COMMISSIONER OF POLICE & ANOR v. THOMAS ABENI & ORS
(2019)LCN/13721(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of July, 2019
CA/IB/164/2011
JUSTICES:
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
1 COMMISSIONER OF POLICE
2. MR. YEKINI SALAMI – Appellant(s)
AND
1 THOMAS ABENI
2. FATAI OSIYEMI
3. F.A.O VENTURES – Respondent(s)
RATIO
THE LAW RELATING TO THE AWARD OF DAMAGES
The law relating to award of damages have been succinctly stated by the Supreme Court in a number of cases. The main purpose of awarding general damages is to assuage such loss which flows naturally from the Respondents conduct. It needs not to be specifically pleaded and be proved by evidence. It arises from inference of law. The damages are presumed to be indirect and probable consequences of the act complained of. But unlike general damages, special damages is generally incapable of substantially exact calculation. Special damages must be specifically pleaded and strictly proved. SeeShell B. P. v. Cole (1978) 3 SC 183. It is not enough to prove special damages by mere ipse dixit. It is also not enough to say that the ipse dixit of Plaintiff was not challenged. It must be proved by Plaintiff. He who asserts must prove. See Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR (Pt. 736) 424.PER TALBA, J.C.A.
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
Where a trial Court unquestionably evaluates the evidence and justifiably assess the facts and makes a findings of fact which is in no way perverse but sufficiently justified from the pleadings and evidence, it is not the duty of an Appellate Court to interfere with the findings of fact made by the trial Court which had the advantage of hearing and seeing witnesses testify, so long as those findings are reasonably supported by evidence. See Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251; Ndili v. Akinsumade (2000) 8 NWLR (Pt. 668) 298; Auchi Polytechnic v. Okuoghae (2005) 10 NWLR (Pt. 933) 279; Jinadu v. Esurombi (2005) 14 NWLR (Pt. 944) 142 and Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1.
On evaluation of evidence and the ascription of probative value to such evidence which are in the realm of the trial Court, the duty of the Court of appeal is to find out whether there is evidence on record on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial Court arrived at its findings of fact the Court of appeal cannot interfere. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court sitting at Sango Otta Judicial Division delivered by Ojo. J on the 28th October, 2009. See pages 336 – 357 of the records.
The 1st Respondent who was the Plaintiff at the lower Court instituted an action against the 3rd and 4th Defendants, now 1st and 2nd Appellants. And the 1st and 2nd Defendants, now 2nd and 3rd Respondents.
The 1st Respondent being a tanker builder by profession was contracted by the 2nd Respondent sometime in May. 1997 to construct a 33,000 litre petrol tanker for the 3rd Respondent. The 1st Respondent saw an already built (6) six compartment 33,000:00 litre tanker at Akure Workshop of the 1st Respondent but without an axle. The 2nd Respondent opted to purchase it and directed the 1st Respondent to convert it to a (3) three compartment. They agreed on the purchase price of N300,000:00 for the 33,000 litre tanker and N200,000:00 for the back axle. The 1st Respondent and the 2nd Respondent mechanic went to Lagos to buy the back axle. They got one which was certified okay by the
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mechanic. And on the recommendation of the mechanic the 2nd Respondent released the sum of N200,000:00 for the back axle. The 2nd Respondent went to Akure to inspect the axle. After seeing the axle the 2nd Respondent invited the 1st Respondent to Ijebu Ode where he paid the sum of N250.000:00 out of the N300,000:00 agreed for the tanker. The 1st Respondent reconverted the tanker but the mechanic who was to overhaul the axle before it was mounted to the tanker discovered that one of the shafts was bent and therefore unfit for the purpose. The 1st Respondent reported to the 2nd Respondent who directed that the work should be suspended pending when he decide on what to do. The 2nd Respondent and his brother Odobo went to Akure to inspect the faulty axle and returned to Ijebu Ode, later the 2nd Respondent sent his brother Odobo to invite the 1st Respondent to Ijebu Ode. The 1st Respondent travelled to Ijebu Ode with his wife and daughter. On getting to the office of the 2nd respondent they were arrested by the police and taken to Igbeba police station, then under the command of the 2nd Appellant. They were detained overnight and the
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next morning the 1st Respondent was brought out from the cell and driven to Akure in handcuffs. On getting to the Plaintiffs workshop at Akure the 1st Respondent was ordered to pack his equipment’s, tools and welding materials into the bus. The 33,000 litre tanker was loaded into a flat trailer.
