F.G.N. EJISCO NIGERIA LIMITED & ANOR v. C.G.C. NIGERIA LIMITED (2019)

F.G.N. EJISCO NIGERIA LIMITED & ANOR v. C.G.C. NIGERIA LIMITED

(2019)LCN/13648(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of July, 2019

CA/MK/103/2015

RATIO

DAMAGES: WHERE THERE IS A CLAIM FOR TOTAL DESTRUCTION OF PROPERTY, THE VALUE OF THE PROPERTY WILL BE THE VALUE OF THE PROPERTY AT THE TIME OF ITS DESTRUCTION

DAMAGES: WHERE THERE IS A CLAIM FOR TOTAL DESTRUCTION OF PROPERTY: HOW THE COURT SHOULD CALCULATE SUCH DAMAGES

To enable the Court arrive at the right value, the plaintiff ought to plead and prove not only the purchase price of the property but also its pre ? accident value. See Unipetrol (Nigeria) Plc V Adirejo West Africa Ltd (2005) 14 NWLR (Pt. 946) 563, 621. PER JOSEPH EYO EKANEM, J.C.A.

NEGLIGENCE: CONTRIBUTORY NEGLIGENCE: WHEN THERE IS A FINDING OF CONTRIBUTORY NEGLIGENCE, NEXT IS APPORTIONMENT OF DAMAGES

Where there is a finding on contributory negligence, what follows is apportionment of damages recoverable in the suit, according to the proportions in which the parties are responsible for the damage taking into account both causation and blame-worthiness. The amount recoverable must be reduced to such extent as the Court thinks just and equitable, having regard to plaintiff?s share in the responsibility for the damage. See Ololo v Nigeria Agip Oil Company Limited (2001) FWLR 1833, 1841. PER JOSEPH EYO EKANEM, J.C.A.

APPEAL: WHEN AN APPELLATE COURT WILL INTERFERE IN THE AWARD OF A TRIAL COURT

An appellate Court will not interfere with an award by a trial Court unless it is shown that;

(i) the trial Court acted under a mistake of law; or

(ii) the trial Court acted in disregard of some principles of law; or

(iii) the trial Court acted under a misapprehension of facts; or

(iv) the trial Court took into account irrelevant matters or failed to take into account relevant matters; or

(v) injustice would result if the appellate Court does not interfere; or

(vi) the amount awarded is either ridiculously high or low that it must have been a wholly erroneous estimate of the damage. See British Airways v Atoyebi (2014) 13 NWLR (Pt. 1424) 253, 287 288. PER JOSEPH EYO EKANEM, J.C.A.

DAMAGES: SPECIAL DAMAGES: NATURE OF SPECIAL DAMAGES

The claim is in the nature of special damages which are special in nature. They are such loss that the law will not normally presume as the natural consequence of the defendant?s fault but which depends on the special circumstances of the case. They therefore must be specifically pleaded and strictly proved. Strict proof of special damages does not mean that the law has set a minimum measure of evidence or that the law has laid down a special category of evidence required to establish special damages. What is required is that the claimant should establish his claim by credible evidence that he is entitled to special damages. See Oshinjinrin v Elias (1970) 1 All NLR 152, Nwanji v Coastal Services Nigeria Limited (2004) 11 NWLR (Pt. 885) 552, Adim v Nigerian Bottling Company Ltd (2010) 9 NWLR (Pt. 1200) 543 and Ajigbotosho v RCC Ltd. (2019) 3 NWLR (Pt. 1659) 287. PER JOSEPH EYO EKANEM, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. F.G.N. EJISCO NIG. LTD

2. MR. AUSTINE ANYICHE – Appellant(s)

AND

C.G.C. NIG LIMITED – Respondent(s)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The 1st appellant, a limited liability company, is the registered owner of a DAF 2800 trailer with registration number XH 320 GME. The 2nd appellant is its Chairman, Managing Director and Chief Executive Officer. The respondent is the owner of a tipper trailer with registration number XA 509 MAN. On 17/2/2012, the respondent?s driver drove the said tipper trailer along Lafia/Nasarawa ? Eggon Highway. At a point notoriously called ?Many have gone Hill? the said driver rammed the respondent?s tipper track into the 1st appellant?s trailer, causing damage to the truck and the goods that were carried in it. At the material time, the trailer was stationary.

