NIGERIAN PORTS AUTHORITY V. RAHMAN BROTHERS LIMITED
(2010)LCN/3792(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of May, 2010
CA/B/289/2006
RATIO
TORT: NEGLIGENCE; REQUIREMENT FOR THE TORT OF NEGLIGENCE TO SUCCEED
It is correct that case law is fully settled that what is required to succeed in a claim based on the tort of negligence primarily is to prove the existence of legal duty of care and to go further to establish that there was breach of such duty of care consequent which damage injury or economic loss was suffered. If there was an incident, a Court of law considering a claim on negligence, must, while considering the evidence before it, ask and answer the question, whose conduct substantially caused the event? It is the entire circumstances of the matter that must be considered to answer this question. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
TORT: MEANING AND NATURE OF THE DOCTRINE OF RES IPSA LOQUITOR
The doctrine of res ipsa loquitor means the thing speaks for itself. The Latin doctrine is evidence of negligence in the absence of an explanation by a defendant. It is a doctrine relied on by a plaintiff to prove the negligence of a defendant. It applies in a situation where the facts of a case are such that the negligence complained of would not have occurred if the defendant had taken due care. The Court is entitled in this circumstance to draw inference from those facts unless the defendant adduces evidence in rebuttal of such inference. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
DAMAGES: WHETHER DAMAGES ARE DEEMED TO BE ISSUES IN AN ACTION
Damages are also deemed to be an issue whether special or general and whether the alleged damage was part of the cause of action or not. In the case of OSUJI V. ISIOCHA (1989) 3 NWLR (PT.111) 623 at 640 B-C, the Supreme Court held that any allegation that a party has suffered damage and any allegation as to the amount of damage is deemed to have been traversed, unless specifically admitted. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
DAMAGES: MEANING OF DAMAGES WRITTEN IN AN ACTION
Where a Plaintiff in an action simply claims “damages” what he has claimed is general damages. If he intends to claim special damages, the word “special” must be prefixed to the word “damages” and the particulars of the special damages where necessary must be given. See A.N.T.S. & ANOR V. S.D. ATOLOYE (1993) 6 NWLR (PT.298) 238 at 257 G-H. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
NIGERIAN PORTS AUTHORITY Appellant(s)
AND
RAHMAN BROTHERS LIMITED Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Benin Judicial Division in Suit No. FHC/CS/B/1I/1998 delivered on 17th June, 2002. The Respondent herein was the Plaintiff before the lower Court, while the Appellant was the Defendant. The claim before the lower Court was for the sum of N242,530,899.50 (Two Hundred and Fourty-Two Million Five Hundred and Thirty Thousand Eight Hundred and Ninety-Nine Naira Fifty Kobo) as damages for negligence caused by the defendant resulting in the loss of 13,365 Teak Logs also equivalent to 9,448 ,029 cubic metres in volume. In a statement of defence the Appellant denied liability and put the Respondent to strictest proof of the claim. Added to the statement of defence, the appellant also counterclaimed for various sums of money under different headings totaling about N13,817,123.00 (Thirteen Million Eight Hundred and Seventeen Thousand One Hundred and Twenty Three Naira) also for negligence and want of care and diligence.
Issues were duly joined on the claim and the Counter claim and the matter went to trial. At the trial, oral and documentary evidence were adduced at the end of which respective learned Counsel addressed the Court. After considering the evidence before it and the submissions of respective learned Counsel on them, the lower Court delivered its judgment on 17-06-2002.
Before the judgment of the lower Court it is worthwhile to underscore the factual basis of this matter. It is a claim for negligence arising out of a fire incident which took place on 22/02/97. The Respondent was a tenant of the Appellant at a Port facility in Warri, Delta State. The Respondent was using this facility for the preparation, grading and storage of Teak Logs for export. As a result of a fire incident at the Port a large quantity of Teak Logs belonging to the Respondent were totally destroyed.
In its judgment the lower Court observed and held as follows:-
“I therefore accept the figures stated by the PW1 (sic) which forms the basis for the total amount they are (sic) claiming for the logs that were destroyed. I also find that the Defendant(s) being the landlord of the Plaintiff and other tenants, have been negligent for not clearing the bush around their land considering the fact that it was Harmattan period. They had no also (sic) effective fire fighting equipments to control a fire of such magnitude. They did not act promptly despite the fact that the fire out break was reported to them timeously.
