ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. V. RAYMOND EKWENEM-2009

ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR. V. RAYMOND EKWENEM

(2009) LCN/3674(SC)

In the Supreme Court of Nigeria

Friday, July 3, 2009


Case Number: SC. 174/2002

 

JUSTICES:

DAHIRU MUSDAPHER, JUSTICE SUPREME COURT

FRANCIS F. TABAI , JUSTICE SUPREME COURT

IBRAHIM T.MUHAMMAD, JUSTICE SUPREME COURT

MUHAMMAD S. MUNIAKA-COOMASSlE, JUSTICE SUPREME COURT

OLUFUNLOLA O. ADEEKEY, JUSTICE SUPREME COURT

BETWEEN

APPELLANTS

ANAMBRA STATE ENVIRONMEN-TAL SANITATION AUTHORITY)IGNATIUS NJOKU

AND

RESPONDENTS

RAYMOND EKWENEM

RATIO

CALCULATION OF DAMAGES

“It is not in dispute that where a trial court, as in the appeal at hand, made his own assessment which the respondent failed to prove, the assessment cannot be justified and the court below is free to interfere with and make the correct assessment and evaluation. We should not loose sight of the guiding principle in this type of award is restitutio in integrum. The principle portrays that a party which has been damnified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damage for which he is being compensated. It goes without saying and it is a good law that the yardstick for evaluation or assessing compensation for destruction of the properties, as in this matter, is the sum of money that will put the party who has suffered (Victim of the destruction) in the same position as he would have been in if he had not sustained the wrong for which he gets his compensation or reparation – Kusfa vs. UBC Limited (1994) 4 NWLR (pt 336) 1.” Per MUNTAKA-COOMASSIE, J.S.C.

O. ADEKEYE, JSC. (Delivering the Leading Judgment)

The Respondent in this Appeal, Raymond Ekwenem, doing business under the name and style, Rainbow Petroleum And Engineering Company, as Plaintiff sued the Appellants, Anambra State Environment Sanitation Authority (hereafter to be referred to as ASESA), Ignatius Njoku and Martin Ohaguluke, both employees of ASESA, as Defendants before the High Court of Anambra State, Onitsha Judicial Division. The claim of the: Plaintiff against the Defendants according to Pages 1-2 of the record reads as follows:-

 

‘Wherefore the Plaintiffs claim against the Defendants jointly and severally as follows:-

 

  1. a) Special and general damages for trespass, malicious damage to the Rainbow Filling Station and Rainbow Engineering heavy duty equipment assessed to (sic) N2,000,000 (Two Million Naira).

 

  1. b) OR IN THE ALTERNATIVE

An order of Court that the Defendants are ordered to repair and reinstate at their expense:-

(i) The Rainbow Filling Station and its damaged equipment, office furniture, pumps and building, four cranes and G.M.C. Truck.

 

(ii) To pay back to the Plaintiff N19,500 paid to him by one Stephen Onyekwelu that day of incident and removed by the Defendants, their servants and agents during their raid

 

(iii) To repay to the Plaintiff the sum of N3,549 being money realized from sales the said day and removed by the Defendants and their gang.

 

(iv) To pay to the Plaintiff the sum of N500.00 daily from 23/11187, till the determination (sic) as loss of earnings

 

In the penultimate paragraph of his Further Amended Statement of Claim, at Page 41 of the record tile claim reads:-

 

Paragraph 25

 

Whereof the Plaintiff claims against the Defendants jointly and severally general damages and special damages for trespass, malicious damages;

 

(a) PARTICULARS OF SPECIAL DAMAGES

 

 

3 damaged pumps to be changed NI49,215.00 each N447,645.00

 

3 pumps to be serviced with spare parts N212,415.00

 

4 cranes to be serviced with spare parts Nl,092,387.29

 

autocar low-loader servicing and parts N49,130.00

 

4 office door glasses at N1l2.50 each

 

N450.00

 

1 office table drawer at N90.00 10

 

2 empty crates of mineral N21. 00

 

Cash removed from office N23.049.31

 

N 1.825.187.60

 

(b) General Damages for

 

Trespass N65,000

 

  1. ii) General Damages for Malicious Damage NI0.864.00

 

Total NI,901.051.60

 

(c) Loss of earning from sales from 23 /

 

11/87, at the rate ofN500 a day till Judgment is given.

