NNAMDI EZURUIKE v. 7UP BOTTLING COMPANY PLC
(2018)LCN/12422(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of May, 2018
CA/PH/386/2014
RATIO
DAMAGES: SPECIAL DAMAGES
“Though this issue of special damages as posited under issue 3 is no longer of any moment, given the fact that the appellant failed to prove his case of negligent tort against the respondent, all the same I deem it pertinent to state that the law touching on recovery of special damages requires that same be specifically pleaded and strictly proved. The determination of what constitutes special damages is not a matter of conjecture, assessment or estimation by the Court as to what is likely to be fair in assuaging the claimant. Furthermore, the claimant must also particularize each item of damage in order to succeed. See Udeagha vs. Nwogwugwu (2013) LPELR-21819 (CA); NEKA B.B.B. Manufacturing Co. Ltd. vs. ACB. Ltd. (2004) LPELR-1982(SC), (2004) All NWLR Pt. 198, 1175; Xtoudos Services Nig. Ltd. vs. Taise (W.A.) Ltd (2006) 6 KLR 2411 at 2425, (2006) 15 NWLR Pt. 1003, pg. 533; Daniel Holding vs. UBA Plc. (2005) 11 MSJC 699 at 73; NNPC. Vs. CLIFCO Nig. Ltd. (2011) NWLR Pt. 1255, pg. 29; and Obasuyi vs. Business Ventures Ltd. (2000) 15 NWLR Pt. 6158, pg. 226.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
TORT LAW: TORT OF NEGLIGENCE
“In the tort of negligence, liability is established where the plaintiff proves that the defendant owed him a duty of care, the said duty of care was breached by the defendant and that he suffered damage in consequence of the defendant’s failure to take care. It is thus therefore incumbent upon the appellant herein to show that the respondent owed him a duty of care and which care it failed to observe and for which he suffered injury. See Agbonmagbe Bank Ltd. vs. C.F.A.O. (1966) All NLR 140; Donoghue vs. Stevenson (1932) A.C. 562 at 580; Abusomwan vs. Mercantile Bank Ltd. No. 2 (1987) 3 NWLR Pt. 60 pg. 196; and Orhue vs. N.E.P.A. (1998) 7 NWLR Pt. 557, pg. 187.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
TORT LAW: DUTY OF CARE
“Though the Court is satisfied that the respondent as a producer/manufacturer, owes its ultimate consumers including the appellant the duty of ensuring the wholesomeness of its products, the appellant must however scale another hurdle which is to prove that the respondent indeed breached that duty of care reposed in it. The law is trite in civil cases that he who asserts the existence of any fact has the onus to prove that such fact exists. See Amodu vs. Amode (1990) 5 NWLR Pt. 150 pg. 356; Odon vs. Barigha-Amange (2010) 12 NWLR Pt. 1207, pg. 13; Intercontinental Bank Plc. vs. Dayekh Brothers Ltd. (2014) LPELR-23485(CA); Okoye vs. Nwankwo (2003) FWLR Pt. 156 pg. 992 at 1003; Ukpabio vs. N.F.V.C.B. (2008) 9 NWLR Pt. 1092, pg. 219 at 227.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
Before Their Lordships
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFOJustice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGAJustice of The Court of Appeal of Nigeria
Between
NNAMDI EZURUIKEAppellant(s)
AND
7UP BOTTLING COMPANY PLCRespondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This appeal arose from the judgment of Hon. Justice S. C. Amadi, J. of the High Court of Rivers State (hereinafter to be known as the trial/lower Court), Holden at Port Harcourt, delivered on 31st January, 2014 in suit No. PHC/1721/1998.
FACTUAL STATEMENTS
The plaintiff at the lower Court vide his Writ of Summons issued 30th November, 1998 and his Further, Further Amended Statement of Claim filed 21st June, 2013 had sought as follows particularly at paragraph 10 thereof against the defendant:
10. Wherefore the plaintiff claims from the defendant special and general damages as follows:
a. SPECIAL DAMAGES
i. Loss of daily income from 20th day of August, 1998 to 31st January, 1999 at the rate of N50,000.00 per day = N7,500,000.00.
ii. Hospital bill including costs of drugs tests and x-ray = N250,000.00.
iii. Cost of drugs stores outside the Hospital = N400,000.00
Sub Total = N8,150,000.00. (See page 140 of the record of appeal).