The principle of res ipsa loquitor also applies in this case, as the Defendants cannot explain how the fire started and properties of the Plaintiffs were damaged. The fact therefore, speaks for itself. The quantity of the logs that were destroyed is not in disputes and the value also not disputed having been established by evidence I have no option but to enter judgment in favour of the Plaintiff as per their statement of claim. This is the judgment of the Court.”
See page 27 of the judgment as page 121A of record of appeal.
This judgment, in short awarded damages for negligence in .terms of the statement of claim i.e. N242,530,899.50K. The appellant was dissatisfied with this judgment and filed this appeal in a notice of appeal dated 18-06-2002. In due course, the appellant sought for and obtained leave to amend this notice of appeal to incorporate 4 additional grounds of appeal on top of the original 6 grounds of appeal. These grounds of appeal and their particulars are hereby set out thus:-
GROUNDS OF APPEAL
i. Judgment is against the weight of evidence.
iiThe learned trial Judge erred in law when he held that, the magnitude of the fire which burnt the Plaintiffs’ logs was not contemplated by the agreement between the parties (Exh.A)
PARTICULARS OF ERROR
a) This conclusion is not referable to any evidence.
b) Contractual agreements/documents are to be given their natural, ordinary and literal meaning.
iii. The learned trial Judge erred in law in failing to decide the issue forcefully canvassed that PW1 was not an expert witness to be believe.
PARTICULARS OF ERROR
a) A defence no matter how stupid must be considered.
b) A Court must consider every issue raised in a case before it before coming to a decision.
iv. The learned trial Judge erred in law when he awarded the sum of N242,530,899.50K as damages without stating under what head of claim he has made the award, whereof there was miscarriage of justice.
v. The learned trial Judge erred in law in dismissing the counter claim.
PARTICULARS OF ERROR
Evidence available supports the Counter claim but the learned trial Judge failed to consider it.
vi. The learned trial Judge erred in law when he held that the fire that gutted the Plaintiffs’ logs on the day of the incident was not the type of fire envisage under clause IV of the contract for the Plaintiff to provide.
PARTICULARS OF ERROR
a) Learned trial Judge abandoned his duty to interpret the contract and give effect to the agreement between the Plaintiff and the Defendant.
b) In Exhibit PW2/32 the Plaintiff is obliged to insure her goods against fire and indemnify the Defendant for any fire incident.
vii. The learned trial Judge erred in law by holding the Defendant liable for negligence.
PARTICULARS OF ERROR
a) The Defendant who is admittedly, the Plaintiffs Landlord owes the Plaintiff no duty of care with respect to fire outbreak which occurred at 1.2 Kilometer away from the Plaintiff’s premises.
b) The Defendant has no duty of care to quench the fire which spread to the Plaintiff’s premises.
c) The unchallenged evidence before the trial Court shows that the fire incident was caused by third parties who were hunting for rats and rabbits.
d) There was abundant evidence of intervening act of God, namely, the spread of fire through whirlwind.
e) The damages allegedly suffered were too remote to the defendant’s alleged negligence.
viii. The learned trial Judge erred in law when he awarded the total sum of N242,530,899.50K which was the resale value of the log of wood at the rate of US $302 per cubic metre.
PARTICULARS OF ERROR
a) Learned trial Judge based his assessment of damages on Exhibit 29, which reflects the resale of the logs in 1996 to I.S.L.
b) The appropriate measure of damages in negligence should be the replacement cost of the Log of wood at the time and place of loss.
ix. The learned trial Judge erred in law by invoking the doctrine of Res Ipsa Loquitor against the Defendant.
PARTICULARS OF ERROR
a) The Plaintiff did not establish a prima facie case of negligence against the Defendant.
b) The mere occurrence of a fire incident 1.2 Kilometer away from the Plaintiff’s premises is not indicative of negligence on the part of the Defendant.
x. The learned trial Judge erred in law by dismissing the Defendant’s Counter Claim.
PARTICULARS OF ERROR
Learned trial Judge should have given effect to clause IV of Exhibit PW2/32 which imposed on the Plaintiff a duty to indemnify the Defendant for all losses, damages and costs caused by any fire accident.
