OBA OLAYODE OYEGADE & ORS. V. OBA JAMES ADELEYE OYELOWO & ANOR.
(2012)LCN/5301(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of April, 2012
CA/I/262/2002
RATIO
DAMAGES: HOW ARE SPECIAL DAMAGES CLAIMED
The only issue for determination is undoubtedly as regards damages and whether the learned trial Judge was right in the award of same. Cases are fought, won and lost on pleadings and evidence and the evaluation of same. It is also a notorious and settled principle of law that special damages must be strictly proved. PER STANLEY SHENKO ALAGOA, J.C.A.
WORDS AND PHRASES: MEANING OF “STRICT PROOF”
The term “strict proof” in a claim for special damages means exactly what it connotes i.e. strict proof of the quantity and value of each item of property allegedly damaged. With due respect the learned trial Judge’s finding with respect to special damages was faulty as the evidence adduced by the Respondents with respect to Special damages is inconsistent with the pleadings in paragraph 19 of the Statement of Claim. If a trial court fails to properly evaluate the evidence before it an appellate court can intervene. See ONECH V. OBI (1999) 9 NWLR PART 611 at 487; SALAKO V. DOSUMU (1997) 7 SCNJ 124. PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. OBA OLAYODE OYEGADE (Onidewure of Idewure)
2. CHIEF OYEGADE OLAYODE
3. OYETUNDE OYEGADE
4. OYEWOLE OYEGADE Appellant(s)
AND
1. OBA JAMES ADELEYE OYELOWO (Onilagbedu of Lagbedu Orile for himself and the entire people of Lagbedu Orile)
2. AMOS GBEMISOYE ODELEYE (For himself and the entire people of Alaguodo Village) Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A., OFR: (Delivering the Leading Judgment): This is an appeal and cross-appeal against the judgment of Abimbola J., of the High Court of Justice Oyo State sitting at Ogbomosho delivered on the 30th July 2001. In the said High Court below in Suit No. HOG/35/99, the present Respondents as plaintiffs had in paragraph 26 of their Statement of Claim dated the 11th August 1999 and contained at pages 4-9 of the Record of Appeal claimed as follows against the present Appellants as Defendants –
(a) The sum of One Million Naira (N1,000,000.00) being damages for acts of trespass and unlawful destruction of the Plaintiff’s property with the following as particulars of damage –
(a) Special Damages – N27,700.00
(b) General Damages – N523,300.00
TOTAL – N1,000,000.00
(b) AN ORDER OF perpetual injunction restraining the Defendants, their agents, servants or any other person however claiming power or authority from them from further trespassing on the Plaintiffs’ land, assaulting persons and damage properties situate and lying at Aguodo in Ogo Oluwa Local Government, Oyo State.
The then Defendants (now Appellants) filed their Statement of Defence which was subsequently amended. The Amended Statement of Defence which is dated the 28th February 2001 and amended pursuant to an order of Court dated the 13th February 2001 is contained at pages 28-31 of the Record of Appeal. The Respondents’ (then Plaintiffs) Reply to the Amended Statement of Defence dated 4th April 2001 is contained at pages 32 and 33 of the Record of Appeal. Pleadings having been thus filed and exchanged between the parties the case proceeded to be heard. The Respondents as Plaintiffs called three witnesses while the Appellants as Defendants called six witnesses. A number of Exhibits were tendered and admitted. What can be gleaned from the Respondents (then Plaintiffs) statement of claim is that the Respondents had at all material times been enjoying undisturbed occupation and ownership of the land the subject matter of this action having only been challenged by one Joseph Oyetunji, the then Alajaawa of Ajawa in Suit No. HOY/36/68 between JOSEPH OYETUNJI ALAJAAWA V. BAKARE AYOOLA LAGBEDU which Suit was dismissed on the 10th June 1971 and the said judgment affirmed by the then Western Court of Appeal in CAW/25/72 delivered on the 27th April 1973 to which judgment there was no further appeal. Sometime in 1998, some of the Appellants and other persons acting on the instruction of the 1st Appellant trespassed on the land belonging to the Respondents at Aguodo, destroying in the process, valuable properties belonging to the Respondents and members of the Respondents’ families. A report made by the Respondents to the Area Commander Nigeria Police Station Owode Ogbomoso resulted in the arrest and prosecution of the Appellants in the Magistrate Court Ogbomoso which charge was however struck out on technical grounds which the Appellants interpreted as victory for them and further trespassed and destroyed properties on the Respondents’ land. The Respondents further averred that on the 3rd May 1999 and 18th May 1999, the Appellants further trespassed on the said land and assaulted and brutalized anyone found in the said Aguodo Village including the 2nd Respondent who was Baale and head of the village. They destroyed properties of the Respondents and carried away valuables causing the people of Aguodo to live in fear and for some to desert the town. Apart from reports made by the Respondents to the police, a petition was written by Respondents’ Counsel to the Commissioner of Police Oyo State on the matter.
