IFESINACHI INDUSTRIES NIGERIA LIMITED & ANOR v. VINEE OIL LIMITED (2015)

IFESINACHI INDUSTRIES NIGERIA LIMITED & ANOR v. VINEE OIL LIMITED

(2015)LCN/7931(CA)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of July, 2015

CA/B/88/2012

RATIO

MEANING OF WORDS: WAIVER; THE MEANING OF THE TERM WAIVER

The term waiver, denotes the voluntary relinquishment or abandonment, either expressly or impliedly, of a legal right, claim, privilege, advantage, et al. See BLACK’S LAW DICTIONARY, 9th Edition, 2009 @ 1717; ARORI VS. ELEMO (1983) 1 SCNLR 1 per Idigbe, JSC @ 22, and Obaseki, JSC @ 25. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A

DAMAGES: SPECIAL DAMAGES; WHAT THE TERM SPECIAL DAMAGES DENOTES AND WHAT MUST BE PEADED BEFORE SPECIAL DAMAGES CAN BE AWARDABLE

DAMAGES: GENERAL DAMAGES; WHAT ARE GENERAL DAMAGES AND WHETHER GENERAL DAMAGES NEEDS TO BE SPECIFICALLY CLAIMED OR PROVED
Contrariwise, general damages are those damages that are presumed in law to have naturally followed from the type of wrong complained of. In other words, they are compensatory damages for harm that results from the tort for which a party has sued that the harm is reasonably expected. Thus, general damages do not need to be specifically claimed or proved. See BLACK’S LAW DICTIONARY (Supra) @ 446; ELOICHIN (NIG) LTD VS. MBADIWE (1986) 1 NWLR (Pt. 14) 4; (1986) ALL NLR 1; (1986) 1 SC 99; (1986) LPELR – 1119 (SC). per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A

DAMAGES:WHETHER GENERAL AND EXEMPLARY DAMAGES CAN BE AWARDED WITHOUT BEING PLEADED

In MBADIWE’S case (Supra), the Court of Appeal was recorded to have held, inter alia, thus:
“We are regretfully unable to award any general damages because they were not claimed nor can exemplary damages be awarded because no case for the award has been made on the pleading, the evidence and the law.”
However, on appeal, the Supreme Court held that the Court of Appeal was wrong in arriving at that decision. The Apex Court held, inter alia, thus:
The law is settled that when a claim of trespass is established, i.e. facts establishing trespass to land or goods are proved and claimed, the court of trial proceeds to assess, quantify and award appropriate amount. If special damages are not claimed but are not proved strictly, they will not be awarded. Exemplary damages being in nature general damages together with punitive damages fixed high enough to be not only compensatory but also punitive, it is my opinion that where facts damages can be awarded and ought to be granted if the facts pleaded and proved establish a case of trespass.
… Such a secondary object can be achieved by awarding in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages; even retributory damages come into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses fraud, cruelty, insolence, flagrant disregard of the law and the like. Per Obaseki, JSC @ 27 paragraphs C – F. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A

COURT: DUTY OF COURTS; DUTY OF THE TRIAL COURT TO WATCH THE DEMEANOR OF THE WITNESSES, TO EVALUATE, MAKE FINDINGS AND CONSIDER THE EVIDENCE OF THE WITNESSES AND PLEADINGS OF THE RESPECTIVE PARTIES

It is a well settled principle, that it’s the onerous responsibility of the trial court, seized with the opportunity of watching the demeanours of the witnesses, to evaluate, make findings and consider the evidence of the witnesses and the pleadings of the respective parties: KAYBOE VENTURES LTD VS. MINISTER OF FJ (2010) 7 NWLR (Pt. 1192) SC 171. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACTS BY TRIAL COURTS

It should be reiterated, that the doctrine is well settled, to the effect that ordinarily appellate courts do not interfere with finding of facts by trial courts, unless where it’s so obvious on the records that such findings are not supported by the pleadings and evidence, or they are perverse: KAYDEE VENTURES LTD VS. MINISTER OF FCT (2010) 7 NWLR (Pt. 1192) SC 171; NPA VS. RAHMAN & BROS. LTD (2010) 17 NWLR (Pt. 1221) 100; CPC VS. INEC (2011) 18 NWLR (Pt. 1279) SC 689. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A

JUSTICES

IBRAHIM MUSA MOHAMMED SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. IFESINACHI INDUSTRIES NIGERIA LIMITED
2. MR. JOSEPH AGU Appellant(s)

AND

VINEE OIL LIMITED Respondent(s)

IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the Judgment of the High Court of Delta State, holden at Issele-Uku, delivered on November 30, 2011 in Suit No. HCI/17/2005. By the Judgment in question, the lower court, Coram I.E. Okogwu, J; granted in part the Plaintiff’s (Respondent’s) claims against the 1st Appellant.