Three of the 1st Respondent apprentices were also ordered to enter the bus. They were driven back to the 2nd Respondents house at Ijebu Ode under police escort. The next day the 1st Respondent said he was taken before the 2nd Appellant who in the presence of the 2nd Respondent ordered the 1st Respondent to go and complete the work on the trailer in the 2nd Respondents house; which he agreed and signed an undertaking. The 1st Respondent said following another disagreement with the 2nd Respondent and threat to his life he had to escape from the 2nd Respondents house but his apprentices stayed behind and completed the work. The 2nd and 3rd Respondents have failed to release the 1st Respondents equipments and tools despite repeated demands. The police impounded the 1st Respondents Toyota Tercel car and fiat Luxury commercial bus which was removed from
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the mechanical workshop by the 2nd Respondent with the help of four (4) police officers. The two Vehicles have remained in the custody of the police at the Igbeda police station Ijebu Ode. The 1st Respondent said the 2nd Respondent obstructed his effort both at the police level and by a Court process to have the Vehicles released.
The 2nd Respondent instituted an action at the lower Court against the 1st and 2nd Defendants now 2nd and 3rd Respondents. And the 3rd and 4th Defendants now 1st and 2nd Appellants. The Claimant/1st Respondent claims are as contained in paragraph 38 of his 2nd Further and Better Amended Statement of Claim dated 3rd October, 2002. See pages 91 – 98 of the record.
The 1st and 2nd Defendants now 2nd and 3rd Respondents filed Further Amended Statement of Defence and Counter Claim dated 6th February, 2003. See pages 104 110 of the records. The 3rd and 4th Defendants now 1st and 2nd Appellants filed a Further Amended Statement of Defence dated 7th November, 2002. See pages 99-101 of the records. The Claimant/1st Respondent filed a reply to the 1st and 2nd Defendants now 2nd and 3rd Respondents, Amended
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Statement of Defence and Defence to Counter Claim dated 20th March, 2003. See pages 111 – 113 of the record.
The 3rd and 4th Defendants now 1st and 2nd Appellants filed a motion on notice at the lower court pursuant to Order 24 Rules 2 of the High Court of Ogun State (Civil Procedure) Rules 1978, wherein they prayed for leave of Court to set down for trial the question of law raised in their Further Amended Statement of Defence to wit:
Whether the action of the Plaintiff against the 3rd and 4th Defendants is not statute barred and liable to be struck out by virtue of the provisions of Section 2(a) of the Public Officers Protection Law Cap 106 Laws of Ogun State of Nigeria 1978.”
The lower Court granted in part the prayer of the Appellants herein. The learned trial Judge held thus:
I rule that the Claims for declaration, injunction and damages endorsed in paragraph 38 (1), (3) and (5) of the Amended Statement of Claim as against the 3rd and 4th Defendants/Applicants are statute barred, they are consequently struck out. The other legs of the Claims are not statute barred and the application is dismissed in
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respect of these claims. Each party shall bear his cost.”
See pages 113 a to 113 e of the records.
The Appellants being dissatisfied with the Ruling sought leave of this Court to file interlocutory appeal. See pages 367 – 369 and 370 – 371 of the records. After the Ruling delivered on 10th December, 2004 there was series of amendment of pleadings. The parties closed their case on the 23rd March, 2009. The 1st Respondent/Claimant called four witnesses. The 1st and 2nd Defendants/2nd and 3rd Respondents called four witnesses. The 3rd and 4th Defendants/1st and 2nd Appellants called two witnesses. Learned counsel filed and adopted their written addresses. In a considered Judgment the learned trial Judge gave Judgment in favour of the Claimant/1st Respondent against the Defendants jointly and severally. After dismissing the counter claim of the 1st and 2nd Defendants/1st and 2nd Respondents. See pages 336 – 357 of the records.