The defendant on its part filed its statement of defence and called one witness, though the statement of defence and evidence in support were subsequently expunged from the record by the trial Court on the ground that the defendant’s pleading was not signed by a legal practitioner as required by law.
The case of the plaintiff was that he organized his birthday party on 20th August, 1998 to which he invited his friends and relatives. He had purchased the defendant’s products which included Pepsi and Teem soft drinks for use at the celebration. According to him soon after he consumed some quantity of the defendant’s 7-Up soft drink which they found to contain some foreign particles, he became sick and was taken to the University of Port Harcourt Teaching Hospital (UPTH) where he was subjected to laboratory test. His wife later took him to a private hospital called Mina Clinic and Maternity where he was admitted and received treatment.
3 (three) witnesses, including the plaintiff as the CW1 as well as the CW2 and CW3 respectively, gave evidence and were duly cross examined by the defence counsel at the trial Court. Several exhibits were admitted through the plaintiff also.
The defendant on their side had one witness who gave evidence as the DW1 and was equally cross examined.
Upon conclusion of the hearing, the respective parties filed and exchanged written addresses. The learned trial Judge in his considered judgment delivered 31st January, 2014 dismissed the plaintiff’s claim on the premises that he was not able to prove same. (See pages 173 – 216 of the record of appeal).
Aggrieved by the judgment, the plaintiff has come before us as the appellant vide a Notice of Appeal filed 17th March, 2014, urging that we set aside the decision of the lower Court.
In compliance with the Rules and Practice of this Court the parties filed and exchanged briefs of argument. The appellant’s brief of argument dated 13th February, 2017 and filed 14th February, 2017 was settled by K. U. Igbaki, Esq., while the appellant’s reply brief dated and filed 9th March, 2017 was settled by Kingsley Igbaki, Esq. The respondent’s brief of argument was settled by M. O. Georgewill, Esq.
The appellant formulated the following 7 (seven) issues for determination of appeal:
a. Whether the learned trial Judge was right in relying on on the incompetent Statement of Defence and the evidence of the Defendant which was struck out, to hold that the duty of care owed to the Claimant and in fact to the whole world was not breached, even when the Claimant had proved that the duty of care owed to him was breached.
b. Whether the learned trial Judge was right when he disregarded the claims and the evidence of the Claimant, but anchored his judge (sic) on the mere submission of the learned counsel for the defendant without grounds, proofs or cogent reasons that the Claimant?s ailment was not as a result of the 7up soft drink.
c. Whether the learned trial Judge was right, that by suspicion, he made a case for the parties, thereby acting as an investigator instead of acting as an adjudicator.
d. Whether the learned trial Judge was right in holding just like that, that the duty of care owed to the Claimant (now Appellant) was not breached without evidence or cogent reasons from the Respondent.
e. Whether the learned trial Judge was right to hold that the Claimant did not lead evidence in strict proof of the special damages, disregarding the evidence of the Claimant (now the Appellant) the receipt for his treatment, the unchallenged evidence of cw2, cw3 and all documentary evidence tendered and was admitted in evidence, but dismissed the suit.
f. Whether the learned trial Judge was right in dismissing the claimant?s unchallenged suit on 31/1/2014.
g. Whether the learned trial Judge was right when he took or possessed the power of telepathy on his own, and based his judgment on facts that never existed and that was not brought to his attention and thereafter justice was not done.
The respondent on its own part deemed the following 2 (two) issues as germane for determination of the appeal:
i. Whether the learned trial Judge was right in holding that the appellant failed to prove that it was this respondent?s product which he allegedly took that caused his ailment.
ii. Whether the learned trial Judge was right in holding that the appellant failed to prove his special damages claim against the respondent.
I have considered the 2 sets of issues distilled above by the respective counsel to the parties and I must observe that the issues as formulated by the appellant, are unnecessarily proliferated.