When efforts made by the respondent to replace the trailer by the purchase of another one for the 1st appellant and also pay some money for the damaged goods failed, the appellants sued the respondent (as 2nd defendant) and its driver, Sanni Adamu (as 1st defendant) at the High Court of Justice, Nasarawa State, in the Lafia Judicial Division (?the trial Court? for short). In their

statement of claim, the appellants claimed the following reliefs against the respondent and its driver:

?a. The sum of N25,000,000.00 (Twenty five Million Naira) being the current cost of the DAF Truck or its equivalent.

b. The sum of N9,335,100.00 (Nine Million, Three Hundred and Thirty Five Thousand, One Hundred Naira) only being cost of the goods damaged.

c. An order that the Defendants pay the Plaintiffs the sum of N4,800,000 (Four Million, Eight Hundred Thousand Naira) only per week from the 20th day of February 2012 being the net profit and/or returns the plaintiffs damaged truck make until judgment is delivered and subsequently until all accrued damages paid.

d. An order that the Defendants pay the plaintiffs the sum of N950,000.00 (Nine Hundred and Fifty Thousand Naira) per month from the 1st day of March 2012 for total net profit loss from 17th February, 2012 until judgment is delivered and subsequently until all accrued damages paid.

e. N3,000.000.00 (Three Million Naira) only being cost of the legal fees and expenses for the conduction of this action.

f. N5,000.000.00 (Five Million Naira) only for special and

general damages.

g. Cost of this action.?

The respondent filed a statement of defence denying the claim of the appellant.

At the trial, three witnesses testified for the appellants and Exhibits A, B, C, D1, D2, D3, D4, D5, E and F were tendered. The respondent, in turn, called three witnesses and tendered Exhibits G, H, H1, H2, H3, H4, H5, H6 and H7. After taking addresses the trial Court (coram S.U. Dikko, CJ) found in favour of the appellants and awarded the following as damages in their favour:

(i) N6,350,000.00 as cost of the appellant?s truck

(ii) N2,000,000.00 as general damages

All other claims were dismissed.

Aggrieved by the awards made by the trial Court, the appellant has appealed to this Court by means of a notice of appeal which was filed on 14/8/2015. It incorporates five grounds of appeal.

Out of the five grounds of appeal, the appellants, in its brief of argument settled by A.O. Olatunde, Esq., formulated the following issues for the determination of the appeal:

?3.1 Whether the Learned Trial judge was right to have awarded N6,350,000.00 being 50% of the price of the DAF 280 truck

that was involved in the accident on 17/2/2012, instead of the purchase price of N12,700,000 or the current market value of N25,000,000.00.

3.2 Whether the Learned Trial Judge was right to have dismissed the claim for loss of earnings of N950,000.00 (Nine Hundred and Fifty Thousand Naira) per month in the face of unchallenged evidence proffered at the trial by the Appellants.

3.02 Whether or not the Learned Trial Judge was right to have dismissed the claim for damaged goods of N9,335,100.00 which is less than the total goods damaged in the truck at the time of the accident?.

In the respondent?s brief of argument settled by Kevin A. Mejulu, Esq. the following issues are decocted from the grounds of appeal for the determination of the appeal:

?a. Whether the Learned Trial Chief Judge was right to have awarded N6,350,000.00 being 50% of the price of the DAF 280 truck that was involved in the accident of 12/2/2012, instead of the purchase price of N12,700,000 or the current market value of N25,000,000.00 (Grounds 1 and 2).

b. Whether the Learned Trial Chief Judge was right to have dismissed the claims for loss of earning,

cost of damaged goods and special damages in the face of lack of evidence proffered at the trial by the appellants. (Grounds 3, 4 and 5)?.

