FLOURMILLS OF NIGERIA PLC & ANOR v. NIGERIA CUSTOMS SERVICE BOARD & ORS (2016)

FLOURMILLS OF NIGERIA PLC & ANOR v. NIGERIA CUSTOMS SERVICE BOARD & ORS

(2016)LCN/9051(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of November, 2016

RATIO

ORDER: WRIT; MEANING AND NATURE OF A SUBPOENA

The nucleus or pith of the contention in this issue is whether a person summoned on a subpoena duces tecum can adduce viva voce evidence on behalf of the party that summoned him. But first, what is a subpoena? In AKINTAYO vs. JOLAOYE (2010) LPELR (3688) 1 at 33, Bage, JCA stated as follows:

Subpoena is an order or writ of Court used for securing a witnesss attendance in Court of trial for the purpose of testifying and to produce some documents on behalf of the party who applied for the issue of such subpoena. Where the order is to secure the attendance of a witness for a purpose of testifying in Court, it is simply called subpoena ad testificandum, where the order commands the witness to produce certain documents at trial of an action, it is called subpoena duces tecum. If it is expected that apart from producing the documents, the person is also to give evidence, the subpoena would be subpoena ad testificandum et duces tecum.

See also IBRAHIM vs. OGUNLEYE (2010) LPELR (4556) 1 at 25, ADEYELA vs. ADEYEYE (2010) LPELR (3618) 1 at 54- 56 and OBI-ODU vs. DUKE (supra).

It is hornbook law that there are two distinct forms of subpoena, the duces tecum, which is used for purposes of having a witness produce a document and the ad testificandum which is used for purposes of having a witness adduce viva voce evidence. There is also the hybrid or amalgam of the subpoenas, the subpoena ad testificandum et duces tecum, which is employed to have a witness adduce viva voce evidence and also produce documents. The legal effect of a subpoena duces tecum is different from a subpoena ad testificandum. By Section 205 of the Evidence Act, oral evidence given in any proceeding must be given on oath or affirmation. However, by Section 218 of the Evidence Act, a party may be summoned to produce a document (subpoena duces tecum) without being summoned to give evidence, and by Section 219 of the Evidence Act, a person summoned to produce a document does not become a witness by the mere fact that he produces it and he cannot be cross-examined unless and until he is called as a witness. So by the provisions of the law, a witness who is on a subpoena need not be sworn as a witness but it suffices if he produces the document required. See FAMAKINWA vs. UNIVERSITY OF IBADAN (supra) at 624-625, HASKE vs. MAGAJI (2008) LPELR (8330) 1 at 17 and LAGOS vs. JIBRIN (2008) LPELR (4419) 1 at 19-20. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE: UNCONTROVERTED EVIDENCE; DUTY OF COURT TO EVALUATE UNCHALLENGED EVIDENCE

Festinately, evidence even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT 313) 588, NEKA B.B.B MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and BUHARI vs. OBASANJO (2005) 8 MJSC 1 at 268. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659: PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE: SPECIAL DAMAGES; HOW IS SPECIAL DAMAGES PROVEN

Now, it is rudimentary law that special damages has to be specifically pleaded and particularized and proved by the evidence. See DANIEL HOLDINGS LTD vs. UBA PLC (2005) 13 NWLR (PT 943) 533 at 547 & 552, RCC (NIG) LTD vs. ROCKONOH PROPERTIES CO. LTD (2005) 10 NWLR (PT 934) 615 at 637 and ADECENTRO (NIG) LTD vs. COUNCIL OF OAU (2005) 15 NWLR (PT 948) 290 at 316. Strict proof however does not mean unusual proof; it simply means that a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such a calculation possible: IMANA vs. ROBINSON (1979) 3 & 4 SC 1 at 23 and USMAN vs. ABUBAKAR (2001) 16 WRN 160 at 170-171. In essence, there must be particulars upon which special damages are based, there must be evidence in proof and the evidence must be credible. See NWANJI vs. COASTAL SERVICES (NIG) LTD (2004) 10 MJSC 154 at 168. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DAMAGES: DOUBLE COMPENSATION; POSITION OF THE LAW ON DOUBLE COMPENSATION

DAMAGES: AWARD OF DAMAGES; DISTINCTION BETWEEN SPECIAL DAMAGES AND GENERAL DAMAGES

My lords, the law as I understand it and as buttressed by a plethora of decided cases as are replete in our Law Reports is that there is a distinction and very wide divide between special damages and general damages. These differences includes, though not limited to or intended as an exhaustive list of these differences, the following namely:

General damages need not be pleaded but special damages must be specifically pleaded.
General damages need not be proved but special damages must be specially proved.
In General damages the assessment it the duty of the Court but in special damages its assessment is based on what is specifically proved.
General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial.

