ALUMINIUM MANUFACTURING CO. OF NIG. LTD V. VOLKSWAGEN OF NIGERIA LIMITED (2010)

ALUMINIUM MANUFACTURING CO. OF NIG. LTD V. VOLKSWAGEN OF NIGERIA LIMITED

(2010)LCN/3562(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of February, 2010

CA/L/414/2003

RATIO

WORDS AND PHRASES: MEANING OF A PLANT

A plant is described in the Oxford Advanced Learners Dictionary 6th Edition as a factory or place where power is produced or an industry where process takes place. PER REGINA OBIAGELI NWODO, J.C.A.

WORDS AND PHRASES: MEANING OF NEGLIGENCE

Negligence has been defined in the Oxford Advanced Learners Dictionary, 5th edition as “lack of proper care and attention, careless behaviour”. PER REGINA OBIAGELI NWODO, J.C.A.

TORT: INGREDIENTS OF PROVING NEGLIGENCE

It is a tort which is complete when the following conditions are satisfied (a) there is evidence that the Defendant owes a duty of care to the Plaintiff, (b) the Defendant has acted in such a way as to break that duty of care, (c) the conduct of the Defendant was careless and not that of a reasonable man. See Clerk and Lindsel on Torts 14 Edition pg. 474, Orhue v. NEPA (1998) 7 NW.L.R. (pt. 557) 187 and UTB (Nig.) v. Ozoemena (2007) 3 N.W.L.R. (pt. 1022) SC 448. PER REGINA OBIAGELI NWODO, J.C.A.

EVIDENCE: HOW IS NEGLIGENCE PROVEN

The Plaintiff must also establish the damage sustained was caused by a breach of a duty of care owed by the Defendant to the Plaintiff. This raises the question whether the Respondent in the instance case did establish the nature of duty of care owed to him and that it was breached resulting in Damage and that the damage he suffered caused by the Appellants is actionable. Equally fundamental is the onus on the Respondent to establish the foreseeability that the Appellant’s conduct would have inflicted on him the kind of damage that resulted and lead to the cause of action The onus is on the Respondent to establish that the Appellants conduct was careless, hence the breach of the duty by failing to measure up to the standard and scope of a reasonable man and finally the casual connection between the Defendant carelessness and the damage. Once these requirements are satisfied the Defendant is liable in negligence. PER REGINA OBIAGELI NWODO, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

Aluminium Manufacturing Co. of Nig. Ltd Appellant(s)

AND

Volkswagen of Nigeria Limited Respondent(s)