At the hearing of the appeal on 14/5/2019, Basil Hemba, Esq. for appellants adopted appellants? brief of argument in urging the Court to allow the appeal. K.A. Mejulu, Esq. for the respondents adopted its amended brief in urging the Court to dismiss the appeal.

I have examined the issues raised by counsel on both sides and it seems to me that they are in substance the same. I will therefore adopt the issues formulated by appellants? counsel in the determination of the appeal. Before going into the merits of the issue, it is necessary for me to resolve the preliminary objection raised by the respondent in its brief of argument.

At the hearing of the appeal, respondent?s counsel sought for and was granted leave to argue his preliminary objection, notice of which is at page 6 paragraphs 3.1 ? 3.2 of his brief of argument. Arguments in respect thereof are at pages 7 ? 14, paragraphs 3.4 ? 3.23 of the said brief of argument.

?The contention of respondent?s

counsel in his preliminary is that whereas the appeal is expressed in the notice of appeal to be against only a part of the decision of the trial Court, to wit; the part dealing with award, ground 2 of the grounds of appeal challenges the finding of the trial Court on contributory negligence. This, it is argued, makes the ground incompetent. It is further argued that this not only renders issue 1 (one) in the appellants? brief of argument which is distilled from grounds 1 and incompetent but also renders the notice of appeal incompetent, and liable to be struck out.

Counsel for respondent did not file a reply brief to answer the preliminary objection and arguments thereon. Rather when the appeal came up for hearing, counsel conceded to the objection. Nevertheless I will still consider the merits of the objection to determine whether or not it is meritorious.

Resolution

Order 7 Rule 2(1) of the Court of Appeal Rules, 2016, provides as follows:

?All appeals shall be by way of rehearing and shall be brought by notice (hereafter called ?the notice of appeal?) to be filed in the registry of the Court below which shall set

forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case such part) and shall state also the exact nature of the reliefs sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties?. (Underlining is mine for emphasis).

The underlined portion of the provision prescribes that a notice of appeal shall state whether or not the appeal is against the whole or part only of the decision of lower Court. If the appeal is against a part only of the decision, the notice is to specify the part appealed against. The essence of the provision or requirement is to define the area of the complaint. If the complaint is against a part only of the decision, then the area of the contest on appeal will be defined and restricted to that part of the decision which is the subject of the appeal.

In the notice of appeal, it is stated, in part, as follows:

?2. PART OF THE DECISION/JUDGMENT COMPLAINED OF:

Part of the judgment of the Court dealing with award?.

Ground 2 of the grounds of appeal states:

?The Learned Trial Judge misdirected himself in law when he held as follows:

?My decision is premised on the fact that the plaintiffs are contributory in negligence by parking their vehicle on the highway road which caused the 2nd defendant?s vehicle to ram into same and this has occasioned a miscarriage of justice?.

PARTICULARS OF MISDIRECTION

i) No contributory negligence was pleaded by the Defendants

ii) A vehicle being driven by the 1st defendant and rammed into a stationary vehicle in the day time prima facie shows that 1st defendant was negligent.

iii) A reasonable person must notice a stationary vehicle and avoid ramming into it from behind?

The ratio decidendum of the trial Court which is the subject of the attack under ground 2 was part of the reasoning of the trial Court for awarding the sum of N6,350,000.00 as cost of the damaged truck of the appellants. In fact the trial Court specifically stated that his award of that sum of money was premised on the fact of contributory negligence on the appellants? part. Being a major factor

which influenced the trial Court?s award of N6,350,000.00 for the damage of the truck, the appellants who are complaining about the quantum of that award rightly raised it as a ground of appeal touching on the award made by the trial Court.

I hold the view therefore that the ground of appeal is safely within the confines of the part of the decision appealed against. The objection is without merit and I accordingly dismiss it.

