ONWUEKWE v. EDDY HI-TECH ENGINEERING LTD & ORS (2020)

ONWUEKWE v. EDDY HI-TECH ENGINEERING LTD & ORS

(2020)LCN/15473(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/OW/78/2019

RATIO

DAMAGES: HOW DAMAGES ARE PROVED IN COURT

The law is well defined, with respect to how damages are proved in Court – whether general or special damages. Whereas, general damages can be inferred, as it normally flows from the wrongs committed by the defendant, and needs not be pleaded and proved by any empirical method, special damages must be specifically pleaded and strictly proved in evidence. See the case of Udeagha vs Nwogwugwu (2013) LPELR – (21819) CA, where this Court said on the determination of special damages:
“The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the context of nominal award, where the sum of N20,000 was awarded to the Respondent as “nominal” damage for his claim of N1,903,196.60 as special damage. Even though the evidence had established that the Respondent’s skin were seized by the Police … and was mishandled and later released (but not in the state it was seized) to qualify for special damages, clear evidence needed to be led to establish the actual monetary value of the skins recovered at the time of release of same to the Respondent, as special damages can only be in respect of ascertainable, proved amount. By making a nominal award of N20,000.00 to the Respondent, the Lower Court had expressly admitted absence of the correct basis for the award, and that cannot be in the domain of special damages.”
Also in a recent case of CHEVRON (NIG) LTD VS CHIMEZIE A. OSIGWE: CA/OW/226/2011, delivered on 11/7/2014. In that case, the trial Court had awarded special damages of about N16.2 Million to the Respondent (who also claimed the same amount) based on a lump claim for physical structure (destroyed and cracked) and for reparation/appeasement, without any evidence of the exact items or what was destroyed and the unit cost of the same and/or of what constituted the reparation/appeasement and the unit cost thereof, it was held that such award was without recourse to the known principles of pleading and strict proof of special damages. See also the case NEKA B.B.B. Manufacturing Co. Ltd vs ACB Ltd (2004) LPELR – 1982 (SC); (2004) 1 KLR (pt.170) 39; (2004) ALL NWLR (pt.198)1175, and Xtoudos Services Nig. Ltd vs Taisei (W.A) Ltd (2006)6 KLR 2411 at 2425; (2006) ALL FWLR (pt.333) 1640; (2006) 15 NWLR (pt.1003) 533, where the apex Court held:
“With regard to how to plead and prove special damages, the law is quite clear that special damages must be specifically pleaded. In this respect, a Plaintiff claiming, special damages has obligation to particularise any item of damage. Obligation to particularise arises not because the nature of the loss is necessarily unusual but because the Plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.” See also Daniel Holding vs UBA Plc (2005) 11 MJSC 69 at 73; Cameroon Airlines vs Otutuizu (2011) 4 NWLR (pt.1238) 512; Spring Bank Plc vs Adekunle (2011) 1 NWLR (pt.1229) 581; NNPC vs KLIFCO Nig. Ltd (2011) NWLR (pt.1255) 29… PER ITA GEORGE MBABA, J.C.A.

DAMAGES: DIFFERENCE BETWEEN THE PROOF OF SPECIAL DAMAGES AND GENERAL DAMAGES

A claim is established, once the Court finds merit in the case, even when the special damages claimed cannot be established. In that circumstance, the Court has to grant the relief(s) sought, award the necessary general damages, while refusing the special damages. This is because, while special damages must be proved strictly to succeed, general damages is always due, once the Respondents is found liable to a claim as it flows from the wrong done by the Respondent. See the Cases of Okechukwu Vs UBA Plc & Anor (2017) LPELR – 43100 CA; Iyere Vs Bendel Feed & Flour Mill Ltd (2008) LPELR – 1578 (SC); Odulaja Vs Haddad (1973) LPELR 2240 (SC); Onyiorah Vs Onyiorah & Anor (2019) LPELR – 49096 (SC); Agu Vs General Oil Ltd (2015) LPELR – 24613 SC. PER ITA GEORGE MBABA, J.C.A.