The appellant also sought for and obtained leave to raise and argue a fresh issue on jurisdiction on appeal and it is:-
GROUND XI
The learned trial Judge erred in law by entertaining the Plaintiff’s Claim and entering judgment in Plaintiff’s favour.
a) The Plaintiff/Respondent’s causes of action based on the Tort of Negligence/occupiers liability are outside the scope of the jurisdiction of the Trial Court.
b) The Plaintiffs’ cause of action is based on alleged breach of Appellants contractual obligations as the Plaintiff’s Landlord is outside scope of the jurisdiction of the Trial Court.
c) The subject matter of the entire Suit is outside the jurisdiction of the Federal High Court.
The appellant filed its brief of argument dated 2nd July, 2008 while the Respondent replied in a brief of argument filed on 7/5/07. The appellant sought for and obtained an extension of time to file its reply brief and same was deemed properly filed and served on 18/5/09,
In the appellants’ brief the following 6 Issues were distilled and argued. They are:-
i. Whether the learned trial Judge rightly or wrongly assumed jurisdiction over the Respondent’s claim, which is essentially a claim based on the tort of Negligence.
ii. Assuming the Federal High Court rightly assumed jurisdiction over the dispute, whether learned trial, Judge rightly or wrongly found the Appellant liable for Negligence.
iii. Whether the learned trial Judge was right or wrong in his decision not to give effect to Clause IV of Exhibit DWI on the duty of the Respondent to insure the premises against and indemnify the Appellant for any fire incident.
iv. Whether the learned trial Judge rightly awarded the sum of N242,530,899.50K as damages for the alleged Negligence against the Appellant.
v. Assuming the learned trial Judge rightly found that the Appellant was negligent, whether he rightly assessed/measured the damages for the alleged Negligence against the back drop of the resale value of the Teak logs of Wood in Europe.
vi. Whether the learned trial Judge rightly or wrongly dismissed the Appellant’s Counter Claim.
On its own part, the Respondent formulated and argued the following 5 issues, They are:-
1. Whether the Federal High Court has jurisdiction to entertain this case. Ground XI of the Notice of Additional Grounds of Appeal.
2. Whether the learned trial Judge was right when he held that the defendant is liable for the loss of the Plaintiff’s teak logs. Ground (iii) and (vii) of the Amended Notice of Appeal of 27th June, 2006.
3. Whether the learned trial Judge was right or wrong in his decision not to give effect to Clause IV, of Exhibit DW1. Grounds (ii), (v) and (vi) of the Amended Notice of Appeal dated 27th June, 2006.
4. Whether the learned trial Judge rightly dismissed the Counter Claim filed by the Appellant. Ground (v) and (x) of the Amended Notice of Appeal dated 27th June, 2006.
5. Whether the learned trial Judge rightly awarded the sum of N242,530,899.50K as damages for negligence.
Grounds (i), (iv) and (viii) of the Amended Notice of Appeal dated 27th June, 2006.
At the hearing of the appeal before us on 18th February, 2010, and after identifying, introducing and adopting as well as relying on their respective briefs of argument, learned Counsel to the respective parties took turns to adumbrate on the issue of jurisdiction of the lower Court to entertain the subject matter in the claim of the Plaintiff/Respondent before it. Learned Counsel to the Appellant, Prof. Osipitan SAN referred to a number of decided cases of the Supreme Court notably NEPA v. EDEGBERO and made a very bold attempt to distinguish these decisions against the facts and circumstances of this appeal. In his reply learned Counsel to the Respondent Mr. Jimoh-Lasisi SAN referred to the provisions of the Nigeria Ports Authority Decree No. 74 of 1993, more particularly Section 2 and 3 thereof. According to Prof. Osipitan SAN, because it is the cause of action in a matter that determines the jurisdiction of a Court, a claim founded in the tort of negligence cannot be circumscribed to pertain to or connect with the administration, management or control of an agency of the Federal Government as to enable the Federal High Court, as the lower Court in this appeal, to exercise jurisdiction under S.251(1) of the 1999 Constitution. Learned Counsel urged this Court to find and hold that the lower Court lacked jurisdiction to entertain the claim of the Respondent so long as it was founded on the tort of negligence. Further to this, Learned Counsel urged the Court to allow this appeal and dismiss the claim of the Respondent before the lower Court.