BACKGROUND FACTS:
The Plaintiff (Respondent) is a limited liability company trading on engine oil, fuel, gas, petroleum products and allied goods. It has the head office thereof at 126 Muyibi Street Olodi-Apapa, Lagos, and a branch office at Onitsha-Nkpor Express Way near Army Barracks, Onitsha, Anambra State.

On the other hand, the 1st Appellant (1st Defendant) is a liability company having trucks, luxurious buses, and carrying on transportation business throughout Nigeria. The 2nd Appellant (2nd Defendant) was, at all times material to the instant action, the driver of the 1st Appellant’s luxurious bus with Registration No. XE 252 GGE.

On the fateful day of September 17, 2004, while driving the said vehicle, in the course of his employment as the servant of the 1st Appellant, along the Asaba-Benin Express Road, at Iselle-Ukwu, the 2nd Appellant negligently collided with the trailer tanker with Registration No. XB 123 NEN belonging to the Respondent and thereby damaged the said vehicle and caused loss of 12800 liters of Automobile Gas valued at N704,000.00 being carried by the trailer tanker at the time of the accident. The accident also caused grievous damage to the said trailer tanker.

It was equally the case of the Respondent that after the accident, the 1st Appellant (Defendant) through its agents, made several representations and demands to the Respondent for an amicable settlement of the matter, but to no avail.

Thus, on October 12, 2005, the Respondent instituted the Suit vide a Writ of Summons against the Appellants, jointly and severally, claiming the entire cost of the loss incurred in the course of the said accident. By the Amended Statement of Claim thereof dated August 18, 2006, the Respondent claimed against the Appellants as follows:
PARTICULARS OF SPECIAL DAMAGES
(a) N704,000.00 (Seven Hundred and Four Thousand Naira) being the value of 12800 litres of the Automobile Gas (AGO) as at September, 2004.
(b) N295,500.00 (Two Hundred and Ninety Five Thousand, Five Hundred Naira) being the cost of net repairs of the trailer tanker.
26 … N5,000,000.00 (Five Million Naira) being damages resulting from the said accident.

Contrariwise, by the Amended Statement of Defence thereof, filed on 23/11/06, the Appellants denied the Respondent’s claim in the entirety thereof, and urged the court to dismiss same with substantial costs.

Pleadings having been filed and served by the respective parties, the suit eventually proceeded to trial. At the end of which, the lower court delivered the vexed Judgment to the following conclusive effect:
Finally, I find in view of my findings that the Plaintiff is entitled to part of their claims as contained in paragraph 25 and 26 of their amended statement of claim; namely:
(a) N704,000 being value of 12.800 litres of automobile gas.
(b) Five Million Naira being damages resulting from the said accident.

Dissatisfied with the said Judgment, the Appellants filed the notice of appeal thereof on 08/12/11. The appeal was eventually entered in this court. Thus, resulting in the parties filing their respective briefs of argument. The Appellants’ brief, in particular, was filed on 10/7/13 by Chris Ajugwe, Esq. On the other hand, the Respondent’s brief was filed on 29/11/13 by P.U.P. Onuorah Esq.

The Appellants’ brief spans a total of 17 pages. At page 3 thereof, four issues have been distilled from the grounds of appeal, thus:
1. Whether under the High Court Civil Procedure Rules 1988 of the defunct Bendel State applicable to Delta State, a writ of summons serve outside jurisdiction issued prior to the presentation and consideration of the application for leave to issue same by the court and service of the writ without compliance with the Sheriff And Civil Process Act is incompetent and liable to be set aside. (Formulated from Ground 1 and 2)
2. Whether there was no positive, coercive and compelling order of the trial court capable of being executed against the Appellant. (Formulated from Ground 3)
3. Whether the damages awarded to the Respondent were legally justifiable and whether the N5 million damage awarded against the Appellant was manifestly excessive (Formulated from Grounds 4 & 5).
4. Whether the trial court properly evaluated the evidence of the parties in the suit and/or if the court misapplied the evidence adduced at the trial and failed to decide the matter on the balance of probabilities. (Formulated from Grounds 6, 7 and 8).

The Issue No. 1 has been canvassed at pages 3 – 6 of the said briefs. Copiously alluding to the provisions of Order 5 Rule 6 of the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel State applicable to Delta State, Sections 97 and 99 of the Sheriffs And Civil Process Act, it was submitted by the Appellants that the non-compliance with condition precedent to the originating process of Court is fatal, as it goes to the root of competence of Court to entertain the suit. See SKEN CONSULT NIG. LTD VS. UKAY (1981) 1 SC 6; NWABUEZE VS. OKOYE (1988) 4 NWLR (Pt. 91) 664; MADUKOLU VS. NKEMDILIM (1963) 2 SCNLR 341.