In their Amended Statement of Defence dated the 28th February 2001 at pages 28-31 of the Record of Appeal, the Appellants as Defendants averred that the 2nd Respondent was never a traditional ruler and Baale of Aguodo which according to them is one of the villages that comes within the domain and control of the Onidewure the 1st Appellant, and like the other Villages, paid customary tribute or Ishakole to the previous Onidewure until recently when the 1st Respondent attempted to incite the various customary tenants urging them not to pay Ishakole to the 1st Appellant. Appellants denied giving instructions to people to trespass on and destroy properties of the Respondents when in fact the Respondents were customary tenants of the Appellants even to date. Appellants further averred that the people charged to the Magistrate Court were discharged and acquitted on all eight Counts. Appellants went on further to deny the acts of further trespass on the 3rd May 1999 and the 18th May 1999 and the destruction of the Respondents’ properties. They averred that the items of property allegedly destroyed by the Appellants are one and the same as those in the MOG 241c/98 for which the Appellants were all discharged and acquitted. The Appellants maintained that Charge No. MOG 241c/98 before the Magistrate Court was not struck out on technical grounds and that all the Appellants facing that charge were discharged and acquitted on all eight counts. The Appellants further averred that they are law abiding citizens and never attacked any village including Aguodo who are its customary tenants. They also denied any suggestion that they trespassed and damaged properties belonging to the Respondents, and claimed that the claims of the Respondents are frivolous, vexatious, misconceived, speculative and a flagrant abuse of court process.
In their Reply to the amended statement of defence the Respondents as Plaintiffs denied the averments in the Amended Statement of Defence describing them as mere concoction, irrelevant and of no consequence in the case. More especially they reiterated that the 2nd Respondent is a traditional ruler and head of Aguodo, a fact which they alleged the Appellants had become aware of way back in 1968. The Respondents averred that any purported bestowal of Aguodo land and others to the 1st Appellant was mere fiction. They denied payment of Ishakole, being customary tribute to the Appellants or their predecessors in title. The Respondents further averred that there was no record of payment by any Alaguodo of tribute to the 1st Appellant as there was never a meeting of tenants of the 1st Appellant which was attended by any of the Respondents. They also averred that there was no previous civil action between the Respondents and Appellants just as there is no previous judgment that binds them in favour of the Appellants. The Respondents therefore claimed that the Appellants as Defendants’ defence is frivolous, irrelevant and of no consequence.
After a full trial and addresses of Counsel, the learned trial Judge granted the reliefs sought for by the then Plaintiffs. Dissatisfied the Defendants (now Appellants) filed a sole ground of appeal and leave to file additional grounds of appeal was granted on the 18th October 2007. Leave was also granted to amend the Notice of Appeal. The Amended Notice of Appeal which incorporates all the grounds of appeal i.e. the sole ground and the additional grounds of appeal is reproduced hereunder –
GROUND 1 – The learned trial Judge erred in law when he awarded Special Damages to the tune of N427,700.00 and N50,000.00 general damages against the Defendants despite (sic) nothing was brought to Court as Exhibits to prove the alleged damages.
PARTICULARS –
(a) The Court as Umpire is to weigh the evidence of (sic) party to proceeding and not in position to fish for evidence for a party.
(b) The award of N427,700.00 as damages to the 2nd Plaintiff was against the weight of evidence adduced before the Court because nothing was brought to Court as Exhibit to prove the alleged damage. GROUND 2 – That the learned trial Judge erred in law in that he awarded the sum of N427,700.00 as Special Damages in favour of the Plaintiffs when there was no proof of specific damages suffered by the Plaintiffs.
PARTICULARS
(a) In the Plaintiffs’ paragraph 19 of statement of claim they itemised each item and its value constituting the Special Damages allegedly suffered by them.