In his reply learned Counsel to the Respondent, Mr. Jimoh Lasisi SAN, focused on the argument that because the negligence being ascribed to the appellant, and which gave rise to the cause of action in this matter, arose from the performance of the statutory duties of the Appellant thereby making it pertain to the administration, management and control of an agency of the Federal Government of Nigeria within the meaning and contemplation of S.251(1) of the Constitution. But just before that, learned Counsel Mr. Jimoh Lasisi SAN had referred to a number of key provisions of Decree 74 (supra) and submitted that the appellant is an agency of the Federal Government. He then urged the Court to find in favour of the jurisdiction of the lower Court. Also, against a total overview of their respective briefs the learned Senior Advocates of Nigeria each urged us to uphold their positions for the appeal in case of the appellant and against it in the case of the Respondent.
I have carefully examined the issues formulated by each Counsel for the determination of this appeal. I believe that the issues formulated by the appellant correctly and adequately capture the essence of the complaint of the appellant in the grounds of appeal. I will therefore proceed to consider same for the determination of this appeal.
In arguing his issue one, learned Counsel Prof. Osipitan SAN after explaining the obvious that jurisdiction is the cornerstone of litigation which can be raised at any stage of the proceedings in a matter, went further to submit that the Federal High Court lacks jurisdiction to entertain cases or matters founded on breach of contract or negligence regardless of who the parties to the matter were. He cited a number of cases and maintained that the scope of the jurisdiction of the Federal High Court is limited and therefore causes of action based on torts or contracts are ordinarily outside the jurisdiction of the lower Court in this appeal. He then urged this, Court to resolve the issue of jurisdiction and competence of the lower Court to entertain this matter in favour of the appellant.
In his response on this crucial issue of jurisdiction, Mr. Jimoh Lasisi SAN underscored the claim of the Plaintiff/Respondent and the evidence led in support of same and submitted that the negligence complained of arose from the operation, management and control of the port under the provision of S.3 of Decree 74 of 1993 (supra). Also connected with the main issue of jurisdiction the learned Senior Advocates of Nigeria argued and made submissions on pre-action notice and its effect on the competence of an action where it was not given as required by the law establishing an agency or institution of government.
After an overview of all the arguments and submissions of learned Counsel together with the relevant statutory provisions and decided cases as well as the entire circumstances of this case, I am of the view that Exhibit PW2/31 and the reply to it in Exhibit PW2/32 would appear to prove that adequate pre-action notice in substantial compliance with the provisions of S.110 (2) of NPA Act, was served on the Defendant/Appellant. Also after a careful consideration of the decisions of the Supreme Court in N.P.A PLC V. LOTUS PLASTICS LTD & ANOR (supra) as well as NEPA V. EDEGBERO. I am of the firm view that from the pleadings and evidence adduced in support of the claim for negligence the lower Court was quite right to assume and exercise jurisdiction in the circumstance. Issue one is therefore resolved against the appellant.
Learned Counsel Prof. Osipitan SAN argued his issues 2 and 3 together. These issues were formulated out of grounds 1, 2, 6, 7 and 9 of the Amended Notice of Appeal. All the arguments of respective learned Counsel here are concerned with the finding of the lower Court that the Defendant/Appellant, in its capacity as a Landlord, owed a duty of care to the Defendant/Respondent, as its tenant and that the Appellant failed to discharge this duty of care consequent upon which the Respondent suffered a very huge economic loss.
According to learned Counsel Prof. Osipitan SAN, in order to prove negligence it must be proved to the satisfaction of the Court that:-
1. a duty of care exists;
2. there was a breach of the duty of care and
3. the breach caused loss or damage.
Learned Counsel explained that these 3 requirements are cumulative and concurrent and the absence of one is fatal to the proof of negligence. For these explanations, learned Counsel, referred to I.M.N.L. v. NWACHUKWU (2004) 13 NWLR (PT.891) 543 at 565, ROYAL ADE (NIG) LTD V. N.O.C.M. CO. PLC. (2004) 8 NWLR (PT.874) 206 at 219 – 220 H-A and S.B.N. LTD V. M.P.I.E. LTD (2004) 6.NWLR (PT.868) 146 at 160 F-G.
