ABDULKARIM & ANOR v. SHEHU (2020)

ABDULKARIM & ANOR v. SHEHU

(2020)LCN/14818(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, November 10, 2020

CA/G/377/2018

RATIO

DAMAGES: POSITION OF THE LAW ON SPECIAL DAMAGES

The law is settled that special damages are such that the law will not presume or infer from the nature of the act complained of. This is because they do not flow or follow in the ordinary course of events. They are special and exceptional in their character. Hence they must be specially pleaded with relevant particulars and thereafter, strictly proved by credible evidence. Thus, the law is that whoever wants special damages must endeavour to prove it strictly and specifically. There must be evidence in Court to establish that he suffered such damages as he claimed.
The rationale behind this is that special damages are only awarded where there is credible evidence based on calculations established by a preponderance of evidence. Without such proof, special damages cannot be awarded. Thus, where a claimant fails to lead credible evidence in proof of special damages, the Defendant will be absolved from adducing evidence challenging the hollow and porous evidence by the Claimant; and the Court will be justified in refusing to award the special damages claimed in such a circumstance – Ibrahim V Obaje (2017) LPELR-43749(SC) 10, A-D, per Ogunbiyi, JSC; UBN Plc V Ajabule (2011) LPELR-8239 (SC) 35-36, F-B, per Adekeye, JSC; Young V Chevron Nig. Ltd (2013) LPELR-22126(CA) 44, A-D; Intels (Nig) Ltd V Bassey (2011) LPELR-4326(CA). PER HANNATU SANKEY, J.C.A.

DAMAGES: DUTY OF A COURT WHEN CONSIDERING DAMAGES ARISING FROM A BREACH OF CONTRACT

In addition, when a Court is considering damages arising from a breach of contract, as in this case, there is no room for the award of damages which are merely speculative or sentimental, unless they are specifically provided for by the express terms of the contract. Also, in awarding damages in such a claim, the Court must be careful not to compensate a party twice for the same wrong – Agu V General Oil Ltd (2015) LPELR-24613(SC) 21, C-D, per Okoro, JSC. PER HANNATU SANKEY, J.C.A.

DETINUE: WHEN WILL A CLAIM OF DETINUE ARISE

Without proof of wrongful detention on the part of the defendant, a claim of detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly, for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto. This is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff. Thus, as the Supreme Court held in the case of Julius Berger Ltd V Omogui (2001) 6 SCNJ 214, 229 per Uwaifo, JSC:
“Detinue is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and this continues until delivery up of the goods or judgement in the action for detinue. The action is in the nature of an action in rem which the plaintiff may sue (1) for the value of the chattel as assessed and also for damages for its detention, or (2) for the return of the chattel or recovery of its value as assessed and also damages for its detention, or (3) for the return of the chattel and damages for its detention.”
See also Aminu Ishola Inv. Ltd V AfriBank Nig Ltd (2013) LPELR-20624(SC) 20-22, F-A, per Alagoa, JSC; FMCG Distribution Ltd V Boniface (2019) LPELR-47652(CA); J.E. Oshevire Ltd V Tripoli Motors (1997) LPELR-1584(SC) 41, A-E, per Iguh, JSC; Kosile V Folarin (1989) LPELR-1705(SC). PER HANNATU SANKEY, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. ALHAJI ABDULKARIM 2. MALLAM ABBA APPELANT(S)

And

DAHIRU SHEHU RESPONDENT(S)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Yobe State in Suit No. YBS/HC/PT/25CV/16, delivered on July 27, 2018 by I.W. Jauro, J.