Another obvious flaw was that none of the counsel saw the need to tie their respective issues to the specific ground(s) they relate to or arise from, thereby leaving the Court to conjecture and speculate which ground relates to which issue. Be that as it may, I am minded to determine the appeal by adopting issue one from the appellant’s issues and add same to the two issues formulated by the respondent. These issues seem to me to capture adequately the essence of this appeal. Therefore the issues for determination of the appeal are to read thus:
1. Whether the learned trial Judge was right in relying on the incompetent Statement of Defence and the evidence of the Defendant which was struck out, to hold that the duty of care owed to the Claimant and in fact to the whole world was not breached, even when the Claimant had proved that the duty of care owed to him was breached.
2. Whether the learned trial Judge was right in holding that the appellant failed to prove that it was this respondent’s product which he allegedly took that caused his ailment.
3. Whether the learned trial Judge was right in holding that the appellant failed to prove his special damages claim against the respondent.
ISSUE 1 (ONE)
Whether the learned trial Judge was right in relying on the incompetent Statement of Defence and the evidence of the Defendant which was struck out, to hold that the duty of care owed to the Claimant and in fact to the whole world was not breached, even when the Claimant had proved that the duty of care owed to him was breached.
After pointing out the various holdings of the learned trial Judge in his judgment, the learned counsel for the appellant posited that where the evidence of the claimant is unchallenged and uncontroverted, that it is open to the trial Court seized of the matter to accept and act on such unchallenged evidence. See Durosaro vs. Ayorinde (2005) 8 NWLR Pt. 927, pg. 407 at 412; and Owners M/V Gongola Hope vs. S.C. (Nig.) Ltd. (2007) 15 NWLR Pt. 1056, pg. 189 at 194. Counsel submitted that the defendant having admitted the claim of the claimant, by the operation of the law, minimal proof is required by the claimant at this stage. See Dingyadi vs. Wamako (2008) 17 NWLR Pt. 116, pg. 395 at 405-407, ratios 9, 10 and 11.
Learned counsel equally relying on the authority of Omega Bank vs. O.B.C. Ltd. (2005) All FWLR Pt. 249, pg. 1964, canvassed that documentary evidence can be admitted in the absence of its maker because relevancy is the key to admissibility. He submitted that the CW2 who was the medical doctor that treated the appellant stated that the appellant’s presentation was typical of drink poisoning with acute or sudden onset, hence the dramatic response in medication. At the end of it the appellant contended that the claim and evidence of CW1, CW2 and CW3 and the exhibits were unchallenged and that the appellant proved his case on the preponderance of evidence and by the balance of probability by credible evidence that the defendant owed him a duty of care; that the duty of care was breached and that the damage of the appellant was as a result of the respondent’s negligence. He urged on us to set aside the judgment of the lower Court and award damages to the appellant by entering judgment in favour of the appellant.
The respondent on its part did not proffer any direct response to the foregoing issue one of the appellant.
ISSUE 2 (TWO)
Whether the learned trial Judge was right in holding that the appellant failed to prove that it was this respondent’s product which he allegedly took that caused his ailment.
In arguing its own issue one which formed issue 2 for determination, the learned counsel for the respondent submitted that in order to establish the duty of care owed to him, the appellant must first establish that he bought the said product from the respondent’s accredited distributors. Learned counsel for the respondent argued that there is nothing in the pleading or in the evidence of the appellant to the effect that he purchased the drinks from the respondent’s distributor. Recalling the cases of Daramola vs. A.G., Ondo State (2000) FWLR Pt. 6, pg. 997 at 1024; and Ajao vs. Ademola (2005) NWLR Pt. 913, pg. 636, counsel contended that there is nothing in Exhibit A which showed that the said C. D. Onuoha & Sons which the appellant purported buying the drinks from is an accredited distributor of the respondent’s products. He submitted further that there is nothing in the pleading and evidence of the appellant that shows that Exhibits B and D were manufactured and distributed by the respondent.