While referring to the facts in this action, the learned SAN for the appellant posed the following question:-
a) Whether a landlord is ordinarily obliged “to quench” a fire which ignites the premises occupied by his tenant?
In an attempt to answer this question and knock out the foundation upon which any claim founded on the tort of negligence must be anchored, learned Counsel Prof. Osipitan SAN maintained that the Appellant owed the Respondent no duty of care to put out a fire which started about one kilometer from its premises.
Learned Counsel argued further that there is no known authority for the position taken by the learned trial Judge that failure by the Appellant to put out the fire which spread to the premises of the Respondent from about one kilometer from the main source of the fire amounted to negligence. Upon this argument learned Counsel submitted that it was not reasonably foreseeable that this type of fire in the circumstance of this action would spread to the premises of the Respondent and destroy its logs of wood. According to learned Counsel, the legal requirement of reasonable foreseeability which is an essential ingredient of negligence, was not satisfied by the Plaintiff/Respondent.
In concluding his arguments learned Counsel, pointed out that the Respondent neither pleaded nor adduced evidence based on occupier’s liability and it was therefore wrong for the lower Court to rely on the principle of occupier’s liability as the basis of finding the appellant liable. Upon this point, learned Counsel explained that because it was the Respondent who was in exclusive physical occupation of the premises where the logs of wood were stored and later destroyed there was no basis for the application of the principle of occupier’s liability. He urged the Court to resolve these issues against the Respondent.
In what appears to me to be his response to the arguments and submissions of the appellant on these issues, learned Counsel to the Respondent, Mr. Jimoh-Lasisi SAN, referred to some Nigerian and English cases such as JOB EDWARD LTD V. BIRMINGHAM NAVIGATIONS (1924) 1 KB 341 and GOLDMAN V. HARGRAVE (1967) AC 645. It was with reference to these cases and the peculiar facts of this matter that learned Counsel submitted that a finding for negligence caused by fire can be made under the common law or under the principle laid down in RYLANDS V. FLETCHER. Upon this submission, learned Counsel remarked that the Respondent pleaded and proved that fire started on the land owned and controlled by the Appellant. He added that based on the evidence before the lower Court the appellant was duly and promptly informed of the fire at its inception and while it was small by the staff of the Respondent Company. Based on this background and information, the Appellant failed to act promptly to put out the fire because it lacked effective fire fighting equipment to control a fire of such magnitude.
While referring to the oral evidence of Mr. Eric James (PW2) and Emmanuel Mosimabale (PW3) as well as Sunday Udo, learned Counsel, Mr. Jimoh-Lasisi SAN, submitted that the findings of the lower Court for liability for negligence cannot be faulted. Added to this, learned Counsel launched a full onslaught on the case of the Appellant by a sustained reference to some of the oral evidence of some of the witnesses on record and maintained that if the Appellant had promptly put out the fire at its inception and when it was duly informed of it, the fire which consumed the Respondents’ logs and the consequent economic loss and damage could have been fully avoided.
It is beyond argument that the finding of liability for negligence against the appellant by the lower Court was based on a combination of legal principles such as occupier’s liability and/or Rylands v. Fletcher and Res Ipsa Loquitor. It is correct that case law is fully settled that what is required to succeed in a claim based on the tort of negligence primarily is to prove the existence of legal duty of care and to go further to establish that there was breach of such duty of care consequent which damage injury or economic loss was suffered. If there was an incident, a Court of law considering a claim on negligence, must, while considering the evidence before it, ask and answer the question, whose conduct substantially caused the event? It is the entire circumstances of the matter that must be considered to answer this question.
The doctrine of res ipsa loquitor means the thing speaks for itself. The Latin doctrine is evidence of negligence in the absence of an explanation by a defendant. It is a doctrine relied on by a plaintiff to prove the negligence of a defendant. It applies in a situation where the facts of a case are such that the negligence complained of would not have occurred if the defendant had taken due care. The Court is entitled in this circumstance to draw inference from those facts unless the defendant adduces evidence in rebuttal of such inference.
