I therefore grant the claim of loss of income on the barge from 23- 6- 97 to 2- 7 -97 (10days) which amounts to N400,000=
Having regard to the above this cross-appeal succeeds and it is hereby allowed.
In conclusion the appeal and the cross-appeal respectively succeed in part. Each is hereby allowed.
Parties are to bear their respectively costs.

MUSA DATTIJO MUHAMMAD, J.C.A.: I have read in draft the lead judgment of my learned brother Awotoye JCA and entirely agree with the reasonings proffered therein and the conclusion arrived at.
Evidence abound establishing negligence as the cause of the damage inflicted on the barge in respondent’s possession.
The respondent though entitled to recover the said damages, failed to establish same beyond what he averred in paragraph 18(11) of its amended statement of claim for the loss of income on the barge for the period of the contract between the parties. The trial court granted the appellant such category of damages for which evidence had not been led. The court also refused the loss of earning on the barge the appellant pleaded and proved. Such a decision that does not flow from the evidence before the court is perverse and is liable to be set aside on appeal see Mogaji v. Odofin (1978) 4 SC 91 and Akad Industries Ltd v Olubode (2004) 4 NWLR (PT 862) 1. In the instant case the award to the respondent of the sum of 16,416,300 by the lower court, an item that has not been proved, I agree with my learned brother, cannot endure. The appeal succeeds to this extent.
I further agree that it is equally wrong for the lower court to have denied the respondent/cross appellant a sum it had pleaded and linked convincingly to the negligent conduct of the appellants. The cross appeal, also for this very reason, succeeds. I rely on the very detailed reasons given in the lead judgment to allow both appeals in part. I abide by the orders made in the lead judgment on costs of the appeals.

PAUL ADAMU GALINJE, J.C.A.: I entirely agree.

Appearances

M.C. OkonkwoFor Appellant

AND

A.I. SalamiFor Respondent