C.C.C. CONSTRUCTION NIGERIA LIMITED v. RICHARD OKEKE (2016)

C.C.C. CONSTRUCTION NIGERIA LIMITED v. RICHARD OKEKE

(2016)LCN/8274(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of March, 2016

CA/E/275/2010

RATIO

APPEAL: POWER OF THE APPELLATE COURT TO REVIEW; WHEN CAN THE APPELLATE COURT EXERCISE ITS UNFETTERED POWERS OF REVIEW

The law is trite, that where a Court fails to properly evaluate evidence on record, or erroneously does so, or the conclusion reached is not supported by the evidence on record, then this Honourable Court is at liberty to connect it by excising its unfettered powers of review ? by reviewing the findings and draw the appropriate inference from the proved facts – NEPA v. IHAMEJI 2002 11 NWLR (Pt. 778) 379 @ 427. per. RITA NOSAKHARE PEMU, J.C.A.

DAMAGES; WHEN IS A PARTY ENTITLED TO SPECIAL DAMAGES
Special damages must be strictly pleaded and proved, in order to be entitled to it. per. RITA NOSAKHARE PEMU, J.C.A.

JUSTICES:

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

C.C.C. CONSTRUCTION NIGERIA LIMITED – Appellant(s)

AND

RICHARD OKEKE – Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of Hon. Justice V. N. Agbata of the High Court of Anambra State, Holden at Aguata Judicial Division, delivered on the 20th of July 2010.
SYNOPSIS OF FACTS
By Writ of Summons filed on the 27th of June 2007, and in Paragraph 15 of the Statement of Claim filed on same date, the Plaintiff/Respondent claims from the Defendants/Appellants the following:
1) The sum of N1,500,000.00 (One million five hundred thousand naira being the special damages of the estimated value of the Plaintiff goods/wares damaged and injury suffered by the Plaintiff arising from the defendant’s negligent act. – Pages 1-8 of the Record of Appeal.
2) The sum of N500,000.00 (Five Hundred Thousand Naira) being general damages for the injury, pains and losses occasioned and suffered by the plaintiff as a result of the defendant’s negligence.

The Plaintiff/Respondent’s case is that the Appellant, with its excavator at its construction site, in the course of construction work, hit and broke down the wall of the Respondent’s shop, consequently damaging his

goods.

The Plaintiff suffered from the negligent act of the Appellant.

In his defence, the Appellant states that the shop of the Plaintiff collapsed without having any contact with the Appellant’s excavator. That indeed the wall of the Respondents shop fell outwardly, and the goods displayed were still standing intact.

At the trial, the Respondent testified and called one witness. He tendered six Exhibits.

The Appellant called three witnesses and tendered one Exhibit.

After the conclusion of hearing, the learned trial Judge held the Appellant liable in negligence, and awarded the sum of N600,000.00 (Six hundred thousand naira) as special damages and N50,000.00 as General Damages. Also awarded cost of N20,000.00 in favour of the Respondent.

The Appellant is dissatisfied with the Judgment, and pursuant to the Practice Direction of this Honourable Court he filed a Notice of Appeal on the 20th of October 2010, with FOUR Grounds of Appeal. – Pages 96-98 of the Record of Appeal.

The Appellant filed his Brief of Argument on the 13th of December 2010. It is settled by Dr. Wale Olawoyin.

The Respondent

filed his brief of Argument on the 16th of January 2012, but same was deemed filed on the 23rd of November 2014. It is settled by Chief S. O. P. Okeke.

On the 27th of January 2016 the parties adopted their respective briefs of Argument.

The Appellant had distilled Two (2) issues for determination from the Grounds of Appeal. They are –

1) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE RESPONDENT DISCHARGED THE BURDEN OF PROOF ON HIM THAT HIS GOODS WERE ACTUALLY DAMAGED BY THE APPELLANT.
2) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN AWARDING SPECIAL DAMAGES IN THE SUM OF N600,000.000 (SIX HUNDRED THOUSAND NAIRA) IN FAVOUR OF THE RESPONDENT WITHOUT STRICT PROOF OF SAME BY THE RESPONDENT.

