GODWIN IWUAGWU & ORS v. DAMIAN UZOMA (2014)

GODWIN IWUAGWU & ORS v. DAMIAN UZOMA

(2014)LCN/7431(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of August, 2014

CA/OW/56/2009

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER THE APPELLATE COURT IS FREE TO EITHER ADOPT THE ISSUE(S) FORMULATED BY EITHER PARTY OR TO FORMULATE SUCH ISSUE(S) THAT IS CONSISTENT WITH THE GROUNDS OF APPEAL FILED BY THE APPELLANT

The law is settled that this court is free to either adopt the issue(s) formulated by either party or to formulate such issue(s) that is consistent with the grounds of appeal filed by the Appellant, to determine the appeal. See Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 159; Neka B.B.B. Manufacturing Co. Ltd v. ACB Ltd (2004) LPELR-1982(SC). per. ITA GEORGE MBABA, J.C.A.

DAMAGES: SPECIAL DAMAGES; MEANING OF SPECIAL DAMAGES

Special damages, according to Black Law Dictionary 5th Edition at page 354 is defined as: “Those which are the actual but not the 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 condition.” per. ITA GEORGE MBABA, J.C.A.

DAMAGES: GENERAL OR SPECIAL DAMAGES; HOW DAMAGES ARE PROVED

The law is well defined with respect to how damages are proved in court – whether general or special damages. Whereas, general damages can be inferred, as it normally flows from the wrongs committed by the defendant, and needs not be pleaded and proved by any empirical method, special damages must be specifically pleaded and strictly proved in evidence. See the case of Udeagha v. Nwogwugwu (2013) LPELR-21819(CA), where this Court said on the determination of special damages: “The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the con of nominal award, where the sum of N20,000 was awarded to the Respondent as “nominal” damage for his claim of N1,903, 196.60 as special damage. Even though the evidence had established that the Respondent’s skin were seized by the police … and was mishandled and later released (but not in the state it was seized) to qualify for special damages, clear evidence needed to be led to establish the actual monetary value of the skins recovered at the time of release of same to the Respondent, as special damages can only be in respect of ascertainable, proved amount. By making a nominal award of N20,000.00 to the Respondent, the Lower Court had expressly admitted absence of the correct basis for the award, and that cannot be in the domain of special damages.”
See page 21 thereof.
Also in a recent case of CHEVRON (NIG) LTD v. CHIMEZIE A. OSIGWE: CA/OW/226/2011, delivered on 11/7/2014. In that case, the trial court had awarded special damages of about N16.2 million to the Respondent (who also claimed the same amount) based on a lump claim for physical structure (destroyed and cracked) and for reparation/appeasement, without any evidence of the exact items or what was destroyed and the unit cost of the same and/or of what constituted the reparation/appeasement and the unit cost thereof, it was held that such award was without recourse to the known principles of pleading and strict proof of special damages. See also the case NEKA B.B.B. Manufacturing co. Ltd v. ACB Ltd (2004) LPELR-1982(SC); (2004) 1 KLR (Pt. 170) 39; (2004) ALL NWLR (Pt. 198) 1175, and Xtoudos Services Nig. Ltd v. Taise (W.A.) Ltd (2006) 6 KLR 2411 at 2425; (2005) ALL FWLR (Pt. 333) 1640; (2006) 15 NWLR (Pt. 1003) 533, where the apex court held: “With regard to how to plead and prove special damages, the law is quite clear that special damages must be specifically pleaded. In this respect, a Plaintiff claiming, special damages has obligation to particularize any item of damage. Obligation to particularize arises not because the n3eertyhtrature of the loss is necessarily unusual but because the Plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.” See also Daniel Holding v. UBA Plc (2005) 11 MJSC 69 at 73; Cameroon Airlines v. Olutuizu (2011) 4 NWLR (Pt. 1238) 512; Spring Bank Plc v. Adekunle (2011) 1 NWLR (Pt. 1229) 581; NNPC v. WIFCO Nig. Ltd (2011) NWLR (Pt. 1255) 29. per. ITA GEORGE MBABA, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDRICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. GODWIN IWUAGWU
2. ANDREW DURU
3. LAWRENCE NWAIWU
4. DOMINIC UNACHUKWU
5. CHARLES UBAKA
6. MRS. JANET MBAMARA
7. PRINCE JOSEPH MBAMARA
8. JONATHAN NWAIWU
9. MRS. LETICIA EBURUAJA
10. CYRIL DIKE
11. BENEDICT IWUJI
12. MR. FELIX IWUAJOKU Appellant(s)

AND

DAMIAN UZOMA Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Imo State High Court in Suit No. HME/39/1995, delivered on 28/4/2008 by Hon. Justice Ngozi Opara, wherein the lower Court awarded special damages of N4 Million and general damages of N2 Million against 18, out of the 24 defendants that survived to see the end of the suit, which had been instituted against 32 defendants. This appeal is against the said judgment.