Further submitted, that the Supreme Court, however, distinguished SKEN CONSULT (NIG.) LTD VS. UKAY (supra) and NWABUEZE VS. OKOYE (supra) in the case of ODUA INV. COMPANY LTD VS. JOSEPH TAIWA TALABI (1997) 10 NWLR (Pt. 523), to the effect that non-compliance with Sections 97 and 99 of the Sheriffs And Civil Process Act would be regarded as an irregularity where a defendant proceeds to take steps in the matter.

It was contended, that in the instant case, the Appellant objected timeously. Therefore, as the condition precedent to issuance of the writ has not been met, the suit was not initiated by due process of the law, thus denying the court jurisdiction (to entertain the case). The court is urged to so hold, and accordingly resolve the Issue No.1 in favour of the Appellant.

The Issue No.2 was argued at page 6 of the brief. It was submitted, in the main, that the judgment is tainted with irredeemable errors and inaccuracies that cannot be corrected by the slip rule. Therefore, the judgment is liable to be set aside. See POLYCARP OFOGBUE VS. AJIE NNIABIA (1972) ALL NLR 664 @ 668.

The Issue No.3 has been canvassed at pages 7 – 10 of the brief. It was submitted, that it’s trite law, that special damages must specifically be pleaded: NNPC VS. CUFEO NIG. LTD (2011) NSCQR VOL – 46 (Pt. 1) 114.

Further submitted, that in the instant case, the lower court placed heavy undue reliance on Exhibit A, the purported undertaking of the 2nd Appellant, to the effect that the 1st Appellant’s representative had “accepted the fault and promise to pay damages”. It was, however, contended that Exhibit A, a mere promise and an admission of liability to pay damage to the Respondent, is of no moment. See NNPC VS. CLIPCO (supra) @ 121 and 122, per Rhodes Vivour, JSC.

The N5,000,000.00 damages resulting from the said accident, was allegedly not pleaded in the Amended Statement of Claim, let alone proved by the Respondent. The said N5,000,000.00 [merely] claimed as general damages by the Respondent was equally alleged to be excessive, as it did not flow from the natural consequences of the accident. See FMF LTD VS – EKPO (2004) 2 NWLR (Pt. 856) 100 @ 132 paragraphs B – D; GARI VS. SEIRAFINA (NIG) LTD (2008) 2 NWLR (Pt. 1070) 1 @ 19 paragraph B.

That, this court has jurisdiction to interfere with the award of damages in appropriate cases: OYENEVIV VS. AKINKUGBUE (2010) 41 NSCQR 416; ODUWOLE VS. TOM DAVID-WEST (2010) 2 NSCQR 229.

However, it was vehemently contended that there was no basis for the award of N5,000,000.00, which in any case was ridiculously very high, and injustice would definitely result against the Appellant except the court acts to correct it. See ODUWOLE VS. TOM DAVID-WEST (supra); FELIX NWOYE ADIM VS. NIG. BOTTLING CO. LTD (2010) 42 NSCQR (Pt. 11) 85; ASAGBE VS. IDOWU (2011) 46 NSCQR (Ratio 1:2).

The court is urged to resolve Issue No.3 in favour of the Appellants.

The Issue No.4 was canvassed at pages 10-15 of the brief. It was submitted, inter alia, that once it’s been proved and accepted that the accident was a result of the accidental tyre burst of the 1st Appellant’s luxury bus driven by the 2nd Appellant, negligence on the part of the 2nd Appellant is ruled out. Consequently, the promises the parties made between themselves, [Exhibits A & B], in the Police Station, is illegal and irrelevant to the civil proceedings in the Court of law. Allegedly, the legal maxim: IN PARI DELICTO, still stands.

Further submitted, that the holding of the lower court at page 76 of the Record, to the effect that the hitting of the Plaintiff’s vehicle from behind and damaging it without more, is evidence of negligence, is a fundamental material misdirection in an action of tort, which is based on negligence.

It was posited, that it’s a fundamental principle of law of tort, that without pleading and proving negligence against the Defendant in an action, the Plaintiff is without remedy. The only exception to this principle is where the Plaintiff pleads and relies on the doctrine of RES IPSO LOQUITUS, and proves same, which is not the case in this suit.

The court is, therefore, urged upon to resolve Issue No.4 in favour of the Appellants.