Being dissatisfied with the Judgment the 3rd and 4th Defendants now Appellants filed this appeal vide the notice of appeal dated 12th December, 2009 and filed on 23rd December, 2009. See pages 361
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– 364 of the record. By leave of this Court granted on the 8th February, 2017, the Appellant filed an Amended notice of appeal dated 8th February, 2017 and filed on the 13th February, 2017.
The Amended Notice of Appeal contain seven (7) grounds of appeal. At the hearing of this appeal on the 20th May, 2019 A.D. Adeleke senior state counsel Ogun State Ministry of Justice appeared for the Appellants, L. A. Olagunju with Ishola Ramoni and M. A. Lateef appeared for the 2nd and 3rd Respondents. The counsel to the 1st Respondent was not in court. The Court Registrar informed the Court that M. B. Ganiyu counsel to 1st Respondent was served with a hearing notice on the 3rd May, 2019. The Appellants counsel adopted and relied on the Appellants brief of argument filed on 13th February, 2017.
The Appellants counsel prayed the Court to deem the 1st Respondents brief of argument filed on 3rd March, 2017 as having been duly argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2016. The learned counsel for the 2nd and 3rd Respondents adopted and relied on the Respondents brief of argument filed on 20th June 2017 but deemed properly filed on 9th
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May, 2019, learned counsel informed the Court that they have not filed Respondents notice but they filed notice for variation of decision, pursuant to Order 9 Rule 1 of the Court of Appeal Rules 2016. The Respondents notice for Variation of decision was filed on 9th August 2017 but deemed properly filed on 9th May, 2018. The grounds on which the 2nd and 3rd Respondents intend to rely are as follows:
1. The 3rd and 4th Defendants at the lower Court (now 1st and 2nd Appellants in this appeal) are protected by Public Officers Protection Law Cap 106 Laws of Ogun State 1978.
2. The lower Court had no jurisdiction on the 3rd and 4th Defendants (now 1st and 2nd Appellants in this appeal) being agents of the Federal Government of Nigeria.
3. Improper evaluation of evidence vis a vis the applicable law.
In the Appellants brief of argument, the Appellants counsel distilled one issue from ground 2 & 3, for determination of the interlocutory appeal thus:
Whether the learned trial Judge was right when he failed to strike out the suit in to for lack of jurisdiction against the 3rd and 4th Defendants/Applicants who were Public Officers, Protected
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by Section 2 of the Public Officers Protection Law Cap 106, Laws of Ogun State of Nigeria, when there was no live cause of action against them.
As for the main appeal the Appellants counsel formulated three (3) issues for determination, thus:
1. Whether the Ogun State High Court presided by the learned trial Judge had the jurisdiction to entertain the suit against the 3rd and 4th Defendants who were agents of the Federal Government of Nigeria (Ground 1).
2. Whether the Plaintiffs item of special damages were proved as required by law to warrant same been granted by the learned trial Judge (Ground 4).
3. Whether the learned trial Judge was right in holding that the Plaintiff is entitled to the declaration sought in paragraph 39 (1) of his statement of claim (Ground 6).
It is crystal clear that there is no any issue distilled from Ground 5, meaning Ground 5 has been abandoned. Accordingly Ground 5 is hereby struck out. Ground 7 is the Omnibus ground, thus, the whole Judgment is against the weight of evidence adduced.
The 1st Respondent adopted all the issues distilled by the Appellants. The 2nd and 3rd Respondents in view of their
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notice for variation of decision distilled three issues for the determination of this appeal, thus:
1. Whether the 1st and 2nd Appellants and a fortiori 2nd and 3rd Appellants were protected by the Public Officers Protection Law Cap 106 Laws of Ogun State.