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State delivered on the 19th of November, 1999. The Plaintiff now the Respondent commenced an action against the Appellant in the High Court of Lagos State by Writ of Summons and Statement of Claim dated 29 November, 1993 filed on 1st December, 1993. The Statement of Claim was later amended and filed as Amended Statement of Claim on 13 December, 1994. The Plaintiff by leave of court further amended the Amended Statement of Claim and filed same on 18/11/98 wherein he claims against the Defendant as follows:
“WHEREFORE the Plaintiff claims against the Defendant special and general damages for loss suffered by the Plaintiff as a result of the Defendant’s negligence and/or breach of statutory duty which resulted in explosion and damage by fire to the Plaintiff’s premises at KM 17 Badagry Expressway, Lagos, together with interest as follows:
1. Special Damages:-
(a) DM448,183.00, alternatively its naira equivalent of N25,546,431.00 in 1996 (at N57 per DM), alternatively, at its value at the date of payment (presently N23,789,508.82 at current rate of N53.0799 for IDM), being total cost of materials procured abroad and foreign labour paid for in foreign currency for the installation and reconstruction of the damaged spray booth, and interest at the rate of 21% p.a from 8/2/92 to the date of payment.
(b) N4,478,276.00 being the current value of N1,119,569.00 paid for local charges on materials purchased abroad at the current rate of N86 per US$ with interest at the rate of 21% p.a. from 8/2/92 to the date of payment.
(c) N985,742.00 being the current value of N246,368.00 paid for local materials at the current rate of N86.00 per US$, and interest at the rate of 21% p.a. from 8/2/92 to the date of payment.
(d) N183,768.00 being the current value of N45,942 paid for local labour in 1992 at the current rate of N86 per US$, and interest at the rate of 21% p.a from 8/2/92 to the date of payment.
(e) N4,000,000.00 being legal consultancy and Counsel fees at the current value of the naira which is N86.00 per US $ as against N22 per US$ in 1992.
(2) General damages N10,433,080.00 being the current value of N2,608,270.00 that is, to say, N86.00 per US$ as against N22.00 per US$ in 1992, and interest at the rate of 21% p.a. from 8/2/92 to the date of payment”.
The Defendant filed a Statement of Defence which was further amended and filed 3/2/98 The Plaintiff called 3 witnesses and the Defence called one witness. The learned counsels for the respective parties addressed the court. The Learned Trial Judge in a considered Judgment on 19 November, 1999 held:
“The claim for general damages is refused and therefore struck out. I therefore enter Judgment in favour of the Plaintiff in the sum of N10,982,681.00 against the Defendant. This sum shall carry interest at 7% per annum from 8/2/92 until the entire Judgment debt is fully paid. I also award cost of N10,000.00 to the Plaintiff against the Defendants”.
The Defendant dissatisfied with the decision filed a Notice of Appeal on 2/12/99; containing 6 Grounds of Appeal. The learned counsel for the parties filed and exchanged Briefs of Argument in compliance with the provision of the Court of Appeal Rules. The learned counsel for the Appellant Mrs. E. O. Etomi during the hearing of the appeal on 10/11/09 adopted and relied on the Appellants Brief dated 12/12/07 signed by Elizabeth C. Nicol (Miss) and deemed filed on 22/2/07. Mrs. Etomi also adopted the Appellant’s reply brief filed on 27/3/09. The learned senior counsel Chief T A. Ezeobi (SAN) adopted the Respondent’s Brief dated 28th May 2008 and deemed filed on 25/2/09.
Briefly the facts leading to the suit filed in the lower court as presented in the further amended statement of claim are as follows: The Respondent carries on the business of assembly of light vehicles of the Volkswagen brands. The factory premises consist of factory halls, administrative block and spare parts warehouse and workshop. The factory premises is known as Hall No. 2 which is an assembly hall for vehicles and it incorporates two spraying booths, the bigger of which is known as the paint shop top coat spraying booth. The roof gutter running high above the spray booth had developed rust and to avoid leakage of rain water, the Respondent engaged the Appellant an independent contractor, who was the Respondents roof maintenance engineer familiar with Respondents factory to replace the roof and gutters as well as repair the leaking roofing sheets. At about 11-15 hrs on the 8/2/92 they heard a loud and sudden blast within the top coat spray booth, followed by an explosion and instant fire which they averred extensively damaged that section of the Plaintiffs factory building despite immediate endeavour by Plaintiffs’ stand-by fire fighters to control and put out the fire The Respondent’s case is that the Appellant whilst working on the roof gutter with welding equipment negligently allowed sparks to drop freely onto and around the top coat spray booth leading to the massive explosion and fire which instantly gutted the damaged section of the factory building.
The Appellant on the other hand concedes they were sparks whilst welding which lead to the explosion at that section of the factory but that it was caused by the negligence of the Plaintiff who should have removed the combustible gas from the spray booth and complied to the Factories Act.
In the Appellant’s brief of argument, he distilled the following issues for determination, serially from the six Grounds of Appeal:
“(a) Whether the Learned Trial Judge was right in giving Judgment in favour of the Respondent for damages for negligence?
(b) Whether the Learned Trial Judge was right when she held that the Appellant was negligent and that this caused the fire?
(c) Whether the Learned Trial Judge was right when she held that by virtue of the long standing relationship between the parties the Appellant owes the Respondent a duty of care?
(d) Whether the Learned Trial Judge was right when she held that the duty to comply with the Factories Act is that of the Defendant?
(e) Whether the Learned Trial Judge was right when she held that the tendering of receipts is not fata but went ahead to award special and not general damages in favour of the Respondent? And
(f) Whether the Learned Trial Judge was right in holding that damages would be awarded on the basis of the rate of foreign exchange as at 1992?”
The Respondents counsel distilled 4 issues for determination: Issue One distilled from grounds 1, 2 & 3; Issue Two from ground 5 and Issue Three ground 4, whilst Issue four is ground 6. The Issues I reproduce as follows:
“(1) Whether having regard to the pleadings and the evidence in support thereof the Learned Trial Judge was not right in entering Judgment for the respondent against the appellant for negligence and damages resulting therefrom.
(2) Whether the items of special damages as awarded by the Learned Trial Judge were not proved according to law.
(3) Whether the Learned Trial Judge was not right in holding that the duty to comply with the Factories Act was in the appellant.
(4) Whether the Learned Trial Judge was not right, in computing damages in foreign exchange for imported goods and services”.
The four issues formulated in the Respondent’s brief for determination are similar to the issues formulated by the Appellant except for the phraseology. I will adopt the six issues formulated by the Appellant for the determination of this appeal.
I will now proceed to consider together issues (b) (c) and (d) distilled in the Appellant Brief for determination. Starting with Issue (d) the learned counsel for the Appellant submitted that the Respondent has the statutory duty under the S.29 and S.30(3) of the Factories Act Cap 126 Laws of the Federation of Nigeria 1990 to keep the area where the workers will work safe and that S.30(3) of the Factories Act requires that all practicable steps ought to have been taken to ensure the removal of all substances that are inflammable, but the Respondent failed to do so. It is her further submission that the liability under the Act is on the owner of the building. Further he contended that the Appellant did not owe the Respondent any duty of care rather that the Respondent is aware that the area was dangerous and he failed to take all the necessary precaution in clearing the area. She referred to S.30(3) of the Factories Act and Rylands v. Fletcher (1866) CRI Ex. 265 at 279. The learned senior counsel for the Respondent responding to the issue of duty under the Factory Act contended that though it is pleaded as an alternative they never fell back to it and that it never came into consideration in the court’s crucial findings and final decision and is thus academic. He argued that the Appellant did not appeal against the breach of duty found by the trial court. The Learned Trial Judge made one sentence on page 14 of the Judgment and page 163 of the Record of Appeal on the provision under the Factories Act when she held “I have checked the provision on the Factories Act – and hold that the obligation to comply with S. 30(c) of the Factories Act Cap 126 Laws of the Federation of Nigeria is that of the Defendant”. The aforesaid pronouncement by the lower court on the issue of duty under the Factories Act is explicit though the reasons for arriving at that decision are not stated.
It is the contention of the learned senior counsel that the complaint of the Appellant in its Issue (d) arising from its ground 4 of the Notice of Appeal is not founded on the decision of the Learned Trial Judge on the question of duty under the Factories Act. It is pertinent at this stage to look at Ground 4 of the Notice of Appeal contained on page 168 of the Notice of Appeal and for purposes of emphasis, I reproduce same thus:
”The Learned Trial Judge erred in law when she held that the duty to comply with the Factories Act is that of the Defendant.
Particulars of Error
(i) The Defendant is neither the owner nor the occupier of the factory subject matter of this suit.
(ii) S.69(1) of the factories Act provides that in the event of contravention of the regulations and provisions therein the occupier or owner of the factory shall be guilty of an offence under the Act.
(iii) S.69(2) provides that an employee shall be guilty of an offence if there is any contravention of the provisions in Part VIII of the Act, but that this provision does not affect the liability of the owner or occupier in respect of the provisions of the Act.
(iv) Evidence adduced by both sides at the trial established that the Defendant was an independent contractor.
(v) There is no basis in law or fact for the decision of the trial Judge that the duty to comply with the Factories Act rested on the Defendant”.
This Ground 4 and its particulars must arise from the decision of the learned trial Judge. S.69 of the Factories Act was not mentioned in the decision of the court below. S.30(c) pronounced upon by the Learned trial Judge is not stated as a particular of error in the Notice of Appeal and that is the section relied on by the Learned trial Judge to hold that the duty under S.30(c) lies on the Appellant. However paragraph (v) of the particulars covers the complaint of the Appellant on the Learned Trial Judge’s pronouncement as regards issue of duty under the Factories Act. The learned senior counsel’s contention that the Issue is academic cannot be correct.
Particulars of error in a ground of appeal that challenges the validity of a decision of a court below cannot be waived aside. See Osuji v. Ekeocha (2009) 16 N.W.L.R. (pt. 1166) SC 81. Learned senior counsel Ezeobi contended that the issue of Breach of Duty was only pleaded as an alternative. This pleading supports that contention. PW1 under cross examination testified stating that it is the responsibility of the Defendant to notify the Director of Factories.