See Ijebu Ode Local Government vs. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 36. See also Bellow v. A.G. Oyo State (1986) 5 NWLR (Pt.45) 828; UBN Ltd v. Odusote Book Stores Ltd (1995) 9 NWLR (Pt.421) 558.

It is thus well settled that in law there is need to specifically plead and strictly prove special damages as the rule requires anyone asking for special damages to prove strictly that he did suffered such damages as being claimed, though this does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages.

What is required of a party claiming special damages is to establish entitlement to such special damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head. Save this qualification, the general law of evidence as to prove by preponderance or weight as usual in civil cases operates. See Oshinjirin v. Elias (1970) All NLR 153. See also Warner International v. Federal Housing Authority (1993) 6 NWLR (Pt.298) 148.

It must be pointed out at once that the mere fact that the adverse party did not lead evidence to challenge the case of the party claiming special damages, would not ipso facto amount to proof of all special damages claims. A party who claim special damages, such as the 3rd Respondent in the instant appeal, is in law still under a duty to prove his special damages claims by credible relevant evidence on a balance of probability or preponderance of evidence as required by law or at least on a minimal proof, if the special damages claims were not challenged by the adverse party.

What then amounts to law minimal proof in law? Minimal proof is still a standard of proof and does not mean no proof of all. Therefore, where a party fails to meet by credible cogent evidence the requirement of prove on a balance of probability or preponderance of evidence in a contested case or at least on a minimal proof in an unchallenged case, he will still be held to have failed in his special damages claim as in law once a party fails to make out his special damages claims at least on a prima facie proof there is nothing for the adverse party to confront in such an unproved claims for special damages. Therefore, it no prima facie case is made out by a party claiming special damages, the adverse party need not prove anything in defence to such special damages claims or any claims at all. See Jolayemi v. Alaoye 18 NSQR (Pt.11) 5652 @ p.703.

The 3rd Respondent led no single credible evidence of his claims to special damages. In law, a party to a suit is not obliged to lead evidence in support of every averments or claims in his pleadings, though he is bound by his pleadings, he is at liberty to abandon such averments or claims as he considers unnecessary to his case or which he is unable to prove.

The above position of the law as exactly the fate of the 3rd Respondent, who having not led any credible evidence in proof of his special damages claims, must be held to have either failed to prove same or had abandoned his special damage claims and thus not entitled to be granted such unproved special damages claims as erroneously done by the Court below. Such a perverse findings is thus liable to be set aside. See Ezemba v. Ibeneme (supra) @ p.659, Olorunfemi v. Asho (2000) 2 NWLR (Pt. 643) 143; Omoboriowo v. Ajasin (1984) 1 SCNLR 108.

What then amounts to special damages in law? Special damages are those damages that denote those pecuniary losses which have crystallized in terms of cash and values before trial. On the other hand, general damages are such as the Court may give when the judge cannot point out any measure upon which they are to be measured except the opinion and judgment of a reasonable man and thus they are losses which flow naturally from the wrongful act of the Defendant and the quantum need not be pleaded or proved as it is generally presumed by law. See Ijebu Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 36. See also Bello v. A.G. Oyo State (1986) 5 NWLR (Pt. 45) Ijebu Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 36; UBN Ltd v. Odusote Book Stores Ltd. (1995) 9 NWLR (Pt.421) 558. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Lagos Division, Coram Judice Buba, J., delivered on the 5th day of March, 2013. The chafed judgment is at pages 324-347 of the Records.

At the prosecution of the case at the Lower Court, there was a claim by the Appellant and a counterclaim by the 3rd Respondent. The Appellants claimed the following reliefs:

i. A declaration that the Plaintiff/Claimant is the bona fide owner of the movable property known and referred to as Iveco Eurostar Truck Reg. No. XZ 853 KJA with the inscription Golden transport Company Limited.

ii. A declaration the 1st Defendant is obliged to release the said truck to the Plaintiff upon the officers of the 1st Defendant discovering in consequence of its investigation that the Plaintiff/Claimant is not culpable, by not being the owner and not having any proprietary interest in and dealing in the items found/loaded unto the said truck by its driver, who did the same for his personal gain, in consequence of which the 1st Defendant in exercise of its statutory functions under the Custom & Excise Management Act impounded the said truck at its sentry in Ikeja, Lagos.

iii. A declaration that by not having any proprietary interest in the items found on the said truck and the Plaintiff having not been convicted for an offence in pursuance thereto the Plaintiff is not liable to forfeit the said truck in pursuance of the provisions of Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999.