2. Whether the trial Court has jurisdiction to entertain the suit against the 1st and 2nd Appellants being agents of the Federal Government of Nigeria.
3. Based on the state of pleadings and evidence adduced by the parties, whether the learned trial Judge rightly award damages to the 1st Respondent.
Upon a careful consideration of the Appellants and those contained in the 2nd and 3rd Respondents brief of argument, I have observed that the issues are the same except for the manner in which they are couched. I am therefore of the humble view that due to accuracy clarity and brevity I adopt the issues formulated by the Appellant as issues that will lead to a more judicious and proper determination of this appeal.
Now to begin with the interlocutory appeal. The Crux of the matter is that the learned trial Judge granted the prayers of the 3rd and 4th Defendants/Applicants now Appellants
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in part. He held that the claims for declaration, injunction and damages endorsed in paragraph 38 (1), (3) and (5) of the Amended Statement of Claim as against the 3rd and 4th Defendants/Appellants are statute barred, and consequently struck out. Other claims in paragraphs 38 (2) and (4) were dismissed. These are
38 (2) A DECLARATION as null, void, illegal and unconstitutional the seizure and detention, of the Plaintiffs Fiat Luxurious Bus 33 Seaters, Toyota Tercel 4 doors Car, professional/workshop equipment through the connivance of 1st Defendant and the hired police officers.
38 (4) the sum of N22,045,000:00 as Special damages for the illegal seizure and detention of the 2 vehicles of the Plaintiff and another N5000:00 for the illegal seizure and detention of the Plaintiff Professional Workshop Equipment’s.
PARTICULARS OF SPECIAL DAMAGE
1. Professional/Workshop equipment seized since June 1997 N5,000,000:00.
2. Fiat Luxurious Bus of 33 Seaters since June 1997 – June 2001 income per day to be calculated till time this suit is determined N10,000: x 365 = N3,650,000 x 3 years = N10,950.
Toyota Tercel (4 door) since
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June 1997 – June 2001 income per day N1000:00 and to be calculated till time this suit determined. N365,000: x 3 years = N1,095,000:00 Total N12,045,000:00
(6) Cost
(7) Further or other Reliefs.
The learned trial Judge in dismissing the claims he stated thus:
In the present case, the Respondent alleged that his property particularly two Vehicle mentioned above were impounded and detained by the 3rd and 4th Defendant/Applicants and they are still in custody of same. I have examined the pleadings of both parties. The Applicants admitted that the Respondents vehicles are still in their custody. This in my view means that the damages or injury complained of by the Respondent is continuing hence time does not begin to run against the Respondent until after the ceasing (sic) of that Complaint.”
From the above portion of the Ruling there are two fundamental issues. One that the two vehicles were impounded and detained by the 3rd and 4th Defendants. Two that the two vehicles were still in custody of the 3rd and 4th Defendants up-till the time the Ruling was delivered.
The contention of the Appellant counsel is that the
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learned trial Judge failed to compare the date of the wrong alleged in the statement of claim with the date the Writ of Summons was filed. Rather the learned trial Judge embark on expanding the date of accrual of action beyond the date the cause of action arose by his interpretation of the phrase continuing injury in the Section. He cited the case of Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379 at 391.
On the issue of continuance of injury the Appellants counsel submitted that it does not apply in this case because no fresh cause of action had accrued after the initial act of the Appellants in detaining the properties which will bring it within the exceptions to the law of limitation of actions. He cited the case of Oba J. A. Aremo II v. S. F. Adekanye & 2 Ors. (2004) 13 NWLR (Pt. 891) 572 at 593 and Jibrin Bale Guma Alhassan v. Dr. Muazu Babangida Aliyu & Ors. (2009) LPELR 8340.