The learned counsels addressed the lower court on the question of duty under the factories Act. Let me now look at S.30(3) relied upon by the trial Judge S.30(3) of the Factories Act Laws of the Federation 1990 CAP 126 stipulates as follows: “No plant, tank or vessel which contains or has contained any explosive or inflammable substance shall be subjected to any welding, brazing or soldering operation or to any cutting operation which involves the application of heat, until all practicable steps have been taken to remove the substance and any fumes arising therefrom or to render them non-explosive or non-inflammable; and if any plant, tank or vessel has been subjected to any such operation as aforesaid, no explosive or inflammable substance shall be allowed to enter the plant, tank or vessel until the metal has cooled sufficiently to prevent any risk of igniting the substance”.
This provision is clear and unequivocal and in interpretation the ordinary and natural meaning should be ascribed to the words therein. The language used therein is directed to a worker that intends to weld or solder any plant, tank or vessel containing inflammable substance which will involve the application of heat. In the instant case it is not the spray booth that was welded; the welding was on the roof gutter of the factory building. The question is whether it qualifies as a tank or vessel or plant envisaged under the Act as a plant.
A plant is described in the Oxford Advanced Learners Dictionary 6th Edition as a factory or place where power is produced or an industry where process takes place. The object in issue in the instance case is the factory and its components. The roof gutter that was welded is part of the factory. S.30(3) of the Act placed a duty on the party welding that is the Appellant. Therefore the Learned trial Judge rightly held that the duty under S.30(3) is on the Appellant. In the circumstance Issue D is answered in the affirmative.

On whether the Learned Trial Judge rightly found that the Appellants owes the Respondent a duty of care and was negligent. Negligence has been defined in the Oxford Advanced Learners Dictionary, 5th edition as “lack of proper care and attention, careless behaviour”. It is a tort which is complete when the following conditions are satisfied (a) there is evidence that the Defendant owes a duty of care to the Plaintiff, (b) the Defendant has acted in such a way as to break that duty of care, (c) the conduct of the Defendant was careless and not that of a reasonable man. See Clerk and Lindsel on Torts 14 Edition pg. 474, Orhue v. NEPA (1998) 7 NW.L.R. (pt. 557) 187 and UTB (Nig.) v. Ozoemena (2007) 3 N.W.L.R. (pt. 1022) SC 448.

The onus of proving negligence is on the Plaintiff who alleges it. Where Plaintiff pleads and relies on negligence by conduct or action of the Defendant, he or she must prove by evidence the conduct or action and the circumstances of its occurrence giving rise to the breach of the duty of care. Once Plaintiff has discharged the onus on him the burden shifts to the Defendant to adduce evidence in challenge. The basic requirement is that the Plaintiff must plead all the particulars in sufficient detail of the negligence alleged and the duty of care owed by Defendant must be established by evidence. The constituent of negligence is a question of facts not law consequently each case is decided in the light of its own peculiar facts. See Ngilari v. Mothercat Ltd. (1999) 13 N.W.L.R. (pt. 636) 626.
The Plaintiff must also establish the damage sustained was caused by a breach of a duty of care owed by the Defendant to the Plaintiff. This raises the question whether the Respondent in the instance case did establish the nature of duty of care owed to him and that it was breached resulting in Damage and that the damage he suffered caused by the Appellants is actionable. Equally fundamental is the onus on the Respondent to establish the foreseeability that the Appellant’s conduct would have inflicted on him the kind of damage that resulted and lead to the cause of action The onus is on the Respondent to establish that the Appellants conduct was careless, hence the breach of the duty by failing to measure up to the standard and scope of a reasonable man and finally the casual connection between the Defendant carelessness and the damage. Once these requirements are satisfied the Defendant is liable in negligence.

The Appellant as Defendant is described in the further Amended Statement of Claim as a company that undertakes building maintenance works that is the company’s special field of service The Respondents on the other-hand carries on the business of assembly of light vehicles of the Volkswagen brands in their factory premises. The roof gutter above the spray booth developed rusts and to avoid leakage of rain water the Respondent engaged the Appellant who had always been their roof maintenance engineer for 10 years to effect the necessary repairs. PW1 described the Appellant as ‘roof experts’ that have maintained their roof.