iv. A declaration that the purported surreptitious transfer of the Plaintiffs title in the said truck on the fifth day of its being impounded either by sale, auction or any form of disposition of the same to the 2nd Defendant and subsequently to the 3rd Defendant by any of its officers or any one acting on or in that behalf or under the directive of the 1st Defendant is null and void and contrary to the provisions of Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999.

v. A Declaration that upon the appearance before the officers of the 1st Defendant at its Ikeja Sentry and the subsequent correspondence of the Plaintiffs Chief Security Manager and its Solicitors and the steps taken thereby at effecting the recovery of the said truck the 1st Defendant is estopped by law from disposing the Plaintiffs property.

vi. An order of Court rescinding/setting aside the said sale.

vii. An Order of Court directing the 1st Defendant to direct its officers to cause the release/return of the said truck to the Plaintiff forthwith upon entry of an acceptance bond thereof.

viii. N1, 000,000 damages for the wrongful sale.

ix. A Declaration that subject to the proviso contained in Section 44(2) (b) of the Constitution of the Federal Republic of Nigeria 1999 the 2nd Defendant or any one acting on his behalf is not entitled to dispose of the Plaintiffs property.

(See pages 9-10 of the Records)

The 3rd Respondent counterclaimed claiming for:

(a) A Declaration that the 3rd Defendant is now the bona fide owner of the Iveco Eurostar Truck (old Registration No. XZ 853 KJA) now with new Registration No. XU 711 ABC, Chassis No. WJMMIT5000002616 and Engine No. B821042144032534.

(b) An Order of perpetual injunction restraining the Plaintiffs whether by themselves, agents, servants, privies and any person whosoever from using the police or any security operatives from arresting or detaining the said truck regarding the alleged case of stealing of the truck or doing anything whatsoever capable of depriving the 3rd Defendant from his right of quiet and peaceable enjoyment and use of the said truck.

(c) Special damages of the sum of =N=300, 000 every three days, being deprivation of the average income/earning of the truck from 22/3/2010 to 22/4/2010 being the period of detention at Area Command Police Station, Agodi, Ibadan, Oyo State i.e. a total of 30 days amounting to a total loss of =N=3,000, 000 at the rate =N=300, 000 every 3 days (i.e. 30 days 3 days = 10 days x =N=300, 000) = N3,000, 000.

(d) And also the sum of =N=300, 000 every three days being deprivation of the average income/earning of the truck from 5/5/2010 being the date it was detained at Railway Police Command Headquarters, Ebute-Metta, Lagos till date i.e. 19/7/2010, thereby causing the 3rd Defendant loss of earning for 75 days amounting to a total loss of =N=7, 500, 000 at the rate of =N=300, 000 for every 3 days (i.e. 75 days 3 days = 25 days x = N=300,000) = N7, 500, 000.

(e) And further sum of =N=300, 000 every three days being deprivation of the average income/earning of the truck from 20/7/2010 until the date of release of the truck from the said police station with or without an order of Court.

(f) General damages of the sum of =N=20, 000, 000 (Twenty Million Naira)

(g) Cost of this action

(See page 188 of the Records)

The case was subjected to an inter partes hearing, at the end of which the Lower Court dismissed the Appellants claim and entered judgment for the 3rd Respondent on his counterclaim.

The Appellants being dissatisfied appealed against the said judgment. Upon compilation and transmission of the Records of Appeal, briefs of arguments were filed and exchanged as between the Appellants and the 3rd Respondent. The 1st and 2nd Respondents did not file any process in respect of the appeal and they were equally not represented at the hearing of the appeal.

The Appellants Brief of Argument is dated 25th June 2015 but filed on 26th June 2015, wherein three issues were distilled as arising for determination, as follows:

1. Whether the Court below erred in law when it denied the Appellants witness who had been summoned by a subpoena duces tecum the opportunity to give oral evidence in support of the document that he had tendered?

2. Whether the 3rd Respondent proved before the trial Court that: the truck earned N300, 000.00 (Three Hundred Thousand Naira) every three (3) days; and the state and working condition of the truck, prior to its alleged detention?

3. Was the Learned Trial Judge right to award to Mr. Chikeluba both special and general damages for the same alleged loss?

The 3rd Respondents Brief of Argument is dated 19th November 2015, filed on 20th November 2015 but deemed as properly filed and served on 3rd February 2016. The 3rd Respondent adopted the issue for the determination as formulated by the Appellants.

The Appellants further filed an Appellants Reply Brief; dated 10th February 2016 but filed on the 11th February 2016 in reply to the 3rd Respondents Brief. At the hearing of the appeal, Babajimi Ayorinde, Esq., learned Counsel for the Appellants adopted the submission in the briefs filed by the Appellants and he urged the count to allow the appeal and set aside the judgment of the Lower Court. In the same vein, P. U. Nnoli, Esq., of the counsel for the 3rd Respondent adopted and relied on the submissions in the 3rd Respondents Brief in urging the Court to dismiss the appeal.