He submitted that the learned trial Judge was right to discountenance Exhibit C as the appellant is not the maker. Learned counsel went on to state that Exhibit E was rightly discountenanced by the learned trial Judge since it was at variance with Exhibit C and the case of the appellant. He contended that the appellant’s case is riddled with contradictions that no Court can award him judgment.
In continuation of their submission, the learned counsel for the respondent submitted that the mere fact that the respondent’s statement of defence and evidence in support were struck out, does not preclude the respondent’s counsel from filing a legal written address and the learned trial Judge is in the same vein not precluded in law to examine the legal written address. Counsel opined that this Court cannot rely on Exhibit C as same is documentary hearsay and that once the Court discountenances Exhibit C, it will come to the irretraceable conclusion that there is no nexus or causal link between Exhibit B (7-UP drink) and the ailment suffered by the appellant. He urged on us not to interfere with the judgment of the trial Court but should rather dismiss this appeal.
ISSUE 3 (THREE)
Whether the learned trial Judge was right in holding that the appellant failed to prove his special damages claim against the respondent.
Learned counsel for the respondent upon stating the obvious which is that special damages must be specially and strictly proved by the appellant submitted that the appellant’s evidence in this regard was speculative. He submitted that there was nowhere in the evidence of the appellant where he stipulated the nature of business he was doing. Counsel contended that a claimant who alleges to have suffered a loss as a result of negligence of the defendant bears the onus to adduce credible evidence to prove same. Where evidence adduced is insufficient to warrant such compensation, the Court cannot make an assessment of loss. Submitting that no Court is allowed to speculate, the respondent relied on the cases of Igwilo vs. CBN (2009) NWLR Pt. 672, pg. 301; Ohadugha vs. Garba (2000) 14 NWLR Pt. 687, pg 226; and S.G.E.I. (Nig.) Ltd. vs. Okpanum (1989) 4 NWLR Pt. 155, Pg. 373. Counsel concluded that the appellant was not entitled to any damages and finally urged on us to dismiss the appeal for lacking in merit and uphold the decision of the lower Court.
Though the appellant filed a reply brief of argument but it was a rehash of the submissions in the appellant?s brief hence the Court has not reckoned so much with it.
RESOLUTION OF ISSUE 1 (ONE)
With the appellant’s claim and evidence that he developed stomach ache upon his consumption of the 7-up drink from the crate of drinks he bought for his birthday, it follows that his case is built around negligence. In the tort of negligence, liability is established where the plaintiff proves that the defendant owed him a duty of care, the said duty of care was breached by the defendant and that he suffered damage in consequence of the defendant’s failure to take care. It is thus therefore incumbent upon the appellant herein to show that the respondent owed him a duty of care and which care it failed to observe and for which he suffered injury. See Agbonmagbe Bank Ltd. vs. C.F.A.O. (1966) All NLR 140; Donoghue vs. Stevenson (1932) A.C. 562 at 580; Abusomwan vs. Mercantile Bank Ltd. No. 2 (1987) 3 NWLR Pt. 60 pg. 196; and Orhue vs. N.E.P.A. (1998) 7 NWLR Pt. 557, pg. 187.
At paragraph 3 (a) to (e), the appellant had pleaded thus:
a) On the 14th day of August, 1998, the Plaintiff purchased three crates of 7up products to be used for his birthday party. The receipt with which the 7up products were bought is hereby pleaded and shall be relied upon at the trial.
b) On the 20th day of August, 1998 the Plaintiff held his birthday party with some friends and relatives in attendance. Bottles of the said 7up products including 7up, Pepsi and Teem soft drinks were consumed by the Plaintiff and his invited guests and relatives.
c) Soon after the plaintiff consumed some quantities of the said 7up soft drink, he became sick and was immediately hospitalized. An inspection of the remnants of the said 7up soft drink revealed some foreign matter therein.
d) The plaintiff will at the trial rely on the Doctor’s report issued to the plaintiff dated the 24th day of August, 1998 and a receipt for payment dated 23rd December, 1998.
e) Following from the above, the plaintiff instructed his lawyers to write 7up Bottling Co. Plc. The letters dated 27th August, 1998 and 30th September, 1998 are hereby pleaded and shall be relied upon at the trial, the defendant is hereby given notice to produce the original sent to it or the plaintiff shall rely on his own copy.