The suit was filed on 22/9/95, as per the writ of summons, found on pages 1-3 of the Records of appeal. The plaintiff filed his statement of claim on 24/1/96 and the defendants filed different defences, and a counter-claim by a group of the defendants.

The fact of this case, as can be gleaned from the Records of Appeal, revolved around tortuous acts, trespass, invasion and wanton destruction of property. The Plaintiff (Respondent herein) hailed from Umuolu Isu in Nkwere LGA of Imo State, a furniture maker and a hotelier, with his personal and business premises at Akpuru Junction, near Power Station Amaraku, in Isiala Mbano LGA of Imo State. The defendants (except the 3rd) hailed from Amaraku (The 3rd defendant being from Benin Republic but married to an Umuolu Isu woman and a wood carver, running his business at Orji, but sometimes worked for the Plaintiff). The 1st Defendant (1st Appellant herein), also a furniture maker, ran his business close to the plaintiff’s place.

Amaraku was, prior to the death of its Traditional Ruler, HRH Chief Eze Mbamara, a single autonomous Community, known as Amaraku Autonomous Community, However, upon the death of the said Eze Mbamara, Amaraku Autonomous Community split into two, with two Ezes elect and two unions, namely: (1) Amaraku Progressive Union, and (2) Amaraku Town Union.
On or about the 18/5/1993, the 5th Defendant and a member of Amaraku Progressive Union, led a crowd of Amaraku indigenes into the premises of the plaintiff, and asked everyone therein to step out and lock up plaintiff’s workshop, claiming that the people of Amaraku asked them to seal off the workshop, alleging that the plaintiff was planning to kill one of their sons in the person of the 1st Defendant, an allegation which the plaintiff denied. The Respondent, on 19/5/93, reported the matter to the police at Amaraku Police Division, where the police invited the 5th Defendant and others and warned them against taking the law into their hands, and ordered them to go and open the plaintiff’s workshop, but they never did. On the 21/5/1993, plaintiff, through his Counsel, E. C. Iwuala, Esq. wrote to the 28th Defendant, as President General, Amaraku Town Union, calling his attention to the illegal activities of some members of Amaraku community. This was before the final split of Amaraku Autonomous Community into two. There was no reply to the said letter and no action taken.
The plaintiff, thereafter, went to the 5th Defendant at Orji, to demand for payment of a debt, outstanding from a failed contract, which he (5th defendant) failed to complete. Instead of paying, the 5th Defendant rebuked the plaintiff and threatened to deal with the plaintiff and render him useless. About three (3) days later, on the 2/6/1993, policemen from Shell Camp, Owerri, arrested the plaintiff on the report of the 5th defendant, alleging that the plaintiff approached him to prepare concoction for the plaintiff to kill the 1st Defendant. The police investigated the matter and searched plaintiff’s house, but did not find anything incriminating, as such he was released and the Police told the parties to report on 22/6/1993 for settlement.

But on 21/6/1993, at about 6:45am, the plaintiff, while at home, saw the Defendants in their number, invade his residential and business premises at Akpuru junction. Some of them carried clubs and knives. The plaintiff ran into a nearby bush and hid, where he saw the Defendants break down his two premises, carted away some of his properties and set some of the properties and the premises on fire. As a result, the plaintiff lost everything he had, including, but not limited to; his residential building, hotel, furniture industry, household goods, working tools, wood machines, furniture, showroom, woods, zinc, foodstuff, etc (see Exhibit 2, schedule referred to in paragraphs 16(1) of the statement of claim at page 21 of the Record of Appeal).