I have insightfully considered the grounds of appeal contained in the notice of appeal which is on pages 413-416 of the Records and I find the issues for determination distilled by the Appellants apt and bespoke, given the disceptation in this appeal. Accordingly, it is on the basis of the said issues that I would proceed to consider and resolve this appeal.

ISSUE NUMBER ONE

Whether the Court below erred in law when it denied the Appellants witness who had been summoned by a subpoena duces tecum the opportunity to give oral evidence in support of the document that he had tendered.

SUBMISSIONS OF THE APPELLANTS COUNSEL

The crux of the Appellants contention on this issue is that their witness who came to Court on a subpoena duces tecum was denied the opportunity by the Lower Court of giving viva voce evidence, when the subpoena duces tecum served on the said witness required him to give evidence and to produce a document. It was posited that the Lower Court gave more weight to the title of the subpoena (subpoena duces tecum) than its substance (give evidence and produce document) and consequently pursued technicality as opposed to doing substantial justice. The cases of AFOLABI vs. ADEKUNLE (1983) ALL NLR 470 and NNEJI vs. CHUKWU (1988) NWLR (PT 81) 184 were referred to.

The Appellants assert that the Rules of the Lower Court do not make provision for a subpoena ad testificandum et duces tecum and that it only provided in Order 20 Rule 15 for subpoena ad testificandum OR duces tecum. The Appellants maintained that the case of FAMAKINWA vs. UNIVERSITY OF IBADAN (1992) 7 NWLR (PT 255) 608 relied upon by the Lower Court was distinguishable from the facts of the instant case. It was finally stated that the failure by the Lower Court to allow their subpoenaed witness give viva voce evidence was a denial of their right to fair hearing enshrinedin Section 36 of the 1999 Constitution.

SUBMISSIONS OF THE 3RD RESPONDENTS COUNSEL

The 3rd Respondent contends that the Appellants witness was not denied the right to give oral evidence by the Lower Court and that there is a difference between subpoena duces tecum and subpoena ad testificandum. It was stated that where a party wants a witness to produce a document and also give evidence, then the party is obliged to apply for both subpoena ducestecum and ad testificandum.

It was opined that the Appellants only applied for a subpoena duces tecum and when the witness attended Court, the witness made it clear under the guidance of the Appellants counsel that he was in Court to tender the case file in a matter, after which the case file was produced, admitted in evidence and marked as an Exhibit. The case of FAMAKINWA vs. UNIVERSITY OF IBADAN (supra) at 626 was referred to and it was submitted that the Appellants were obliged to apply for a writ of subpoena ad testificandum in order for the witness to give viva voce evidence. The case of OBI-ODU vs. DUKE (2006) 1 NWLR (PT 961) 375 at 391 was relied upon for the definition of subpoena.

It is the further submission of the 3rd Respondent that the Appellant still could have asked for an adjournment to regularize the position so that the witness could give viva voce evidence, but that they never applied for a subpoena ad testificandum and therefore the Lower Court did not deny them the opportunity to lead evidence.

RESOLUTION

See also IBRAHIM vs. OGUNLEYE (2010) LPELR (4556) 1 at 25, ADEYELA vs. ADEYEYE (2010) LPELR (3618) 1 at 54- 56 and OBI-ODU vs. DUKE (supra).

The foregoing is a succinct restatement of the law as it relates to summoning a witness by subpoena. Now how does it apply to the peculiar facts of this matter? The Appellants application for subpoena is at pages 270-271 on the Records. It is effulgent that the application is for a subpoena duces tecum. The Lower Court duly issued the subpoena duces tecum (see pages 272-274 of the Records). When the subpoenaed witness attended Court, he neither swore to an oath nor was he affirmed as required by Section 205 of the Evidence Act in order for him to qualify as a witness who was to adduce viva voce evidence. Thereafter the witness produced the document which he had been summoned to produce pursuant to the provisions of Sections 218 and 219 of the Evidence Act. It was only after the witness had effected the purpose of the subpoena duces tecum that the Appellants sought to have the witness transmogrify to a witness summoned by a subpoena ad testificandum, which was rightly refused by the Lower Court.

The Appellants engaged in nitpicking to the effect that the form used in issuing the subpoena duces tecum provided that the witness was to give evidence and produce documents. This may well be so, but the bottom line remains that the Appellants did not apply for a subpoena ad testificandum et duces tecum, when the witness attended Court, he neither swore nor affirmed as required by Section 205 of the Evidence Act in order for him to be eligible to adduce viva voce evidence. The Lower Court was therefore on terra firma when it held that the said witness was not summoned to adduce viva voce evidence.

