ALHAJI HUSSANI SHAGIRAWA v. AMINU ALIYU (2014)

ALHAJI HUSSANI SHAGIRAWA v. AMINU ALIYU

(2014)LCN/7288(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/K/10/2012

RATIO

DAMAGES: SPECIAL DAMAGES; WHAT DOES SPECIAL DAMAGES MEAN AND WHETHER IT MUST BE SPECIALLY PLEADED AND STRICTLY PROVED

This court in IBWA LTD. V. HOTEL METROPOLE INTERNATIONAL LTD. & ANOR. 2010, 14, WRN, held that ‘special damage’ said Bowen L.J. in Rat-Cliff V. Evans (1892) 2 QB 527 C.A, at 528, means the particular damage beyond the general damage, which results from the particular circumstance of the case, and that the Plaintiffs claim to be compensated, for which he sought to give warning in his pleadings in order that there may be no surprise at the trial.”
Also in ALUMINIUM MANUFACTURING CO. OF NIG. LTD. V. VOLKSWAGEN OF NIGERIA LIMITED CA/L/414/2003, Nwodo JCA (of blessed memory) said –
“Special damages, are those damages which are given in respect of any consequence reasonably and probably arising from the breach complained of. They impute pecuniary losses, which have crystallized in terms of cash and values before trial. Such special damages must be specifically pleaded and proved strictly, what is required to establish special damages that, the person claiming should establish his entitlement to that that type of damages credible evidence of such a character as would suggest that he indeed is entitled to an award under that head”.
The requirement under the law is that claim for special damage must be specifically pleaded and strictly proved by the claimant, in order to determine whether the lower court was right in its decision, it is proper to look at the pleadings, particularly Plaintiffs statement of claim to determine whether special damages were infact specifically pleaded or not; in so doing I will reproduce the following paragraphs from Plaintiffs/Respondents’ statement of claim; 5, 6, 7, 8, 9, 10 and 11. per. TIJJANI ABUBAKAR, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT THAT IS NOT PERVERSE

JUSTICES

THERESA NGOLIKA ORJI ABADUA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

ALHAJI HUSSANI SHAGIRAWA Appellant(s)