CIVIL PROCEEDING: FEATURES OF A REPRESENTATIVE ACTION

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

MRS. EJIMOLE FIDEL ONWUEKWE (SUING IN HER NAME AND ON BEHALF OF ALL THE CHILDREN OF LATE MR. AND MRS. ANACLETUS NWOSU OLISAKWE) APPELANT(S)

And

1. EDDY HI-TECH ENGINEERING LIMITED 2. MR. EDWARD OAMEN 3. IMO STATE GOVERNMENT RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the Judgment of Imo State High Court in Suit No. HOR/75/2015, delivered by Hon. Justice L.C. Azuama on 15th December, 2018, wherein the Learned Trial Judge struck out the Suit, for incompetence, with cost of Twenty Thousand Naira (N20,000.00) only, against the Plaintiff.

At the trial Court, the Plaintiff (now Appellant) (suing in her name and on behalf of all the children of late Mr. & Mrs. Anacletus Nwosu Olisakwe), had sought the following reliefs:
(1) A declaration that the removal and/or destruction of the slabs, culverts and drainage systems in front of the Plaintiff’s Property, located at Plot 69, Amigbo Road, Umuna, Orlu Local Government Area Council of Imo State by the Defendants, which eventually gives way for the entire properties (immovable and moveable) to be floated by torrential rainfall, constitutes an act of negligence on the part of the Defendants.
(2) An Order that the Defendants pay to the Plaintiff jointly and severally the sum of N148,798,480 (One Hundred and Forty Eight Million, Seven Hundred and Ninety Eight Thousand, Four Hundred and Eighty Naira) as special damages.
(3) An Order that the Defendants pay to the Plaintiff jointly and severally the sum of N50,000,000 Fifty Million Naira) as general damages.
(4) An Award of Interest at the rate of 10% (ten percent) per annum on the judgment sum, stating from the date judgment is delivered in favour of the Plaintiff to the date the Judgment sum is liquidated by the Defendants.
(5) And any other Order or Orders the Court may deem fit to make in the circumstances of this case.” See pages 15 – 16 carrying the Reliefs as per the Statement of Claim).

In paragraph 25 of the Statement of Claim, the Plaintiff tabulated the particulars of the special damages (Pages 9 to 10 of the Records of Appeal).

The 1st and 2nd Respondents filed a joint Statement of defence to the action, on 2/10/2015, together, with written statement on oath of witnesses. (See Pages 125 to 134 of the Records of Appeal). And the 3rd Respondent filed its statement of defence and other processes thereto on 16/1/2017 (Pages 187 to 196 of the Records), with the leave of the trial Court. The Plaintiff filed Replies to the Statements of defence. (See Pages 140 – 203 of the Records).