I am unable to agree with the Appellants that the action of the Lower Court amounted to a deprivation of their right to fair hearing as the Lower Court did not disallow them from having the witness adduce viva voce evidence. I agree with the learned Counsel for the 3rd Respondent that the Appellants ought to have utilized the opportunity of an adjournment in order to do the needful to have the said witness adduce viva voce evidence, this they failed to do. In the light of the totality of the foregoing, I cannot but resolve this issue against the Appellants.

ISSUE NUMBER TWO

Whether the 3rd Respondent proved before the trial Court that: the truck earned N300,000.00 (Three Hundred Thousand Naira) every three (3) days; and the state and working condition of the truck, prior to its alleged detention?

SUBMISSIONS OF THE APPELLANTS COUNSEL

The Appellants submit that the 3rd Respondent did not strictly prove his claim for special damages and that the Lower Court was wrong to have granted the said reliefs. It was asserted that there was no documentary evidence to back up the claim for loss of income or earning. It was posited that special damages must be strictly proved even if the opposing party did not challenge them. The cases of OTARU & SONS LTD vs. IDRIS (1999) 6 NWLR (PT 606) 330 at 345, HEALTH CARE PRODUCTS NIGERIA LTD vs. BAZZA (2004) 3 NWLR (PT 861) 582 at 607 and AJAGBE vs. IDOWU (2011) 17 NWLR (PT 1276) 422 at 446 were cited in support.

The Appellants further contended that the Lower Court failed to take into consideration the fact that the truck in question could not have earned daily income since it must necessarily have to go for maintenance and would not have earned anything during the period of such maintenance. The case of AJAGBE vs. IDOWU (supra) was relied upon.

SUBMISSIONS OF THE 3RD RESPONDENTS COUNSEL

It is the submission of the learned Counsel for the 3rd Respondent that the Appellants did not challenge the counterclaim and did not file any defence to the counterclaim, thereby electing that the counterclaim be resolved against them. The case of USMAN vs. GARKE (2003) 14 NWLR (PT 840) 261 ratio 7 was referred to. The 3rd Respondent maintained that his unchallenged direct evidence and the admission of the Appellants established the claim for special damages suffered on account of the detention of the truck by the Appellants. The cases of AUDU vs. OKEKE (1998) 3 NWLR (PT 542) 373 ratio 6&7 and ARABA vs. ELEGBA (1986) 1 NWLR (PT 16) 33 were relied upon.

The 3rd Respondent opined that tendering of a receipt was not a necessity in proving special damages. The case of BOSHALI vs. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917, DATOEGOEM DAKAT vs. MUSA DASHE (1997) 12 NWLR (PT 531) 46, ARABA vs. ELEGBA (supra) ratio 8 and AUDU vs. OKEKE (supra) ratio 8 were cited in support.

In the Appellants Reply Brief, it was posited that where special damages are claimed, the Claimant must show the basis of his calculation and that the principle that unchallenged or uncontroverted evidence amounts to proof of the fact in issue does not apply to special damages. The cases of BRITISH AIRWAYS vs. ATOYEBI (2014) 13 NWLR (PT 1424) 253 at 289, FBN vs. ASSOCIATED MOTORS CO. LTD (1998) 10 NWLR (PT 570) 441 at 466, HEALTH CARE PRODUCTS NIGERIA LTD vs. BAZZA (supra) at 607 and NNPC vs. KLIFCO (NIG) LTD (2011) 10 NWLR (PT 1255) 209 at 238 were relied upon.

RESOLUTION

In order to properly conualize the disceptation in this issue, it is pertinent to state that after the Appellants failed in their attempt to have their subpoenaed witness adduce viva voce evidence, their counsel at the Lower Court took no further part in the trial. Consequently, the testimony of the 3rd Respondent and his witnesses in proof of the counterclaim was not challenged. Undoubtedly, this has informed the argument of the 3rd Respondent that the Appellants admitted the counterclaim and that the unchallenged evidence established the claim for special damages.

The argument that because the plaintiffs evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff

See also UWAJE vs. MADUEMEZIA (2015) LPELR (24543) 1 at 25-26. So a Court still has the bounden duty to evaluate the evidence adduced by the 3rd Respondent to see if it established and proved his claim for special damages.

We will find out in a trice if on the diacritic facts and circumstances of this matter and the evidence adduced, the Lower Court was right when it held that the 3rd Respondent proved his claim for special damages.