On his part, the Respondent distilled THREE (3) issues for determination. They are ?
a) WHETHER THE PLAINTIFF/RESPONDENT HAS NOT PROVED HIS CASE ON BALANCE OF PROBABILITY AS REQUIRED IN CIVIL PROCEEDINGS.
b) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE RESPONDENTS DISCHARGED THE BURDEN OF PROOF ON HIM THAT HIS GOODS WERE ACTUALLY DAMAGED BY THE APPELLANT.
c) WHETHER THE SPECIAL DAMAGES

OF N600,000.00 (SIX HUNDRED THOUSAND NAIRA) AWARDED IN FAVOUR OF THE RESPONDENT WAS NOT PROVED.
It seems to me that the Respondents issues for determination is essentially an adoption of the issues proffered by the Appellant. I shall consider this Appeal based on the Appellants issues which he raised for determination.

ISSUE NO 1
It is the submission of the Appellant that the Respondent alleged that his goods were damaged not just by the impact of the Appellants excavator which hit his goods, but also by the contamination of his goods with a corrosive chemical called “CAUSTINE” – Referring to Paragraph 10 of the Respondents statement on oath.

He submits that Exhibit P1 relied on by the learned trial Judge, only shows that the wall of the shop collapsed, and not that the damage of the wall resulted from the impact of the Appellant’s excavator, or that the Respondent’s goods in the shop were actually damaged by the collapsed wall, or from contamination by the said corrosive chemical.

He submits that the corrosive goods were not provided in evidence, and no expert evidence or any evidence at all was led of the corrosive

properties of the chemical called “CAUSTINE” by the Respondent.

Referring the Sections 135 and 136 of the Evidence Act Cap 14. LFN 2004, he submits that the Respondent has not discharged the onus of proof place on him by law. That his mere pleadings and the tendering of Exhibit P1 a picture allegedly taken by him of the damaged shop does not amount to proof.

That there is no trace of any liquid spillage reflected on Exhibit P1.

Submits that the conclusion of the learned trial Judge on the cause of damage to the Respondent’s goods, stemmed from mere imagination and speculation, that has no place in law. The learned trial Judge therefore misdirected himself, as his decision was based on speculation, citing ARCHIBONG v. ITA (2004) 2 NWLR (Pt. 858) 590 @ 618.

He submits that curiously, the Plaintiff who tendered Exhibit P1 gave evidence that he personally took the photograph, but he appears in that same photograph. That the learned trial Judge failed to consider this point. That the three defence witnesses testified that the wall of the Respondent’s shop fell outward and not inward.

In sum, he submits that the learned trial

Judge failed to properly evaluate the evidence before it, and therefore arrived at a wrong conclusion, and this has occasioned miscarriage of Justice.

Urges this Court to reverse that Judgment.

He submits that the Respondent failed to prove its case of negligence against the Appellant at the Court below.

That in an action for negligence, the party must establish that –
(a) There is a duty of care owed the Plaintiff by the Defendant.
(b) A breach of that duty by the defendant.
(c) Injury or damage to the Plaintiff resulting from that breach of duty. OJO v. GHAHORO (2006) 10 NWLR (Pt. 987) 173 @ 234; ORHUE v. NEPA (1998) 7 NWLR (Pt. 557) 187 @ 194.

Submits that there is no link between the Appellant and the damage to the Respondent’s goods. Also that the Respondent failed to prove any breach of a duty owed him by the Appellant, and injury sustained therefrom.

Urges Court to re-evaluate the evidence that was adduced at the Court below.

ISSUE NO. 2
The Appellant submits that special damages claimed must be specifically pleaded and strictly proved.

That the Respondent claimed special

damages of N1,500,000.00 (One million Five Hundred Thousand Naira) without strictly proving same.