In the instant case, the Plaintiff/Respondent pleaded in paragraph 41(h) that it will rely upon the doctrine of res ipsa loquitor. According to the decision of the Supreme Court in ORAJEKWE V. MBIERI (1962) 1 SCNLR 30, there is nothing preventing a Plaintiff who pleads a specific act of negligence from relying on the doctrine of res ipsa loquitor in the alternative. While there may be nothing wrong in pleading the doctrine of res ipsa loquitor as an alternative, a Court of law is not competent to examine the doctrine together or simultaneously with specific particulars of negligence enumerated by the Plaintiff and give judgment on both. As part of his judgment, the learned trial Judge held as follows:-
“The principles of res ipsa loquitor also applies to this case …(Underlining mine for emphasis).
The trial Judge was therefore wrong to have considered specific allegations of negligence concurrently with and in addition to negligence under the doctrine of res ipsa loquitor.
In paragraphs 41(a)-(g) of the statement of claim the Plaintiff/Respondent pleaded particulars of negligence. They are as follows: –
41 “The said fire and the damage therefrom were cause by the negligence of the defendants their servants or agents.
a) Failure to clear the bush or grass on their land or on the boundaries of their land during dry season between November to March.
b) Failure of the defendants’ fire service men to put out the fire when they were informed of the fire at 1:30 p.m.
c) At 2.37 p.m. when the defendants’ fire service men arrived they negligently brought a vehicle which had no water.
d) The second Nigerian Ports Authority fire service vehicle arrived at 3.05 p.m. too late to achieve any result.
e) Defendants’ fire service telecommunication facility was not functional because the equipment was faulty.
f) Failing to take all reasonable and effective measures whether by inspection, examination or otherwise to ensure that there would be no risk of bush burning during the harmattan season on their land.
g) Failure of the defendants to act promptly to put out the fire.”
I have perused the totality of evidence adduced at the trial before the lower Court and I am of the view that there had been sufficient credible evidence tending to establish these particulars of negligence. After the Plaintiff/Respondent had succeeded in its primary duty of establishing negligence, the Defendant/Appellant in my view failed, in the circumstance of this matter to establish enough rebuttal to disprove negligence because no proper or adequate explanation were offered to show that the failure to put out the fire when it was so small and manageable was not the direct cause of the larger fire that eventually destroyed the logs of the respondent.
On the issue of the contractual obligation of the Respondent to provide fire fighting equipment, I do not think that in the circumstance that obligation could mean more than providing, for example, fire extinguishers. There is enough evidence to show that the respondent was in any way bound by more than just that. Otherwise, how can one explain the presence, and provision of a fire engine by the Appellant. Why did the Appellant respond with its fire engine to the initial invitation to put out the fire? The failure of the Appellant to provide and maintain functional and effective fire fighting equipment or vehicle, no doubt on my mind, was a breach of legal duty of care in the circumstance of this appeal.
After considering all the main and collateral events in this matter as well as the law on this point against the facts and evidence before the lower Court it is proper for a finding of negligence to be made against the Appellant. The observation, views and findings of the lower Court on the issue of negligence cannot be faulted. Any invitation for this finding to be interfered with by this Court must be resisted in the circumstance.
Therefore, grounds 1, 2, 6, 7 and 9 fail and issues 2 and 3 are resolved against the appellant.
Like in the just concluded endeavour, learned Counsel to the Appellant argued issues 4 and 5 together. All arguments on these issues are attacks on the procedure and steps as well as the principles of law considered for the assessment and award of damages.
Learned Counsel to the Appellant opened arguments on these issues with a reference and review of part of the evidence of PW3.
Upon this background, he posited that the defendant/respondent’s claim appeared to have fully crystallized before the commencement of this action, thereby the damages being in the nature of special damages. Also, with this as his springboard, learned Counsel referred to some decided cases to define what are special damages and how they are to be claimed and proved. From this, it can be gathered from the learned SAN for the appellant that special damages can be recoverable for injury or loss that flow directly from an event and must be reasonably proximate and foreseeable.
From this explanation, learned Counsel underscored the legal requirement that special damages must be specifically pleaded and strictly proved. In the opinion of learned Counsel the pleadings of the respondent fell short of the requirements of detailed particulars of items of claim for special damages.
While turning to the evidence on record, Prof. Osipitan SAN, of Counsel submitted that the evidence adduced by the respondent were insufficient to sustain the damages claimed. He criticized the decision of the lower Court, more particularly the aspects and findings that were made against the evidence of PW3.