The appellant led evidence along the line of the above pleaded facts. Now with nothing on record challenging the evidence of the appellant to the effect that the drink he consumed at his party is a product of the respondent, the learned trial Judge was right to find that the respondent owed a duty of care to the ultimate consumers of their product which consumers included the appellant. The holding of the learned trial Judge on this issue of duty of care reads thus:
Here I am in agreement with the submission of the learned counsel for the defendant (respondent) that the claimant’s (appellant’s) ailment was not as a result of the 7up soft drink nor due to food poisoning as Exhibits C and E are contradictory.
Whether the learned trial Judge placed reliance on the unchallenged evidence of the appellant as it touched on this issue of duty of care, or on the submission of the learned counsel for the respondent, is not material at this stage.
What is important at this stage is that the learned trial Judge reached the correct finding which is that the respondent owed a duty of care to the appellant in the circumstance. However, it must be noted that the fact of the striking out of both the statement of defence and evidence thereon by the lower Court, does not amount to a shutting out or foreclosure of the learned counsel for the respondent from the trial. In other words, the striking out of the said statement of defence has not in any way left the case of the appellant unchallenged and or uncontroverted. Not in the face of the vigorous cross-examination of the three witnesses (CW1, CW2 and CW3) of the appellant by the learned counsel for the respondent.
This is to say that by the act of cross-examination of those witnesses by the learned counsel for the respondent, the case of the appellant stood duly challenged and controverted. In this regard, the Court is not obliged to swallow the case of the appellant hook, line and sinker. Indeed and as rightly concluded by the learned trial Judge, the position herein is likened to a situation where the defendant (respondent), instead of giving evidence in defence of their case opted to rest their case on that of the claimant (appellant) and therefore go on to address the Court. The issue therefore as to whether or not the learned trial Judge was right in relying on the incompetent Statement of Defence and the evidence of the Defendant which were struck out, to hold that the duty of care owed to the Claimant and in fact to the whole world was not breached, does not therefore arise in the circumstance.
My conviction is that the learned trial Judge relied wholly on the facts and law as were set out before the Court, to reach the unassailable conclusion that the respondent as the producer of the 7up drink, owed a duty of care to the appellant and indeed to the world at large in ensuring the wholesomeness of its products. The trial Court on the contrary, did not rely on the discountenanced statement of defence and the evidence of the respondent as is being contended by the appellant in reaching the conclusion on the duty of care owed the appellant by the respondent. The aspect of whether the appellant had proved a breach of that duty of care owed to him by the respondent, will be determined an on under Issue 2 however, issue 1 (one) is resolved in favour of the respondent and against the appellant.
RESOLUTION OF ISSUE 2 (TWO)
Whether the learned trial Judge was right in holding that the appellant failed to prove that it was this respondent’s product which he allegedly took that caused his ailment.
Though the Court is satisfied that the respondent as a producer/manufacturer, owes its ultimate consumers including the appellant the duty of ensuring the wholesomeness of its products, the appellant must however scale another hurdle which is to prove that the respondent indeed breached that duty of care reposed in it. The law is trite in civil cases that he who asserts the existence of any fact has the onus to prove that such fact exists. See Amodu vs. Amode (1990) 5 NWLR Pt. 150 pg. 356; Odon vs. Barigha-Amange (2010) 12 NWLR Pt. 1207, pg. 13; Intercontinental Bank Plc. vs. Dayekh Brothers Ltd. (2014) LPELR-23485(CA); Okoye vs. Nwankwo (2003) FWLR Pt. 156 pg. 992 at 1003; Ukpabio vs. N.F.V.C.B. (2008) 9 NWLR Pt. 1092, pg. 219 at 227.
In establishing his case, the appellant must in my view show that he bought the said drinks in an open market.