After hearing the case, and considering the evidence and addresses of Counsel, the trial Court held against the Plaintiff, as follows:
“… I agree with the Plaintiff’s Counsel, therefore, that the presence of the Defendants on the project site and the operation that they admittedly carried out on it, shifted the onus on them to show that they did not remove the slabs and culverts the Plaintiffs asserted that they removed… In effect, I hold that the activities of the Defendants in brushing the project site was responsible for the flooding that occurred and it is immaterial, whether it was only the slabs and culverts of the Plaintiffs that were then removed. That the slabs in other areas were not removed or that they (Defendants) have no malice against the Plaintiff, do not answer to the fact that a removal, or the opening of any outlet that keeps such flood in check in that area, will do no less harm than two or more of such out lets, would do – given the natural order that water finds its level…
I find in the above case (Alafin (sic) Vs Gbode Ventures Nig. Ltd) and this case, common ground on the principle that a Suit can only be brought in a representative capacity, when the object of ownership is a common character, and not when the object of ownership are matters of private and or individual ownership or interest as in this case. In this case a number of people than exists on record are said to be private owners of some items of immovable property in a matter in which such items of properties, are not tied to any specific owner. For one thing, no one person is associated with the ownership of any of the items of properties listed at paragraph 25 of the Plaintiffs statement of claim over which the Court is invited to make award of N132,844,000. Question is, can this Court be called upon to grant the above sum to the alleged owners equally or in any disproportionate manner, or is the Court called upon to merely grant the said relief, only to allow the alleged owners to go home and work out who gets what.
Such exercise, in my view, will cast the Court in the shadow not of a Court of record, but that of native arbitration – assuming such is even possible at that level – given that a Court cannot be seen to make an order which is not specific.
As the items are individually owned, it is my view that the Plaintiff on record cannot sue in any capacity other than in her personal capacity, where she will give direct evidence in proof of her reliefs as they relate to her property and not that of her siblings or the husbands of her siblings – let alone suing for a body said to have been registered at the Corporate Affairs Commission, as World Youth Peace Organisation… There is yet the issue of the Plaintiff on record or any one of them at that, not showing any items of property that was affected by the said flood, not even the once (sic) that appear in the picture tendered in this matter, as to enable the Court assess the level of their damage or destruction. Yet, there is the fact of the claim that some gold carat and or trinkets also got damaged in the flood without stating how, assuming one ignores the assertion of the defence Counsel, that flood water cannot cause any damage to gold…
There is no doubt that the scenario, such as the above, will stir be (sic) curiosity as to be improbable, yet what moves this Court more against Plaintiff’s claim on damages, is the fact that, no such item of damaged property, was tendered in this Suit, as if all of them dissolved into the thin air, coupled with the fact that no classification was made of their respective ownership in the pleadings.
What (sic) more, it is not only that the Plaintiff does not know that gold does not rust, she also did not show how she arrived at the value placed on the item of the property listed in this Suit – assuming she is capable of giving evidence on all of them, which I do not believe, as such will be hearsay.
In the final analysis, I hold that this Suit is incompetent in seeking to represent the interest of people who have no common stake in the various items of property that are at the centre of this Suit, and which items of property, were not proved in the Suit according to law – be it on the issue of general damages or on the issues of special damages.
That being the case, I hereby strike out this Suit on ground of incompetence with cost of N20,00 (sic) against the Plaintiff.” (See Pages 416 to 419 of the Records of Appeal).
Piqued by the above decision, Appellant filed this Appeal, as per the Notice and grounds of Appeal filed on 11/12/2018, (Pages 420 to 425 of the Records), disclosing Five grounds of Appeal. Appellant filed her Brief of arguments on 23/04/2019, and distilled 3 three Issues for the determination of the Appeal, as follows:
(a) Whether the Learned Trial Judge was right to have refused to enter judgment for the Appellant after resolving the sole issue he raised for determination in favour of the Appellant (Grounds 1 and 2)
(b) Whether the Learned Trial Judge misdirected himself in holding that the Appellant’s Suit was incompetent, because it is (sic) seeking to represent the interest of people who have no common stake in the various items of property at the center of Appellant’s Suit. (Grounds 3 and 5)
(c) Whether the Learned Trial Judge was not wrong in raising issue not joined by parties, suo motu and relying on the issues to strike out Appellant’s Suit, without hearing the Appellant on these issues (Ground 4)

The Reliefs which Appellant sought in the Notice of Appeal and the Brief, were:
(1) “An Order… allowing the Appeal and setting aside the judgment of the Lower Court striking out the Appellant’s Suit for being incompetent.
(2) An Order entering judgment for the Appellant, having proved her case at the Lower Court.” (See page 424 of the Records, and Page 23 of the Appellant’s Brief).

The Respondents did not file any Brief, and did not come for the hearing of the Appeal, despite having been served with the Appellant’s brief and the hearing notice.

Arguing the Appeal, on 16/11/2020, Learned Counsel for the Appellant, Ayodeji Adamola Esq, (who settled the Brief), on the Issue 1, observed that the trial Judge, after reviewing the evidence in the case, had held that:
“the activities of the Defendants in brushing the project site was responsible for the flooding that occurred and it is immaterial, whether it was only slabs and culverts of the Plaintiff that were then removed.” (Page 416) of the Records).