At this point, I shall take a look at issue 2 and the thrust of the argument proffered by appellants? counsel in respect thereof. Issue 2 in the appellants? counsel?s brief of argument bears re ? statement at this point. it reads:

?Whether the Learned Trial Judge was right to have dismissed the claim for loss of earning of N950,000.00 (Nine Hundred and Fifty Thousand Naira) per month in the face of unchallenged evidence proffered at the trial by the Appellants.?

In arguing the issue, at page 8 par. 4.2.1 of the appellants? counsel?s brief of argument in the introductory part of the argument, it is stated thus.

?The contention of the Appellants in this

issue for determination is that the Learned Trial Judge was wrong to have dismissed the claim of the Appellants in paragraph 20 (c) of the reliefs seeking for loss of earning of N4,800,000:00 per month (sic; per week) from 20th day of February 2012 for total net profit the plaintiffs damaged truck would have made until judgment is delivered and subsequently until all accrued damages paid.?

The remainder of the argument under issue 2 focuses on the alleged error of the learned trial Judge in not awarding the claim for the sum of N4,800,000:00 per week as, according to appellants? counsel, appellants proved loss of earnings of N1,400,000:00 per week.

It can be seen that the theme of issue 2 is the dismissal of the relief in paragraph 20 (d) of the statement of claim for the sum of N950,000:00 per month for total net profit loss from 17/2/2012. But the argument of appellants? counsel focuses on the dismissal of the claim in paragraph 20 (c) of the statement of claim for N4,800,000:00 per week from 20/2/2012 being net profit and/or returns made by the damaged truck.

?What I am trying to say is that the point argued under issue 2 is

different from the thematic thrust of the issue. Parties are bound by the issues they formulate in their briefs of argument; so too the Court which cannot go outside the issues legitimately submited to it for the determination of the appeal. SeeOwners of M/V Gongola Hope V Smurfit Nigeria Ltd (2007) 15 NWLR (Pt.1056) 189, 206. The offshoot of the position of the law is that any point of argument that is outside the issue formulated is incompetent and liable to be struck out. See Zabusky v Israel Aircraft Industry (2008) 2 NWLR (Pt. 1070) 109, 131 ? 132 and Ogidi V State (2005) 124 LRCN 420.

Since the argument proffered by appellants? counsel is outside issue 2 formulated by him, it is incompetent and I accordingly strike out the said argument. The result is that issue 2 is left without any argument in support of it and it is therefore deemed abandoned. I accordingly strike out issue 2.

I am therefore left with issues 1 and 3 for the determination of the appeal. I intend to consider them serially.

ISSUE 1

Whether the learned trial judge was right to have awarded N6,350,000:00 being 50% of the price of the DAF 280 truck that was

involved in the accident on 17/2/2012, instead of the purchase price of N12, 700,000 or the current market value of N25,000,000:00.

Appellants? counsel stated that the learned trial judge found that the respondent?s driver was negligent. He wondered why, if the DW1 could drive pass the truck without ramming into it, the driver of the respondent?s vehicle rammed into it. He submitted that the issue of contributory negligence would not arise in view of the above situation. It was his contention that the appellants led credible evidence that the purchase price of the truck was N12,700,000:00 and that the accident occurred seven months and 20days after its purchase. He stated that the current market value of the truck is N25,000,000:00 and that evidence to that effect was unchallenged.

For the respondent, it was submitted that there was nothing before the trial Court to prove the current market value of the truck. Counsel argued that where a vehicle involved in an accident through the negligence of another is a total loss or write ? off, the plaintiff is entitled as damages to only the pre-accident market value of the vehicle, less

the value of the vehicle as scrap, which must be specifically pleaded and proved. He placed reliance on Ya?u v Dikwa (2001) FWLR (Pt. 62) 1987. He stated that there was nothing in Exhibit A to show that the current market value of the vehicle is N25,000,000:00.