By a writ of Summons, filed on 22/5/1995 the Respondent, as Plaintiff, sued the Defendants, claiming the following reliefs:

“Whereof the Plaintiff Claims against the defendants, jointly and severally Special damages and General damages assessed at N50,000,000.00 (Fifty Million Naira) made up as follows:

a) Special Damages ……N40,000,000.00
b) General Damages …….N10,000,000.00
TOTAL ………………………… N50, 000,000.00

PARTICULARS OF SPECIAL DAMAGES

i. Value of Plaintiff’s Properties including working machines, tools finished products and Household goods either damaged or removed by the defendants (as listed in the schedule – hereunder) …… N20,000,000.00

ii. Cost of reconstructing the Plaintiff’s damaged house, containing his furniture industry Hotel and other residential building ………… N10,000,000.00

iii. Shock, mental strain, inconvenience and humiliation occasioned by the defendants’ conduct …………. N10,000,000.00”

See pages 21, 381 and 382 of the Records.

The 6th, 7th, 10th and 15th Defendants (now 5th, 6th, 8th and 10th Appellants) filed their defence, with a Counter claim on the 6/12/2005, claiming against the plaintiff as follows:

“Whereof the 6th, 7th, 10th and 16th defendants counter claim (sic) against the plaintiff, N100 Million as general and aggravated damages for malicious prosecution and defamation of character.”

(See page 145 of the Records)

At the trial, the Respondent (as Plaintiff) led evidence as sole witness and tendered exhibits, including Exhibits 1, 2 and 3. Exhibit 2 was a schedule containing list of items that were either destroyed in the fire or carted away by the Appellants during the fire incident of 21/6/93. (See page 344 of the Record). On their part, the Defendants (Appellants) gave evidence denying all the claims. The 6th, 7th, 10th and 16th Defendants abandoned their Counter Claims, as no mention of it was made in their evidence, since the 10th defendant (now 8th Appellant) merely adopted his joint Statement of defense without any mention of the Counter Claims, therein.

At the end of the hearing, the lower Court, after considering the evidence, by both sides, found 18 of the defendants liable jointly and severally to pay damages to the Plaintiff, in the following manner.

Special damages ………. N4,000,000.00
General damages ………N2,000,000.00
Total ……………………. N6,000,000.00
Cost …………………….. N10,000.00

Dissatisfied with the judgment, Appellants appealed to this court, vide a Notice of Appeal dated 28/4/08 and filed on 9/5/08. The Notice of Appeal disclosed a single, omnibus, ground of appeal without more. (See 386 of the Record of Appeal).

Appellants’ filed Amended Notice of Appeal with the leave of this court, granted on 14/2/2011, wherein they disclosed 3 grounds of appeal as follows (without their particulars):

‘GROUND ONE:

ERROR IN LAW:

The court erred in law when it awarded N4million special damages to the plaintiff when the plaintiff did not specifically plead and strictly prove any special damage.

GROUND TWO:

ERROR IN LAW:

The court erred in law when it admitted the statement of claim as evidence in proof of its contents.

GROUND THREE:

ERROR IN LAW:

The court erred in law when in evaluating evidence before it; the court considered and relied on inadmissible evidence wrongly admitted at the trial.”

Appellant filed their brief of argument on 5/3/12 which was deemed duly filed on 18/4/12. They distilled three (3) issues for determination as follows:

(1) Whether a plaintiff claiming special damages is not obligated to specifically plead and particularize every item of damage including stating the value and the proving the same, strictly.

(2) Whether facts pleaded in a statement of claim can be proved by tendering the statement of claim, or part thereof, in evidence with or without objection.

(3) Whether the trial court was right in placing reliance on the wrongly admitted piece of evidence rather than expunge the inadmissible evidence.

In the Respondent’s brief of argument, settled by Chief D. C. Ndiokwere, Esq. and filed on 13/2/14, the Respondent, carefully, summarized Appellants three issues and captured them in one single issue, as follows:

Whether the Plaintiff/Respondent in this appeal proved special damages as required by law and therefore entitled to the award by the trial court.

The Appeal was heard on 10/6/14 when the Counsel on behalf of parties adopted their briefs.

I think the single issue distilled by the Respondent should be preferred in determining this appeal as it, in my opinion, takes care of the three issues by the Appellants. The Issue No. 1, raised by the Appellants and the lone issue formulated by the Respondent are the same, except for semantics. It seems to me that the issue one raised by the Appellant is, therefore, enough and suitable for the determination of this appeal, as it takes care of the complaints of the Appellants in their issues 2 and 3.