That in Paragraph 15 of the Statement of Claim, the Respondent had five particulars of special damages Page 7 of the Record of Appeal. But he failed to prove any of the particulars of special damages claimed by him.

That PW2 had tendered Exhibit P6, in an effort to prove special damages, but under cross examination, he did state thus:-
“When I got to the scene of the incident, I did not check to know how many of the goods I supplied were damaged”. Page 87 of the Record of Appeal.

He submits that the Respondent had testified, that some of the goods supplied to him on the 5th of April 2007, had been sold as at the time of the incident on the 19th of April 2007.

That even the Plaintiff/Respondent testified that he recovered the sum of N220,000.00, being proceeds from the previous day’s sales. – Page 23 of the Record of Appeal.

But that the Plaintiff/Respondent had, in the face of this evidence, claimed special damages for all the goods that were supplied on the 5th of April 2007.

He submits that the

Plaintiff/Respondent also had testified that ?
“I deal in old motor vehicle spare parts. The old motor vehicle spare parts have no marked fixed prices”. – Page 86 of the Record of Appeal.

He submits that all above should have guided the court in determining, whether the Respondent had failed in strictly proving the special damage claimed.

It is his contention that the learned trial Judge failed to evaluate Exhibits “P5” and “P6”, and their contents, before arriving at the conclusion which it did, on the amount of money it awarded as special damages in favour of the Plaintiff. This made the lower Court arrive at a wrong and unjust conclusion.

ISSUE NO. 1
From the pleadings, it is evident that the Respondent’s claim at the lower court against the Appellant is that in Negligence.

He who avers must prove. The parties are not agreed that it was as a result of the vibration from the excavator of the Respondent that caused the Appellant’s wall to collapse.

In his evidence in chief, the Plaintiff/Respondent Richard Okeke did say that on the 19th of April 2007, the Defendant/Appellant used their heavy equipment

at their site, to pull down one side of the Respondent’s shed at Mgbuka Amazu, old Automobile Market Okpoko.

Anthony Anyike tendered inventory of goods supplied to the respondent. – Exhibit 6.

The Appellant is saying that the wall fell on its own.

The Respondent deposed on oath, as well as fielding one witness.

At Page 9 of the list of documents he relied on at the trial are –
(a) Letter dated 7th May 2007 – Exhibit P2 which is Counsel’s letter to the Defendants.
(b) Letter dated 15th May 2007 – Exhibit P3 ? also Counsel’s letter to the Defendants.
(c) Letter dated 22nd of May 2007 – Exhibit P4 – Counsel’s letter to the Defendants.
(d) Inventory of damaged stocks/Goods of the Plaintiff – Exhibit P5.
(e) Inventory of Damaged stocks/Goods of the customer supplied to him on credit.

Answering questions under cross-examination the Respondent had this to say inter alia –
“? I don’t deal on chemicals apart from the ones I used in washing materials. I used chemical called caustic and also water”.
He continued –
“I deal on old motor vehicle spare parts. The old motor vehicle

spare parts have no market fixed prices”.

Again he said –

“I don’t remember the quantity of goods I had sold before the incident”. – Pages 86-87 of the Record of Appeal.

PW2, Anthony Anyika is the man who supplies goods to the Appellant. Hear his evidence under cross-examination on the 29th of October 2008.
“?. I see Exhibit P6. I signed it. When I got to the scene of the incident, I did not check to know how many of the goods I supplied were damaged”.

DW1, Prince P. N. Morgan is the field and administrative staff of the Defendants. Under cross examination he did say that he does not know whether the excavator in the picture belongs to the defendants. That the debris of the collapsed wall fell outward. That the goods of the Plaintiff were not damaged.

That the Plaintiff wrote the defendants after the walls had been repaired.

DW2 Raphael Okeke did say that along the path where the Plaintiff has his shop, are other shops. And these shops were not damaged. It was only the Plaintiffs shop that was damaged. He also testified that it was while they were constructing the drainage that the wall of the

Plaintiffs shop fell, but the machine had gone past the shop, before it fell.