(b) No evidence was adduced as to each of the item (sic) destroyed and its value.
(c) No receipt indicating the cost of each item that were said to be destroyed were tendered in evidence.
(d) The award of the sum of N427,700.00 to the Plaintiffs was not based on sustainable legal premise.
GROUND 3 – That the learned trial Judge erred in law in that he awarded the sum of N50,000.00 as general damages in favour of the Plaintiffs when there was no evidence of the occurrence of the incident complained of in this Suit by the Plaintiffs on 5th May 1999.
PARTICULARS
(a) The incident that forms the course of action in this Suit allegedly took place on the 5th May 1999.
(b) The action or prosecution of some of the Defendants in the Magistrate Court in Suit No. MOG/24C/98 took place In 1998 and the accused persons therein were discharged in April 1999.
(c) There was no proof of the incident that led to this course of action on the 5th May 1999.
(d) In the circumstance the learned trial Judge ought not to have put into consideration the incident that brought about the Magistrate Court action in awarding the sum of N50,000.00 as general damages.
GROUND 4 – The award of N50,000.00 as general damages against the Defendants is excessive in the circumstance of this case.
RELIEFS SOUGHT BY THE APPELLANTS
1. To dismiss the damages awarded to the Plaintiffs.
2. AND such further orders as the Court may deem fit.
From the Grounds of Appeal the Appellants formulated the following sole issue for the determination of the Court of Appeal –
“Whether the learned trial Judge was right in awarding the Special and General Damages against the Appellants in this Suit when such Special and General Damages have not been proved as required by the Rules relating to evidence and the non-establishing of the occurrence of the incident that formed the basis of the course of Respondents/Cross-Appellants’ action in May 2009. Grounds 1, 2, 3 and 4 of the Amended Notice and Grounds of Appeal.”
This issue is contained in paragraph 3.01 at page 3 of the Appellants’ Brief of Argument dated the 13th March 2008 and filed on the 14th March 2008 but deemed properly filed and served on the Respondents on the 18th June 2008. This followed the grant by this Court on the 18th June 2008 of a motion on Notice brought pursuant to Order 7 Rule 1(2) of the then operating Court of Appeal Rules 2007 and the inherent jurisdiction of the court of a motion on Notice brought by the Appellants for an order of Court to extend the time of filing and service of the Appellants’ Brief of Argument and to deem the said Brief already filed and served on the Respondents as duly filed and served. Arguments with respect to this sole issue runs from pages 3 to 13 of the Appellants’ Brief of Argument.
The Respondents equally distilled the following sole issue for the determination of the Court of Appeal –
“Whether the learned trial Judge was right in awarding the Special and General Damages against the Appellants having carefully evaluated the evidence led by the parties in the case. Grounds 1, 2, 3 and 4 of the Amended Notice of Appeal.”
Appellants had also filed a Reply brief to the Respondents’ Brief of Argument. The Reply Brief of Argument is dated the 19th May 2009 and filed same day. On the 23rd January 2012 this appeal came up for hearing and Olugbenga Ogunniran Counsel for the Appellants adopted and relied upon both Briefs filed by him and urged this Court to allow the appeal and set aside the judgment of the lower court.
G.A. Adesina, Counsel for the Respondents/Cross-Appellants also adopted and relied on the Respondents’ Brief of Argument already referred to earlier and urged this Court to dismiss the appeal. Counsel made reference to the Cross-Appeal filed by the Respondents and to the Respondents/Cross-Appellants’ Brief of Argument dated the 15th March 2006 and filed same day but deemed properly filed and served on the Appellants/Cross-Respondents on the 8th November 2006 which Brief is attached to a motion dated the 15th March 2006 and filed same day and urged this Court to grant the Cross-Appeal based on the concession granted by the cross-Respondents at page 12 of the Appellants’ Brief of Argument.
Suffice it to say that our attention for now shall be focused on the main appeal. A cursory look at the sole issue for determination distilled by the Appellants and Respondents in their respective Briefs of Argument shows that the said sole issue deals with the propriety or otherwise of the court’s grant of Special and general damages in favour of the Respondents and against the Appellants. The sole issue for determination in this appeal therefore is whether the learned trial Judge properly evaluated the evidence adduced in arriving at the decision to award as it did Special and General Damages in favour of the Respondents and against the Appellants?