Arguing the appeal, learned Counsel for the Appellants, Chief J. Ebuzo Onyenucheya (ksm), submitted that a Plaintiff claiming special damages has an obligation to specifically plead and particularize any item of damage, because the Plaintiff, who predicates his claim on a precise calculation, must give the defendant access to the facts which make suck calculation possible. He contended that from the records, the Plaintiff did not attach value or prices to the individual items he claimed in special damages, as required by law and that that had put the defendants at a loss as to what and how the claims they were to defend were calculated. Counsel referred the Court to the case of Xtoudos Services Nig. Ltd v. Taise (W.A.) Ltd (2006) 6, KLR 2411, at 2425 ratio 4, where the Supreme Court held, at page 2315 thus:

“With regard to how to plead and prove special damages, the law is quite clear, that specifically pleaded and proved, strictly. In this respect a plaintiff claiming special damages must be special damages has an obligation to particularize any item of damage. Obligation to particularize arises not because the nature of the loss is necessarily unusual but because the Plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.”

Learned Counsel contended that how the plaintiff arrived at N40 million was so doubtful that the lower court could not arrive at a just calculation of what the damage the plaintiff would have suffered, unless it used a guess work, which the court is not enjoined to do. He referred us to the case of Daniel Holding v. UBA Plc. (2005) 11 MJCS 69 at 73 ratios 2, where the Supreme Court held that:

“Where there is a specific pleading of special damages, it must be proved by evidence, clearly, showing how the damages arise. Parties and Court should not presume Court will be their calculator or instant Computer. Every item of special damages in the statement of claim must have clear evidence to support it.”

Counsel stated that at page 178, lines 20-26 of the Records, the Plaintiff gave evidence, thus: “The total value of the property destroyed and or carted away is worth N20 million. To reconstruct them will be worth N10 million. For shock, mental strain, inconvenience and humiliation is worth N10 million.” And the plaintiff asked for N10 million general damages!

Counsel contended that all through the Records, this is the only evidence Respondent gave in proof of the 164 classes of items pleaded by the Respondent that there is no where either in the statement of claim or by evidence led at the trial that the amount the plaintiff lost on each of the 164 classes of items was given, let alone giving the cost of each item, one after the other; that as such, they are totally at a loss how the lower court arrived at N4 million special damages; that what constituted the N4 million is so unclear.

Counsel submitted that the said evidence of the Respondent fell far short of the requirement of strict proof of special damages.
He referred us to Xtoudos Services Nig. Ltd v. Taise (W.A.) Ltd (supra), and the case of Neka B.B.B. Manu Co. Ltd v. ACB Ltd (2004) 1 KLR (Pt. 170) p 37 at 39 ratio 4, where the Supreme Court held that: “Where there are specific claims it is the duty of the plaintiff to prove all the essential facts, succinctly, and with clarity to leave no one doubt.”

Counsel further stated that the Lower Court fell into a disturbing error, when it observed at page 381, lines 19-21 of the Record, thus: “it is neither here nor there for the defence to suggest that the plaintiff did not graphically enumerate all he claimed that were destroyed or carted away. Exhibit 2 was tendered in open Court.” That the Court was wrong when it held based on the wrong assumption that the Exhibit 2 satisfied the requirement of that strict proof, thus:

“It is the Judgment of this honourable court that the plaintiff has proved his case by a preponderance of evidence and the named defendants are jointly and severally liable to paying to the plaintiff in following manner – special damages N4,000,000.00.”

Learned Counsel concluded his submission by saying that the court, not being a calculator or an instant computer, is not capable of arriving at such conclusion in the absence of the necessary facts to come to such conclusion; that even if the court were a calculator or instant computer, it cannot sum up figures not given to it; that in the instant case, there were no figures supplied. He called on this court to set aside the Judgment of the Lower court and dismiss the claim for lacking in merit.

In his response, Learned Counsel for the Respondent Chief D. C. Ndiokwere started by giving the judicial definition of ‘Special Damages’ saying that that will greatly assist in arguing the issue in contention. He relied on the definition in the case of Abrahambi v. Advance Beverages Ind. Ltd (2006) 3 MJCS 61 at 68
“as denoting those pecuniary losses which have crystallized in terms of cash and value before trial.”

He referred the Court to the case of Akinfosile v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 165) 136 at 158, wherein ‘Strict Proof’ has been explained as

“No more than such proof as would readily lend itself to qualification and assessment. It is such proof that the law will not infer from the nature of act but is exceptional in character.”