In Paragraphs 38 and 39 of the 3rd Respondents Statement of Defence and Counterclaim it is averred as follows:

38. The 3rd defendant avers that the plaintiffs are very much aware of the antecedent facts leading to the seizure and sale of the said truck by the 1st defendant to a third party. The 3rd defendant also avers that despite the plaintiffs knowledge of these facts, the plaintiffs falsely misrepresented to the police that the truck was stolen, consequent upon which the police arrested and detained the truck variously at Area Command Police Station, Agodi, Ibadan, Oyo state from 22/3/2010 to 22/4/2010 and at Railway Police Command Headquarters, Ebute-Metta, Lagos, from 5/5/2010 to date.

39. The 3rd defendant states that as a result of the arrest and detention of the truck, he could not use the truck during the period of detention and he suffered a lot of loss of earnings:

PARTICULARS OF SPECIAL DAMAGES

(a) The truck ordinarily makes an average income/return of the sum of =N=300, 000 every three days;

(b) At the instigation of the plaintiffs, the truck was detained at Area Command Police Station, Agodi, Ibadan, Oyo State from 22/3/2010 to 22/4/2010 i.e. a total of 30 days amounting to a total loss of =N=3,000,000 at the rate =N=300, 000 every 3 days (i.e. 30 days 3 days = 10 days x =N=300,000) = N3, 000, 000.

(c) At the instigation of the plaintiffs, the truck was also detained at Railway Police Command Headquarters, Ebute-Metta, Lagos from 5/5/2010 and is still being detained there till date i.e. 19/7/2010, thereby causing the 3rd defendant loss of earning for 75 days amounting to a total loss of =N=7,500,000 at the rate of = N=300,000 every 3 days (i.e. 75 days 3 days = 25 days x =N=300,000) = N7, 500, 000.

(d) Following the continued detention of the truck, the 3rd defendant continues to incur loss of earnings at the rate of =N=300,000 every 3 days from 1/7/2010 to date of release of the truck.

In the proof of loss of earnings, the 3rd Respondent in his witness statement on oath which he adopted as his evidence testified as follows in Paragraph 35:

35. That as a result of the arrest and detention of the truck, I could not use the truck for my business during the period of detention and I suffered a lot of loss of earnings:

PARTICULARS OF LOSSES/DAMAGES

(a) That the truck ordinarily makes an average income/return of the sum of =N=300,000 every three days.

(b) At the instigation of the plaintiffs, the truck was detained at Area Command Police Station Agodi, Ibadan, Oyo State from 22/3/2010 to 22/4/2010 i.e.a total of 30 days amounting to a total loss of =N=3,000,000 at the rate of =N=300, 000 every 3 days (i.e. 30 days 3 days = 10 days x =N=300,000) = N3, 000,000.

(c) At the instigation of the plaintiffs, the truck was also detained at Railway Police Command Headquarters, Ebute-Metta, Lagos from 5/5/2010 and still being detained there till date i.e. 19/7/2010 thereby causing the 3rd defendant loss of earning for 75 days amounting to a total loss of =N=7,500,000 at the rate of =N=300, 000 every 3 days (i.e. 75 days 3 days = 25 days x =N=300,000) = N7, 500, 000.

(d) Following the continued detention of the truck, the 3rd defendant continues to incur loss of earnings at the rate of =N=300, 000 every 3 days from 20/7/2010 to date of release of the truck.

It is translucent that the pleadings and evidence is that the truck ordinarily makes an average income/return of N300, 000. 00 every three days. The claim for loss of earnings being in the nature of special damages, the 3rd Respondent was obligated by law to give the Appellants access to the facts upon which the calculation and computation of average income/return of N300, 000. 00 every three days was arrived at: IMANA vs. ROBINSON (supra). Put differently, the 3rd Respondent had to adduce credible evidence on how much the truck earned after all outgoings have been deducted and how the average income/return was consequently arrived at. This evidence was totally lacking before the Lower Court. Indeed in the terse and laconic resolution of the counterclaim in favour of the 3rd Respondent, the Lower Court relied entirely on the fact that the evidence was uncontradicted, uncontroverted and unchallenged. The Lower Court consequently failed to evaluate the evidence adduced to see if it was of such a quality that entitled the 3rd Respondent to judgment on the counterclaim.

Hear the Lower Court at pages 344-345 of the Records:

On the Counter Claim, this Court has no doubt whatsoever not only were the Defendants Counter Claimant witness not cross-examined. Indeed by the introduction of Exhibit D1-D2 (1) D2 (8), the 3rd Defendant Counter Claimant has proved his Counter Claim against the Plaintiff. This Court is entitled to accept and rely on an uncontradicted and uncontroverted and unchallenged evidence that is capable of believe.