AND

AMINU ALIYU Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court, delivered by Hon. Justice Usman Malam Na’abba on the 4th day of July 2011.
The facts giving rise to this appeal are briefly as follows:
The Plaintiff now Respondent in this appeal had a business relationship with the Defendant/Appellant, both parties supplied goat and sheep skin to Kanotan S. A. Limited, the Plaintiff/Respondent supplied the skin to the company in the name of the Defendant/Appellant, and at all times payments were made by the company to the account of the Defendant/Appellant who would now transfer the payment to the Plaintiff/Respondent.
The company made total payment of N57,029,663.00,to the account of the Defendant/Appellant, who in turn transferred N43,624,493.00, to the Plaintiff/Respondent. When Plaintiff demanded for the balance Defendant now said he was entitled to commission of N50:00k on each grade 2 piece of skin. Dispute arose as a result of reconciliation of accounts which eventually culminated into litigation, with the Plaintiff/Respondent taking out writ of summons against the Defendant/Appellant before the lower Kano State High Court.
Pleadings were exchanged and the matter was then heard and determined. At the trial Plaintiff/Respondent called four witnesses and tendered one exhibit a letter from Kanotan S. A. Ltd, which the lower court admitted as exhibit A, let me state that Exh. A is a letter addressed to the Kano Emirate council.
The Defendant/Appellant on his part called four witnesses and tendered two exhibits B and C.
At the conclusion of trial, the learned trial Judge gave Judgment in favour of the Plaintiff and naturally the Defendant felt aggrieved and therefore filed notice of appeal, and the said notice was eventually amended, and from Appellants five grounds of Appeal, counsel distilled two issues for determination, they are:
1. Whether on the facts and in all the circumstance of the case, the trial court was right in awarding to the respondent sum of N8, 738,620.00 as claimed by him (this issue is distilled from grounds 1, and 4 of the Amended Notice of Appeal.
2. Whether having regard to the pleadings and evidence before the court the learned trial Judge did rightly or properly assess and evaluate the evidence before giving Judgment in favour of the Respondent (This issues is distilled from grounds 2, 3, and 5 of the Amended Notice of Appeal).
The Respondent also nominated two issues for determination, they are also reproduced as follows:
1. Whether from the pleadings and evidence adduced, the trial court was right in awarding the Respondent the sum of N8, 738,620.00 as claimed by him.
2. Whether having regard to the pleadings and evidence before the court, the learned trial Judge did rightly or properly assess and evaluate the evidence before giving judgment in favour of the Respondent and whether failure to make pronouncement on exhibit B and C tendered by the appellant has accessioned a miscarriage of Justice so as to warrant this court tempering with the findings.
Both parties in this appeal appear to have common issues for determination as the issues submitted bear substantial similarly. I therefore adopt Appellants issues, as the issues to resolve in this appeal.
Appellant said Respondents claim was for special damage which required specific proof, he said the exhibit relied on by the lower court exhibit A, did not mention the name of the Respondent that the document made no reference to Respondents claim at the lower court, it was argued on behalf of the Appellant again that in a claim for special damage, the Plaintiff must plead and prove special damages specifically and strictly, and the Plaintiff must lead credible evidence at the trial to establish the claim with particularity, counsel for the Appellant said there must be pleadings and credible evidence giving specific particulars of the claim, Appellant relied on KURUBO V. ZACH MATISON (NIG LTD) (1992) 5 NWLR (PART 239) 102 (2), NEKA CO. LTD V. ACB LTD (2004) 2 NWLR PART 858 AND XTOUDOUS STRVIES NIGERIA LTD v. TAISEL (W.A) LTD 2006 16 NWLR PART (1003) 46 WRN 1 AT 27.
Appellant said Respondents claim failed to satisfy the requirement of the law that, it must be specifically pleaded and strictly proved, that Respondents claim especially paragraphs 5, 6, 7, 8, 10 and 11 of the Statement did not specifically plead and particularize how the amount of N8,738,620.00 was arrived at.
Appellants counsel said a simple calculation will reveal that the sum claimed by the Respondent was not owed, counsel said going by the calculation of the Plaintiff/Respondent it will be found that the amount owed would be N7,494,020.00 and not N8,738,620.00 as claimed by the Respondent; Appellants said a claim for special damage will not succeed even where there is admission by the other party, Appellant relied on NNPC v. CLIFCO NIGERIA LTD (2011) 4 SCM 194 AT 217 – 218, Appellant therefore contended that Respondent having failed to meet the standard of proof required by law, the claim for the sum of N8,738,620.00 as awarded by the lower court must fail. Appellant therefore urged this court to so hold.
The Respondent through counsel I. N. Ahmad admitted that Respondents claim was for special damage, but said the Respondent clearly and specifically pleaded the particulars of special damage in paragraphs 5, 6, 7, 8, 9, 10 and 11 of the statement of claim.
The Respondent again referred to the evidence led at the trial, evidence of PWI, PWII, PWIII and PWIV, found at pages 11-16, 16 – 18, 62 – 64 and 65 – 67 respectively, and said the Plaintiff/Respondent led credible evidence to establish his claim for special damage; that the evidence of witnesses called by the Plaintiff/Respondent remained firm and unshaken and from the statement of claim and the evidence led at the trial the Plaintiff/Respondent gave the liability of the Appellant with precision, that the Defendant owed the Plaintiff the sum of N13, 405, 170.00. That Plaintiff established that the commission of N50.00k per grade 2 skin claimed by the Defendant/Appellant stood at N4, 666, 550.00 and upon deduction of the commission a balance of N8, 738, 620.00 will be left, Respondent said Plaintiffs claim apart from being specifically pleaded, it is also capable of specific determination by arithmetical calculations.
The Respondent said all the witnesses called by the Defendant/Appellant contradicted themselves at the trial, giving the lower court good grounds to conclude that they were not credible witnesses whose evidence could be relied upon: They did not appear to the court as witnesses of truth, or witnesses whose evidence could be accepted and acted upon as their evidence is replete with material contradictions. Learned counsel said the Respondent met the standard of proof and urged the court to resolve this issue in favour of the Respondent against the Appellant.