Counsel said that the trial Court made the said holding, while resolving the sole issue, it had adopted for the determination of the Suit, namely:
“The Issue which, to me, calls for determination is not that of whether the admitted activities of the Defendants at the project site was the direct result of flooding that occurred.” (Page 415 of the Records)

Thus, Counsel said, the trial Court had already held that the Defendants (Respondents) owed the Plaintiff and her siblings (Appellant) a duty of care and had breached that duty; he concluded that it was the Respondents activities at their road reconstruction site that led to the flooding of the Plaintiff property. But sadly, the trial Court, somersaulted and proceeded to consider extraneous issues, which led him to refuse to award damages for Plaintiff, and rather struck out the Suit. Counsel founded on the case of Ogboru Vs Uduaghan (2012) NWLR (Pt.1311) 357 sc at 367, where the Supreme Court said:
“Every decision of a Court of law should flow logically from the conclusions of facts and law made by the Court. It must also be plainly seen to be a logical result of such exercise.”

Counsel submitted that the decision of the trial Court in this case, to strike out the case of the Plaintiff, was not the logical conclusion of his findings of facts and law before him. Counsel referred us to paragraphs 15, 25, 28, 29, 30, 31, 44 and 46 of the Statement of claim, where Appellant averred, severally, of how the flood submerged the building containing the items, and also made the claims for general damages; Counsel said that these averments were not denied, specifically or traversed, properly, by the Respondents, meaning that they were admitted and unchallenged. He relied on OANDO (Nig) PLC Vs Adijere (2013) NWLR (Pt.1377) 374 SC, at 381 – 382.

Counsel further said that the Learned Trial Judge consequently agreed that the principle of res ipsa loquitur, readily applied to the instant case, which raised a presumption of negligence against the Respondents. Thus, the onus had shifted to the Respondents to disprove negligence on their part. He relied on the case of P.S.H.M.B Vs Goshwe (2013) NWLR (Pt.1338) SC 383, where the Supreme Court said:
“Res ipsa loquitur is a form of circumstantial evidence by which a plaintiff in appropriate case, establishes the defendant’s negligence. It raises a rebuttable presumption of negligence by the defendant and present a question of fact for the defendant to meet with an explanation…”

Counsel submitted that, the trial Court, having found as a fact that res ipsa loquitur was applicable and that the Respondents were not able to explain or give account of the negligence to the satisfaction of the Court, the only conclusion was to enter judgment for Appellant and award, at least the general damages, as presented in the writ of summons. He relied on OANDO (NIG) PLC Vs Adijere (supra).

Counsel argued that, assuming (without conceding), that Appellant did not prove the special damages, as pleaded, the trial Court was under obligation to award general damages, since the negligence had been established by the same Court. He relied on the case of Eastern Breweries Plc Awo Omamma Vs Nwokoro (2012) NWLR (Pt.1321) 488 CA, to say that, it is not the law that where special damages are awarded, general damages cannot be awarded; that each award is dictated by evidence adduced and the circumstances surrounding each case. He added that special damages requires strict proof, but general damage is consequent upon establishment of the claim of the Plaintiff. Thus, failure to prove special damage, cannot result in the striking out of Suit, which the Court had said was established!

Counsel referred us to page 417 of Records, where the trial Court even said:
“Similarly, given the continuous nature of the injury that the injury as submitted by learned Counsel to the Plaintiff… I hold that this Suit is not caught up by any limitation law.”

He said that, having held that the injury occurred, the trial Court was under obligation to resolve the case for the Plaintiff and award the damages, sought. He urged us to so hold in this Appeal. He relied on Eneh Vs Ozor (2016) NWLR (Pt.1538) 219 at 224.