 

(d) Interest at the rate of 10% on the Judgment debt until Judgment is fully settled.’

The case of the Plaintiff at the High Court was that he ran a Petrol Fitting Station at Kilometre 7 Onitsha Owerri Road, under a licence granted by the Nigerian National Petroleum Company (NNPC). Within the premises of the Filling Station, he carried on other business such as fabrication of storage tanks, plant equipment hire and maintenance. On 23/11/87, the employees of the 1st Defendant including the 2nd and 3rd Defendants had an encounter with the driver of a commercial bus along Onitsha-Owerri Road. In an attempt to stop the bus, they struggled for the steering with the driver.

The bus careered off the road in the process and ended up inside the Plaintiffs Petrol Station damaging of one the of pumping machines. This sparked off a confrontation between the employees of the 1t Defendant, ASESA, and the passengers of the commercial bus. In response to a call for reinforcement made by the employees of ASESA to their office, three lorry loads of employees of ASESA and a Towing Van reported at the premises of the Petrol Filling Station. The employees of ASESA armed with offensive weapons like iron rods, clubs, cudgels, chanting war songs went on the rampage of the Petrol Station and vandalised everything in sight. The commotion was extended to the properties in the neighbourhood of the Filling Station. All efforts made by the Plaintiff to invite the Police to instil sanity within his premises were frustrated by the unbecoming behaviour of the employees of ASESA.

 

In taking stock of his losses after the act of vandalism, the Plaintiff itemised as follows:-

 

(i) Damage to the office and furniture therein, door glasses, office tables and empty crates of minerals

 

(ii) Damage to six out of his eight dispensing pumps.

 

(iii) Plants and equipments:-

  1. a) 6 Avery Hardoll dispensing pumps.
  2. b) 4 cranes, one Autocar low,loader.

 

(iv) cash stolen by the Defendants from the drawers in the office of the Company was in the sum ofN23,049.31 (Twenty Three Thousand, Forty –Nine Naira, Thirty One Kobo).’

At a discussion between the Zonal Controller of ASESA and the Plaintiff after he had paid a visit to the Petrol Station, he accepted responsibility for the destruction and offered to reimburse the Plaintiff for the properties damaged by the employees of ASESA. A letter to that effect was tendered and admitted in evidence as Exhibit G. As the office of the Defendants/ Appellants failed to give prompt attention to the matter the Plaintiff/Respondent in an effort to minimise his loss took steps to repair the damaged pumps at his Filling Station. At the Trial Court, the Defendants/Appellants denied knowledge of the incident at the Plaintiff/Respondents Petrol Station, and the entire claim on the day of the incident. The 3rd Defendant/Appellant claimed to be away on casual leave on the particular date. They tendered two receipts to establish that they called at the Plaintiff/Respondents Filling Station on the day of the incident only for the purpose of purchasing fuel. The 1st Defendant/Respondent, ASESA denied being vicariously liable for any wrongs committed by the 2nd and 3rd Defendants/Appellants. At the conclusion of Trial, the learned trial Judge in his considered Judgment dismissed the Action against the 3rd Defendant while Judgment was entered against the 1st and 2nd Defendants/Appellants jointly and severally for a total sum of N3,325, 187.60 with interest on the Judgment debt as 3% per annum with effect from 2/12/96, until the amount is fully paid. Dissatisfied with the foregoing decision, the Defendants/ Appellants Appealed to the Lower Court. At the hearing of the Appeal, the Appellants formulated Five Issues. The Respondents adopted and relied on the Issues formulated by the Appellants in the Appeal. The Lower Court gave an exhaustive and detailed consideration to the Issues canvassed by the Counsel to the parties in the Appeal. In the Judgment of the Lower Court delivered on 11/ 12/2000, the Appeal was partially allowed and award of damages was made as follows:-

 

“(a) The award of special damages of N1,825,187.00 for the replacement and repairs of equipment/property of the Respondent destroyed and damaged is set aside and the sum of N1,437,227.60 substituted for the two arms of the injury. The award of N1,500,000 for loss of earnings is misconceived and it is hereby set aside.