It is for the Respondents to proof the averment made in their pleading and evidence that it was as a result of the Appellant’s excavator’s operation that his shop collapsed.

He did not re-examine the witness when he said that other shops did not collapse but his.

Has the Respondents any duty of care towards the Appellants? I think so.

The question is whether there was a breach of that duty.

In view of the fact that other shops were not affected, there is no breach of that duty of care, and a fortiori, no damages can emerge.

I am of the view that the Respondent has been unable to establish that the Appellant owed him a duty of care that has been breached, even on a preponderance of evidence.

Now to the issue of the GOODS. The Evidence of the Plaintiff himself, and that of PW2, show that he has been unable to prove that his goods were actually damaged by the Appellant, and the quantity thereof if ever this goods were damaged.

No corroded goods were tendered in evidence.

Indeed, a painstaking look at Exhibits P5 and

P6, show how vague they are. We do not know what the items are that are indicated therein. These exhibits are devoid of specific names of the items stated thereon.

Apart from the words “middle bearing”, “6307 Roller,” “Assorted Seal” and “Kesing 6207” on Exhibit P5, and the words “Assorted Seals”, “AC BEARING” and MC BEARING on Exhibit P6, every other items are nameless and therefore cannot be identified by the Court in assessing damages of what ever sort.

The learned trial Judge was therefore wrong in holding that the Respondent discharged the burden of proof on him, that his goods were actually damaged by the Appellant.

Let me reproduce some aspects of his finding which I find curious.

In one breath, he

had stated that –
“Unfortunately, however the claims of the Plaintiff appear to me to be too bogus. This is so because as shown on Exhibit P1 and D1, it is only a very small fraction of the wares of the Plaintiff that were damaged”.

Then he sadly went on to say –

“?I am of the most humble opinion that the sum of N600,000.00 is sufficient to accommodate the special damages which the Plaintiff has incurred”. – Page 95 of the Record of Appeal.

There was no basis for this spurious award.

This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 2

Special damages must be strictly pleaded and proved, in order to be entitled to it.

What is the special damages claimed? In Paragraph 15 of the Statement of Claim, under the heading “PARTICULARS OF SPECIAL DAMAGES”, the Respondent made a feeble attempt to particularize items of special damages claimed. Let me reproduce same verbatim –
“(a) Assorted stockfish/goods of the Plaintiff damaged as contained in the inventory taken – N1,500,000.00 comprising of (10 plaintiff’s wares estimated at N977,400.00.
(2) Goods

supplied on credit estimate at N522,600.00 and
(3) Office furniture comprising metal cabinet, Table and chairs estimated at N40,650.00″ – Page 7 of the Record of Appeal.

With respect, how can special damages be assessed when PW2 under cross examination said –
“When I got to the scene of the incident, I did not check to know how many of the goods I supplied were damaged”. Page 87 of the Record of Appeal.

If PW2 said, as he said, that the total value of the bearings he supplied the Respondent is N522,600.00 on the 5th of April 2007, there is no evidence to suggest whether any of these had been sold or not, before the incident.

The Respondent had said he concealed the sum of N220,000.00 in his filing cabinet. He is claiming special damages for the drawer in which the money was put, when the incident occurred, and yet the money was intact. One wonders what drawer was really damaged as well as the table.

If the Respondent said that old motor vehicle spare parts have no market fixed prices, then how was he able to quantity the damages claimed? It was based on mere conjecture and this has no place in law. NEKA B.B.B.

MANUFACTURING CO. LTD. v. AFRICAN CONTINENTAL BANK LTD (2004) 2 NWLR (Pt. 858) 521.

I wonder why, in spite of all these anomalies, the learned trial Judge went on to award the special damages claimed.