The appellant tendered a document purported to be the receipt issued to him upon purchase of the drinks. The document which was admitted in evidence as Exhibit A, is a receipt acknowledging payment for 3 crates of 7up, and has the bold caption C. D. ONUOHA & SONS NIG. Dealers & Suppliers of all kinds of beer, Minerals, Provision Manufacturer’s Representative & General Contractors’. The business addresses of C. D. ONUOHA & SONS NIG. are clearly set out on the said Exhibit A thus:
‘Head Office, 22 Old Aba Road, Box 287, Woji Junction, Port Harcourt’; and ‘Branch Office, 8 Okporo Road, Port Harcourt’. These verifiable disclosures made on the face of the document, are satisfactory documentary evidence of the fact that the drinks were sold to the appellant in an open market. The receipt (Exhibit A) was issued to the appellant on 14th August, 1998 for the purchase of 3 crates of 7up, and was clearly pleaded at paragraph 3(a) of the appellant’s Further, Further Amended Statement of Claim cocooned at page 34 of the record of appeal. (See also page 107 of the record of appeal).
Being satisfied that the appellant purchased the drinks from ‘C. D. Onuoha & Sons,’ it became pertinent to determine if it was any of the said drinks that caused the appellant the said stomach ache that he purportedly suffered from.
The CW1 admitted in his evidence that he bought the drinks and left them in his store. He also said that when he began to experience the stomach ache he was first taken to the University of Port Harcourt Teaching Hospital (UPTH) where he was admitted and discharged on 24/08/98. He further admitted under cross examination that he ate food prepared by his wife before the birthday party and that rice was served during the party. Exhibit C which is the laboratory result of the test conducted on specimen of the 7up drink at the UPTH shows that the 7up aspirate contained ‘heavy growth of candida albicans’.
I must confess that Exhibit C lacks probative value. To begin with and much as it is relevant in the circumstance, all the same the appellant/CW1 through whom it was admitted in evidence is obviously not the maker. By the provisions of Section 37(a) of the Evidence Act, 2011, it qualifies as a documentary hearsay.
Not being the maker of the document, the appellant lacks the competence to testify on it or entertain questions pertaining to its content. Added to this is the fact that the said Exhibit C is undated consequent upon which it is fraught with doubt as to whether it was not a cooked document made solely for this matter. See the authorities of Garuba vs. K.I.C. Ltd. (2005) 5 NWLR Pt. 917, pg. 160; Omega Bank (Nig.) Plc. vs. O.B.C. Ltd. (2005) 8 NWLR Pt. 928, pg. 547; Jinadu vs. Esurombi-Aro (2009) 9 NWLR Pt. 1145, pg. 55; and Global Soaps & Detergent Ind. Ltd. vs. NAFDAC (2011) All FWLR Pt. 599, pg. 1025 at 1047, upon which I lean to hold that Exhibit C lacks veracity and cannot be acted upon by the Court. In the absence of the maker of Exhibit C, no weight can be attached to it with regard to the cause of the purported ailment the appellant suffered from on his said birthday.
Also, Exhibit E which was tendered as the medical report issued on the appellant by Mima Clinic and Maternity, it was stated therein that:
Mr. Nnamdi Ezurike was rushed to this clinic on the 20/8/98 as a case of severe Gastro enteritis in shock, most probably due to food poisoning.
Sgd. Dr. S. C. Nwosu
Medical Director. (See page 109 of the record of appeal).
In his evidence, the maker of Exhibit E, (Dr. S. C. Nwosu) stated inter alia:
‘.. A history of recent ingestion of ?soft drink of the 7up brand with foreign matter was elicited.
A provisional diagnosis of food poisoning probably due to excess metallic intake was made. He was admitted as an emergency and treatment commenced immediately ‘.
The patient’s presentation was typical of food/drink poisoning with the acute or sudden onset [Underlining mine for emphasis]. [See page 121 of the record of appeal].
The foregoing evidence of the CW3 being the doctor who treated and issued medical report on the appellant, is indicative of the fact that his ailment could have arisen as a result of food or drink poisoning. With the appellant’s testimony that he had rice earlier prepared by his wife and that rice and wine were also served at the birthday party, it follows then and as rightly stated by the CW3, that either the food or the drink could have brought about the gastro enteritis as diagnosed by him. It will therefore be a matter of speculation and conjecture to heap the cause of the appellant’s ailment on the door step of 7up drink alone in the absence of a supportive and direct evidence to that effect.