The issue to resolve is whether the conclusion reached by the court to award N8, 738, 620.00 was proper or not, Appellant mainly rested his argument on the fact that Plaintiffs/Respondents claim before the lower court being claim for special damage was not specifically pleaded and proved, the lower court was therefore wrong in giving judgment to the Plaintiff/Respondent. On the part of the Plaintiff/Respondent, he said the claim was specifically pleaded and proved referring to relevant paragraphs in the statement of claim and the evidence led at the trial.
This court in IBWA LTD. V. HOTEL METROPOLE INTERNATIONAL LTD. & ANOR. 2010, 14, WRN, held that ‘special damage’ said Bowen L.J. in Rat-Cliff V. Evans (1892) 2 QB 527 C.A, at 528, means the particular damage beyond the general damage, which results from the particular circumstance of the case, and that the Plaintiffs claim to be compensated, for which he sought to give warning in his pleadings in order that there may be no surprise at the trial.”
Also in ALUMINIUM MANUFACTURING CO. OF NIG. LTD. V. VOLKSWAGEN OF NIGERIA LIMITED CA/L/414/2003, Nwodo JCA (of blessed memory) said –
“Special damages, are those damages which are given in respect of any consequence reasonably and probably arising from the breach complained of. They impute pecuniary losses, which have crystallized in terms of cash and values before trial. Such special damages must be specifically pleaded and proved strictly, what is required to establish special damages that, the person claiming should establish his entitlement to that that type of damages credible evidence of such a character as would suggest that he indeed is entitled to an award under that head”.
The requirement under the law is that claim for special damage must be specifically pleaded and strictly proved by the claimant, in order to determine whether the lower court was right in its decision, it is proper to look at the pleadings, particularly Plaintiffs statement of claim to determine whether special damages were infact specifically pleaded or not; in so doing I will reproduce the following paragraphs from Plaintiffs/Respondents’ statement of claim; 5, 6, 7, 8, 9, 10 and 11.
5. The Plaintiff avers that pursuant to that, they jointly agreed with the Defendant to supply hide and skin to Karatan S.A. Limited using the defendants (sic) to account with the said company.
6. The Plaintiff pursuant to the said agreement supplied a total of N118, 223, (sic) one hundred and eighteen thousand two hundred and twenty three) pieces of skin worth N57, 029, 663.00 (Fifty Seven Million, Twenty Nine Thousand, Six Hundred and Sixty Three Naira Only) through the defendants account I file with the Karatan S.A. Limited between the period at January 2007 to September 2007.
7. That at various times and between January 2007 to September 2007, the Karatan S.A. Limited paid into the account of the Defendant the sum of N57, 029, 663. 00k. (Fifty Seven Million, Twenty Nine Thousand Six Hundred and Sixty Three Naira Only) being the money for the skin supplied by the Plaintiff.
8. That, all of the above stated amount, the Defendant paid to the Plaintiff a total amount of N43, 624, 493,00k (forty three million, six hundred and twenty four thousand four hundred and ninety three Naira) only.
9. That in December, 2007 the Plaintiff demanded for the balance of N13, 405, 170.00 (Thirty (sic) million four hundred and five thousand one hundred and seventy Naira only) for the Defendant, which the Defendant denied as the amount outstanding against him.
10. That in February 2008, the Defendant came down to Kano and argued that he was entitle (sic) to N50, 00k (Fifty Naira) commission on each grade 2 piece of skin and therefore the amount was less than N13, 405, 170, 00 (Thirteen million four hundred and five thousand, one hundred and seventy Naira only.
11. The plaintiff agreed to deduct N50,00 (Fifty Naira) each grad 2 piece of skin and the sum of N8, 738, 620.00 (Eight million seven hundred and thirty eight thousand sixty (sic) hundred and twenty Naira only) was arrived at as the outstanding sum against the Defendant and due to the Plaintiff”.
Taking the above paragraphs reproduced from Plaintiff/Respondents claim, I think the Plaintiff was able to specifically plead his claim, I therefore think the submission by learned counsel for the Appellant that the Plaintiff failed to specifically plead special damage is misconceived. In DANIEL HOLDINGS LTD. V. UBA PLC. (2005) 13 NWLR (PART 943) 533.
The Supreme Court of Nigeria held that, where there is specific pleading of special damages, it must be proved by evidence showing clearly how the damages arise, parties must not presume that court will be their calculator or instant computer, in other words special damages in a statement of claim must have clear evidence to support the claim, the claim must not be left to speculation, logical deduction or imagined estimation.
Having resolved that Plaintiff specifically pleaded special damages in the instant appeal, the next duty on this court is to determine if the Plaintiff Respondent strictly proved his claim.
The Respondent gave statement on oath from pages 11 – 15 of the record of appeal, the Respondent said as follows –
“…That the defendant sometimes in January 2007 sent his boy (Lawali) that I should meet him at Hadejia Road for some discussion.
That when I met him at Hadejia Road, he informed me that he was requested to supply KANOTAN S.A. Limited situated at Otakiwa Kano with hind and skin grades 1, 2 and 3.
That he may be able to supply grade 1 which without grades 2 and 3 will not be accepted by the company, so I should assist him in the supply of the said grades 2 and 3.
That it was further agreed that the supply will be made in his own name and payments will be made into his account by the company after which he will pay me back.
That pursuant to that between the period of January and September 2007, I supplied a total of 118, 223, (one hundred and eighteen thousand two hundred and twenty three) pieces of skin worth N57, 029, 663.00 (fifty seven million twenty nine thousand six hundred and sixty three naira only) to the KANOTAN S.A. Limited in the name of the defendant.
That the cost price of each and every piece of a skin is give by the company after tanning.
That the break – down of the above was that I supplied a total number of 113, 559 pieces of sharp skin worth N55,784,375.00 to the company.
That all of the above total sum, he paid me the sum of N40, 579, 205.00 through Union Bank Bello Road Kano.
11. That he also paid me the sum of N1, 800, 000.00 through his friend Alh. Ibrahim Arab.