What then is the standard of care of those professing special skill. A person who undertakes to do work which requires special skill holds himself out as having that skill. The standard of care required is the degree of skill which is normally shown by that of an ordinary skill of an ordinary competent man exercising that particular art. He must conduct himself in a skillful manner. The standard of care of workers professing special care is special, this is because once a person projects himself as possessing special skill in an art or work he holds himself out as having that skill which involves the use of some special skill or competence. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. He must exercise the ordinary skill of an Ordinary competent man conducting himself on a skillful manner.
The Learned trial Judge reviewed the evidence on whether a duty of care is owed to the plaintiff and held (pg 163 of record) “The Defendant by virtue of the long standing relationship of the parties – as repairers of its roof. The defendant owed the plaintiff – a duty of care”
The trial Judge also held: “That the Defendant being experts in their own sphere of work ought to know that if the sparks dropping down due to welding job being undertaken by the defendant coming into contact with any combustible substance could cause explosion -and therefore ought to have taken every precaution not to allow the sparks to drop or adopt other safer method eg., by chizzling the aluminium and binding same with belts and nuts.” From the findings of the Learned trial Judge the question that arises is whether the court was right based on evidence presented to find there is a duty of care owed to the Respondent and that the Appellant was in breach of that duty.
The Learned trial Judge believed and relied on evidence of the three witnesses for the Respondent. PW1, an engineer under cross examination stated that the former roof gutters were made of iron and he is aware that it is not necessary to burn the iron roof to remove it. It should be chizelled and that it is not necessary to weld – as it can be joined by bolts and ceiling bitumen. PW1 also testified to the fact that the Appellants had been doing similar jobs of maintaining the roof and nothing happened because they did not burn or weld the objects.
DW1 in evidence stated that the accident was caused by a spark of welding which got into the unpacked stark gas on the surface of the shop. He also gave evidence that the Appellant had worked for the Respondents before and are familiar with the terrain. In other words the various section in the factory was known to the Appellant. The area to work was not new to them. The Respondent relied on the Appellant’s special skill in roofing. PW1’s evidence was not challenged or contradicted by DW1 in evidence.
The Learned trial Judge after review of the totality of evidence adduced before her found that some of the facts undisputed are as follows:
“(a) The Plaintiff and Defendant have enjoyed a long standing relationship with each other whereby the Defendant undertakes the repairs and maintained of the factory roof of the Plaintiff.
(b) That the three witnesses testified that the Defendant is familiar with the Plaintiff’s terrain and knows the nature of the Plaintiff’s business.
(c) That the Plaintiff accepted the Defendants quotation by sending Exh. H. Exhibit H required the Defendant to get in touch with Mr. Adeyemi to show them the area to be replaced”.
The Learned Trial Judge based on these facts then held:
“That the Defendant being experts in their own sphere of work ought to know that if the sparks dropping down due to welding job being undertaken by the Defendant coming into contact with any combustible substance could cause explosion – and therefore ought to have taken every precaution not to allow the sparks to drop or adopt other safer method eg. by chizzling the aluminium and binding same with belts and nuts”.
On whether there was duty of care the Learned trial Judge held that by nature of the long standing relationship of the parties as repairer of its roof the Defendant owed the Plaintiff a duty of care. The lower court also found that it was the failure of the Defendant to take the care a reasonable man would take that caused the fire which lead to the damage. The question then is whether the Learned trial Judge was wrong in all the findings made from the evidence lead in support of the particulars of Negligence in the further Amended Statement of Claim and the decision thereat, the primary duty of the Learned trial Judge is to evaluate evidence and ascribe probative value to same. The rationale is that the Judge listens to the evidence and assesses the witnesses.

Once evaluation of evidence is done in accordance with all laid down principles of law the Learned trial Judge’s findings would not be disturbed by an appeal court. See Sanusi v. Makinde (1994) 5 N.WL.R. (pt. 343) pg. 214, Ibanga v. Usanga (1982) 5 SC pg 63, AG Leventis (Nig.) Plc v. Akpu (2007) 17 N.W.L.R. (pt. 1063) SC 416.
However, where a trial court fails to evaluate or properly evaluate the evidence before it, an appeal court has in rehearing to evaluate the evidence adduced. The duty of the Appellate court is to decide whether the decision of the trial court was right and not the reasons for the decisions. AG Leventis (Nig.) Plc v. Akpu (2007) 17 N.W.L.R. (pt. 1063) pg. 416.
The Respondent pleaded particulars of Negligence and three witnesses testified in support of the particulars of Negligence. The lower court held their evidence was credible. This finding is not a ground of appeal. The foundation head of the law of Negligence are facts. The facts that gave rise to the averred Negligence must be specifically pleaded with particulars and evidence lead. The burden of proof of Negligence falls on the Plaintiff. The Respondent lead evidence in the lower court that the Appellant is a roof expert known to them for 10 years, the terrain of the factory is well known to them and has maintained the roof of the Respondents factory. These facts have remained in tact. The Respondent thus established the fact that the Appellant had a special skill on roof repair, Respondent enjoyed a relationship with Appellant who had always maintained their roof. Therefore when Appellant undertook to work on the leaking roof by replacing same he held himself out as having that special skill and is under an obligation to conduct himself in a skillful manner. The Respondent led evidence that by the nature of the relationship between the parties, the fact that the Appellant knew the Respondent terrain he was under a duty not to cause damage carelessly and should have done something to avert sparks of fire from the welding touching the spray booth. The evidence of PW1 that the Appellant had never welded on top of the roof was not contested his testimony that it welded was not necessary was challenged by DW1 when he said in evidence the nature of work required welding. Whatever nature of repair or replacement that was required even welding places a duty on the Appellant to ensure no damage results from the use of welding equipment. Appellant did not exhibit his skill in a skillful manner. It is unreasonable for one to proffer that a roof repairer would not enquire on what is under the roof whilst using a welding machine which by its nature is likely to release sparks. It is foreseeable that welding on top of a spray booth where paints are stored can result in explosion of combustible materials. The Appellant’s sole witness DW1 admitted the fact that the Appellant knew the terrain in the factory, thus area of repair was not strange to them. The duty to ensure that the job is done properly as skilled men was obvious especially as experts in roof repair. The Appellant is an expert whose skill requires exhibition of competency to ensure nothing goes wrong he cannot therefore be careless. There was evidence the Appellant did not measure up to the standard of care expected of him as a skilled roof repairer, their carelessness resulted in the quantity of sparks of fire that could have caused the damage. I must observe that DW1 gave evidence that welding is the correct procedure but then Exh. H the job order stated they were required to replace which imputes new ceiling. The same DW1 also agreed the damage arose from the sparks of fire Therefore there is uncontradicted evidence that the damage arose as a result of the sparks from the welding.