 

In sum, the sum of N1,437,227.60 special damages is awarded to the Respondent with the interest of 3% per annum on the judgment debt affirmed.”

The Appellants were aggrieved by this Judgment and consequently made a further Appeal to this Court. The parties exchanged Briefs of Argument. When this Appeal was heard on 9/ 4/09, the Appellants adopted and relied on their joint Brief filed on 5/4/07. In this Brief the Appellants distilled three Issues from their four Grounds of Appeal as follows:-

 

‘(1) Whether the non-joinder of Enugu State and/or Enugu State Environmental Sanitation Authority robbed the trial Court and the Court of Appeal of Jurisdiction in this case? (Ground One).

 

(2) Whether in view of the Respondents claims and the concessions in his Brief of Argument, the standard of proof required of the Respondent is not one beyond reasonable doubt? (Ground Two).

 

(3) Whether the awards of the sum of N83, 295.31 and N23,049 made by the trial Court and upheld by the Lower Court are proper? (Grounds Three and Four).’

The Honourable, the Attorney-General of Anambra at the hearing of this Appeal applied to withdraw Issue One formulated by the Appellants in their Brief. With the consent of parties, the request was granted by this Court and the Issue was accordingly struck out. The Respondent accepted the Issues as formulated by the Appellants. I shall be guided by the Issues formulated by the Appellants for the purpose of this Appeal.

 

Issue No 2

 

Whether in view of the Respondents claims and the concessions in his Brief of Argument, the standard of proof required of the Respondent is not one beyond reasonable doubt?

The Honourable, the Attorney General for Anambra State, Learned Counsel for the Appellants submitted that the Respondent in his Further Amended Statement of Claim made specific allegations of crime against the Appellants in Paragraphs 7(i), 7(v), 11, 12(i), 12(iii), 12(iv) and 14. The Respondent particularly engaged the words denoting crime in the averments like stealing, wilful and malicious damage and that the Appellants stole at the Filling Station of the Respondent while armed. Regardless of the use of the words denoting crime, by the Respondent, the Learned Trial Judge and the Court below concluded that the dispute was founded on civil wrong of trespass to the premises in possession of the Respondent. There was a clear pleading of premeditated robbery. The Learned Counsel persuaded this Court to hold that the consequence of these criminal acts is the basis of the claim of the Respondents in the suit. It would be wrong to hold that the criminal acts were incidental to the act of Trespass. The Court below was therefore wrong to have held that crime was not in Issue in the Pleadings of the parties.

The Learned Counsel for the Respondent, Mr, A.O. Amene replied that the entire pleadings of the parties and not isolated paragraphs are looked into to determine the Plaintiffs case vis-a-vis the Jurisdiction of the Court and the reliefs and the defence. There are principal Issues and ancillary Issues. A Court must have Jurisdiction to adjudicate on both. The Learned Counsel restated Paragraphs 7 – 14 of the Further Amended Statement of Claim and concluded that the claim of the Plaintiff/Respondent was predicated on civil wrong of Trespass to this premises where a widespread destruction was inflicted on the property of the Respondent. The loss ofN23.049.049.31, though it had criminal undertone is only incidental to the main claims for trespass.

The Learned Counsel considered the case of Oruboko v. Oruene (1996}7 NWLR (Pt. 462) 573, where the Supreme Court extensively considered the scope of Section 138 (i) of the Evidence Act and concluded that where a Plaintiff makes an allegation of crime in his Pleadings but nevertheless succeeded in establishing his claims without proving the crime, the commission of crime cannot be said to be a fact directly in Issue.