Conclusively, the court is urged to allow the appeal, and set aside the Judgment of the lower court, or in the alternative reduce substantially the general damages so awarded.

Contrariwise, the Respondent’s brief spans a total of 10 pages. At page 2 thereof, two issues have been raised for determination, viz:
1. Whether or not non-compliance with Order 5, Rule 6 of the defunct Bendel State of Nigeria High Court (Civil Procedure) Rules 1988, applicable in Delta State can nullify the writ issued in that respect or merely amounts to an irregularity?
2. Whether or not the Respondent proved her case on the balance of probability to be awarded with the reliefs prayed for by the trial court?

The Issue No.1 is canvassed at pages 2 – 5 of the Respondent’s brief. In a nutshell, it was submitted that it’s trite that one cannot read the provision of a statute in isolation to other provisions thereof: ADAMS VS. UMAR (2009) 5 NWLR (Pt. 1133) 41; ABIODUN VS. C.J. KWARA STATE (2007) 18 NWLR (Pt. 1065) 109.

Further submitted, that the Appellants’ argument at paragraphs 4.03, 4.04 and 4.05, at page 4 of the brief thereof, is an afterthought and of no moment. Allegedly, the issue of Sections 97 and 99 of the Sheriffs and Civil Process Act was never part of the Appellants’ grounds of preliminary objections at the trial court. Thus, it’s too late in the day for the Appellants ‘to cry over a split (sic) milk’. See ODUA INV. COMPANY LTD VS. TALABI (1997) 1 NWLR (Pt.523), in which the Supreme Court distinguished the earlier cases of SKEN CONSULT NIG. LTD VS. UKEY (1988) 1 SC and NWABUEZE VS. OKOYE (1988) 4 NWLR (Pt. 91) 664.

That, it’s too late for the Appellants to wake up from their slumber and disturb, at this stage, the ruling of the lower court. That, the law aids the vigilant, and not the indolent. A party has the right to waive his right: PDP VS. ADEREMI (2002) 10 NWLR (Pt. 776) 534; MOBIL PROD. (NIG) UNLTD VS. LASEPS (2002) 18 NWLR (Pt. 798) 1 SC (Ratio 15).

The court is urged to resolve Issue No.1 in favour of the Respondent.

The Issue No.2 was argued along with Appellants’ Issues 2, 3 and 4 at pages 5 – 9 of the said Respondent’s brief. It was submitted, that the evidence of PW1, at pages 30 – 31 of the Record, regarding the issue of negligence, was not cross examined on this material evidence. Thus, it’s the law that uncontroverted or unchallenged evidence is deemed to be true, and the court has no other option than to act on it as true: KANO ILE PLC VS. GH (NIG) LTD (2002) 2 NWLR (Pt. 751) 420 CA (Ratio 4).

Regarding the evidence of DW1, PW1, PW2 and PW3, it was contended that the Appellants are now estopped from denying the content of Exhibits A & B, which made the Respondent to shift its position. See ARBICO (NIG) LTD VS. NMT LTD (2002) 15 NWLR (Pt. 789) 10A.

Further contended, that there are pleadings and evidence in support of the award of N704,000.00 and N5 million by the trial court (Reliefs A & C). See paragraphs 13, 14, 15, 18, 19 & 23 of the Amended Statement of Claim, and evidence of PW2 at pages 25, 33 and 77 of the Record. See KAYDEE VENTURES & BROS LTD VS. MIN. FCT (2010) 7 NWLR (Pt. 1192) SC 171; NPA VS. RAHMAN & BROS LTD (2010) 17 NWLR (Pt. 1221) CA 100; CPC VS. INEC (2011) 18 NWLR (Pt.1279) SC 689; EBONG VS. EKPE (2002) 17 NWLR (Pt.797) 504 CA (Ratio 14).

It was posited, that the N5 million granted to the Respondent as damages is reasonable, considering the evidence of DW1, Exhibits A & B which support the evidence of PW1, PW2 and PW3, the nature of the business of the Respondent, and the long period of six (6) weeks the tanker lorry was not put to use as a result of the negligent act of the Appellants.

The court is thus urged to resolve the Issue No.2 in favour of the Respondent.

Regarding the issue of evaluation of the evidence, it was submitted that the lower court properly evaluated the evidence of the parties before reaching the vexed Judgment. See KAYDEE VENTURES LTD VS. MIN. FCT (supra); NPA VS. RAHMAN & BROS LTD (supra); CPC VS. INEC (supra). Further submitted, that the argument of the Appellants, that there was no cohesive and compelling order of lower court, is of no moment. The court is equally urged to resolve Issue No.4 (of the Appellant) in favour of the Respondent.