The facts leading to the Appeal are briefly as follows: The Respondent (as Plaintiff before the trial Court) commenced an action by way of a specially endorsed Writ of summons wherein he claimed the following reliefs against the Appellants (as Defendants) –
“Whereof the plaintiff’s claim against the defendants
a. The sum of N22, 833, 000.00 being the proceeds of the use of the trailer for 2 years 6 months
b. The sum of N5, 000, 000 damages for unlawful detention of the trailer for 9 months
c. The cost of this said … (sic)”

The Appellants denied the claim and incorporated a counter-claim in their Statement of defence thus:
“By way of Counter Claim the 1st defendant repeats and adopts all the averments in his joint statement of defence with the 2nd defendant and hereby counter claims against the plaintiff as follows:

The sum of N491,000.00 (Four Hundred and Ninety One Thousand Naira) being the monies expended on the maintenance of the plaintiff’s vehicle in an attempt to keep it roadworthy.
2. The cost of this suit.”

In proof of his claim, the Respondent adduced evidence through four witnesses, while the Appellants in defence of the claim as well as in proof of their counter-claim, called six witnesses. At the close of trial, the learned trial Judge entered Judgement in favour of the Respondent/Plaintiff, awarding him the sum of N1, 580, 000.00 (One Million Five Hundred and Eighty Thousand Naira) as special damages and N1, 000, 000.00 (One Million Naira) as general damages. Dissatisfied by this award, the Appellants filed an Appeal against the decision on August 1, 2018, wherein they complained on three (3) Grounds.

At the hearing of the Appeal on September 7, 2020, T.J.J. Danjuma Esq., learned Counsel for the Appellants, adopted the submissions in the Appellants’ Brief of argument filed on 11-10-18 and settled by B.M. Salihu Esq., in urging the Court to allow the Appeal and set aside the decision of the trial Court.

In response, J.M. Kamal Esq.,

learned Counsel for the Respondent, adopted the submissions in the Respondent’s Brief of argument filed on 17-04-19, deemed properly filed on 15-10-19 and settled by the same Counsel, in urging the Court to dismiss the Appeal for being frivolous, and so affirm the decision of the lower Court.

The Appellants, in their Brief of argument formulated one sole issue for determination from their three Grounds of Appeal as follows:
“Whether the Plaintiff/Respondent discharged the burden of proof required in law with regards to special damages in relation to the money so awarded to the Plaintiff/Respondent by the trial Court.”

On his part, the Respondent similarly distilled one issue for determination thus:
“Whether the trial Court has committed any miscarriage of justice when it awarded to the Respondent the sum of N1, 580, 000.00 only out of his claim of N22, 833, 000 only special damages and the sum of N1, 000, 000.00 only out of his claim of N5, 000, 000.00 general damages against the Appellants? (Grounds 1, 2 and 3)”

It is apparent that the two sets of issues are similar in content. They both centre around

the propriety or otherwise of the award of special and general damages against the Appellants. Therefore, I adopt the issue crafted by the Appellants in the determination of the Appeal.

ARGUMENTS
“Whether the Plaintiff/Respondent discharged the burden of proof required in law with regards to special damages in relation to the money so awarded to the Plaintiff/Respondent by the trial Court.”
Learned Counsel for the Appellants submits that the Respondent’s Statement of claim was deficient to the extent of the sums of money pleaded and the total sum claimed which he contends, did not add up. He refers in particular to paragraphs 27-30 of the Statement of claim. He contends that where pleadings are deficient no matter how cogent the evidence led, the case would fail. Reliance is placed on Anyafulu V Meka (2014) 57 (Pt. 1) NSQR 185, 220-221.

Counsel further refers to the findings of the learned trial Judge (at page 67 of the printed Record of Appeal) to submit that the burden lies on the Plaintiff to establish, not only that the vehicle in question had been in the possession of the Appellants for two and a half years, but that

during this period, the vehicle realized the sums of money claimed in the Respondent’s pleadings. The burden was also on the Respondent to prove that all liabilities, such as debts and incidental expenses agreed upon had been subtracted from the amount of money generated, in order to arrive at the award made by the trial Court. Counsel submits that special damages must not only be specifically pleaded but must also be strictly proved, and a Court cannot embark on an assessment of its own in place of the evidence adduced. He relies on Adim V NBC Ltd (2010) (Pt. II) MJSC 130, 140-141, E-D; Sommer V FHA (1992) 1 NWLR (Pt. 219) 548, 561.