 

I have considered the argument and submission of the Learned Counsel for the parties. The core Issue for Determination is whether the standard of proof required to establish the claims of the Plaintiff/Respondent before the Trial Court was that beyond reasonable doubt or preponderance of evidence as decided by the Learned Trial Judge in the evaluation of the evidence before him. The Issue of the standard of proof hovered around Paragraphs 7 – 14 of the Further Amended Statement of Claim where the Plaintiff/Respondent pleaded the level of destruction to his property and included among the losses he suffered the sum of N23. 049. 31 that was removed from the Respondents Office during the pandemonium in his Petrol Filling Station. The Respondent in the averments in his Pleadings engaged certain words to capture the activities of the Appellants which was pervaded with chaos and disorder. He described the event as want only destroying his properly and the removal of the money in his Office, as stealing. The question follows whether the claims of the Respondents are about commission of crime to require invocation of Section 138(1) of the Evidence Act – and establishing proof beyond reasonable doubt or a civil claim based on the balance of probabilities according to the decision of the Trial and lower Courts.

 

Section 138(1) of the Evidence Act, stipulates that:

“( 1) If the commission of a crime by a party to any proceeding is directly in Issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.

 

(2) The burden of proving that any person had been guilty of a crime or wrongful act is subject to the provisions of Section 141 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action.

 

(3) If the prosecution proves that commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.

The emphasis in the section going by the opening phrase is the standard of proof in a civil case with element of criminal wrong doing which reads:

‘If the commission of a crime by a party to any proceeding is directly in Issue in any proceeding.”

The Courts had in the interpretation of Section 138(1) made it applicable to where there is specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be.

 

‘Nwobo v. Onoh (1984) 1 S.C. 1;

 

Ikoku v. Obi (1862) 1 All NLR Vol. 1 (Pt. 1194) 199;

 

Jules v. Ajani (1980) 5-7 S.C. 116; (1980) 5-7 S. C. (Reprint) 64;

 

Omoboriwo v. Aiasin (1984) 1 SCNLR 108.

 

In the case of Oruboko v. Oruene (1996) 7 NWLR 462, 555 at 573, Paragraph H, Page 575 Paragraphs C-D, Page 576 Paragraphs B-C.”

The Court of Appeal took the interpretation a step further to make it more explicit by saying that:-

 

‘It is trite that Issue of crime in any civil action must arise on the Pleading. Thus, Section 138 (1) of the Evidence Act only applies where there is a specific allegation of crime in the Pleadings so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence as the case may be. Therefore, the Application, of Section 138(1) of the Evidence Act depends on the averments in the Pleadings whether specific allegation of crime can be properly be said to be a basis or foundation of the claim or defence depends on the facts and circumstance of each case.

Where a Plaintiff makes an allegation of crime in his Pleadings but nevertheless can succeed in his claim without proving the crime, it cannot be said that the commission of the crime was a fact directly in Issue.

Furthermore, where in a civil claim a person can succeed without proving criminal motive the motive, cannot be regarded as a fact in Issue in order to apply the provision of Section 138(1) of the Evidence Act.”

 

Omorhirhi v. Enetevwere (1988) 1 NWLR (Pt. 73) 746.

 

Nwankere v. Adewunmi (1967) NMLR 45 at 48.

 

Okuanime v. Obabokor (1966) NMLR 47.

 

Chief G. Tewoabade v. Mrs. Obadina (1994) 4 NWLR (Pt. 338) 161.

The claim of a litigant either the Plaintiff or Defendant depends on the averments in his Pleadings. In our adversary system of the administration of justice, it is the entire Pleadings of the parties that are looked into to determine the Plaintiffs case, the reliefs claimed vis-a-vis the Jurisdiction of the Court and the defence. Paragraphs of Pleadings cannot be relied on in isolation for this purpose.

There are deducible from the Pleadings principal or main Issues and ancillary Issues.

NDIC v. SBN LTD. (2003) 1 NWLR (Pt. 801) 311.

 

Tukur v. Govt. of Gonaala State (1989) 9 S.C. 1; (1989) 4 NWLR (Pt. 117) 517.

In the instant case, an indepth look into the averments in the Further Amended Statement of Claim of the Plaintiff/Respondent Paragraphs 1 – 5 indicate that the dispute between the parties was premised on the wrong of Trespass to the Petrol Filling Station in possession of the Respondent where wanton destruction of property was affected. A sum of N23,049.31 was removed in the process. Though the loss of this N23,049.31 was an item of claim under the Particulars of Claim of the Plaintiff! Respondent, and an allegation of crime, it is only incidental to the main claims of Trespass and destruction of property of the Respondent.