Appellants have submitted in their Brief of Argument that the cause of action in this Suit arose in May 1999 as can be gathered from the pleadings of the Respondents and the evidence of PW1, PW2 and PW3. More specifically reference was made to paragraph 19 of the Statement of claim of the Respondents in the lower court wherein the date of the alleged specific damage occurred as the 3rd May 1999 and the 18th May 1999, The Appellants have found it necessary to distinguish the 1999 incident highlighted in paragraph 19 of the Statement of Claim with the incident of 1998 captured in paragraph 14 of the statement of claim which according to the Appellants has nothing to do with the special damages in paragraph 19. Appellants have therefore with respect to the incidents of the 3rd May 1999 and 18th May 1999 resulting in the claim for special damages contended that no such incidents of destruction of the Respondents’ properties took place as no such proof has been furnished by the Respondents while the 1998 incident captured in paragraph 14 of the Statement of Claim was also not only a lie as no destruction of the Respondents’ properties took place, but also led to the discharge and acquittal of the Appellants as evidenced by Exhibit “F” the judgment of the Magistrate Court. Appellants referred to page 86 of the Records where DW1 under cross-examination said as follows, “I am not aware that the properties of the 2nd Plaintiff (sic) was vandalized” and also to the evidence of DW4 a police officer attached to the police station who denied that PW3 ever lodged any complaint to the police about the Respondents being responsible for his broken asbestos or any destruction of trees by the Appellants. In the light of these denials by the Appellants, it is the duty of the Respondents who are asserting that their properties were destroyed to prove same; the Appellants submitted. Appellants further submitted that even though PW3 at page 73 line 17 of the Record of Appeal had said that the destroyed properties were with the police at Ajaawa, the trial court was not moved to Ajaawa to see the destroyed properties neither was a subpoena issued to the police to produce the allegedly destroyed properties; and yet in the absence of these cogent pieces of evidence, the trial court went ahead and found for the Respondents as Plaintiffs. Appellants relied on the case of RINCO CONSTRUCTION CO. LTD. V. VEE PEE INDUSTRIES LTD. (2005) ALL FWLR PART 254 Page 816 at 825 paras B-C where the Supreme Court held that there must be a nexus between the Plaintiff’s claim and the acts of the Defendants complained of. The Appellants submitted that the learned trial court after a proper summation at pages 122 and 123 of the Records in which it said it believed the evidence of DW3, DW4 and DW5 and disbelieved the evidence of PW3 still went on to find in favour of the Respondents. Appellants submitted that it is wrong for the trial court to base its judgment on a cause of action that is not the basis of the Respondents’ case. Reliance was placed on the following cases OMOTUNDE v. OMOLEYE (2005) ALL FWLR PART 260 PAGE 146 at 154; F.U.M.B. LTD. V. AEROBELL NIGERIA LTD. (2005) ALL FWLR PART 281 PAGE 1651 at 1672; ADEBANJO V. OGUN STATE SPORTS COUNCIL (2005) ALL FWLR PART 279 PAGE 1319 at 1337.
The Appellants without however conceding that Exhibit “F” is relevant to the conclusion reached by the trial Judge, flawed the bases upon which the learned trial Judge found in favour of the Respondents in Special damages to the tune of N427,700.00 as contained in the Respondents’ statement of claim. Appellants referred to the oral evidence of PW1 which placed the value of the damaged properties at N243,700.00 as against the pleaded value of N427,700.00 for the damaged items in paragraph 19 of the statement of claim. Appellants further submitted that subject to the rule that Special damages must be strictly proved, the Respondents are entitled to full compensation and no more and cannot be entitled to double compensation under the guise of general damages as a court of law, not being a donor of charities gives to parties only that which the justice of the case demands. Reliance was placed on S.P.D.C. NIG. LTD. V. KATAD NIG. LTD. (2005) ALL FWLR PART 263 PAGE 675 at 689; YAKUBU & ANOR V. MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE & ORS (2005) ALL FWLR PART 267 PAGE 1388 at 1427 and 1428. Appellants went on to further submit that before damages can be recovered in an action, there must be a wrong committed either in tort or contract and even if a loss has been incurred, no damages can be awarded in the absence of a wrong. NNB PLC V. ALHAJI MUSA ABUBAKAR & SONS (2005) ALL FWLR PART 260 PAGE 47 at 59 was relied upon. The award of special damages in favour of the Respondents on the grounds of discretion without any supporting proof is outside the province of the trial court, the Appellants further submitted. AGIRI V. OGUNDELE (2005) ALL FWLR PART 250 PAGE 81 at 103 was relied upon. Appellants urged us to resolve the sole issue formulated in favour of the Appellants by setting aside the award of special damages and general damages as awarded in this case as both are based on wrong premise of law and on a fact the existence of which has not been proved,
Respondents have submitted that the learned trial Judge was right when he held as follows:
“I have considered the evidence of the 1st Plaintiff when he stated that on the 5th May 1999 the 4th Defendant and others held guns, cutlasses and started breaking his house and asbestos, He tendered Exhibit “A” his letter to the Commissioner of Police Oyo State, PW3 also confirms his statements. I have no reason to doubt this story that the Defendants and others attacked him.”