He also cited the case of Raynolds v. Rockonoh (2005) 10 MJSC p.159 at 146, where the Supreme Court stated what a Court would consider before granting special damages, thus:

“it is settled law that a claim for special damages must be specifically pleaded. Therefore, it is an implicit consideration which would always guide a court in the grant of damages that such damages claimed or awarded are reasonable in the particular circumstance of a case.”

Counsel submitted, that the Respondent, in this appeal, adequately proved special damages as required of him by law and is entitled to the sum awarded by the trial court. He referred us to the statement of claim at pages 18-22, particularly, paragraph 21 at page 21 of the Record of Appeal, where the plaintiff pleaded, as follows:

“On 21st June 1993, the defendants and many other Amaraku people trooped into two business premises of the plaintiff at Amaraku … the defendants knocked down the said buildings and also destroyed numerous properties … while at the same time set ablaze the house of the plaintiff… The defendants ransacked and rummaged the plaintiff s aforesaid premises extensively and they wrongly removed…. The plaintiff will at the hearing lead evidence to show the properties and household goods either damaged or removed by the defendants and their values”

He further said, in his evidence-in-chief how the Defendants ravaged his household, as follows:

‘On that day, I had no encounter with any of them. It was about 6:45am. The properties removed were numerous. I cannot enumerate all of them off head. I put down all in my statement of claim … These properties include two thousand planning machines, circular sawing and one spraying machine, villas engine…’ See page 175 to 176 of the Records

And in conclusion of his evidence, the plaintiff gave the total value of the property destroyed and/or carted away as N20,000,000 and quantified the value of the reconstruction of damaged property N10,000,000.

Counsel contended that this piece of evidence given by the respondent was not in any where challenged or controverted by the Appellants; that it is settled law that evidence that is related to a matter in controversy that is neither successfully debunked, nor controverted at all, is good and credible evidence that ought to be relied upon by trial Judge. He referred us to the case of Adejumo v. Ayankegbe (1989) 3 NWLR (Pt. 110) 417; Unity life & Insurance Co. Ltd v. Int’l Bank of West Africa Ltd (2001) 7 NWLR (Pt. 713) page 610.

Learned Counsel disagreed with Appellants’ submission that the plaintiff did not attach value or prices to the individual items he claimed as special damages or did not place any monetary values to those individual items. He submitted that that submission would amount to stretching the law, beyond its meaning and intendment, and stated that the quantum of evidence required in proof of special damages was made clear by the Supreme Court in the case of Obasuyi & Or v. Business Ventures Ltd. (2000) FWLR (Pt. 10) pages 1722 at 1725, which says that:

“the evidence necessary to prove special damages normally consists of evidence of particular losses which are exactly known and accurately measured before trial.”

He also referred this Court to the case of Imana v. Robinson (1979) 3-4 SC 1 which he claimed to have been followed in the instant case. He said that the Respondent had enumerated the items and property destroyed by the defendants and placed value on them; that it will be beyond human ability to attach values to each of the items when his residential home and entire business premises were razed down, including his purchase receipts of those items, especially as there were up to 154 classes of property pleaded by the Respondent.
Learned Counsel concluded by submitting, again, that it is trite law that unchallenged evidence, without more, can constitute sufficient proof of special damage. He referred the court again to the case of Obasuyi & Or v. Business Ventures Ltd. (supra) and Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393 and said, since none of the Appellants at the trial, challenged the evidence of value of the ravaged items of the property claimed by the Respondent as special damages, that the Court was right to accept same as credible.
He urged this court to dismiss the Appeal and affirm the decision of the trial court.

RESOLUTION OF THE ISSUE

I had earlier identified that this appeal is directly and mainly targeted at the award of the special damages of N4 million to the Respondent in lieu of his total claim of N40 million as special damages, being:

(1) Value of plaintiffs properties including working machines, tools, finished products and household goods either damaged or removed by the defendants (as listed in the schedule admitted as Exhibit 2), a mounting to N20,000,000.00;

(2) Cost of reconstructing the plaintiff’s damaged house, containing his furniture industry, hotel and other residential building – N10 million;

(3) Shock, mental strain, inconvenience and humiliation occasion by defendants conduct – N10 million.

