MR. SAMUEL KOLAWOLE FAJIMI v. LAGOS STATE TRAFFIC MANAGEMENT AUTHORITY (LASTMA) & ORS
(2014)LCN/6951(CA)
RATIO
PRACTICE AND PROCEDURE: WHETHER LEAVE MUST BE SOUGHT TO RAISE AN OBJECTION AS TO STATUTE OF LIMITATION
The Appellant/Respondents to the objection had conceded that the issue of jurisdiction could be raised at any stage of a case even on appeal. However, the rule is with exception to the defence based on statute of limitation. The Supreme Court provided the guide in the case of N.I.I.A. v. AYANFALU (2007) 2 NWLR (Pt. 1018) 246 at 263 paras D-G, it held thus:
“The Public Officers Protection Act is a limitation statute. It is a special defence like fraud estopped, res judication … which defence must be specifically pleaded by a Defendant before the defence can rely on it in any proceedings. This is to avoid taking the Plaintiff by Surprise. A limitation statute is not to be used to ambush the other party. Where such a defence is not pleaded by the defence in its statement of defence, in the court of first instance, the Defendant can neither raise it nor rely on it on appeal.”
The Supreme’s court decision is on all fours with the present application. The statute of limitation now sought to by the present applicants was never raised at the trial court. It is now being raised for the 1st time vide this preliminary objection before this court.
Another fundamental defect with the present objection before this court on the statute of limitation is the absence of leave of this court to raise it. This requirement is mandatory as the Supreme Court has pronounced upon it. In the case of F.R.I.N. v. GOLD (2007) 11 NWLR (Pt. 1044) 1 at 16 para F-H the Supreme Court stated as follows:
“There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate court; vide leave to do so even if he did not do so at the count of first instance, because such issue boarders on the fundamental issue of jurisdiction. The Appellant in this case realized its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained.”
In the present application before this court, no such leave was sought for and or obtained before raising the defence by the Applicants. The present application as constituted is therefore defective. Per SIDI DAUDA BAGE, J.C.A
DAMAGES: WHETHER SPECIAL DAMAGES MUST BE PROVED
The main plank of the arguments is on the special proof of special damages. The law is already settled on the subject. The law requires that a claim for special damages must be specifically pleaded and strictly proved. In other words, the Plaintiff should sufficiently particularize it to enable the court decide whether all or part of it can be granted and should establish his entitlement to special damages claimed by credible evidence. See NEKA BBB MFG CO. LTD v. ACB LTD (2004) 2 NWLR (Pt. 858) 521 at 557; JOSEPH v. ABUBAKAR (2002) FWLR (Pt. 19) 1525 at 1542; OKORONKO v. CHUKWUEKE (1992) 1 NWLR (Pt. 216) 175.
The requirement of the law here is “strict proof”. The term “strict proof” was defined by the Supreme Court in the earlier cited case of NEKA BBB MFG CO. LTD v. A.C.B. LTD (supra) ratio 2 at page 527, as follows:
“Special damages must be strictly proved. And the term “strict proof” required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses which as exactly known or accurately measured before the trial. Strict proof does not mean unusual proof. It simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculations possible. In the instant case, there is no evidence of such proof neither PW1 nor PW4 made any effort to prove the special damages claimed. (IMANA v. OBINSON (1979) 3 – 4 SC 1 referred to and applied”. Per SIDI DAUDA BAGE, J.C.A