Respondents further submitted that where findings of a trial Judge are not perverse an appellate court cannot interfere with such findings, and in the present case the award of damages against the Appellants is not in any way perverse. Reliance was placed on ODOFIN V. AYOOLA (1984) 11 SC 72 where the Supreme Court held as follows.
“Now if there is any evidence to support a particular finding or conclusion of the trial court an appellate court which has come to a different conclusion on the same evidence should restrain itself and respect the conclusion of the Court that saw and heard the witnesses.”
It was further submitted by the Respondents that the onus to convince us that the learned trial Judge was wrong rests with the Appellants who have failed to discharge that onus. Reference was made to the case of CHIEF KALADA R. I. NTEOGWUILE V. CHIEF ISRAEL U. OTUO (2001) FWLR (PART 68) 1076 at 1093-1094 where the Supreme Court per Owuegbu JSC stated thus,
‘I have earlier in this judgment said the Court of Appeal has the same right to come to decisions on issues of fact as well as law as the trial. In such a case the Appellate Courts must:
(i) Recognize the onus on the Appellant to satisfy it that the decision of the trial Judge is wrong.
(ii) Recognize the essential advantage enjoyed by the trial Judge in seeing the witnesses and watching their demeanour and
(iii) Bear in mind that in cases which turn on the conflicting testimony of witnesses and belief to be reposed in them, an appellate court can never recapture the Initial advantage of a trial Judge who saw and believed them.”
Respondents have submitted that having properly evaluated the evidence adduced before it, the learned trial Judge was right in arriving at its conclusion that the Appellants attacked the Respondents, It is the submission of the Respondents that contrary to the view of the Appellants the learned trial Judge never relied on Exhibit “F” in arriving at his decision in the award of damages against the Appellants when at page 126 of the Record of Appeal the learned trial Judge stated thus-
‘However as record of criminal proceeding is not admissible to be used in Civil Proceedings. See AGU V. ATWAGU (1955) 2 NLRSS, ADELEKE V. ADEWUSI (1961) ALL NLR 37. I place no weight at all to Exhibit “F” the subsequent acquittal of the accused person in the criminal proceeding is no disproof of the fact that the incident of attack did or did not happen.”
Appellants submitted that special damages must be strictly proved by which is meant that the evidence proffered must be qualitative and credible and does not necessarily imply documentary proof of loss sustained but must lend itself to quantification. Evidence proffered must according to the Respondents meet the expectation of a reasonable man. Respondents further submitted that the pleadings of the Respondents in paragraphs 19 and 26 of the Statement of claim are in line with the evidence given by the Respondents’ witnesses. Respondents gave a rundown of particulars and values of properties allegedly destroyed by the Appellants which amount in value to N27,700.00. This pleading Respondents submitted was not controverted and was rightly relied upon by the trial Judge in the grant of special damages which is deemed to have been properly proved. Respondents’ also referred to the evidence in chief of PW1 at pages 65 – 66 of the Records which expressly spelt out the quantum of both specie of damages and to the evidence in chief of PW3 on the 26th July, 2000 which evidence was that-
“On the 4th May, 1999 I saw the 4th Defendant and one Sanusi Abiola, Muniru, Gideon, Oyeleye Adekola, Kamoru, Yekeen, Rafiu Onifoto ………………. They came to our family house at Alaguodo and armed with axes, cutlasses and guns and started destroying the house with axes, cut-lasses and guns and they destroyed four bundle (sic) or (sic) iron sheets.”