The learned counsel for the 1st Respondent submitted that the learned trial Judge was right to save the Plaintiffs claim in paragraph 38 (2) & (4) because the Plaintiffs properties were still in the custody of the Appellants. He said the
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continuous seizure and detention of the 1st Respondents properties by the Appellant amounts to continuing damage or injury. He cited the following cases; Chief Eteidung Raymond. F. Obot & Ors. v. Shell Petroleum Dev. Coy Ltd (2013) LPELR 20704; A. G River State v. A. G. Bayelsa State & Anor (2012) 67 MJSC (Pt. 3) 149 at 181 and Aremo II v. Adekanye (Supra).
Learned counsel for the 2nd and 3rd Respondents argued generally on the application of Section 2 (a), of the Public Officers Protection Law Cap 106 Laws of Ogun State of Nigeria 1978. And that failure to give its plain and natural meaning occasioned a jurisdictional blunder.
It is settled principle of law that Section 2 (a) of the Public Officers Protection Law provides an exception in case of continuance of damage or injury which action must be instituted within three months after the ceasing thereof. The continuance of damage or injury which places the case of the 1st Respondent as an exception to Section 2 (a) of the Public Officers Protection law is the continued seizure and detention of the two vehicles by the Appellants. This fact was admitted by the Appellants. The
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continuance of damage or injury means a continuing cause of action. It arise from repetition of acts or omissions of the same kind as that for which the action was brought. In such a case in measuring the period of limitation the right to commence an action is not barred until three (3) months after the ceasing thereof. In this instant case time counts from the day when the vehicles are released. In the case of Alhaji Jibrin Bala Guma Alhassan v. Dr. Muazu Babangida Aliyu & Ors (Supra) Okoro JCA (as he then was) stated thus:
Where the injury complained of is a continuing one time does not begin to run for the purpose of the application of a limitation law until the cessation of the event leading to the cause of action. In other words continuance of injury means the continuance or repeat of the act which caused the injury
Let me cite an example with the case at hand the injury or damage complained of is the loss of earnings from the vehicles used for commercial purpose. Therefore for everyday the vehicles are detained the 1st Respondent is incurring loss. The learned trial Judge was right when he held
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that:
— the applicants admitted that the Respondent’s vehicles are still in their custody. This in my view means that the damages or injury complained of by the Respondent is continuing hence time does not begin to run against the Respondent until after the ceasing of that complaint.
On this note, I hold that the interlocutory appeal lacks merit and it is accordingly dismissed.
The first issue in the main appeal is whether the Ogun State high court had jurisdiction to entertain the suit against the 3rd and 4th defendants now Appellants, who were agents of the Federal Government of Nigeria.
The Appellants counsel submitted that the commissioner of police Ogun State and the Nigeria police Igbegba, Ijebu-Ode respectively are by virtue of the provisions of Section 215 (1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 agents of the Federal Government. Learned counsel submitted that Subsections (3), (4) and (5) of Section 215 of the 1999 Constitution and the fact that the Nigeria Police council mentioned in Section 215 (1) (b) of the 1999 Constitution is one of the federal executive bodies established
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by the Constitution. Learned counsel also referred to Section 214 of the 1999 Constitution which establishes the Nigeria Police Force. Learned counsel submitted that the Appellants are agents of the Federal Government therefore the Ogun State High Court lacked the jurisdiction and competence to entertain the suit, having regard to the provisions of Section 251 (1) (p) (q) (R)(s) of the 1999 Constitution of the Federal Republic of Nigeria. By the above provisions exclusive jurisdiction is vested in the Federal High Court in civil cases and matters arising from the administration, management and control of the Federal Government, or any of its agencies. Learned counsel cited the following cases: NEPA v. Edegbero & Ors (2002) 12 NSCQR 105 and University of Abuja v. Prof. Ologe (1996) 4 NWLR (pt. 445).
Learned counsel for the 2nd and 3rd Respondents proffered argument in parimateria with that of the Appellant counsel. But however learned counsel for the 1st Respondent submitted that the fact that the Appellants are federal public officers does not make them agencies of the Federal Government as contemplated by the constitution. He relied on the case of
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Dr. Okoroma & Anor v. Chief Christiana Uba & Ors (1998) LPELR 6405 (CA) where the Court held:— The 2nd – 6th Respondents although police officers in the Federal Government establishment, that is the Nigeria police are not Federal Government agencies within the meaning of Section 230 (1) (q) (r) and (s) of Decree No. 107 of 1993.”