It is trite that where evidence adduced is unchallenged; the court is entitled to rely on it for its decision. ISC Services Ltd. V. G.C. Ltd. (2006) 6 N.W.L.R. (pt. 977) CA 481.
The Learned Trial Judge rightly held that the Appellant owed the Respondent a duty of care, that the Appellant was negligent by failing to take the type of care a reasonable man would do in the circumstance and that it was the negligence that caused the fire which damaged the spray Booth, I have no reason to interfere with the findings of fact by the Learned Trial Judge as it was arrived at based on appraisal of the evidence before the court and borne out of evidence lead. I therefore will answer Issues B and C in the affirmative in favour of the respondent.
Under Issue (a) and (e) whether the Learned Trial Judge was right in giving judgment in favour of the Respondent for damages for negligence? And whether the trial court rightly held the tendering of receipts is not fatal in the award of special damage.
It is the submission of learned counsel for the Appellant that the Judgment is against the weight of evidence since the evidence led by the Respondent was not direct evidence as none of them was present at the scene of the accident and that evidence of PW1 and PW2 are hearsay evidence and no weight should be attached to the evidence of the Respondent’s witnesses. Learned counsel also referred to their Amended Statement of Defence where they alleged contributory negligence. It is his submission that the Respondent relied on the doctrine of Res Ipsa Loquitor and to succeed must establish a duty of care of the Plaintiff to the Defendant and that the Defendant was in sole control of the thing that caused the explosion.
On the doctrine of Res Ipsa Loquitor there is no ground of appeal on this point, and it is not an issue arising from same for determination. The decision of the lower court equally was not based on that principle. I agree with Chief Ezeobi (SAN) that the argument on the principle should be discountenanced and same is hereby discountenanced. Furthermore, the question of contributory negligence in paragraph 3.5 at page 5 of the Appellant’s argument is not founded on any complaint in the grounds of appeal and thus not an Issue for determination. Same is also discountenanced. The question of hearsay evidence raised in the Appellant’s Brief that the court should have discountenanced evidence of Respondent’s witnesses is also not a complaint in the Grounds of appeal and thus no basis for consideration. The Respondent led evidence there was duty of care and that the Appellant failed to exercise reasonable care when he used welding machine on the roof likely to cause sparks and he failed to protect the place which resulted in the fire thus the damage. DW1 concedes it was during the welding that the sparks touched the gas on the wall and fire resulted which lead to the damage but blamed the cause on Respondent’s failure to remove the combustible gas. The Appellant like I earlier noted had worked for the Respondent and knew the terrain well. His role as a skilled expert in roof repair placed that burden on him to take special care in a skillful manner whilst working this he failed to do. The Learned Trial Judge was right to give Judgment in favour of Respondent for damages as a result of their Negligence.

It is pertinent to state that traditionally the tort of Negligence is described as damage. Negligence is only actionable if actual damage is proved. Infact, Negligence alone does not give a cause of action the two – Damage and Negligence must coexist. The essence of damages in Negligence actions is to place the injured party to its previous position so far as money can do it. The same position he would have been if not for the negligence of the Defendant thus the Rule of Law in negligence is the principle of restitution in integrum.
The Learned trial Judge from the totality of evidence adduced rightly gave Judgment in favour of the Respondent for under some of the heads of the special damages, the extent is what I will now look at.
Under Issue E on whether the Learned Trial Judge was right when she held that the tendering of receipts is not fatal and proceeded to award special damages. It is the contention of the learned counsel that the Respondent has not proved the amount claimed as there was no evidence of importation of the items therein and payment. He stated that the Respondent sought to give evidence of a loan but the fact of borrowing and the amount was not established and no evidence of payment of legal fees. It is her further contention that the Learned Trial Judge made no finding as to the quantum of damage as there must be assessment where special damages is sought. West African Shipping Agency (Nig). Ltd. v. Kalla (1978) 3 SC 21 at 31, Seismograph Services v. Mark (1993) 7 N.W.L.R. (pt. 304) 203 at 207.
It is the submission of the learned senior counsel Chief Ezeobi that the evidence of the witnesses on the damaged spray booth that has to be custom made abroad and imported and installed were not challenged inclusive of evidence on cost of materials procured abroad in foreign currency. He argued the trial court could not have done otherwise in the face of overwhelming supporting evidence.

The general objective underlying the rule for assessment of damages is so far as possible by monetary award, to place the Plaintiff in the position which he would have occupied if he had not suffered the wrong complained of when the case is one of tort causing damage to real property two different measures may apply. First is to take the capital value of the property in an undamaged state and compare with its value in a damaged state. The second is to take the cost of repair or reinstatement. It raises one major question whether the non-tendering of receipts is not fatal to the Respondent case. In effect must receipts be tendered in actions for special damages relating to property to sustain all award.
There is no rigid rule on receipts being a precondition in assessment of damages. Each case depends on the circumstances of the peculiar facts.