Conclusively, the court is urged upon to accordingly dismiss the appeal and uphold the Judgment of the lower court with heavy cost against the Appellants.

Having contrasted the issues raised in the respective briefs of argument of the parties, and found them not mutually exclusive, I have deemed it expedient to adopt the Appellant’s four issues for the determination of the appeal.

ISSUE NO. 1:
The first issue raises the question of whether or not under the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel State, applicable to Delta State, a Writ of Summons served and issued outside jurisdiction prior to the presentation and consideration of the application for leave to issue by the court without compliance with the Sheriff And Civil Process Act, is incompetent thus liable to be set aside. The issue was formulated from grounds 1 and 2 of the Notice of Appeal.

Instructively, the originating processes, the vexed Writ of Summons and Statement of Claim, are contained at pages 1 & 2 of the Record of Appeal. It is evident from the record, that the Writ of Summons in question was both dated and filed on 12/10/05 in the court below. Indeed, the sum of N690.00 was paid as filing fees for the said processes.

Consequent upon the Plaintiff’s exparte motion, the lower court granted leave to the Plaintiff to issue the said Writ of Summons out of jurisdiction. The said exparte order is dated 13/10/05, and contained at page 7 of the Record. The affidavit of service was sworn to on 17/10/05 by Egwunyenga Kenneth, a Senior Bailiff of the lower court evidencing the service of the said originating processes on the Appellant on the said 17/10/05 at 1.15pm at Onitsha (Anambra State).

Under Order 5 Rule 6 of the defunct Bendel State of Nigeria High Court (Civil Procedure) Rules, 1988, applicable to Delta State, it’s provided that –
Subject to the provisions of these rules or any written law in force in the states, no Writ of Summons for service out of jurisdiction, or of which is to be given out of the jurisdiction, shall be issued without the leave of court or a Judge in chambers.

Afortiori, by virtue of Section 97 of the Sheriffs And Civil Process Act, it’s provided that:
Every Writ of Summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –
This summons (as the case may be) is to be served out of the … State (or as the case may be) …… and in the …… State (or as the case may be).

The Appellant has now called upon us to hold that the Respondent did not comply with any of the above provisions of the law. That, the writ of summons served on the Appellant was not the one issued on 13/10/04. That, no notice to the effect that the summons be served out of Delta State, and in Anambra State. And that, worst still, in the instant case, the mandatory 30 days period for entering of appearance was reduced to only 8 days.

However, it’s evident from the record of appeal, that on 18/10/05, the Appellant filed a memorandum of appearance. On 07/12/05, the Appellant equally filed a motion on notice applying that the lower court should strike out the suit for lack of jurisdiction to entertain same.

The Motion on Notice and the affidavit in support thereof, are contained at pages 17-19 of the Record. By the said motion, the Appellant prayed the lower court for the following reliefs:
1. AN ORDER of this Honourable Court striking out SUIT NO. HGI/17/2005 between Vineoil (Nig) Ltd V. Ifesinachi Industries (Nig) Ltd & Mr. Joseph Agu being an abuse of Court process.
2. AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
AND FURTHER take notice that the grounds upon which this application is brought are that:
a. The pre-requisite conditions prior the institution of this suit were not adhered to;
b. The order for the issue and service of this writ outside jurisdiction was made on the 13/10/2005 whilst the writ itself was filed and dated 12/10/2005 i.e. before the order itself.
c. The papers already filed are relied upon.
Dated this 2nd day of December, 2005

The entire proceedings of the lower court are contained at pages 28-38 and 45-65 of the Record. The vexed Judgment itself is contained at pages 68-78 of the Record of Appeal. Most regrettably, there is no evidence on the record to show that the motion in question was ever moved by the Appellant’s counsel, talkless of any ruling being delivered thereupon by the lower court.

Instructively, in the case of ODUA INVESTMENT CO. LTD VS. TALABI (1997) 10 NWLR (Pt. 523) 1, cited and relied upon by the Appellant, two issues were raised for determination, viz:
1. Whether the Court of Appeal was right in holding that the principle of waiver applies to non-compliance with Sections 97 and 99 of the Sheriff and Civil Process Act particularly where before trial the appellant object to exercise of jurisdiction.
2. Whether it is open to the Court of Appeal to follow the Supreme Court decisions in the case of Ezomo vs. Oyakhure (1985) 1 NWLR (Pt.2) 195 and Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250 instead of Skenconsult Nig. Ltd v. Ukey (1981) 1 SC 6 and Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664.