Counsel argued that respondent?s evidence on contributory negligence was uncontroverted and that the trial Court rightly acted on it based on Ololo V Nigerial Agip Oil Co. Ltd (2001) FWLR (Pt. 62) 1833. He noted that there is no where in the judgment of the trial Court in which a finding of negligence was made against the respondent.

Resolution

In paragraph 20 (a) of the statement of claim, the appellants claim as follows:

?The sum of N25,000,000.00 (Twenty ? Five Million Naira) being the current cost of the DAF Truck or its equivalent?.

It was the case of the appellants that the vehicle was irredeemably damaged. It was pleaded that the purchase price of the vehicle is N12,700,000.00 while its current cost is N25,000,000.00. The trial Court awarded the sum of N6,350,000.00 under this head of claim on the following consideration:

(i) that the

purchase price was by Exhibit B shown to be N12,700,000.00;

(ii) that the claim for N25,000,000.00 was outrageous;

(iii) that the respondent offered to replace the damaged truck with a fairly used one costing N3,000,000.00 or N3,500,000.00 which was rejected by the appellants;

(iv) that there is the law of diminishing returns; and

(v) that there was contributory negligence on the part of appellants? driver.

The law is that where there is a claim for total destruction of property, the measure of damages will be the value of the property at the time of its destruction. See Shell Petroleum Development Company of Nigeria Limited V Ambah (1999) 66 LRCN 390, 407. To enable the Court arrive at the right value, the plaintiff ought to plead and prove not only the purchase price of the property but also its pre ? accident value. See Unipetrol (Nigeria) Plc V Adirejo West Africa Ltd (2005) 14 NWLR (Pt. 946) 563, 621. Exhibit A was tendered by the appellant to, according to appellants? counsel, show the current cost of the truck as N25,000,000.00. It is titled ?Change of Ownership: To whom it may concern?. It does not

contain the value of the truck. Being a document of change of ownership, it can not be seen as proof or evidence of the price of a DAF 2800 trailer. The result is that it was not proved that the current value of the damaged truck is N25,000,000. Further, in a claim relating to used items, evidence of new price of the item is not proof of the value of the item ? Obot v Akpan (1998) 4 NWLR (Pt. 546) 409, 419. It is therefore unacceptable to put the value of the damaged vehicle at N25,000,000:00 when it was purchased at N12,700,000:00.

The trial Court rightly found that the purchase price of the trailer is N12,700,000.00. The trial Court awarded N6,350,000.00 on account, inter alia, of diminishing returns and contributory negligence. Exhibit B shows that the trailer was purchased on 27/6/2011 and the crash occurred on 17/2/2012, that is, about eight months after its purchase. It is clear from the pleadings and evidence of the appellants that the trailer was being used on a daily or weekly basis to transport goods over long distances from Lagos to Gombe and from Onitsha to Gombe. By reason of normal wear and tear, the value of the truck would not have

increased beyond its purchase price. Since that was the contention of the appellants, an expert was needed to testify to that effect. No such expert was called to testify.

In regard to contributory negligence, the trial Court found that the appellants were contributory in negligence by parking the vehicle on the highway. Though not neatly particularised in the regular way, the respondent copiously pleaded facts of contributory negligence in paragraphs 7, 8, 12, 13, and 14 of their statement of defence. This meets the requirement of the law for particularisation of plea of contributory negligence. See Bua V Dauda (2003) 113 LRCN 2579, 2591.

Counsel on both sides bickered over the period of the day that the crash occurred; whether at night or in the day. There is no averment on this point in the pleadings of the parties. It should be mentioned that all through its judgment, the trial Court did not make any specific finding that the respondent?s driver was negligent. I will however not say more on this since the respondent has neither appealed nor filed a cross ? appeal against the judgment of the trial Court.