Learned counsel urged the Court to hold that the lower Court acted perfectly within its jurisdiction to have determined the suit as constituted before it.
Upon a careful consideration of the submissions of learned counsel, I am not in doubt that the Appellants by virtue of Section 215 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 are agents of the Federal Government.
However by virtue of Section 4 of the police Act, Cap 359, Laws of the federation 1990, the duties of the police include amongst others, the prevention and detection of crime, the apprehension of offenders the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are charged. Thus once criminal allegation are made
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against a citizen, the police has a constitutional and statutory duty to investigate the allegation. But the police duties under the relevant statutes including the police Act do not enjoin the police to be involved in civil disputes. Once a transaction is in a form of a contract like in the instant case, the police are enjoined to exercise restraint. See Jim-Jaja v. C.O.P. (2011) 2 NWLR (pt. 1231) 375 and Omman v. Ekpe (2000) 1 NWLR (pt.641) 365.
If in the course of investigation of a criminal offence, the police fall foul of any of the provisions of Section 35 of the Constitution which relates to personal liberty, their action can be challenged in an action under the Fundamental Rights Provisions or by ordinary writ of summons. See I.G.P. v. Ubah (2015) 11 NWLR (pt. 1471) 405.
It is settled law that in spite of the exclusive jurisdiction conferred on the Federal High Court by Section 251 (1) of the 1999 Constitution, the original jurisdiction of the State High Court to entertain complaints pertaining to fundamental rights remains unimpaired. In other words the High Court of a State or of the Federal Capital Territory can exercise original
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jurisdiction in respect of applications relating to infringement of fundamental rights notwithstanding that the Respondents are agencies or officials of the Federal Government. See Dayo Omosowan & Ors v. Chiedozie (1998) 9 NWLR (pt. 566) 477 and Alhaji Lawan Zakari v. IGP & Anor (2000) 6 NWLR (pt. 670) 666.
All that I have been saying is that by virtue of Section 46 of the 1999 Constitution both State and Federal High Courts have concurrent original jurisdiction to hear and determine proceedings involving infraction of any fundamental right. See FRN v. Udensi Ifegwu (2003) MJSC 36 at 86-87 and Jack v. University of Agriculture Makurdi (2004) 5 NWLR (pt. 865) 208 at 228-229.
On this note, I hold that the trial Court has jurisdiction to entertain the suit against the Appellants being agents of the Federal Government of Nigeria in terms of the reliefs contained in paragraph 38, (2) and (4) of the 2nd Further Amended Statement of claim. Issue one is resolved against the Appellant in favour of the Respondent.
The next issue is whether the Plaintiff’s items of special damages were proved as required by law to warrant same being granted by
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the learned trial judge. The Appellants counsel argued and submitted that special damages must be specifically pleaded and strictly proved. He cited the case of Blackwood Hodge Nig. Plc. v. Omuna Construction Coy Ltd (2002) 12 NWLR (pt. 782) 523.
Learned counsel submitted that the commercial nature of the 1st Respondent’s but was not pleaded nor proved. He said it is a precursor to the consideration and proof of the income purportedly generated by the but. He said no registration particulars of the vehicle were produced to show that it was registered to ply the road as a commercial vehicle. And the driver and conductor must be registered and licensed under the law. Otherwise plying the road as commercial vehicle will be illegal. He said the plaintiff has the onus of proving the commercial nature of the bus which are matters within his personal/special knowledge and he failed to discharge the onus. He referred to Section 140 of the evidence Act. He submitted that the 1st Respondent pleadings and his evidence in Court without the evidence concerning the commercial nature of the bus apparently shows illegality in the manner the bus was put to use. He
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cited the case of Sodipo v. Lemminkainen O.Y (1985) 2 NWLR p. 542.