Essentially, the decision of the Apex Court in ODUA INV. CO. LTD VS. TALABI (Supra), is to the effect, inter alia, that –
1. Any non-compliance or defect that goes to the competence or jurisdiction of a court is fatal. It renders the proceedings a nullity however well conducted and decided. The defect is extrinsic to the adjudication.
2. Where a defect does not affect the competence or jurisdiction of the court, it is a mere irregularity which the court may EX DEBITO JUSTITIAE set aside.
3. Where an act is void waiver does not come in for consideration as the parties cannot consent [to] or waive such irregularity.
4. Where a defendant is served with a writ of summons in breach of Sections 97 and 99 of the Sheriffs and Civil Process Act, he has a choice either to object to the service by applying to have it set aside, (and the court ex debito justitiae will accede to the application) or ignore the defect and proceed to take steps in the matter. Where the latter is the case, his application to set aside must be refused. It follows, therefore, that there is conflict in the Supreme Court decisions on the issue.
The Supreme Court conclusively held in ODUA’S case (Supra) –
The Appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the courts have moved a long way from allowing them to make an ass of it and dent the image of justice. As I am satisfied that Ezomo and Adegoke Motors were, on their facts, rightly decided I find no reason to accede to the appellant’s request to overrule them. They are not in conflict either with Skenconsult and Nwabueze.
This appeal fails and it is hereby dismissed by me with N1,000.00 costs in favour of the Respondent. Per Ogundare, JSC @ 52.
In the instant case, it’s so obvious, as copiously alluded to above, that the Appellants merely filed a Motion on Notice on the said 07/12/05. They equally deemed it expedient to file a joint statement of defence on the said 07/12/05 which was deemed properly filed and served on 31/05/06. Consequent whereupon, they proceeded with the hearing of the suit to the very end thereof.

In my considered view, the facts of the instant case are on all fours with ODUA INV. CO. LTD VS. TALABI (Supra), wherein the Apex Court aptly reiterated the trite fundamental principle to the effect that –
Reading carefully the wordings of Sections 97 and 99 of the Act, I am of the firm view that the provisions of these Sections are for the benefit of defendants alone rather than of the general public. The purpose of Section 99 is to give a defendant served in a state outside the one in which the writ was issued sufficient time to enable him make appearance. The endorsement to the writ required by Section 97 informs him that the writ was issued in another State. With this view of these Sections I cannot say that a breach of them is of such incurable nature that cannot be waived by the person for whose benefit they are provided, that is the defendant. I think he can waive them if he so chooses. Per Ogundare, JSC @ 51 paragraphs D-E.

In the instant case, it’s doubtless that the Appellants by the disposition thereof had chosen to waive their right to challenge the competency of the writ of summons in question.

In the circumstance, the first issue ought to be, and same is hereby, resolved against the Appellant.

ISSUE NO. 2:
The second Issue raises the question of whether there was no positive, coercive and compelling order of the trial court capable of being executed against the Appellant.

Most specifically, page 78 of the Record has been copiously alluded to regarding the finding of the lower court to the following effect:
“This is a mere finding of fact and cannot by any stretch of imagination be said to be capable of being executed on any of the parties especially the defendant.”

The above finding of the lower court has allegedly amounted to:
“The sort of rambling incomplete statement characterize and fan through the entire Judgment… and naturally leads to confusion on the part of the parties especially the defendant as to what the decision of the court was.”

Most regrettably, the above passage allegedly quoted from page 78 of the Record of Appeal is, to say the least, misleading. That passage is not contained at the said page 78 of the Record. For the avoidance of doubt, the said page 78 of the Record of Appeal is hereby copiously reproduced:
…after thought. I note that there was a motion by the defendants to amend their joint statement of defence to enable them include that defence in their pleading. I agree with the plaintiff counsel that in the circumstance that defence is an after thought. It cannot therefore avail the defendants. The issue of the tyre burst could make the incident look like a pure accident without any negligence on the part of the defendant. But his defence as I observed earlier cannot hold.
On the issue of general damages, I do not agree with the defence counsel that their claim in this regard is standing on nothing. From the foregoing, it is clear that the plaintiff have sufficient ground on which to base their claims. The evidence of the PW2 also showed that for a reasonably long time after the accident and before the repairs, the plaintiff was denied the use of the tanker lorry. He put the total loss suffered as a result at N5million.
Finally, I find in view of my findings that the plaintiff is entitled to part of their claims as contained in paragraphs 25 and 26 of their amended statement of claim: namely
(a) N704,000 being value of 12.800 litres of automobile gas.
(b) Five million Naira being damages resulting from the said accident.

As copiously reproduced above, the said passage is not contained at the said page 78 of the Record. Thus, the second issue is deemed at large, grossly incompetent, and same is hereby struck out along with ground 2 of the Notice of Appeal upon which it’s predicated. And I so hold.