Counsel submits that in the instant case, the learned trial Judge embarked upon an assessment of his own, disregarding the evidence adduced by the Plaintiff at pages 19-22 of the Record as well as paragraphs 7, 28 and 29 of his pleadings. Therein, it is not disputed that liabilities in the form of debts and expenses for fuel, repairs and allowances for the 2nd Appellant, were incurred and that these were to be defrayed from the monies generated from the transport activities of the trailer. He argues that the Respondent

therefore had a duty to prove the exact amount he was entitled to and it was not for the trial Court to make any assumptions.

In this regard, Counsel also submits that whereas the evidence of the PW1 and PW4 is hearsay, that of PW3 and PW4 is insufficient to warrant the conclusions arrived at by the trial Court at pages 66-67 of the Record. In addition, no evidence whatsoever was placed before the Court on the liability of the 2nd Appellant to the claim. Counsel therefore submits that the trial Court erred in law when it awarded special damages to the Respondent in the absence of evidence to discharge the burden of proof placed on the Respondent by law. He therefore urged the Court to allow the Appeal, set aside the Judgement of the trial Court and grant the reliefs sought in the Notice of Appeal.

In response, to these submissions, learned Counsel for the Respondent submits that the trial Court did not award the special damages of N1, 580, 000.00 in a vacuum, even as the Respondent’s claim was for the sum of N22, 833, 000.00. He contends that the Respondent proved the award by credible evidence. Reference is made to the evidence of PW2 and

PW3. Counsel also submits that the evidence of the 2nd Appellant who testified as DW5, served to corroborate the case of the Respondent because he admitted that the sum of N6, 500, 000.00 was generated by the Respondent’s trailer. Therefore, what is admitted needs no further proof. DMV (Nig.) Ltd V NPA (2019) 1 NWLR (Pt. 1652) 163, 167 is relied on amongst others. Counsel submits that even though DW5 had testified that the sum of N6, 570, 000.00 was expended on repairs on the trailer, he did not give a detailed account of this expenditure nor the authorization for such. Nonetheless, the trial Court only awarded the Respondent the sum of N1, 580, 000.000, being the amount proved from the evidence of PW2 and PW3.

In respect of the award of N1, 000.000.00 as general damages, Counsel submits that the Appellants have failed to show how it was based on wrong principles of law. He argues that they did not contend that it was extremely high or low. Instead, they only complained that the trial Court ought to have considered the repairs they carried out on the vehicle which the Respondent ought to have defrayed from the profit realized by the activities

of the vehicle. However, Counsel contends that the Appellants failed to file a counter-claim and plead such expenses with sufficient particularization and credible evidence in proof of same. Counsel therefore submits that their assertions were unfounded. He relies on Akuburo V Mobil Oil (Nig) Ltd Plc (2012) 14 NWLR (Pt. 1319) 42, 52-53.

Counsel submits that the Appellants only made a general denial in their Statement of defence and counter-claim. They did not give any evidence in support of their counter-claim, much less condescending upon particulars. Thus, it is his contention that their case was weak and the case of the Respondent outweighed it.

In addition, Counsel submits that the evidence of the 1st Appellant/DW3 wherein he stated that the vehicle generated profit for two and a half years before it was parked at the garage without the Respondent’s permission, buttresses the Respondent’s claim for detinue. This, he contends, was an admission which obviates the need for further proof – WPC Ltd V Fayemi (2017) 13 NWLR (Pt. 1582) 218, 228.

Counsel also relies on the decisions in Standard Chartered Bank V Adegbite (2019) 1 NWLR (Pt.

1653) 348, 355-356 and NAOC (Nig) Ltd V Ebila (2016) 3 NWLR (Pt. 1498) 120, 122 for the applicable principles of law for when an appellate Court will interfere with the amount of damages awarded by a trial Court, especially as the complaint in the Appeal does not attack the substance of the Judgement. Counsel therefore urged the Court to dismiss the Appeal for being frivolous and unfounded.