12. That the balance remained is N13, 405, 170,00 out at which he deducted the sum of N4, 666,550.00 as his commission of N50. per skin as agree leaving the balance of N8, 738, 620.00 unpaid.
13. That I further made a supply of n, 664 pieces of goat skin worth N1, 245, 288.00 to the company out of which he paid me the sum of N549, 778.00 through Bank account with Union Bank Main Branch Bank Road, Kano remaining the balance of N695, 570.00 unpaid.
14. That the total balance of the above amounted to the sum of N9, 434, 130. 00 which the defendant refused to pay me,
15. That after sometimes, I reported the matter to Emirate Council Kana where he paid the sum of N695, 510.00 for goat skin and denied the remaining.
16. That based upon his denial, the Emirate council presided over by Wambai of Kano, sent to the company requesting the true position of the matter and its break down.
17. That based on this letter, the Director of Korotan S.A. Limited invited us to meet his office for settlement before sending any reply to the Emirate council.
18. That at the meeting he admitted owing me, the said sum of N8, 738,620,00 but frustrated the issue of payment.
19. That consequently the Director directed for the reply of the break-down to be sent to the Emirate council for its action.
20. That based on the record sent by the company the Wambai of Kano ordered him to pay me the amount due which he refused.
22. That having persistently refused, the Wambai advised me to go to court.
23. That while leaving the Emirate council, he called me personally and pleaded with me in the presence of Muktar Ado Misbahu, Abdullahi Sani and Mustapha to give him time to get some money from friends in order to pay me which he still refused.
24. That by the Defendant withholding my money for 2 years, I suffered business embarrassment and inconveniencies.
25. That I will at the trial of the suit rely and tender the document sent to the company to the Emirate council dated 2nd May, 2008”.
PWII. Muktar Ado Hotoro offered statement on oath at page 16 of the record that he was present when the Appellant admitted the claim and promised to pay, PWIII Abdullahi Ayo the import Export Manager in Kanotan S.A. Limited, that he witnessed the agreement between the parties in this appeal on the supply of hides and skin to Kanotan; that he was the person who sent the records of transaction to the Kano Emirate Council; PWIV Alhaji Sani Usman Makama Admin Manager of Kanotan S.A. Limited; he also gave statement on oath at page 23 of the record of appeal, that when the Kano Emirate Council wrote a letter to his company requesting for information on the transaction between the Appellant and the Respondent, the company wrote the details and gave him to deliver to the Emirate Council, that there record showed that the transaction stated by the Respondent in his statement on oath actually took place. PWV Mallam Dankawu also gave statement on oath and said he witnessed the agreement between the Appellant and the Respondent.
On the part of the Defendant/Appellant, the statement of defence is at page 29 of the record of appeal; I will reproduce paragraphs 7, 9, 10, 11 and 12 of the Defendants statement of Defence as follows –
“7 Contrary to paragraphs 6, 7 of the statement of claim, the total 118, 223 pieces of skin comprised cumulatively the goods supplied by the defendant including some plaintiffs grades 2 and 3 and after reconciliation of account upon terming, the Plaintiff has been paid the total value of the goods he supplied in the sum of N43, 624, 493.00. The Defendants statement of account is hereby pleaded and copies of which are annexed to the statement of Defence.
9. Contrary to paragraphs 9, 10, 11 and 12 of the statement of claim, the defendant avers that the last and final reconciliation he had with the Plaintiff on the goods supplied by him and as to any indebtedness was on 15th October 2007 at which time the amount due to the Plaintiff stood at N1, 513, 290.00 out of which the Defendant paid N817,780.00 leaving the balance of N695, 510.00. The record of the reconciliation in the Plaintiffs … shall be relied upon at the trial and copy of which is herewith annexed to the statement of Defence. The Plaintiff is hereby given notice to produce its original at the trial.
10. In further response to the aforesaid paragraphs of the statement of claim, the Defendant states that, the Plaintiff never, made demand for the sum of N13, 405, 770.00 neither did he ever discuss the issue of N50.00 commission with the defendant to be deducted on grade 2 pieces of skin, nor arrives at the outstanding sum of N8, 738, 620.00 due to him. The Plaintiff is hereby put on notice to produce further and better particulars of the supply of grade 2 pieces of skin he made.
11. Paragraphs 13, 14 and 17 of the statement of claim are hereby admitted, and the defendant states further, that it was in the course of the settlement by the Kano State Emirate Council that the Defendant paid the Plaintiff balance of N695, 510. 00.
12. Paragraph 15 of the statement of claim is admitted only to the extent that, Karotan S.A. Ltd. sent the break-down of supply by defendant to the Kano State Emirate Council, which does not in any way show that it was the supply made by the Plaintiff as alleged. The said break-down is the record of supplied (sic) made by the Defendant within the said period to Karotan S.A. Ltd. The Plaintiff is put to the strictest proof that he made supply covering the period of break-down sent by Karotan S.A. Ltd.
The Appellant Husseini Shagirawa made statement on oath found at page 40 of the record of appeal in line with his statement of defence. S. O. Adu Aliyu witness for the Defendant offered statement on oath at page 44 of the record to say Defendant was not owing Plaintiff any money, Lawali Umar also testified for the Defendant, that the Defendant was not indebted to the Plaintiff. Nasiru Imam also testified to say Defendant was not indebted. Alhaji Hamisu Sulaiman also gave evidence along the same line that Defendant was not indebted to the Plaintiff.
The learned trial judge took into consideration the evidence led at the trial, he reviewed the evidence of each witness and said as follows at page 115 of the record of appeal.
“….I have carefully studied both statements of claim and the Defence, that the claim put forward by the Plaintiff is genuine. In the light of the above, it is my humble view that the plaintiffs evidence is made credible and I believe him, I believe the evidence put forward by the Plaintiff to the effect that the company I, Kanotan S.A. Ltd has made payment to the Defendant which he did not pay to the Plaintiff disbelieve the evidence of the defence which he said he had paid the Plaintiff all money due to him…