 

The Appellants denied this allegation in Paragraph 10 of their Further Amended Statement of Defence.

The Respondents case was that while the staff of the 1st Appellant were struggling to apprehend a bus on the highway the vehicle veered off the road into the Respondents premises and violently knocked down one of the gasoline pumps. A fight ensued between the pursuers, the 1st Appellants staff, on the one hand, and the station staff, the drivers and the passengers of the bus, on the other hand, which escalated into a pandemonium leading to the widespread destruction of the Respondents properly including the loss of money.

 

The main claim of the Respondent on which evidence was had at the Trial Court was for compensation for the loss of his property by the act of the intruders in his premises and the fact that the loss included physical cash with the insinuation of its being stolen cannot transform the Standard of Proof of the reliefs which is essentially civil into criminal that would require proof beyond reasonable doubt. The Respondent was able to succeed in his claims without proving the commission of crime which was not directly in Issue as decided by the Trial Court and the Court of Appeal.

The Learned Counsel derailed in his submission whereupon he elevated the allegation of stealing to the aggravated offence of robbery in view of the fact that the staff of the 1st Appellant besieged the premises of the Petrol Station of the Respondent with weapons like bottle, sticks, etc., in their possession. There was no basis for the analogy or comparison as according to the account of the incident they were not at the premises of the Respondent to rob the passengers of the bus. The Learned Counsel for the Appellants had orchestrated the removal of the sum of N23,049.31.

I also hold in unison with the Trial Court and the lower Court that the claim of the Respondent was in the main, civil, in contrast with a criminal cause, consequently section 138(1) of the Evidence Act is inapplicable. Issue Two is hereby resolved in favour of the Respondent. 1

 

ISSUE THREE

‘Whether the awards of the sums of N83,295.31 and N23,049.31 made by the Trial Court and upheld by the lower Court are proper?’

The Honourable Attorney-General argued and submitted for the Appellants on this Issue that the Amended Statement of Claim filed on 4/5/89, and the Original Statement of Claim filed on 15/11/88, were no longer the Pleading of the Respondent. The Respondent joined Issues in the Trial Court with the Appellants on the Further Amended Statement of Claim filed on 12/ I 0/93 and Further Amended Statement of Defence tiled on 30/3/94. The Further Amended Statement of Claim not only superseded the Amended Statement of Claim – Paragraph 24 is not identical with the Amended statement of Claim or the Original Statement of Claim. In the Further Amended Statement of Claim the value of the 3 damaged pumps to be changed is pleaded as – NI49,215.00 each N447,645.00.

 

In view of the Further Amended Statement of Claim – there was no pleading of the market value of 3 damaged pumps at the time they were destroyed. There was nothing upon which the Court below could have based the award of the sum ofN59,685 as the value of the 3 damaged pumps as at the date that they were destroyed. The Court of Appeal reliance on the Amended Statement of Claim which has been superceded by the Further Amended Statement of Claim. This is erroneous in law. Moreover the Court of Appeal awarded to the Respondent the sum ofN23,049.31 as an item removed from the Petrol Station of the Respondent. But the Respondent at Page 8 of the Brief of Argument before the Lower Court conceded as follows:

 

‘1 however concede that the stolen money in the sum ofN32,049.31 (Twenty Three Thousand Forty-Nine Naira, Thirty Kobo) could be deducted from the sum ofNl,825,187.60 awarded.’

 

Regardless of the foregoing, the Court of Appeal proceeded to award same to the Respondent as item of property that must be replaced at the market value at the time the money was removed. The duty of the Court in the circumstance is to confine itself to the case as presented by the Respondent by giving effect to the concession that is deducting the sum from the amount awarded by the Trial Court. The Learned Attorney-General concluded his argument and submission that the Supreme Court will interfere with an award of Damages made or upheld by the Court of Appeal when it is improperly made. This Court is urged to resolve this Issue against the Respondent.