On Issue 2, whether the trial Judge misdirected himself in holding that the Suit was incompetent, because it was seeking to represent the interest of people with no common stake in the various items of property claimed, Counsel answered in the affirmative. Counsel referred us to the pleadings, where the Plaintiff, on record, averred that she took out the case for herself and on behalf of the children of late Mr. & Mrs. Anacletus Nwosu Olisawake; and that she and her siblings were beneficiaries, owners and occupiers of the properly – No. 69 Amigbo Road, Umuna in Orlu LGA, which was submerged by flood, caused by the negligence of the Defendants; she also averred that the property and items destroyed belonged to the family members of Appellant (Pages 8 to 14 of the Records).

Counsel said the 1st and 2nd Respondents did not deny the paragraph 1 of the Appellant, but made a sweeping and general denial in their paragraph 3 of the defence; that they did not deny the fact of Appellant (and her siblings) being beneficiaries, owners and occupiers of the said property, submerged, and never denied the capacity of the Appellant in maintaining the Suit, as stipulated by Order 17 Rule 4 of the High Court (Civil Procedure) Rules of Imo State, 2017 which says:
“If either party wishes to deny the right of any other party to claim as Executor, or a Trustee or in any representative or other alleged capacity… he shall deny the same specifically.”

He also relied on the case of OANDO PLC Vs ADIJERE (supra), and said that, it was clear that Appellant was representing her interest and those of the other persons, she represented in the Suit, and that she acted within the law – Order 13 Rule 12(1) of the High Court Rules, 2017, which says:
“Where there are numerous persons having the same interest in one Suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.”

Thus, having brought the case in a representative capacity for herself and the other interested persons, and that capacity was not challenged, Counsel said the trial Court was wrong to say that Appellant’s “Suit is seeking to represent the interest of people who had no common stake in the various items of property at the centre of Claimants Suit.” He argued that the Court had even held that the continuous nature of the injury to the Plaintiff, was not caught up with any statute of limitation, or limitation law!

Counsel said that the various persons represented by Appellant, had a common interest and grievance in the Suit. He relied on Alafia Vs Gbode Ventures Nig. Ltd (2016) NWLR (Pt.1510) 116 SC:
“The law is that when an action is brought in a representative capacity, those represented must have a common interest and a common grievance and the relief sought must, in its nature, be beneficial to all those whom the Plaintiff is representing.”

He again relied on Order 13 Rule 12(1) of the High Court (Civil Procedure) Rules of Imo State, 2017;Durbar Hotels Plc Vs Ityough (2011) NWLR (Pt.1251) 41 CA. Counsel wondered how the Court could talk about individual and private ownership of the items in the case, when, in fact, the Court also had observed (and rightly) that no one person is associated with the ownership of any of the items of properties listed at paragraph 25 of the Plaintiff’s Statement of Claim!

He relied on Mbanefo Vs Molokwu (2014) NWLR (Pt.1403) 377 at 384, where the Supreme Court held:
“In a representative action, it is not only the named Plaintiff or defendants who are the parties to the action. The others who are not named, but whom the Plaintiff or defendants purports to represent are also parties to the action. They are parties because they are bound by the outcome of the litigation.”

Counsel said it was obvious the said persons represented in the Suit had a common interest in the Suit and a common grievance that led to its filing, and would be affected by the decision of the Court, privately and individually; he said that each of them could have filed separate actions against the Respondents for the damages suffered by the said action of the Respondents, but the law permitted them to come, together, represented by the Appellant. Counsel said it was not the business of Respondents’ Counsel or the Court, to say that Appellant cannot sue at the trial Court to represent her siblings, or husbands of her siblings, including a corporate body, that the Court was wrong to say:
“as the items are individually owned… that the Plaintiff on record, cannot sue in any capacity other in her personal capacity, where she will give direct evidence in proof of her reliefs as they relate to her property and not that of her siblings or the husbands of her siblings – let alone suing for a body said to have been Registered at the Corporate Affairs Commission as World Youth Peace Organisation.”