Contrary to the submission

of appellants? counsel, the mere fact that the DW2, who was driving another vehicle ahead of respondent?s driver before the crash occurred, successfully passed without hitting the trailer, does not show absence of contributory negligence. The arguments on issues 1 and 2 do not attack the finding of the trial Court that the trailer was parked on the highway. Parking a trailer on the highway is negligent, if not reckless. An appellate Court should be slow to disturb the finding of the trial Court. It can only disturb such finding if it is found to be perverse. See Ibanga v Usanga (1982) 5 SC 103 and Ebba v Ogodo (1984) 1 SCNLR 372. I see no reason to disturb the finding of the trial Court on contributory negligence.

Ololo v Nigeria Agip Oil Company Limited (2001) FWLR 1833, 1841.

An appellate Court will not interfere with an award by a trial Court unless it is shown that;

(i) the trial Court acted under a mistake of law; or

(ii) the trial Court acted in disregard of some principles of law; or

(iii) the trial Court acted under a misapprehension of facts; or

(iv) the trial Court took into account irrelevant matters or failed to take into account relevant matters; or

(v) injustice would result if the appellate Court does not interfere; or

(vi) the amount awarded is either ridiculously high or low that it must have been a wholly erroneous estimate of the damage. See British Airways v Atoyebi (2014) 13 NWLR (Pt. 1424) 253, 287 ? 288.

The appellants have not demonstrated that any of these factors exists in this appeal.

I accordingly enter an affirmative answer to issue 1 and resolve it against the appellants.

ISSUE 3

Whether or not the learned trial judge was right to have dismissed the claim for damaged goods of N9,335,100:00 which is less than the total goods damaged in the truck at the time of the accident.

Appellants? counsel noted that the learned judge stated that the cost of goods purchased ab initio before the accident was N20,000,000:00 while the appellant claimed only N9,335,100:00. He further noted that there was abundant evidence that some goods were salvaged from the scene of the accident thereby reducing the sum claimed on the goods. He referred to paragraph 5 of the statement of claim and Exhibits D1 ? D5 (the invoices for the goods) and submitted that as there was evidence that some of the goods were salvaged, it lent credence to the claim of the appellants that goods worth N9,335,100:00 were damaged.

For the respondent, it was submitted by its counsel that a party claiming special damages is required to plead particulars thereof and lead credible evidence in proof. He submitted that appellants could not rely on Exhibits D1 to D5 as proof of the cost of the goods damaged. He stated that the case of the appellants in its pleadings and evidence was that all the goods that were being conveyed to Gombe were irredeemably damaged as a result of the accident; but the sum stated in Exhibits D1 to D5 do not tally with the amount claimed

by the appellants as the money for the goods so damaged. He referred Nwanji v Coastal Services Nigeria Limited (2004) 11 NWLR (Pt. 885) 564 and submitted that the head of claim under consideration was not proved.

RESOLUTION

In paragraph 20 (b) of the statement of claim, the appellants claimed:

?The sum of N9,335,100.00 (Nine Million, Three Hundred and Thirty Five Thousand, One Hundred Naira) only being cost of the goods damaged.?

Nwanji v Coastal Services Nigeria Limited (2004) 11 NWLR (Pt. 885) 552, Adim v Nigerian Bottling Company Ltd (2010) 9 NWLR (Pt. 1200) 543 and Ajigbotosho v RCC Ltd. (2019) 3 NWLR (Pt. 1659) 287.

The averments of the appellants regarding this head of claim is at paragraphs 8, 9 and 10 of the statement of claim. They are as set out hereunder:

?8. The plaintiffs state that as a result of the reckless and dangerous driving of the 1st Defendant the DAF Truck and the goods it was carrying were irredeemably damaged.

9. The plaintiffs avers that on that fateful day their truck was conveying the following items and/or goods: 592 gallons of citizen paints, 400 gallons of Deltex paints, 120 gallons fine coat, 50 cartons of citizen in park, 80 gallons of Kings oil, 110 sheets of formica doors, 26 x 66, 800 gallons of imperial wood finish s/s, 670 gallons of imperial wood finish m/w, 500 gallons of imperial wood finish glossy, 2000 gallons of cellulose thinner and 205 drums of 20 litters imperial gum.