Accordingly, judgment be and is hereby entered for the 3rd Defendant Counter Claimant

The regnant legal position remains that a claimant for special damages must prove the same strictly. The fact that the evidence adduced in proof of special damages has not been challenged or controverted does not imply that a Court must willy-nilly enter judgment for the Claimant. Such evidence must still be evaluated to see if it is credible: NWANJI vs. COASTAL SERVICES (NIG) LTD (supra), HEALTH CARE PRODUCTS NIG LTD vs. BAZZA (supra) and NNPC vs. KLIFCO NIG LTD (supra). The Lower Court got it wrong when it entered judgment for special damages in favour of the 3rd Respondent especially when the evidence adduced was not of such a quality that preponderated in favour of strictly establishing the special damages claimed. See OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26 and B.B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 60-61. In a summation, this issue is resolved in favour of the Appellants. The award of special damages made by the Lower Court is hereby set aside.

ISSUE NUMBER THREE

Was the Learned Trial Judge right to award to Mr. Chikeluba both special and general damages for the same alleged loss?

SUBMISSIONS OF APPELLANTS COUNSEL

The Appellants submits that it amounts to double compensation for the Lower Court to award general damages in respect of a loss for which special damages had been awarded. The cases of SOETAN vs. OGUNWO (1975) 1 NWLR 360 at 365-366, TSOKWA MOTORS (NIG) LTD vs. UBA PLC (2008) 2 NWLR (PT 1071) 347 at 366 and UNION BANK vs. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT 421) 558 at 586 & 600 were referred to. It was finally submitted that general damages cannot be used to compensate a party who did not strictly prove his claim for special damages. The case of SPDC (NIG) LTD vs. TIEBO VII (2005) 9 NWLR (PT 931) 439 at 473 was cited in support.

SUBMISSIONS OF THE 3RD RESPONDENTS COUNSEL

It is the submission of the 3rd Respondent that he pleaded and proved and general damages for different losses. It was stated that the sufferances of the 3rd Respondent arising from the seizure of the truck by the Police at various times were pleaded and established by evidence and that it was pleaded and proved that the Appellants actions against him were malicious and in bad faith.

The 3rd Respondent opined that general damages are such that the law presumes to be the direct natural or probable consequence of the act complained of, and is assessed based on the opinion and judgment of a reasonable man on what would be reasonable compensation for the party entitled to the award. The cases of BADMUS vs. ABEGUNDE (1999) 71 LRCN 2912 ratio 3, IJEBU-ODE LOCAL GOVERNMENT vs. BALOGUN (1991) 1 NWLR (PT 166) 136 at 158, ESEIGBE vs. AGHOLOR (1993) 9 NWLR (PT 316) 128 at 145, NBCI vs. ALFIJIR MNING NIG LTD (1993) 4 NWLR (PT 287) 346 RATIO 4 and FRAMO NIG LTD vs. DAWODU (1993) 3 NWLR (PT 281) 372 ratio 5 were relied upon.

The Appellants in their Reply Brief state that general damages are compensation for injuries which are incapable of being accurately quantified. It was contended that whatever costs incurred by the 3rd Respondent as a result of the reports made to the Police were quantifiable and therefore cannot be compensated by general damages as they fell within special damages which must be strictly proved. The case of GARI vs. SEIRAFINA (NIG) LTD (2008) 2 NWLR (PT 1070) 1 at 19 was referred to.

RESOLUTION

The law is settled beyond peradventure that a party who has been fully compensated under one head of damage for a particular injury cannot be awarded damages in respect of the same injury under another head: ARTRA IND. NIG. LTD vs. NBCI (1998) LPELR (565) 1 at 48 and TSOKWA MOTORS (NIG) LTD vs. UBA PLC (supra). This is the rule against double compensation. The Lower Court in its judgment awarded special damages of N300,000.00 for deprivation of the average income/earning of the truck over a stated period of time in favour of the 3rd Respondent and further awarded general damages of N20,000,000.00 in favour of the 3rd Respondent. The Appellants complaint is that this amounts to double compensation.

The 3rd Respondent has argued that general damages were pleaded and proved and that it is in respect of a wrong separate and distinct from the wrong on which special damages were awarded. Let us recourse to the facts as pleaded. In Paragraph 40 of the 3rd Defendants Statement of Defence and Counterclaim it is averred as follows:-

40. The 3rd defendant avers that the plaintiffs allegation to the police that the truck was stolen and the resultant arrest and detention of the truck by the police portrayed the 3rd defendant as a thief, a fraudster and a common criminal and the 3rd defendant thereby suffered damages in his personal and business reputation and integrity.

So the averment is that the 3rd Respondent suffered damage in his personal and business reputation and integrity having been portrayed as a fraudster and a common criminal. The evidence in support of this averment is in Paragraph 36 of the 3rd Respondents witness statement on oath where he deposed as follows:

36. That the plaintiffs allegation to the police that the truck was stolen and the resultant arrest and detention of the truck by the police portrayed me as a thief, a fraudster and a common criminal and that I consequently suffered damages in my personal and business reputation and integrity.