Counsel said that the above view of the trial Judge was in conflict with the law as restated in the case of SPDCN Vs Edamkue (2009) NWLR (Pt. 1160) 1 at 2 by the Supreme Court:
“Once the Plaintiff/Plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity, as appears in the two consolidated Suits… It is prima facie, though not conclusive evidence, of authority by the group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, intervene or challenge the proper representation or the capacity in which the Plaintiff/Plaintiffs sued. It will be futile for a defendant, who is not one of those the Plaintiff/Plaintiffs purport to represent, to challenge his/their said authority for or because if the Plaintiff/Plaintiffs win/wins the loosing defendant cannot share in the victory, and if the Plaintiff/Plaintiffs case be dismissed, such dismissal can never affect defendant adversely.”
Counsel further relied on Alafia Vs Gbode Ventures (Nig) Ltd (2016) NWLR (Pt.1510) 116.

On Issue 3, whether the Trial Judge was not wrong in raising issues, not joined by parties, suo motu, and relying on them to strike out Appellant’s case, without hearing her on them, Counsel answered in the affirmative. He said that those issues did not arise from the pleadings of the parties, at the trial, but the trial Court raised them, suo motu and resolved against Appellant, without hearing her; that the issue of whether or not World Youth Peace Organisation is a chattel, which can be in the personal possession of Appellant, and whether there was a resolution of the directors or trustees was never raised by Respondents in their pleadings; he said that title or document of title or ownership of No. 69, Amaigbo Umuna Road, Orlu Imo State was not an issue at the trial; that the Respondents, in fact pleaded severally, admitting the building as that of the Appellant, but only denied damages to the items of moveable chattels. He said that the Respondents never joined issues with the Appellant on the ownership, possession or occupation of the building in question. He relied on decided cases, to say that, the Court has to confine its decision to the issues raised by the parties A.S.E.S.A Vs Ekwenem (2009) NWLR (Pt.1158) 410 at 415 (SC); Amobi Vs Nzegwu (2014) NWLR (Pt.1392) 510.

Counsel also relied on Amadi Vs Chinda (2009) NWLR (Pt.1148) 107 at 113, to denounce the raising of issue, suo motu and relying on same to resolve the case without calling on the parties to address the Court on same; he said that the Court is enjoined to consider cases before it, in the light of the complaints of the parties, and has no business setting up, for the parties, a case different from the one before it, as per the pleadings. See Shasi Vs Smith (2009) NWLR (Pt.1173) 330 at 333 (SC).

Counsel also relied on the case of OANDO (NIG) PLC Vs Adijere (supra), to say that:
“The measure of damages in an action for negligence is founded on the principle of restitutio integrum. This means that for the loss of vessel or vehicle, due to negligence, the owner of the vessel or vehicle is entitled to what is called restitutio integrum. The owner of the vehicle should recover such sum as will replace same, so far as can be done by compensation in money.”

Counsel argued that, since the trial Court had found that the Respondents were responsible for the flood, which submerged Appellant’s building, and which injury was not caught by any limitation law, the only logical destination of the judgment would have been the award of damages (special and general) in favour of the Appellant.

He urged us to so hold, and resolve the Issues for Appellant, set aside the Judgment of the Lower Court and enter Judgment, therein, for the Appellant.

RESOLUTION OF ISSUES
The Respondents, as earlier stated, did not file any Brief and did not also appear to defend the Appeal. Of course, that does not suggest that the Appeal is unopposed and Appellant can cruise home to victory, without more, as the Appeal still has to be considered on its merits. See Onyenawuli Vs Onyenawuli & Anor (2017) LPELR – 42661 CA; Echere Vs Ezirike (2006) 12 NWLR (Pt.994) 386; (2006) LPELR – 1000 SC. See also Chiedozie George Vs Mr. Sabastine Ajoku & Anor: CA/OW/290/2010, a recent decision of this Court, delivered on 20/11/2020.