Was the Trial Court right when it relied on Exhibit 2, as evidence, of establishment of the special damages and awarded the sum of N4 million to the Respondent? The learned trial Judge had held:

“… I have taken great pains in receiving all the pieces of evidence gathered and have arrived at this bus stop. It is neither here nor there for the defence to suggest that the plaintiff did not graphically enumerate all he claimed that were destroyed or carted away. Exhibit 2 was tendered in open court containing all he claimed and suffered… Giving the breakdown of the special damages which in our law must be proved specially, he state –

“PARTICULARS OF SPECIAL DAMAGE

(1) Value of plaintiff’s properties including working machines, tools, finished products and household goods either damaged or removed by defendants (as listed in the schedule hereunder ) – N20,000,000.00.

(2) Cost of reconstruction of the plaintiff’s damaged house containing his furniture industry, hotel and residential building – N10,000,000.00.

(3) Shock, mental, strain, inconvenience and humiliation occasioned by the defendants’ conduct – N10,000,000.00.

In The – Trial court had this regard, I cannot bring myself to agree that cost of reconstructing plaintiff’s damaged house containing his furniture industry, hotel and residential buildings falls in the category of special damages moreso when there was no evidence of reconstruction of anything and its breakdown costs. Added to this is the fact that plaintiff duo added shock, mental strain, inconvenience and humiliation occasioned by the defendants’ conduct which borders on ego as special damages. This clearly belongs to general damages… The next result in this section is that apart from relief (i) in the area of special damages; reliefs (ii) and (iii) are hereby disallowed. He is now left with relief No. 1 and in special damages area and general damages… I therefore find each and everyone of them liable. It is the Judgment of this Honourable Court that the plaintiff has succeeded improving (sic) (in proving) his case… and the, named liable defendants are jointly and the severally condemned to paying damages to the plaintiff in the following manner:
Special damages ………… N4,000,000.00
General do mages ………. N2,000,000.00
Total ………………………N6,000,000.00.”

(See pages 381 – 383 of the Records).

I think the learned trial Judge was clearly in error, on relief (i) After holding excellently in respect of the reliefs (ii) and (iii) claimed under the special damages that the same did not fall into the category of special damages because there was no evidence of reconstruction of the damaged houses and there was no breakdown of costs, the court, surprisingly, took a different (or and unclear) position in respect of special damages claimed under relief (i), when it was also clear no breakdown of costs was made in respect of any of the 164 items enumerated in the document admitted as Exhibit 2, which fell under the said relief (i).

On page 393 to 396 of the Records of appeal are 164 items (some of which are in multiple numbers) on which Respondent claimed special damages, as having been damaged or carted away by the Appellants. Some were working tools, articles of trade or household goods, in multiple numbers. They include (random pasting):

Item 38 was – 20 lengths of angle bars;
Item 40 was – 85 sheets of aluminum zinc;
Item 71 was – 10 beds (family size)
Item 72 was – 3 dressing mirror
Item 73 was – 8 single writing desks
Item 102 was – 42 full cartons of Star beer
Item 106 was – 250 pieces of dried meat
Item 148 was – 180 pieces of Lux soap
Item 150 was – 1000 pieces of Maggi cubes
Item 156 was – 150 pieces of toilet roll and
Item 163 was 30 packets of Benson & Hedges cigarette

No value or costing was put on any of the items, and those in multiple numbers too had no unit costs. It was for all those items in Exhibit 2 (which were either damaged or carted away) that the Respondent allocated the lump sum of N20 million, as special damage!

At this point, there is no dispute as to whether those items were, in fact, damaged or carted away (though no effort was made to identify those that were destroyed (damaged) and those carted away). What constitutes the bone of contention is the value of the property of the Respondent that were either damaged or removed (carted away) and whether the Respondent has proved the same, to be entitled to the claim for special damages.