10. The plaintiffs avers that the cost of the aforestated goods was carrying and /or being conveyed by the driver was N9,335,100 (Nine Million, Three Hundred and Thirty Five

Thousand, One Hundred Naira) only at that time.?

The first point that is to be made is that the monetary value of each of the items is not pleaded. It is the lump sum of N9,335,100:00 that is pleaded. The appellants had a duty to not only set out the items that were damaged but also their values individually. This is because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to facts which make such calculation possible. See British Airways v Atoyebi (2014) 13 NWLR (Pt. 1424) 253, 287 and Nwanji v Coastal Services Nigeria supra. 567.

In Nwanji v Coastal Services Nigeria Ltd supra. 567. The Supreme Court held as regards a claim for loss of iron rods and cement that the plaintiff was obliged to state the number of iron rods, bags of cement and respective price of each and the same must be in evidence. The prices of the individual goods in the instance were not pleaded and given in evidence.

?I should quickly observe that Exhibits D1, D2, D3, D4, and D5 were tendered to prove the value of the goods that were said to be damaged. The exhibits are various invoices totalling

N23,923,050:00. Curiously the invoices are all dated 13/2/2012 but the crash occurred on 7/2/2012. In other words, the crash occurred six days before the invoices for the goods that the trailer carried were issued. This is quite baffling and perplexing to me but I will not pursue the point since the parties agree that there were goods carried in the trailer as at the time of the crash. The only point of disagreement is whether or not the goods were all irredeemably damaged.

Though the case of the appellants was that the goods were irredeemably damaged, in cross ? examination at page 252 of the record of appeal, PW3 testified that,

?When the accident happened and my driver called me all the items did not damage. I transported some to Gombe.?

?This accords with the case of the respondent as pleaded in paragraph 16 of the statement of defence that the goods were not irredeemably damaged as majority of the goods were retrieved and taken away by the 2nd appellant in another vehicle. The pertinent question is what items of the goods were not damaged and what are their monetary values? An honest answer to this question would have

enabled the trial Court determine what amount to award for damage to the goods out of their total value of at N9,335,100:00. The trial Court was left to conjecture on this vital point and this cannot be the basis of award of special damages. SeeDumez (Nig) Ltd v Ogboli (1972) 1 All NLR 241.

The appellants did not satisfy the requirement of the law that special damages be specifically pleaded and strictly proved. I therefore enter an affirmative answer to issue 3 and resolve it against the appellant.

Having resolved the two issues for determination against the appellants, I hold that the appeal is without merit. It therefore fails and I accordingly dismiss it. I affirm the judgment of the trial Court.The parties shall bear their costs.

JUMMAI HANNATU SANKEY. J.C.A.: I have read before now the Judgment of my learned brother, Ekanem, J.C.A. just delivered.

He has thoroughly dealt with all the issues raised in the Appeal. I am therefore in complete agreement with his reasoning and conclusion. Clearly, the Appellants failed to prove his claims in respect of the relief for payment of N25,000,000.00 as

the current cost of the DAF Truck as well as the items of special damages claimed. He was therefore not entitled to any awards thereon.

The Appeal is therefore lacking in merit. It fails and is dismissed. I endorse the consequential Orders made.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph Ekanem, JCA, made available to me in advance, a draft copy of the Judgment just delivered in which this appeal has been dismissed. The issues arising for determination have been ably and fully considered and resolved.

?I agree with the predictable conclusion that this appeal is without merit. I also dismiss the appeal and abide by the orders made in the lead Judgment.

Appearances:

Basil Hemba, Esq.For Appellant(s)

K.A. Mejulu, Esq. with him, K. Mohammed, Esq.For Respondent(s)

Appearances

Basil Hemba, Esq.For Appellant

AND

K.A. Mejulu, Esq. with him, K. Mohammed, Esq.For Respondent