Learned Counsel put the award of N242,530,889.50 as damages and explained that the lower Court missed the point with respect to the evidence of PW3 because the issue was not whether evidence of that witness was contradicted but whether, not being an official of the Central Bank of Nigeria, he was competent to give evidence on the official exchange value of the Naira against the US Dollar. He submitted that all that evidence goes to no issue and must be excluded.
In another dimension learned Counsel to the appellant argued that even if damages were recoverable in the circumstance of this appeal it should have been on the principle of restitutio in integrum. He added that according to that principle a Court of law in appropriate circumstances puts a plaintiff exactly in the same position he was before a loss or damage.
According to the learned SAN for the Appellant the appropriate measure of damages to have been awarded in the instant appeal, subject to the pleadings and evidence, was the cost of replacing the logs of wood and cost of additional improvements by the respondent in preparing the wood for sale. Upon these arguments and submissions, learned Counsel urged the Court to resolve these issues in favour of the Appellant.
In his response,Mr. Jimoh-Lasisi SAN explained that for the claim of the sum of N242,530,889.50 the respondent relied in the averments in paragraphs 3, 18, 19, 20, 21, 22, 39 and 40 of the statement of claim and the evidence adduced through PW3. He then went on to underscore what he considered the key aspects of the evidence on record which is supportive of the claim of the respondent. Upon this exercise, learned Counsel submitted that in claims based on negligence the measure of damages is assessed with a view to putting the claimant in the same position as he would have been had it not been for the defendant’s negligence.
I do not find all the other arguments and submissions of learned Counsel helpful or of any meaningful assistance to the determination of this issue.
I have taken an overview of all the applicable principles and guidelines for the award of damages in a claim for negligence as a distinct tort predicated on the existence of a duty of care which was not observed and this failure leading to injury or economic loss. It is normal for a claim under this head to be made for the award of special or general damages, It must be observed that the claim in this action is in the nature of general damages, because, procedurally it differs so significantly from a claim for special damages. I wish to also observe that from the steps taken by the learned trial Judge, the award of over 242 Million Naira in the circumstance of this matter appeared to me to be an award for special damages, though not explicitly stated in the judgment.
It is a settled principle of practice and procedure in civil litigations that parties are bound by their pleadings. Also it is the claim of a party that determines the jurisdiction of a Court. With respect to this matter, the claim of the Plaintiff/Respondent goes thus:-
“Where upon the Plaintiff claims against the defendants jointly and severally the sum of TWO HUNDRED AND FOURTY TWO MILLION, FIVE HUNDRED AND THIRTY THOUSAND EIGHT HUNDRED AND NINETY NINE NAIRA FIFTY KOBO (N242,530,899.50) as DAMAGES FOR NEGLIGENCE caused by the defendant resulting in the loss of 13,365 Teak Logs (9,448,029) cubic metres volume.”
The award of damages is at the discretion of the Court based on the pleadings of the parties and the evidence adduced in support together with all the applicable legal principles. One of such principles that must be considered is that special damages have been made exceptional in their character by the law as they needed to be specially and specifically pleaded and strictly proved. See ODULAJA V. HADDAD (1973) 11 SC 357 and EZEANI V. EJIDIKE (1964) 1 ALL NLR 402.
Damages are also deemed to be an issue whether special or general and whether the alleged damage was part of the cause of action or not. In the case of OSUJI V. ISIOCHA (1989) 3 NWLR (PT.111) 623 at 640 B-C, the Supreme Court held that any allegation that a party has suffered damage and any allegation as to the amount of damage is deemed to have been traversed, unless specifically admitted.
Where a Plaintiff in an action simply claims “damages” what he has claimed is general damages. If he intends to claim special damages, the word “special” must be prefixed to the word “damages” and the particulars of the special damages where necessary must be given. See A.N.T.S. & ANOR V. S.D. ATOLOYE (1993) 6 NWLR (PT.298) 238 at 257 G-H.
From the claim before the lower Court, as set out above, there is no doubt that there was no claim for special damages, rather what was before the Court was a claim deemed by law to be in the nature of general damages. A very careful look at all the paragraphs of the statement of claim will clearly indicate that there was no serious attempt to make a claim for special damages because none was specifically made. A Court of law in the exercise of its jurisdiction cannot go beyond the clear terms of the claim before it or make any attempt to do a panel beating work on it.