The claim under special damages requires strict proof. Strict proof however does not mean unusual proof or proof beyond reasonable doubt. What is required is that the Respondent claiming should establish his entitlement to that category of damages by credible evidence of such character as would suggest that he indeed is entitled to an award under that head. See Odulaja v. Haddad (1973) 11 SC 357 1973, 1 All N.L. R. 191, Dare v. Fagbamila (2009) All F.WL.R. (pt. 489) CA 568.
The Supreme Court in the case of Odulaja v. Haddad (1973) 11 SC 357 held that strict proof can mean no more than such proof as would readily tend itself to quantification or assessment, that the nature of proof in a case of special damage must be dictated by the peculiar circumstances of the available evidence. See Mayne & Macgregor in their book on Damages 12 Edition Article 994 pg. 830.
Furthermore, the Supreme Court In the case of West African Shipping Agency (Nig.) Ltd. v. Kalla (1978) 3 SC 21 cited by the Appellant’s counsel held that strict proof in the con of special damages can mean no more than such proof as would readily lead itself to quantification or assessment. See Odulaja v. Haddad (1973) 11 SC 357.
Once evidence is lead which was not cross-examined on the basis that the claim was excessive the Learned Trial Judge is entitled in the absence of any contrary evidence to accept same.
This issue is on whether special damages were rightly awarded.
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 damage is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head.

The duty on the court is to give adequate consideration to the evidence offered in support of a claim for special damages and that if the accepted evidence possesses such probative value as preponderates the case in favour of the person claiming then an award of special damages would be justified See Oshinjinrin & Ors. V. Elias & Ors (1970) 1 All NLR 153 at 156, AG Leventis (Nig.) Plc v. Akpu (2007) 17 N.WL.R. (pt. 1063) SC 416.
The court below on issue of special damages said at page 164 of the record:
“On whether or not the Plaintiff has proved its claims the witness testified that major parts have to be ordered from Germany – so also were the experts invited from Germany – Exhibit C is the Proforma Invoice. The PW2 gave credible evidence which was not shaken under cross examination. Counsel for the Defendant submitted that there were no receipts. It is not fatal to the case as long as there is credible evidence which has not been challenged then it is sufficient proof on the balance of probabilities – Audu v. Okeke (1998) 3 N.W.L.R. (pt. 542) 373 at 382 – 383; Odulaja v. Haddad (1973) 11 SC 357 at 364 and Abed Boshali v. Allied Commercial Exporters Ltd. (1961) All N.LR. (pt. iv) 917 at 921. The local purchases are however covered by receipts – Exhibit D – D3 and Exhibit E are referred”.
Based on the above findings the court proceeded and granted the claim on special damages.
In Garba v. Kur (2003) 11 N.W.L.R. (pt. 831) 280 at 299 this court set out the principle governing award of special damages in this line:
“Special damages must be strictly proved. So far as special damages are concerned, a trial Judge can not make his individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded”.The question is whether the special damages were strictly pleaded and proved by the Respondent. See Warner Warner International v. F.H.A. (1993) 6 N.WL.R. (pt. 298) 148. What is paramount is establishment of credible evidence. What then is credible evidence?

The Supreme Court in Dim v. Enomuo (2009) 10 N.W.L.R. (pt. 1149) SC 353 held:
“By credible evidence we mean evidence that is worthy of belief and must not only proceed from credible sense, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstance”. In the instant case the Learned Trial Judge held that as long as there is credible evidence which has not been challenged then it is sufficient proof. She found the evidence of the Respondent witnesses credible and not contradicted under cross examination.
It is trite that the function of assessment of credibility of witnesses is essentially for the trial court and not that of the appellate court. The finding by the Learned Trial Judge that the Respondent witnesses evidence are credible and not contradicted subsists. See Akpapuna v. Nzeka II (1983) 2 SC NLR 1, Agbaje v. Ayibola (2002) 2 N.WL.R. (pt. 750) 127, AG Leventis (Nig.) Plc v. Akpu (2007) 17 N.WL.R. (Pt.1063)SC.416.
PW1 gave details of cost material procured abroad, though Proforma Invoice was tendered through PW2 no documentary evidence showing when the payments were made for the alleged imported items was presented.
Nevertheless, the evidence of PW1 on what was imported and the amount was not challenged nor controverted during cross examination.
Exh. C tendered by PW2 is the Proforma Invoice containing the general materials ordered, the charges for sea freight and cost of installation. PW2 testified on the custom duty payment and development surcharge made by them. He went further to give details of the local materials purchased. PW2 after his testimony during cross-examination was not contradicted on his evidence. Clearly the evidence of these witnesses remained unchallenged. Based on this circumstance the Learned Trial Judge made her findings. Notwithstanding the fact that the evidence of PW1 and PW2 were uncontradicted the nature of strict proof of damages enjoins them to establish the Respondents entitlement to the heads of special damages by adducing evidence that is worthy of belief, evidence which is natural, reasonable and probable as would suggest that he indeed is entitled to an award under that head.
The word proforma in the Oxford Advanced Learner’s Dictionary, 6th Edition means:
“a document set in advance, a document that gives details of the goods being sent to a customer.”
Going by the ordinary dictionary meaning of Proforma Invoice, Exh. C tendered in evidence and not contradicted. It is my view that the details of what will be delivered and at what cost and charges were presented before the court below and they are calculable. The Respondent’s witness testified they received the items and paid the charges. It is also in evidence the damaged spray booth and oven has been repaired. I am not in doubt that payment receipts would have placed all facts before the court on whether the Respondent did purchase the foreign parts as pleaded but the standard of prove required is such that documentation of what was required and the estimate is sufficient, once uncontradicted it is believable.