ISSUE NO 3:
The 3rd Issue raises the question of whether the damages awarded to the Respondent were legally justifiable, and the N5million damage was manifestly excessive.

It is evident from the record, that the Respondent pleaded and proved its claim on the balance of probability or preponderance of evidence, thereby resulting in the lower court awarding damages thereto as per reliefs A and C of the Statement of Claim thereof.

In the course of the trial of the suit, the Respondent called a total of three witnesses who testified as PW1, PW2 and PW3, respectively. The Respondent equally tendered seven exhibits which were all admitted as Exhibits A, B, C, D, E, F and H, respectively. None of the seven exhibits in question were objected to by the Appellants at the material time they were being tendered by the Respondent.

What’s more, the evidence of DW1, Mr. Joseph Agu, who is the 2nd Appellant on record, and the driver of the 1st Appellant’s Luxurious Bus with Registration No. XK252GEE involved in the said accident, very much supports the Respondent’s case. The fact that the 2nd Appellant was negligent in driving the 1st Appellant’s Luxurious Bus No. XK252GEE, thereby resulting in hitting and damaging the Respondent’s Tanker Lorry in question, is no longer in doubt.

At page 30 of the Record, the PW1 testified, inter alia, thus:
Before this accident I noticed the luxurious buses were overtaking each other any how. They were on a high speed. They were 2 buses over taking at the same time, because excessive speed the but that hit me could not stop so hit me. A V.I.O. was later invited to inspect the accidented vehicles.
The bus owners undertook to repair our own vehicle but later we went to court.

Under cross-examination by Chiduabo Esq., the PW1 reiterated as follows:
“I was not on speed when the accident happened, I could not speed because my vehicle was fully loaded. I know my head lamps were on but I don’t know whether the bus lights were on.”

On the part thereof, the 2nd Appellant testified as DW1 to the following effect:
I was not charged to court because my company agreed to repair the vehicle of the complainant (Respondent). I hit the left side of the Plaintiffs (Respondent) vehicle. I know some quantity of gas leaked from the Plaintiff’s (Respondent) vehicle as a result of the accident. But I do know the quantity (sic) of the gas that leaked from the vehicle. See page 479 of the Record.

Regarding the damages, the PW2 testified at page 33 of the Record to the following effect:
We were not able to work with the vehicle for a long time as a result of the damage. We incurred a loss of N3,000,000.00 (Three Million Naira) as a result of non use of the vehicle. I later repaired the vehicle by myself because they told me to do so and they would reimburse me. I spent N295,500.00 on the repair of the vehicle. I got receipts… The trailer was lying in our office for about 6 weeks before I repaired it.

Consequent whereupon, the lower court held at page 76 of the Record:
I believe they (Plaintiff) have done so. The method of arriving at the quantity of the wasted gas by the Plaintiff which was valued at N704,000.00 is quite logical. Evidence on both sides showed that at the time of the accident, the tanker lorry of the Plaintiff was fully loaded with gas. Also that some of the gas was wasted after the accident. The Plaintiff, therefore minused what was left of the gas after the accident from the original quantity and what they got is now part of their claim.
…
The evidence of the PW2 also showed that for a reasonable long time after the accident and before the repairs, the Plaintiff was denied the use of the tanker lorry. He put the total loss suffered as a result at N5million.

The principle is well settled, that the term special damages denote damages that are alleged to have been sustained in the circumstances of a particular wrong. Thus, to be awardable, special damages must be specifically pleaded and proved strictly. See BLACK’S LAW DICTIONARY, 9th Edition 2009 @ 448; NNPC VS. CLIPCO (2011) NSCQR 46 (Pt. 1) 114, per Rhodes Vivour, JSC @ 146.
Contrariwise, general damages are those damages that are presumed in law to have naturally followed from the type of wrong complained of. In other words, they are compensatory damages for harm that results from the tort for which a party has sued that the harm is reasonably expected. Thus, general damages do not need to be specifically claimed or proved. See BLACK’S LAW DICTIONARY (Supra) @ 446; ELOICHIN (NIG) LTD VS. MBADIWE (1986) 1 NWLR (Pt. 14) 4; (1986) ALL NLR 1; (1986) 1 SC 99; (1986) LPELR – 1119 (SC).

Contrary to the submission of the Appellant under Issue No. 3, the N5,000,000 claimed for by the Respondent falls within the region of general damages, and not special damages. And as aptly alluded to above, the law is trite that general damages need not even be claimed at all by the Plaintiff, let alone proved, for it to be granted by the court.

In my considered view, the findings of the lower court, as copiously reproduced above, are unassailable, as they are duly supported by the pleadings and evidence on records. And I so hold.