RESOLUTION
From the averments in the Statement of Claim, the Statement of defence and the evidence adduced by both parties before the trial Court, it is not in dispute that the Respondent who is the owner of the trailer head in question, handed over his vehicle to the 1st Respondent to manage in a transport business. As rightly pointed out by the learned trial Judge in his Judgement, there were no written or oral agreements entered into between the parties as to the explicit terms of this business arrangement. Suffice it to say that the Respondent gave the 1st Appellant a bare trailer head together with the sum of N250, 000.00 to commence work.

The 1st Appellant on his part, engaged the services of the 2nd Appellant to drive the vehicle (trailer). However,

in order to commence the business of transporting goods from Geidam in Yobe State to Lagos and back as agreed with the Respondent, the 1st Appellant had to hire two trailer bodies for the trailer head at the cost of N60, 000.00 and N70, 000.00 per month for the two and a half year period which the trailer worked. During this period, the evidence before the trial Court disclosed that the 1st Appellant again expended numerous sums of money on the repairs of the vehicle on several occasions and also changed vehicle parts such as the crankshaft (thrice) as well as the vehicle engine in order to maintain the trailer and to keep it in working condition. These, the 1st Appellant claimed, were part of the running costs of the trailer and were serially deducted from whatever monies were realized from the transportation of goods. All these expenses were incurred with the knowledge of the Respondent. In addition, Counsel contends that even the initial sum of N250, 000.00 given to the 1st Appellant by the Respondent, was paid back to him (Respondent) in instalments, and this fact was admitted by the Respondent in his evidence.

Furthermore, from the Record of

Appeal it is apparent that both the pleadings of the Plaintiff and his evidence given as PW1 to buttress these pleadings, constituted nothing but a mere projection of the expected income/profits from the transportation of goods by the trailer, and not the actual reality of how the business was carried out or how it progressed and/or retrogressed, as the case may be.

On the part of the Appellants, their defence was hinged on the fact that from the time the Respondent gave the 1st Appellant the trailer head without a body to manage in a transport business, they never made any profit which he could have handed over to the Respondent. This is because the vehicle, not being a new one, came with a lot of baggage in that it broke down numerous times, and consequently, the 1st Appellant was consistently having to repair it using the monies realized from the transportation of goods by the trailer and sometimes even at his own cost, in order to put it back on road in a serviceable condition. Both Appellants in their evidence before the lower Court as DW3 and DW5, gave a detailed breakdown of these running/incidental expenses incurred.

Thus, while it is evident that some money was realised from the conveyance of goods by the trailer over the period in question, the evidence before the lower Court also showed that a huge proportion of it, if not all, was ploughed back into the vehicle to keep it functional and operational until it finally packed up and the 1st Appellant parked it at a garage.

However, more importantly is that fact that in a claim such as this for special damages, the Plaintiff must prove every head of claim by credible evidence. The law is settled that special damages are such that the law will not presume or infer from the nature of the act complained of. This is because they do not flow or follow in the ordinary course of events. They are special and exceptional in their character. Hence they must be specially pleaded with relevant particulars and thereafter, strictly proved by credible evidence. Thus, the law is that whoever wants special damages must endeavour to prove it strictly and specifically. There must be evidence in Court to establish that he suffered such damages as he claimed.
The rationale behind this is that special damages are only awarded where there is credible

evidence based on calculations established by a preponderance of evidence. Without such proof, special damages cannot be awarded. Thus, where a claimant fails to lead credible evidence in proof of special damages, the Defendant will be absolved from adducing evidence challenging the hollow and porous evidence by the Claimant; and the Court will be justified in refusing to award the special damages claimed in such a circumstance – Ibrahim V Obaje (2017) LPELR-43749(SC) 10, A-D, per Ogunbiyi, JSC; UBN Plc V Ajabule (2011) LPELR-8239 (SC) 35-36, F-B, per Adekeye, JSC; Young V Chevron Nig. Ltd (2013) LPELR-22126(CA) 44, A-D; Intels (Nig) Ltd V Bassey (2011) LPELR-4326(CA).