It is trite that unchallenged credible evidence in support of special damages can be accepted as proof of the claim. See Araba v. Elegba (1986) 1 N.W.L.R. (pt. 16) 333.
Therefore once credible oral or documentary evidence are adduced on items classified as special damages in line with the pleadings and such evidence is not challenged, the evidence should be deemed to have been duly proved.
In Audu v. Okeke (Supra) the Court of Appeal held that non-production of receipts to further prove the unchallenged oral evidence is not fatal to the Plaintiff’s claim See also Boshali v. Allied Commercial Exporters Ltd. (1961) All N.L.R. (pt. 4) 917, Incar Nigeria Ltd. & Anor. v. Mrs. M. R. Adegboye (1985) 2 N.WL.R. (pt. 8) 453.
Furthermore in Obasuyi v. Business Ventures Ltd. (1995) 7 N.WL.R. (pt. 406) 184, the court held that estimated cost for repairs of damaged car is recoverable as special damages.
The evidence of PW2 on what they paid for in foreign currency is clear, the document in support of his testimony Exh. C is explicit on figures that can be calculated and assessed.
Therefore strict proof means no more than such proof that can be readily quantified or assessed. Nevertheless the nature of proof depends on peculiar circumstances of the available evidence. The Respondent’s claim in the further Amended Statement of Claim under special damages 1(a) is for DM 448, 183.00 alternative naira equivalent of 25,546.431.00 in 1996 at N57 per DM.
PW2 in evidence told the court that they were given the Proforma Invoice stating the amount in Deutch Mark which the Plaintiff funded and that the purchases totalled 0448,183.00 gross as at 20/3/92.
Notwithstanding there is no documentary evidence of payment the PW2s evidence that payment was made and repairs effected remained uncontradicted nor controverted during cross examination. Furthermore Exh. C was not challenged, it was admitted as evidence of what was paid for and it contains figures that are quantifiable. The award of the lower court on materials procured from abroad and paid for in foreign currency totaled N3,590.951, the naira equivalent at the rate of naira value in 1992.
The evidence is credible to sustain a claim under special damages. In respect of custom duties, the evidence led must be quantifiable. PW2 gave evidence that they paid N897,838 for custom duty. The question is whether this oral testimony is sufficient under strict proof when there is no other documentary evidence considering the nature of the claim under that head.
It is reasonable to expect that any document containing charges in respect of custom duty presented to the Respondent on the basis of which payment was made for custom duty is tendered in court. It cannot be inferred. There must be evidence that the Nigerian Custom did request for charges for goods averred imported. This is natural evidence in the circumstance. Notwithstanding that the PW2s testimony was not contradicted, the burden of prove on him is that of strict proof not just on a preponderance of evidence.
Therefore in the circumstance of the nature of claim for the special damages under custom duty, documentary evidence on the payment of custom duty and local charges is required in order to discharge the onus of strict proof There is no credible evidence establishing the claim under custom duty. There is no evidence by the three witnesses for the Respondent or documentary evidence to support the claim on local charges on materials purchased abroad.
The nature of the claim requires that some documentary evidence be presented not necessarily receipts for payment but some natural or probable documents. Common sense dictates that charges such as custom duties are based on documentation. Consequently, credible evidence in the circumstance entails presentation of some documents to support the oral evidence Documents with figures on charges or payments made. The Respondent based his claim under special damages on specified amount he must present facts and evidence from which calculation is possible. I agree with learned counsel for the Appellant that quantification and assessment where special damages is sought is critical to the strict prove requirement. The award by the court below under custom duties and local charges on imported goods inclusive of labour in foreign currency is not supported by credible evidence. There is no iota of evidence on how the cost of another installation charges arose and labour paid. Exh. C contains the assessed amount on installation. In respect of lawyers fee the demand note for payment is sufficient as the amount stated therein is clear and calculable and same was not contradicted. I must note again that the nature of strict proof depends on facts and circumstances. The character of the acts and nature of claim determines what credible evidence is. In U.S.A. Plc v. Ogunsanya (2003) 8 N.W.L.R. (pt. 821) the court held: “What amounts to strict proof would depend on the facts of each case and the character of the acts which produce the damage as well as the circumstances under which the acts were done. But generally the strict proof required in special damages means no more than that the evidence led must clearly show the same particularity as is necessary to support the pleadings. The evidence led must clearly consist of the particular loss. The term therefore does not mean an unusual proof, but simply implies that the Plaintiff who had the advantage of being able to base his claim upon a specified calculation must give the court the precise facts which make such calculation possible.”
The Learned trial Judge held that receipt is not fatal to the case as long as there is credible evidence which has not been challenged. That is the correct statement on the principle of strict proof. Credible evidence encompasses natural probable or reasonable evidence in support of a claim under special damages. Therefore receipts in the instance circumstance is not necessary for the claim in respect of cost of materials from abroad but in respect of the second and third award by the lower court on custom duty and local charges paid in foreign currency, the nature of credible evidence required is documentary and this was not lead in evidence.

Generally an appellate court has no business in disturbing an award of damages made by the trial court, except where it is shown that the court proceeded on a wrong principle of law.
In U.S.A. Plc v. Ogunsanya (2003) 8 N.W.L.R (pt. 821) 111, this court had this to say:
“Before an appellate court can temper with an award of damages made by the trial court, it must be clearly shown that the trial court in assessing the damages proceeded upon a wrong principle or on no principle of law as a result of which he made an award which is manifested unwarranted, excessive, extravagant and unreasonable in comparison with the loss suffered by the Plaintiff in the case…”
See also A.G. Leventis (Nig.) Plc v. Akpu (2007) 17 N.W.L.R. 1063 SC 416.
In the present case I am inclined to interfere with some of the awards made on grounds of lack of credible evidence in support. In the absence of credible evidence in support of Awards 2 & 3 I have no reason to sustain same. I hold that Awards 1, 4, 5 & 6 in the Judgment of the learned trial Judge on pages 164 to 165 of the record of Appeal were well assessed on credible evidence.
Under Issue F whether the learned trial Judge was right in awarding damages on the basis of the rate of foreign exchange as at 1992. It is the contention of Appellants counsel that there was no credible evidence before the trial court that the Respondent purchased materials in foreign exchange in 1992 or at any other time. It is his further submission that the oral testimony of the Respondent’s witnesses is insufficient to discharge the
burden placed on the Respondent. The Supreme Court in Afribank Nigeria Ltd. v. Mr. Chima Akwara (2006) 5 N.W.L.R. (pt. 974) 619 held that the superior courts in Nigeria are empowered to entertain and grant reliefs in foreign currency or its Naira equivalent once reliefs are claimed by litigants before the court.