Indeed it is more probable that it was food poisoning rather than drink that caused the appellant’s gastro enteritis, given the provisional diagnosis of the CW3. Moreover, there is nothing on record to show that excessive metallic intake results from drink alone if at all. It is on the premises of all that I have said so far, that I am of the firm view that the appellant has not discharged the burden of proof necessary to satisfy the Court that the respondent breached the duty of care he owed the said appellant. Either the food or drink consumed by the appellant either before or during the birthday party could have triggered the stomach ache he suffered from. The evidence as led before the Court by the appellant does not point conclusively to the liability of the respondent. As rightly held by the learned trial Judge, the appellant has failed to prove the tort of negligence against the respondent.
This is to say that the appellant has not proved that the respondent breached that duty of care it owed to the said appellant. Issue 2 (two) is hereby resolved in favour of the respondent and against the appellant.
RESOLUTION OF ISSUE 3 (THREE)
Whether the learned trial Judge was right in holding that the appellant failed to prove his special damages claim against the respondent.
Though this issue of special damages as posited under issue 3 is no longer of any moment, given the fact that the appellant failed to prove his case of negligent tort against the respondent, all the same I deem it pertinent to state that the law touching on recovery of special damages requires that same be specifically pleaded and strictly proved. The determination of what constitutes special damages is not a matter of conjecture, assessment or estimation by the Court as to what is likely to be fair in assuaging the claimant. Furthermore, the claimant must also particularize each item of damage in order to succeed. See Udeagha vs. Nwogwugwu (2013) LPELR-21819 (CA); NEKA B.B.B. Manufacturing Co. Ltd. vs. ACB. Ltd. (2004) LPELR-1982(SC), (2004) All NWLR Pt. 198, 1175; Xtoudos Services Nig. Ltd. vs. Taise (W.A.) Ltd (2006) 6 KLR 2411 at 2425, (2006) 15 NWLR Pt. 1003, pg. 533; Daniel Holding vs. UBA Plc. (2005) 11 MSJC 699 at 73; NNPC. Vs. CLIFCO Nig. Ltd. (2011) NWLR Pt. 1255, pg. 29; and Obasuyi vs. Business Ventures Ltd. (2000) 15 NWLR Pt. 6158, pg. 226.
The appellant who in the instant case pleaded and led evidence that he is a successful businessman/trader, failed to particularize the nature and content of the business that was giving him a daily income of N50,000. There was no evidence of turnover or even an account record to prove the purported daily income which the appellant sought. What was required in the circumstance was for the appellant to establish his entitlement to that type of special damages by credible and verifiable evidence. It is not to be left open for the Court in this situation to come up with its own assessment or estimate. Special damages is thus not awarded as a matter of course but by strict proof of the same by credible and cogent evidence. The appellant may have given evidence that he has several provision shops,shops for meat and shops for sale of shoes and all worth not, yet he never pleaded facts on those lines. ‘Various businesses’ as pleaded by him, ought to have been particularized and the daily turnover of each of those businesses spelt out. The learned trial Judge was therefore right in holding that the appellant failed to prove the special damages he claimed against the respondent more so as they are not granted just for the asking. Issue 3 (three) is in this vein resolved in favour of the respondent and against the appellant.
With the resolution of the three issues raised for determination, in favour of the respondent and against the appellant, it follows that this appeal lacks merit. The appeal is therefore dismissed, while the decision of the lower Court per Hon. Justice S. C. Amadi J. in suit No. PHC/1721/1998, delivered 31st January, 2014 is affirmed.
I make no order for costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, CORDELIA IFEOMA JOMBO-OFO JCA gave me the opportunity of reading the lead judgment before it was delivered. I agree with the reasoning and conclusion of my learned brother. I dismiss the appeal and abide by the consequential order.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
Chikezie Adiele, Esq.For Appellant(s)
M. O. Georgewill, Esq. with him, O. A. Solagbade, Esq. and U. I. Nwamimi, Esq.For Respondent(s)