In considering the complaints

in this Appeal based on the principles of law enumerated in the foregoing authorities, it is obvious that in proving his case, the Respondent woefully failed to prove his entitlement to the sum claimed as itemized in his pleadings. In addition to this is the fact that the Appellants successfully rebutted the claim both in their pleadings and in their evidence before the trial Court. Also, the Appellants have shown that the award made by the lower Court was not borne out by the evidence before it in that, much as there was evidence that the sum of N1, 580, 000.00 was realised from trips made by the trailer from Geidam to Lagos, evidence was equally presented to the lower Court showing that these monies were expended in repairs and maintenance of the Respondent’s trailer to keep it in working condition since, not being a brand new trailer, it was constantly breaking down; in addition to the monthly payments made for hiring the trailer body. It is based on this evidence that the learned trial Judge in his Judgement found inter alia as follows (at page 64 of the printed Record):
“The plaintiff who testified as PW1 could not say much other than

the fact that he gave a trailer head to the 1st defendant together with the sum of two hundred and fifty thousand naira (N250, 000.00) to undergo repairs if any. All other information regarding how the vehicle is run were narrated to him and as such the Court cannot work thereon. The plaintiff equally admitted that the 1st defendant gave him the sum of two hundred and ninety thousand naira only from one of the trips. Although he stated in evidence that the 1st defendant made some repairs of the vehicle and listed the sums of money expended on such repair, he added that the 1st defendant had been maintaining the vehicle for 2½ years duration and as such he could not say how much the 1st defendant expended on the maintenance and repairs of the vehicle… In my considered view it is glaring from the evidence of the plaintiff that he does not know the amount expended on the maintenance and repairs of the vehicle for the 2½ years period the 1st defendant worked with the vehicle. In addition, even the expenses of hiring the two bodies he does not know how the 1st defendant went about paying.” (Emphasis supplied)

Even more informative is the final

finding of the trial Court with regard to the evidence of the Respondent, as follows:
“And furthermore, even though the plaintiff pleaded the sum of N22, 833, 000.00 for the 2½ years period the vehicle worked he could not lead evidence as to how the amount was arrived at for instance on daily or monthly or even yearly collections. This leaves a vacuum in the plaintiff’s case.” (Emphasis supplied)

It is therefore rather surprising that the learned trial Judge, after making such categorical findings on the porosity and deficiency in the evidence of the Respondent/Plaintiff in proof of the claim before it, the lower Court still went ahead to award the sum of N1, 580, 000.00 in special damages to the Plaintiff and against the Defendants. He stated that he based this award on the evidence of PW2 who testified that he paid the 2nd Defendant the sum of N770, 000.00 being the cost of four trips from Potiskum to Lagos; and that of PW3 who paid 2nd Defendant the sum of N810, 000.00 for five trips from Potiskum to Lagos, totalling N1, 580, 000.00. This award was made by the lower Court notwithstanding its earlier findings namely, that the

Defendants incurred expenses arising from several breakdowns and repairs of the trailer which were taken from monies realised from the trips and also borne by the 1st Defendant/Appellant; as well as the cost of hiring the body for the trailer for two and a half years, which the Respondent readily admitted was borne by the 1st Appellant. This subsequent award is therefore in conflict with the lower Court’s earlier findings as to total absence of proof on the exact amount generated from the trips after the deduction of incidental expenses. Thus, with the greatest respect, the award of N1, 580, 000.00 to the Respondent amounts to nothing but a somersault by the learned trial Judge in the face of his earlier explicit findings thereon.