The Learned Counsel for the Respondent – Mr. Amene submitted by citing the Court of Appeal in the case of Balonwu v. Obi (2007)5 NWLR (Pt. 1025) 488 Ratio 15 at 536 Paragraphs (C-D) where it is stated that-

 

‘When a process is amended, the original process does not become otiose. The Court cannot shut its eyes against such old process, it still forms part of the processes it is entitled to look.’

The Learned Counsel for the Respondent referred to the portion of the Judgment of the Lower Court – particularly Paragraph 25 of the Further Amended Statement of Claim which set out to amend the revised prices based on the 1993 cost. The value of the items as at 23/11189, when the damages occurred was before Court. As it became relevant to the Claim of the Respondent – the Court could not have closed its eyes to it. The Learned Justices of the lower Court considered exhaustively the cost of repairs and the cost of replacement of the damaged equipment rightly came to the conclusion, and finally awarded a sum ofNI,437,227.60 for both arms of the Claims. He urged this Court to resolve this Issue in favour of the Respondent and finally dismissed the Appeal for lacking merit.

The Appellants disagreed with two areas of the Damages awarded to the Respondent as follows:

 

‘(1) The award ofN59,685.00 as the value of the 3 damaged pumps as at the date they were destroyed as this claim was not pleaded in the Further Amended Statement relevant to the case of the Respondent at the time the matter proceeded to trial.

 

(2) The award of N23,049.31 affirmed by the lower Court whereas the Respondent conceded that this amount could be deducted from the award made by the trial Court.’

 

The Honourable Attorney-General persuaded this Court, to interfere with the above-mentioned heads of award made by the lower Court as they were improperly made.

Damages mean the pecuniary compensation obtainable by a successful party in an action for a wrong which is either a tort or a breach of a contract.

 

The purpose of an award of Damages is to compensate the Plaintiff for Damage, injury or loss suffered. The guiding principle is restitutio in intergrum. where a Court is called upon to assess that a party which has been damnified by the act which is in Issue must be put in the position in which he would have been if he had not suffered the Damage for which is in Issue must be put in the position he is being compensated. The two claims attacked by the Appellants are items of Special Damages. They must be specially pleaded and strictly proved by credible evidence.

The Honourable, Attorney-General argued that the value of the 3 damaged pumps to be changed is pleaded as N149,215 each – and N447,645 for the 3 pumps in the Further

 

Amended Statement of Claim. The Court of Appeal relied on the Amended Statement of Claim to make an award of N59, 685.00 as the value of the 3 damaged pumps as at the date they were destroyed, when there was no Pleading or evidence to support same. As the Amended Statement of Claim had been superseded by the Further Amended Statement of Claim the award was erroneous in law. The award of Damages is at the discretion of the Trial Court. An Appellate Court will not interfere with an award of Damages by a Trial Court surely because it is inclined to award a different amount. In order to justify reversing the decision of a Trial Court on the question of the amount of damages, it will generally be necessary that the Appellate Court be convinced either that:-

 

‘a) The Court acted upon some wrong principle of law or under a mistake of law.

 

  1. b) The award is arbitrary or perverse.

 

  1. c) There has been an element of wrong exercise of discretion in the award.

 

  1. d) Injustice would result if the Appeal Court does not interfere.

 

  1. e) The amount awarded by the Court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of the Damages.”

Ziks Press Ltd. v.Ikoku (1951) 13 WACA 188.

Bala v. Bankole (1986) 3 NWLR (pt. 27) 141

Tsokwa Motors (Mia.) Ltd. v. Awoniyi (1999) NWLR (Pt. 587) 423.

Onwa v. Nka (1996) NWLR (Pt. 458) 1.

 

ljebu – Ode L. G v. Adedeji Balogun Company Ltd. (1991) 1 S.C. (Pt. I) 1; (1991) NWLR (Pt. 166) 135.

S.P.D.C (Nig) Ltd. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 657.

Allied Bank v. Akubueze (1997) 6 NWLR (Pt. 509) 374.

 

This takes me to the Issue of the averment of the amount awarded in th

 

COUNSELS

 

D. Chukwuma Hon. Attorney-General Anambra State

(with him, C.N. Nwoye, PSC (Min. of Justice), for the Appellants.

 

O. Amene,

(with him, Ikechukwu Amene), for the Respondent

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