In Shehu v. Afere (1998) 7 N.W.L.R. (pt. 556) CA 115, the courts can enter judgment in foreign currency once it has been established that such a payment was made. It is my firm view that if the claim is in Naira as an alternative same can be so ordered.
PW2 gave evidence that the purchases made in Germany were in Deutch Mark. That they converted same at 11.1112 Naira to 1 Dutch Mark. That the total of D448,183.00 gross was spent as at 20/3/92. The evidence of PW2 on the exchange rate was not contradicted nor controverted. The Appellant should have challenged the witness on the exchange rate as at 1992, this was not done. The Learned trial Judge assessed the damages on the basis of the 1992 rate of the Naira as regards the materials procured abroad and paid for in foreign currency at the time of payment. The Learned trial Judge was in order when he gave judgment in the Naira alternative. The Relief sought by the Respondent was in foreign currency or its Naira equivalent. The court below based on the evidence before her rightly assessed and calculated the amount of total cost in respect of Exh. C.
I have no reason to touch her calculation in that respect. I answer relief F in the affirmative. I therefore hold based on the totality of the issues answered that this appeal should succeed in part. Issues A, B, C, 0 and F formulated in the Appellants Brief, I have answered in the affirmative Under Issue E, it is my firm view that no credible evidence was adduced to support the award in respect of labour paid in foreign currency and award on custom duties. The Respondent discharged the onus of strict proof to earn the Judgment entered in their favour by the learned trial Judge under Awards 1, 4, 5 and 6. (See page 164 – 165 on the record of Appeal). I affirm this award. Award 2 and 3 were not supported by credible evidence. The Learned trial Judge did not follow the principle of law on strict proof of special damages in awarding Awards 2 & 3. Consequently, I am compelled to interfere with that award which is not based on any assessment. I hold this appeal succeeds partially. For the avoidance of doubt this is my order, I affirm the Judgment of the court below and will only vary the award of special damages on pages 164 to 165 of record as follows:
Award 1: N3,590,951.00: cost of materials procured
Award 4: N246,368.00: cost of local materials
Award 5: N45,942.00: cost of local labour
Award 6: N1,000,000.00: legal consultancy and counsel fees are hereby affirmed.
The total is to carry interest at 7 1/2 % per annum from 8/2/92 as ordered by the court below until entire judgment debt is fully paid.
The lower court’s order on general damages and cost of N10,000.00 is also affirmed. Whilst Awards:
Award 2: N4,979,851.00 for labour paid in foreign currency and
Award 3: N1, 119,569.00 for custom duties are each hereby set aside,
I make no order as to cost

ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Nwodo, JCA. My learned brother had dealt exhaustively with the issues raised and I entirely agree with her reasoning and conclusion. I only wish to add few words of mine in agreement.
Negligence can be defined as the breach of a legal duty of care undesired by the defendant to the plaintiff, which results in damage. Negligence may be said to consist in a failure to exercise due care in a case in which a duty to take care exists.
The tort of negligence has three ingredients, which are: –
a) A legal duty owed by the defendant to the plaintiff
b) Breach of that duty.
c) Consequential damages to the plaintiff arising from breach of that duty. See FBN vs.
Associated Motors (1998) 10 NWLR (pt 570) 464.
For an action in negligence to succeed the plaintiff must prove that the defendant owed him a legal duty of care which he breaches. The legal standard is that of a “reasonable man.”
In the instant case Respondent lead evidence in the lower court that appellant is a roof expert known to them for 10 years, the terrain of the factory is well known to them and has maintained the roof of the Respondent’s factory. Respondent therefore established the fact that the appellant had a special skill on roof repair. The fact that appellant knew the terrain, was under a duty not to cause damage carelessly and should have done something to avert sparks of fire from the welding touching the spray booth. I am of the firm view that the learned trial judge rightly held that appellant owed the respondent a duty of care. The evidence adduced by respondent was unchallenged as such this court has no reason to interfere with the findings of fact made by the learned trial judge. See Ebba vs. Ogodo (1984) 1 SCNJ 372.

Damages generally can be divided into general, special and nominal damages. General damages are such as the law will presume to be the direct natural or probable consequence of the act complained of, while special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and therefore they must be claimed specially and proved strictly. Strict proof in this con can mean no more than such proof as would readily lend itself to quantification or assessment. See Odulaja vs. Haddad (1973) NSCC 614 at 617 and Calabar East Co-operative Trust and Credit Society Ltd vs. Ikot (1999) 14 NMR (pt 638) 225 at 240 paragraph C.

In the instant case, I endorse the reasons given by my learned brother in the lead judgment for setting aside award made by the leaned trial judge in respect of items 2 & 3. The evidence adduced in support of award 2 & 3 is deficient or unsatisfactory as such the requirement of strict proof was not satisfied. The nature of proof must be dictated by the peculiar circumstances of the available evidence.
In the light of the foregoing and for the detailed reasons stated in the lead judgment, I too would partially allow the appeal. I affirm the judgment of the lower court and vary the award of special damages as set out in the lead judgment. I endorse all consequential orders made therein inclusive of cost.

ADAMU JAURO, J.C.A.: I have read before now, the judgment of my learned brother, Nwodo JCA, just delivered.
I am in complete agreement with the said judgment. For the reasons lucidly set out in the judgment which I adopt as mine, I also allow the appeal in part.
I affirm the judgment of the lower court and vary the award of special damages as set out in the lead judgment. I abide by all orders made including order as to costs.

Appearances

Mrs. E. O. EtomiFor Appellant

AND

Chief Theodore Ezeobi SAN with
Frank Ezekwueche and Ikenna OnyekwenaFor Respondent