Respondents submitted that based on these quoted pieces of evidence, the learned trial Judge was right in arriving at his conclusion, more-so as the evidence was neither discredited nor contradicted. Respondents further submitted that the learned trial Judge was right when he held as follows:
“I would not ask myself whether I am satisfied by the evidence in this case that the 2nd, 4th Defendants and other persons at the instigation of the 1st Defendant did destroy the house of the 2nd Plaintiff assaulted and brutalized everyone found in Agodo Village. I have considered the evidence of the 1st Plaintiff when he stated that on 5th May 1999 the 4th Defendant and others held guns, cutlasses and started breaking his house and asbestos. He tendered Exhibit “A” his letter to the Commissioner of Police Oyo State.”
Respondents submitted that the term “strict proof” means no more than adducing credible evidence in support of the claim as it is done in this case. It does not mean proof beyond reasonable doubt which is applicable in criminal cases. Reliance was placed on the following cases ODINAKO V. MOTISON (1992) NWLR (PART 239) 102; OSHINJIRIN V. ELIAS (1970) 1 ALL NLR 153. Respondents submitted further that before an appellate court can properly intervene in damages, it must be satisfied that either the Judge in assessing damages applied a wrong principle of law or that the amount awarded is either so low or inordinately high that it must be wholly enounces estimate of the damages. Reliance was placed on FLINT V. LOVELL (1935) 1 KB 354.
Heavy weather appears to have been made by the Appellants on the placement of enormous weight on Exhibit “F” by the learned trial Judge in arriving at his judgment. It is necessary to state at the outset that this notion is misplaced as the learned trial Judge had categorically stated in his judgment at page 126 of the Record of Appeal as follows,
“I place no weight at all to Exhibit ‘F”. The subsequent acquittal of the accused persons in the criminal proceedings is no disproof of the fact that the incident of attack did or did not happen.”
The only issue for determination is undoubtedly as regards damages and whether the learned trial Judge was right in the award of same. Cases are fought, won and lost on pleadings and evidence and the evaluation of same. It is also a notorious and settled principle of law that special damages must be strictly proved. It is instructive in this regard to have a look at paragraph 19 of the statement of claim which is germane to the issue of Special damages. It states as follows –
“On the 3rd May 1999 and the 18th May 1999, the Defendants and their agents further trespassed on the said land assaulted and brutalized everyone found in Aguodo Village including the 2nd Plaintiff who is the current Baale and head of the Village (sic) they destroyed properties and carried away valuables.
PARTICULARS AND VALUES OF PROPERTIES DESTROYED BY THE DEFENDANTS
1. Abestos (sic) valued at N2,500 each
2. Six doors valued at N2,000 each
3. 4 Windows valued at N2,200 each
4. 36 Iron sheets valued at N7,200 each
5. A kitchen pulled down cost N25,000
6. A bed completely destroyed cost N10,000
7. 10 Benches valued at N10,000
8. Lemon Citrus and 2 butter yam trees and about 2 plots of Cassava plantation destroyed valued at N10,000
9. 6 cutlass (sic) taken away valued at N3000
10. Several Cocoa trees destroyed and valued at N100,000
11. Several valuable items were also destroyed and some carried away.
TOTAL: N427,700
It is now necessary to consider the evidence of the Respondents regarding items of property allegedly destroyed by the Appellants.