In respect of the award of damages in detinue ostensibly for the detention of the trailer head in the sum of tune of N1, 000, 00.00, the learned trial Judge hinged it on the admission of the 1st Appellant (as DW3) in his evidence that the vehicle was subsequently parked in a garage, simpliciter. However, the gist of liability in detinue is the wrongful detention of the plaintiff’s chattel by the defendant after the

plaintiff has made an express demand for its return. Without proof of wrongful detention on the part of the defendant, a claim of detinue cannot arise. A detention is not wrongful unless the defendant’s possession is adverse. Accordingly, for an action in detinue to succeed, the defendant must have shown a definite intention to keep the chattel in defiance of the plaintiff’s rightful claim thereto. This is usually manifested by proving a demand by the plaintiff and a refusal by the defendant to return or deliver the chattel to the plaintiff. Thus, as the Supreme Court held in the case of Julius Berger Ltd V Omogui (2001) 6 SCNJ 214, 229 per Uwaifo, JSC:
“Detinue is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and this continues until delivery up of the goods or judgement in the action for detinue. The action is in the nature of an action in rem which the plaintiff may sue (1) for the value of the chattel as assessed and also for damages for its detention, or (2) for the return of the chattel or recovery of its value as assessed and also damages for its detention, or (3) for the

return of the chattel and damages for its detention.”
See also Aminu Ishola Inv. Ltd V AfriBank Nig Ltd (2013) LPELR-20624(SC) 20-22, F-A, per Alagoa, JSC; FMCG Distribution Ltd V Boniface (2019) LPELR-47652(CA); J.E. Oshevire Ltd V Tripoli Motors (1997) LPELR-1584(SC) 41, A-E, per Iguh, JSC; Kosile V Folarin (1989) LPELR-1705(SC).
Contrary to this requirement of the law, there is nowhere in the evidence before the lower Court to show that the Respondent had demanded a return of the trailer and the Appellants had refused to hand it over to him. Instead, as clearly and rightly found by the learned trial Judge, the evidence before him simply showed that the 1st Appellant parked the trailer in the garage after it had broken down for the umpteenth time. Surprisingly however, the learned trial Judge proceeded to base his award of the sum of N1, 000, 000.00 for detinue on this fact without considering whether or not the Respondent had proved the relevant conditions to be met to succeed in a claim for detinue. In the absence of such evidence, the award was baseless and should not have been made.
Therefore, based on all the above, the

Respondent’s claim for special damages and for detinue were not established by credible evidence to warrant the two awards of damages made to the Respondent by the lower Court. I therefore resolve the sole issue for determination in favour of the Appellants.
In the result, the Appeal is meritorious. It succeeds and is allowed.

Accordingly, I set aside the award of N1, 580, 000.00 as special damages and the award of N1, 000, 000.00 as damages for unlawful detention of the trailer, inclusive of the award of N200, 000.00 being the cost of the action, made by the High Court of Justice, Yobe State in Suit No. YBS/HC/PT/25CV/16 between Dahiru Shehu V (1) Alhaji Abdulkarim & (2) Mallam Abba, delivered on July 27, 2018, by Jauro, J.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother SANKEY JCA. I agree with the reasoning and final conclusion that nothing was proved to merit the award of special and general damages to the Respondent.

This appeal is meritorious. It is allowed. I also abide by all the consequential orders

in the lead judgment.

JAMES GAMBO ABUNDAGA, J.C.A.: I read the draft of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.

I adopt his reasoning and conclusion on the sole issue for determination in favour of the Appellants. To reinforce my adoption, I want to agree with the finding of his Lordship that the award of special damages by the trial Court after his careful analysis of the evidence before him upon which he concluded that there was no evidence placed before the Court to establish the claim of the Respondent for special damages is in conflict with the findings aforestated. The award is nothing, but, to say the least is a somersault. Again, in regards to the award for unlawful detention of the vehicle, the award lacks factual and legal basis.

The appeal is therefore meritorious, and I too allow it, and in consequence set aside the Judgment of the lower Court.

Appearances:

J. J. Danjuma Esq. holding the brief of B. M. Salihu Esq. For Appellant(s)

M. Kamal Esq. For Respondent(s)