Now, from the pleadings and evidence there is unanswered question of the person to whom the 3rd Respondent was portrayed as a thief, fraudster and common criminal, which resulted in his suffering damages in his personal and business reputation and integrity. Furthermore, there is nothing in the decision of the Lower Court rationalizing the award of N20,000,000.00 as general damages.

Undoubtedly, general damages are such that the law presumes to be the direct, natural or probable consequence of the act complained of. The act complained of by the 3rd Respondent is the arrest and detention of the truck at the behest of the Appellant (See Paragraph 39 of the Statement of Defence and Counterclaim). It is on the basis of this arrest and detention that the 3rd Respondent grounded both the claim for loss of earnings (special damages) and the claim for damages in his personal and business reputation and integrity (general damages). It appears that the wrong on which the 3rd Respondent dichotomised the claim for special and general damages was the same, id est, the arrest and detention of the truck. It amounted to double compensation for the Lower Court to award special damages and general damages for this same wrong: ARTRA IND. NIG LTD vs. NBCI (supra). The law frowns at the award of double compensation. See INYANG vs. EBONG (2001) 25 WRN 138 at 173, UNION BANK VS EMOLE (2002) 3 WRN 85 at 100 and TOTAL NIG PLC vs. MORKAH (2002) 37 WRN 26 at 43-44.

In resolution of Issue number two above, I held that on the evidence before the Lower Court the 3rd Respondent did not strictly prove the special damages claimed and was not entitled to any award of special damages. However, this finding does not ipso facto entitle the 3rd Respondent to a paregoric in general damages, the law being that general damages cannot be used to compensate a party who did not strictly prove his claim for special damages: see SPDC (NIG) LTD vs. TIEBO VII (supra). In the light of the foregoing, not only did the general damages awarded by the Lower Court amount to double compensation, it also ought not to have been awarded as it amounted to compensating the 3rd Respondent who on the available evidence did not strictly prove the special damages he claimed. In the circumstances, this issue number three is resolved in favour of the Appellants.

Having considered and resolved all the issues distilled for determination in this appeal, it remains to state that the appeal succeeds in part. The decision of the Lower Court in Suit No. FHC/L/CS/568/2010: FLOUR MILLS OF NIGERIA PLC & ANOR. vs. NIGERIA CUSTOMS SERVICE BOARD & ORS. delivered on March 5, 2013 as it relates to the award of special and general damages only in favour of the 3rd Respondent is hereby set aside. The appeal having succeeded in part, the parties are to bear their respective costs of this appeal.

SIDI DAUDA BAGE, J.C.A.: Having read, before now, the judgment in draft just delivered by the Honourable Justice UGOCHUKWU ANTHONY OGAKWU JCA, I cannot but concur with the reasoning and conclusion therein reached, to the effect that the instant appeal succeeds in part. It is my privilege to adopt the reasoning and conclusion in question as mine and hold that the appeal succeeds in part.

I abide by the consequential order setting aside the decision of the Lower Court in Suit No.FHC/L/CS/568/2010: FLOUR MILLS OF NIGERIA PLC & ANOR VS. NIGERIA CUSTOMS SERVICES BOARD & ORS., delivered on March 5, 2013 relating to the award of special and general damages only in favour of the 3rd Respondent.

The parties are to bear their respective costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have before now read in draft the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I am in complete agreement with the lucid reasoning and conclusions reached therein.

The Court had on the facts and evidence led before it acceded to the 3rd Respondents counter claim for special damages. The Appellants cried foul. They had thus appealed amongst other grounds against the finding of the Court below that the 3rd Respondent made out his counter-claim for special damages.

My lords, the law as I understanding it and as buttressed by a plethora of decided cases as are replete in our Law Reports is that there is a distinction and very wide divide between special damages and general damages. These differences includes, though not limited to or intended as an exhaustive list of these differences, the following namely:

1. General damages need not be pleaded but special damages must be specifically pleaded.

2. General damages need not be proved but special damages must be specially proved.

3. In General damages the assessment it the duty of the Court but in special damages its assessment is based on what is specifically proved.

4. General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial.

It is in the light of the above and for the fuller reasons adroity marshaled out in the lead judgment that I too hold that the appeal partly succeeds and it is hereby also partly allowed by me. I shall abide by the consequential orders made in the lead judgment.

Appearances

Babajimi Ayorinde, Esq. with him, Ademola Ogungbemile, Esq.For Appellant

AND

P.U. Nnoli, Esq. with him, E.C. Aguocha, Esq. for 3rd Respondent.

1st and 2nd Respondents absent and not represented by Counsel.For Respondent