He submitted further that neither the driver nor the conductor was called to testify and be cross-examined. He said Exhibits E-E2 the account books tendered as evidence was recorded by the driver on different dates and he was not called to be cross examined on the recording spanning a period 1997 to 2005. He said yet the lower Court accorded credibility to this evidence. He cited the case of Shell v. Tiebo VII & Ors (2005) SCM 132 at 136. He submitted that the lower Court failed to correctly approach the assessment of the evidence before it and failed to place the right probative value on this evidence. He urged this Court to re-evaluate the evidence. He cited the case of Abisi v. Ekwealor (1993) 6 NWLR (pt. 302) 643 and Odutola & Ors V. MABOGUNJE & ORS (2013) 3 SCM 115 at 139.
Arguing in support of the Appellants contention the learned counsel for the 2nd and 3rd Respondents submitted that the claimant did not state whether the working days of his vehicle included Saturdays and Sundays and public holidays. And this is fatal to the claim of the claimant. He relied on the dictum of Sanusi
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JCA (as he then was) in the case of Taylor v. Ogheneovo (2012) ALL FWLR (pt. 610) p.1374-1375. Learned counsel submitted that both oral and documentary evidence ought to be adduced. He cited the case of Okuleye v. Adesanya (2014) FWLR (pt. 753) 1823.
Arguing contrary to the above submissions the learned counsel for the 1st Respondent submitted that the unchallenged and contradicted evidence led on the various heads of claims by the claimant are more than sufficient to support the awards made by the Court below. By its nature special damages must be specifically pleaded with particulars and must be strictly proved. He referred to the 2nd further and better amended statement of claim dated 21/05/2008 and contained on pages 217 to 224 of the records. He submitted that the claimant pleaded in detail the items of special damages with their particulars. On the evidence led to establish the special damages he referred to pages 166,172-177 of the record and he submitted that the plaintiff offered the best evidence obtainable in the circumstances in proof of his items of special damages. He cited the case of Ohadugha v. Garba (2000) FWLR (pt. 16) 2721 at 2741 and
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Ndinwa v. Igbinedion (2000) FWLR (pt. 30) 2673 at 2655.
Learned counsel submitted that the Appellants argument that the bus driver or conductor was not called to prove that the bus was, used for commercial purpose is misconceived especially when the 1st Respondent pleaded that he cannot locate the whereabouts of the driver who apparently must have lost contact with him over the years. He submitted that the lower Court did not act on any wrong principle of law in his assessment of damage in this case to warrant any interference by this Court. He cited the case of Habib Bank Nig. Ltd. v. Ocheta (2001) FWLR (pt. 54) 354 at 409-410.
On what is meant by strict proof he cited the case of Odulaja v. Haddad (1973) 1 All NLR 191 at 196 and S.P.D.C. Nig. V. Okonedo (2008) 9 NWLR (pt. 1091) 85 at 119.
See also ACB Ltd v. Neka B.B.B. Mfg Co. Ltd (1996) 4 NWLR (pt. 444) 564; Guinness (Nig) Plc v. Nwoke (2000) 15 NWLR (pt. 689) 135; Salaudeen & Anor v. Oladele (2002) LPELR 7064 (CA) and Abah v. Jabusco (Nig) Ltd (2008) 3 NWLR (pt. 1075) 526 at 565.
Learned counsel submitted further that unchallenged evidence without more can constitute
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sufficient proof of special damages. See Obasuyi v. Business Ventures Ltd (2000) FWLR (pt. 10) 1722 at 1734.