Where the trial court makes a proper finding of fact it is no longer the business of the appeal court to substitute its view of the evidence for that of the trial judge where the appeal court ventures into so doing, it may result in miscarriage of justice, put the other way, where there is proper evaluation of evidence by the trial court, the appeal court is relieved of the duty to re-evaluate the evidence unless the appeal court is certain that the lower court arrived at the decision as a result of misapprehension of the facts supporting the evidence or that the conclusion is perverse, OLABANJI V. OMOKEWU (1992) 7 SCNJ 266, FRANK EBBO V. OGODO & ANOR. (1984) 1 SCNLR 372. ADENIYI & ORS. V. TAWA ADENIYI & ORS, (1972) 1 All NLR 298.
I examined Exhibits B & C which the Appellant said were not considered, Exhibit B is a statement of account evidencing transfer of funds to the Respondent, and Exh. “C” is evidence of indebtedness of the Defendant to the Plaintiff, I must say with respect to learned counsel for the Appellant that the two Exhibits are not material to the determination of the issues in controversy between the parties. Issue one is hereby resolved in favour of the Respondent against the Appellant.
With regards to issue number two, this issue is subsumed into issue number one as it also relates to evaluation of evidence, having resolved issue number one, I believe the materials necessary to resolve this issue have been fully applied in resolving issue one, the necessity to consider this issue is therefore oviated. It is therefore resolved in favour of the Respondent.
Having resolved the two issues in favour of the Respondent it is now clear that this appeal lacks merit, it is therefore dismissed.
Judgment of the Kano State High Court delivered on 4th July 2011 by Na’Abba J. is affirmed.
There is no order as to cost.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Tijjani Abubakar, J.C.A., availed me the advantage of reading before now the lucid judgment prepared by His Lordship with which I agree and adopt as my judgment in the appeal.

Appearances

MR. L.M. PWAHOMDI, ESQ.For Appellant

AND

MR. A. HUSSAINI ESQ.For Respondent