In my view the award of N242,530,889.50 as damages in the circumstance of this matter has no basis in law or in fact and though this award was an exercise of a discretionary power, it proceeded from a consideration of the wrong principles. The approach was equally wrong. The award is therefore perverse and ought to be set aside in its entirety and it is hereby so set aside. The damages to be awarded in the circumstance of this matter based upon the pleadings and evidence adduced must be in the form of general damages which I hereby assess in the sum of N20 Million Naira. Issues 4 and 5 are therefore resolved in favour of the Appellant.
Issue 6 in the appellants’ brief of argument was on the Counterclaim of the Appellant. It does not admit of any arguments that a Counter Claim was filed in this matter. It is equally very clear, pleadings on it were adequate and issues were duly joined. It is equally correct that the Defendant/Appellant adduced evidence through DW1 to prove the Counter Claim. After considering some of the issues relating to the counter claim, the learned trial Judge adopted a very casual and lukewarm attitude towards it. He failed to fully consider it as an independent action or to make any clear and unequivocal statement on it. He failed to fully consider and evaluate the pieces of evidence in the form of oral testimonies of PW2 and DW1 and the demand notices as well as other documents.
It is quite clear that paragraph 22 (ii) of the Statement of Defence and Counter Claim was a claim for the sum of N1,317,123 being the outstanding balance of rents payable to the Appellant by the Respondent. The reply to the Counter Claim by the Defendant/Respondent fell short of a specific denial of this head of Counter Claim. A part of the evidence of DW1 at page 84 of the record goes like this:-
“They paid part of the rental bills. We raised the bills and they paid part and carry forward the balance. The total (sic) N4,113,460 is the debit. They paid the sum of N2,796,337, balance of N1,317,123 … ”
While being Cross-examined DW1 said at page 85 thus:-
“They paid their bills sometimes they pay in full and sometimes part of the Bill.”
Faced with this evidence, the learned trial Judge ought to have evaluated it and made a finding one way or another. There is no doubt that this failure and omission by the learned trial Judge is capable of prejudicing the claim of the Appellant and could occasion a miscarriage of justice. I agree with and accept the submissions of Prof. Osipitan SAN, of Counsel that the learned trial Judge did not fully consider the Counter Claim of the Defendant/Appellant and this failure has occasioned a miscarriage of justice on the appellant. Upon the available and credible evidence before the lower Court, an award of N1,317,123 being outstanding balance of arrears of rent can be made and ought to have been made by the learned trial Judge in the circumstance. I hereby so order for the payment of rent arrears as per paragraph 22 (ii) of the Statement of Defence and Counter Claim. Other heads of Counter Claim do not appear to me to have been well proved as to lead to an award. Grounds 7 and 10 of the grounds of appeal and upon which issue 6 was distilled and argued succeed and therefore issue No.6 is resolved against the Respondent.
This appeal is allowed in part. Award of N242,530,889.50K as damages for negligence is set aside. An award of N20 Million is hereby ordered in favour of the Respondent. Also, an order for payment of N1.317,123 is made for the Appellant pursuant to paragraph 22 (ii) of its statement of defence and Counter Claim. There shall be no order for costs.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have read before now the judgment of my learned brother Gumel JCA with which I entirely agree. For the same reasons set out too, I allow this appeal in part.
I also award no cost.
CHIOMA EGONDU NWOSU-IHEME, (Ph.D), J.C.A.: I have read before now the Judgment of my learned brother ALI ABUBAKAR BABANDI GUMEL, JCA, just delivered with which I entirely agree. In the aforesaid Judgment, his lordship has dealt with all the relevant issues submitted for determination of the appeal. I respectfully adopt the reasoning canvassed as mine and accordingly allow this appeal in part. The award of N242,530,889.50k as damages for Negligence is set aside.
I also award the sum of N20 Million in favour of the Respondent: I likewise order the payment of N1,317,123 for the Appellant pursuant to paragraph 22(ii) of its statement of defence and counter-claim. I too make no order as to costs.
Appearances
Prof. T. Osipitan SAN (with Ayo Awobiyide)For Appellant
AND
Mr. Jimoh-Lasisi SAN (with Mr. B. Jimoh-Akogun)For Respondent