The Court clearly based its award on assumption, and his opinion simpliciter. There was no basis for it from the evidence adduced, both oral and documentary. It merely gave the Respondent a gratuitous gift. The Court is not a “Father Christmas”.

Even his award of General damages cannot stand.

Let me reproduce the finding of the court.

“? I am of the most humble opinion that the sum of N600,000.00 is sufficient to accommodate the special damages which the Plaintiff has incurred. The defendants are, therefore, hereby ordered to pay to the Plaintiff, the sum of N600,000.00 being special damages for negligence. They shall also pay to the plaintiff, the sum of N50,000.00 general damages. Cost of the litigation is assessed at the sum of N20,000.00”.

Again, what is the basis for the General damages claimed? I find none. Here, the learned trial Judge awarded double compensation which the law deprecates.

ROOKES v. BERNARD 1964 A.C. 1129, Lord Devlin, at Page 122l observed thus, with regard to GENERAL DAMAGES:

“Moreover it is very well established that in cases where the damages are at large, the jury (or the Judge if the award is left to him) can take into account the motive and conduct of the defendant where they aggravate the injury done to the Plaintiff. These may be malevolence or spite or the manner of committing the wrong, may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation”.

On what criteria did the lower Court base its award of General Damages? I find none.

The reason he awarded N50,000 general damages is not stated. Again this award, in my humble view cannot stand.

This issue is resolved in favour of the Appellant and against the Respondent.

The Appeal succeeds and the Judgment of V. N. Agbata of the High Court of Anambra State delivered at Aguata on the 20th of July, 2010 in Suit No. 0/151/2007 is hereby set aside. N50,000 costs in favour of the Appellant.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, RITA NOSAKHARE PEMU, JCA. I agree with reasoning, conclusions and orders therein.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read before now the draft of the judgment just delivered by my noble Lord, RITA NOSAKHARE PEMU, JCA. I agree that this appeal is meritorious and ought to be allowed. It is settled by a long line of cases that the essential ingredients of negligence are follows:
(1) The existence of duty of care owed the plaintiff by the defendant.
(2) Breach or failure to attain the standard of care prescribed by the law.
(3) Damage or injury suffered by the plaintiff and the connection with the breach of the duty to take care.See MAKWE v. NWUKOR (2011) 14 NWLR (Pt. 733) PAGE 356, M. O. KANU SONS & CO. LTD v. F.B.N. PLC (2006) 5 SC (Pt. 11) PAGE 80, U.T.B. v. OZOEMENA (2007) 3 NWLR (Pt. 1022) PAGE 448, BRITISH AIRWAYS v. ATOYEBI (2014) LPELR-23120 (SC).

Negligence is a matter of fact not law. What this means is that negligence must be established by cogent and credible evidence. The Court must carefully consider the evidence

adduced in order to ascertain that whether or not negligence is established. See M. O. KANU, SONS & COMPANY LTD. v. F.B.N. PLC (2006) LPELR-1797(SC). The respondent failed to adduce cogent and credible evidence to establish a case of negligence against the respondent.

The law is settled that in an action for negligence, the plaintiff must show by cogent and credible evidence that he suffered damage as a result of the defendant’s negligence. In I.M.N.L. v. NWACHUKWU (2004) 13 NWLR (Pt. 891) PAGE 543, the Supreme Court held that “Negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must co-exist” See also IYERE v. BENDEL FEED FLOUR MILL LTD (2008) 7-12 (SC). The respondent did not present any credible evidence to show that he suffered any damage. He could not prove what goods were damaged, the quantity and their cost. The damage awarded by the learned trial judge is not supported by the evidence on record. The appeal is hereby allowed. I abide by the consequential orders made therein.

Appearances:

Benson Ikedigwe, Esq. For Appellant(s)

Chief S.O.P. Okeke with him, G.N. Ideh, Esq. For Respondent(s)

Appearances

Benson Ikedigwe, Esq. For Appellant

AND

Chief S.O.P. Okeke with him, G.N. Ideh, Esq. For Respondent