“The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the con of nominal award, where the sum of N20,000 was awarded to the Respondent as “nominal” damage for his claim of N1,903, 196.60 as special damage. Even though the evidence had established that the Respondent’s skin were seized by the police … and was mishandled and later released (but not in the state it was seized) to qualify for special damages, clear evidence needed to be led to establish the actual monetary value of the skins recovered at the time of release of same to the Respondent, as special damages can only be in respect of ascertainable, proved amount. By making a nominal award of N20,000.00 to the Respondent, the Lower Court had expressly admitted absence of the correct basis for the award, and that cannot be in the domain of special damages.”
See page 21 thereof.
Also in a recent case of CHEVRON (NIG) LTD v. CHIMEZIE A. OSIGWE: CA/OW/226/2011, delivered on 11/7/2014. In that case, the trial court had awarded special damages of about N16.2 million to the Respondent (who also claimed the same amount) based on a lump claim for physical structure (destroyed and cracked) and for reparation/appeasement, without any evidence of the exact items or what was destroyed and the unit cost of the same and/or of what constituted the reparation/appeasement and the unit cost thereof, it was held that such award was without recourse to the known principles of pleading and strict proof of special damages. See also the case NEKA B.B.B. Manufacturing co. Ltd v. ACB Ltd (2004) LPELR-1982(SC); (2004) 1 KLR (Pt. 170) 39; (2004) ALL NWLR (Pt. 198) 1175, and Xtoudos Services Nig. Ltd v. Taise (W.A.) Ltd (2006) 6 KLR 2411 at 2425; (2005) ALL FWLR (Pt. 333) 1640; (2006) 15 NWLR (Pt. 1003) 533, where the apex court held:

“With regard to how to plead and prove special damages, the law is quite clear that special damages must be specifically pleaded. In this respect, a Plaintiff claiming, special damages has obligation to particularize any item of damage. Obligation to particularize arises not because the n3eertyhtrature of the loss is necessarily unusual but because the Plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.” See also Daniel Holding v. UBA Plc (2005) 11 MJSC 69 at 73; Cameroon Airlines v. Olutuizu (2011) 4 NWLR (Pt. 1238) 512; Spring Bank Plc v. Adekunle (2011) 1 NWLR (Pt. 1229) 581; NNPC v. WIFCO Nig. Ltd (2011) NWLR (Pt. 1255) 29.

The Respondent had taken pains to list the items that were damaged or carted away when the Appellants invaded his houses and caused the wanton destruction and burning of his property. Unfortunately, he failed to ascribe value to any of the items. That failure appears to have created a lee-way for the Appellants to run away and escape appropriate liability for their callous acts of malicious destruction of Respondent’s property.
The law does not allow a court to speculate on issue of special damages, and allocate value for alleged damages, by resort to sentiment and gestures, where the party who suffered the damages fails to plead the particulars of the same, by mentioning the item(s), in their numbers with the unit costs of each, and lead evidence in proof of it, to enable the court calculate what is due to him, under the head of the specific or special damages.
I think, where a Respondent, failed to allocate costs to the items claimed in special damages, after he had duly documented and pleaded the damaged items (as in the Exhibit 2), he should, at least, lead evidence at the trial to prove the value of the damaged items, to be able to win the discretion of the court in his favour. He should produce the receipts or documents showing when and where he bought those items and their costs. After all, most of the items in exhibit 2 are of common daily uses whose costs and prices should be of common knowledge. That, I believe, would have presented some basis for evaluating the claims of the Respondent under the special damage and how to arrive at the amount awarded.

I, therefore, resolve this issue for the Appellants, as there was no basis for the award of N4 million special damages to the Respondent.
In the absence of requisite proof of the special damages, the Respondent was only entitled to award of general damages, as there was proof that the Appellants trespassed on Respondent’s property and unlawfully damaged, burnt or carted away his property, within few hours of what appeared to be a pre-meditated madness. Of course, the trial court had awarded N2 million to the Respondent as general damages. That amount may not be adequate, in the circumstances, but it shall stand, since there is no appeal against it.
This appeal therefore succeeds, in part, as I hold that the award of N4 million special damages to the Respondent was wrongful. The same is hereby set aside.
I think I should say a word about the preparation of a case like this, where the plaintiff alleges massive destruction of his property by fire caused by defendant(s), where of it may not be possible to retrieve documents to tender in proof of the damaged items and their value. In that circumstance, I think, emphasis should be placed on claims for general damages and evidence led to prove the damages, not special damages and the losses which may be difficult to establish.
The appeal is therefore allowed, in part.
Parties shall bear their respective costs.

PETER OLABISI IGE, J.C.A.: I have read in advance the Judgment delivered by my Learned brother MBABA, JCA.
I agree with his reasoning and conclusion in the said Judgment.

FREDRICK O. OHO, J.C.A.: I have had the privilege of reading in draft the Judgment of my learned Brother, I. G. Mbaba, JCA delivered. I am in entire agreement with his reasons and conclusions and would respectively adopt them as mine.

Appearances

Chief J. Ebuzo Onyenucheya (KSM)For Appellant

AND

Chief D. C. NdiokwereFor Respondent