At pages 353-357 of the record the learned trial Judge considered the issue of damages and awarded special and general damages in the sum of N8,296,000.00 (Eight Million, Two Hundred and Ninety Six Thousand Naira) only in favour of the claimant against the defendants jointly and severally. The breakdown of which is given below:
1. Loss of earnings on Fiat Bus === N7,670,000:00
2. Loss of use of Toyota Tarcel Car === N365,000:00
3. Loss of Hire of Professional Tools === N36,000:00
4. General damages on Fiat Bus === N150,000:00
5. General damages on Toyota Car === N75,000:00
TOTAL === N8,296,000:00
The law relating to award of damages have been succinctly stated by the Supreme Court in a number of cases. The main purpose of awarding general damages is to assuage such loss which flows naturally from the Respondents conduct. It needs not to be specifically pleaded and be proved by evidence. It arises from inference of law. The damages are presumed to be indirect and probable consequences of the act complained of. But
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unlike general damages, special damages is generally incapable of substantially exact calculation. Special damages must be specifically pleaded and strictly proved. See Shell B. P. v. Cole (1978) 3 SC 183. It is not enough to prove special damages by mere ipse dixit. It is also not enough to say that the ipse dixit of Plaintiff was not challenged. It must be proved by Plaintiff. He who asserts must prove. See Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR (Pt. 736) 424. By strict proof it does not mean unusual proof but a Claimant who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts, which gave rise to such calculation. It also means that the claim must be established by credible evidence of such a character as to suggest that the Claimant is indeed entitled to an head of claim. Where the Plaintiff fails to adduce credible evidence in proof of special damage, the general law of evidence as to proof by preponderance of evidence or weight of evidence will apply.
In the circumstances of this case the learned trial Judge unquestionably evaluates the evidence and appraises the
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facts before coming to the conclusion that the Claimant is entitled to special damages. Where a trial Court unquestionably evaluates the evidence and justifiably assess the facts and makes a findings of fact which is in no way perverse but sufficiently justified from the pleadings and evidence, it is not the duty of an Appellate Court to interfere with the findings of fact made by the trial Court which had the advantage of hearing and seeing witnesses testify, so long as those findings are reasonably supported by evidence. See Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251; Ndili v. Akinsumade (2000) 8 NWLR (Pt. 668) 298; Auchi Polytechnic v. Okuoghae (2005) 10 NWLR (Pt. 933) 279; Jinadu v. Esurombi (2005) 14 NWLR (Pt. 944) 142 and Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1.
On evaluation of evidence and the ascription of probative value to such evidence which are in the realm of the trial Court, the duty of the Court of appeal is to find out whether there is evidence on record on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial Court arrived at its findings of fact the Court of appeal cannot interfere.
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In this instant case, the trial Court had performed its primary duty of evaluating and ascribing probative values to the evidence before it. There is enough evidence on record from which the trial Courts findings are supported. From the foregoing, the second issue is resolved against the Appellant.
The Appellant has abandoned the third issue in the main appeal and same is hereby discountenanced. Having resolved all the issues against the Appellant, the appeal lacks merit and it is accordingly dismissed. Equally the 2nd and 3rd Respondents notice for variation of decision is dismissed for lacking in merit.
JIMI OLUKAYODE BADA, J.C.A.: I had the preview of the lead Judgment of my learned brother ABUBAKAR MAHMUD TALBA, JCA just delivered.
Having perused the record of appeal as well as the briefs filed and exchanged by the parties, I am also of the view that this appeal lacks merit and it is also dismissed by me.
I abide by the consequential orders made in the said lead Judgment.
NONYEREM OKORONKWO, J.C.A.: I have read the draft of the lead judgment by my learned brother
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Abubakar Mahmud Talba, JCA in this appeal whose substratum is limitation of action by the Public Officers Protection Act raised in the action. One exception to the operation of the statute is that, it does not operate where the continuance of the act persists or where the injury flowing from the act complained of lingers. It is after the cessation thereof that the Act begins to operate. This is the essence in the lead judgment which I entirely agree with.
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Appearances:
A. D. Adefala Senior State Counsel Ogun State For Appellant(s)
I. A. Olagunju with him L. A. Olagunju and M. A. Lateef for the 2nd & 3rd Respondents.
1st Respondent is absent. For Respondent(s)
Appearances
A. D. Adefala Senior State Counsel Ogun State For Appellant
AND
I. A. Olagunju with him L. A. Olagunju and M. A. Lateef for the 2nd & 3rd Respondents.
1st Respondent is absent. For Respondent