In the circumstance, the 3rd issue is equally resolved against the Appellants.

ISSUE NO. 4:
The 4th issue raises the question of whether the lower court had properly evaluated the evidence of the parties in the suit on the balance of probabilities.

I think, there is a need for me to reiterate, at this point in time, that having resolved the 1st, 2nd and 3rd issues against the Appellant, there is no gainsaying the fact that the 4th issue ought to equally be resolved against them. It is obvious from the records, especially at pages 76 – 78, that the lower court has effectively evaluated the evidence of the witnesses adduced by the respective parties. Most especially, at page 38 of the Record, the court below was recorded to have held, rightly in my view, that –
The evidence of the DW1 the defendant’s driver that the accident was a result of his tyre burst is an after-thought. I note that there was a motion by the defendants to amend their joint statement of defence to enable them include that defence in their pleadings. I agree with the Plaintiff counsel that in the circumstances that defence is an after-thought. It cannot therefore, avail the defendants.

That finding, in my considered view, is apt and duly supported by the evidence on record. In that regard, the evidence of PW3, Police Corporal Ibiam Igri, the Investigation Police Officer attached to B. Dept. State Police Headquarters, Asaba, is very much instructive. Hear him:
…We saw at the scene that a Luxurious bus Registration No. XK252GGE owned by Ifesinachi Coy (the 1st Defendant) and one Tanker Lorry Registration No. XB 123 NEW owned by Vine Oil Coy (Plaintiff).
I drow (sic) a rough sketch of the scene in the presence of the 2 drivers, showing the movement of the vehicles, point of impact and the resultant position of the vehicles after the accident. I explained it to the 2 drivers. They understood and signed as correct. I counter signed as the maker.

Consequent upon the identification thereof by the PW3, the sketch map of the scene of the accident was admitted by the lower court as Exhibit C. In continuation of the testimony thereof, the PW3 stated, thus:
The 2 vehicles was (sic) later removed to the station for the vehicle inspection officers for inspection. He later inspected only 1 of the vehicles i.e. the tanker lorry and he issued a report. I will known (sic) the report if I see it. It is now identified and sought to be tendered as Exhibit.
No objection from the counsel on other side.
It is to be marked as exhibit D.
The Coy Manager of Ifesinachi refused that the VIO should inspect their luxurious bus. He told us the reason. That he wanted to go home and settle with the defendant.
I asked him to put it in writing. He agreed. The Manager of the Vine Oil Company now wrote a withdrawal letter to the police of that.

In the circumstances of the instant case, I am unable to uphold the Appellant’s view that the lower court did not properly evaluate the evidence of the parties or misapplied same, or failed to decide the matter on the balance of probabilities. And I so hold. The 4th issue is equally hereby resolved against the Appellants.

In the instant case, as far-reachingly postulated above, there is no basis whatsoever for me to appreciate, let alone to uphold, the Appellant’s submission that the findings of the court below in the vexed Judgment are either perverse or not supported by the pleadings and evidence on record. And I so hold.

Hence, having resolved each of the four issues against the Appellants, there is no doubt the instant appeal is totally unmeritorious, and it’s hereby dismissed by me.

Consequently, the Judgment of the High Court of Delta State, delivered by the Hon. Justice I.E. Okogwu, J; on 30/11/2011 in Suit No. HCI/17/2005, is hereby affirmed.

The Respondent shall be entitled to costs estimated at N50,000.00 against the Appellants.

HAMMA AKAWU BARKA, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother IBRAHIM MUSA MOHAMMED SAULAWA, JCA just delivered.

Having also meticulously studied the Notice and grounds of appeal and the records of the appeal, vis-Ã -vis the submissions of learned Counsel, I fully agree that the issues formulated therein were admirably dealt with. The reasoning and the conclusion reached is excellently predicated to the inevitable conclusion that the appeal is bereft of merit and is hereby dismissed.

The judgment of the Lower Court in Suit No.HCI/17/2005; Vinee Oil Ltd v. Ifesinachi Industries Nigeria Ltd & 1 Other delivered on the 30th of November 2011, is hereby affirmed. Costs of N50,000.00 awarded in favour of the respondent.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JCA, and I agree that there is no substance in this appeal and that the same should be dismissed.

Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I attest my concurrence with the reasoning and conclusion that the appeal lacks merit. I also dismiss the appeal and abide by the consequential orders contained in the lead judgment. The judgment of the High Court of Delta State in Suit No.HCI/17/2005 delivered on 30th November, 2011 is hereby affirmed.

Appeal dismissed.

Appearances

Uju AkureziriFor Appellant

AND

P. U. P. Onuorah, with him Obinna EzeileFor Respondent