On the 29th March 2000, the Respondents as plaintiffs opened their case with Amos Gbemisoye Odeleye Owolabi III Baale Alaguodo of Aguodo giving evidence as PW1. His evidence at pages 65 – 66 of the Record of appeal is as follows:-
“On the 5th May, 1999 I was at Agodo at about 9 a.m. I saw Oyewola Oyegade 4th Defendant of Sanusi, Jimoh, Gideon, Muniru, Mufu, Olaitan, Folaranmi, Oyeleye, Oyedele, Ilufoye and some others now at large (sic) they came holding guns, cutlasses, axes. I saw them breaking my asbestos which is valued at N2,500.00 each, they also broke my doors, 6 in number at N2,000.00 each, 4 windows at N2,000.00 each, 36 iron sheets at N7,200.00 and the bed in my room valued at N10,000, about 10 benches were destroyed valued at N10,000.00, they demolished my kitchen valued at N25,000 and my money about N50,000 was stolen. An economic tree called butter yam and citrus trees and a plot of cassava planting (sic) valued at N10,000.00 was destroyed. They also went into my cocoa farm, they destroyed the farm valued about N100,000.00 and about 6 cutlasses valued at N3,000.00 were removed. I valued these economic trees by what we get from them annually as regards sales. I went to price the amount of the kitchen doors and so on, this is the amount sold in town……………………….I forgot to tell the court that my palm fruits were taken away there was (sic) about 370 bundles of palm fruits valued at N50.00 a unit i.e. a bundle. The total value of the palm fruits is about N6,000.00. They went to some other places to carry it. The total valued things destroyed and carried away is about 1 million naira. The value of the specific things destroyed is about N427,700.00,
Appellants have submitted in their Reply Brief that while the calculation of the pleading totalled N510,700.00 the viva voce evidence apart from not being specifically proved totaled N495,700 but the total pleaded in paragraph 19 of the statement of claim and as alluded to in paragraph 4.06 of the Respondents’ Brief of Argument is N427,700. Appellants went further to say that without explaining away the inconsistency in the pleading, evidence and total pleaded, there is no way the trial court could have found for the Respondents. Respondents have submitted in their Brief of Argument that the pleading which gave the total of items of property damaged as N427,700.00 was not controverted by the Appellants. Need the Appellants have controverted this figure? Is it not the duty of the Respondents to prove this figure and strictly too? It is trite law that Special damages must be strictly proved. Citing ODINAKO V. MOTISON (1992) 5 NWLR (PART 239) 102 and OSHINJIRIN V. ELIAS (1970) 1 ALL NLR 153. Respondents have submitted that the term “Strict proof” needed in support of a claim for special damages means no more than adducing credible evidence in support of the claim. That is not the position of the law and these cases relied upon by Counsel have been taken out of con. The term “strict proof” in a claim for special damages means exactly what it connotes i.e. strict proof of the quantity and value of each item of property allegedly damaged. With due respect the learned trial Judge’s finding with respect to special damages was faulty as the evidence adduced by the Respondents with respect to Special damages is inconsistent with the pleadings in paragraph 19 of the Statement of Claim. If a trial court fails to properly evaluate the evidence before it an appellate court can intervene. See ONECH V. OBI (1999) 9 NWLR PART 611 at 487; SALAKO V. DOSUMU (1997) 7 SCNJ 124. The Respondents’ evidence with respect to damage to their properties was not controverted in any proper sense by the Appellants. I find no reason at all to disturb the findings of the learned trial Judge who had the singular advantage of seeing and hearing the witnesses and in watching their demeanour that the Appellants did destroy the properties of the Respondents and are entitled to damages. I do not also consider the award of N50,000.00 awarded as general damages to the Respondents against the Appellants excessive and I uphold same.
With respect to the Cross-Appeal, the Respondents filed a Notice of Cross-Appeal dated the 17th October 2001 and filed same day in respect of which they filed a Cross-Appellants’ Brief of Argument dated the 15th March 2006, filed same day but deemed properly filed on the 8th November 2006 which is attached to the motion on Notice dated the 15th March 2006 and filed same day. Mr. G. A. Adesina urged us to grant the cross-Appeal based on the concession granted by the Cross-Respondents at page 12 of the Appellants’ Brief of Argument. In paragraph 5.05 at page 12 of the Appellants’ Brief of Argument, the Appellants urged us to grant the Cross-Appeal. Consequently the Cross-Appeal is hereby accordingly granted.
On the whole the Appeal is allowed in part and the Cross-Appeal is allowed.
MODUPE FASANMI, J.C.A.: I had the privilege of reading the lead judgment of my learned brother S. S. Alagoa J.C.A. (OFR) just delivered.
I agree with the reasoning and conclusion that the main appeal is allowed in part and the Cross Appeal is meritorious and it is accordingly allowed.
JOSEPH SHAGBAOR IKYEGH.: I had the honour of reading in advance the robust judgment of my learned brother, Alagoa, J.C.A., (OFR), with which I agree and gratefully adopt as mine.
I too would allow the appeal in part and allow the cross-appeal in whole without costs.
Appearances
Olugbenga Ogunniran Esq.For Appellant
AND
Adegboyega Awomolo Esq.For Respondent