I shall consider this Appeal on the three (3) Issues donated by the Appellant’s Counsel, and shall take them together as they all question the decision of the learned trial Judge, striking out Appellant’s case for incompetence, after duly considering the merits of the case, and holding that the activities of the Respondents were responsible for the flooding of the Appellant’s property and caused injuries – the very complaints presented to the Court to determine!

I must start by expressing my utter dismay about the handling of this case by the Learned Trial Judge, as to what informed his conclusion, which appears strange and perverse.

The case was taken out in a representative capacity by the Appellant against the Respondents, as seen, even on the face of name of the parties – that the Plaintiff was “suing in her name and on behalf of all the children of late Mr. and Mrs. Anacletus Nwosu Olisakwe.” In paragraph 1 of the Statement of Claim, the Plaintiff had pleaded:
“The Claimant and her sibling are the beneficiaries, owners and occupiers of the property known and described as Plot 69, Amigbo Road Umuna in Orlu Local Government Area of Imo State.” (See page 5 of the Records)

The 1st and 2nd Respondents did not categorically deny that averment, as they only said in paragraph 2 of their defence:
“The 1st and 2nd Defendants shall at, before or during the hearing of this Suit, raise objections to the jurisdiction of the Honourable Court to entertain this Suit on the ground that this Suit, as constituted in a representative capacity, is misconceived and incompetent.” (See page 125 of the Records)

The 3rd Respondent, on its part, averred in paragraphs 2 and 3 of its defence, as follows:
(2) “The 3rd Defendant shall, at, before, or during the hearing of this Suit, raise objections to the jurisdiction of this Honourable Court to entertain this Suit on the grounds that:
(a) This Suit against 3rd Defendant is statute barred by virtue of the provisions of the Public Officers Protection Law, as this Suit was filed on 11/8/2015, when the Claimants alleged cause of action is stated to have arisen on 3/9/2014.
(b) This Suit was constituted in a representative capacity is misconceived and incompetent.
(c) This Suit as constituted does not disclose any reasonable cause of action against the 3rd Defendant.
(3) The 3rd Defendant denies the averments contained in paragraphs 1, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 of the Statement of claim and puts the Claimants to strictest proof of the said averments.” See Page 187 of the Records

Leading evidence on the Capacity of Appellant to bring the Suit, Appellant said, in her statement on oath, (which she adopted at the trial):
(1) “I am… one of the children of late Mr. & Mrs. Olisakwe of Umuna in Orlu Local Government Area of Imo State.
(2) That I have the consent and authority of all the children and other members of the said family to depose to this witness statement on oath.
(3) That facts deposed to are within my personal knowledge and believe, unless otherwise and stated
(4) That I and my sibling are the beneficiaries, owners and occupiers of the property known and described as plot 69, Amigbo Road Umuna in Orlu Local Government Area of Imo State..” (Pages 20 and 333 of the Records of Appeal).

Under cross-examination, the Appellant, who testified as PW1, told the Court that her late father built the house at 69, Amigbo Road, Umuna; that she and her siblings owned the house as owners, occupiers; that she had letter of administration over the property; that she and her siblings were in possessions of the property, and she had the authority and approval of the Olisakwe family to bring the Suit that she had oral approval, and represented the family in the case. (See Page 349 of the Records).

PW2 was Obumnke Olisa Ebusoeme, who confirmed the stories of the Appellant and adopted her statements on oath, on pages 32 – 41 of the Records, and affirmed that the property belonged to their family. (Page 356 of the Records)

There was therefore no dispute about or challenge of Appellant’s capacity to anchor the Suit, for herself and her siblings and others in a representative capacity. The trial Judge was, therefore, in grave error, in my view, to question, suo motu, the capacity of the Appellant to take out the Suit, making it an issue and to rely on his findings and views thereof, to strike out the Suit, for incompetence, alleging that Appellant was “seeking to represent the interest of people who have no common stake in the various items of property that are at the centre of this Suit, and which items of property, were not proved in this Suit according to law – be it on the issue of general damages or on the issues of special damages.”

I think the above was a very sad and perverse holding, which mocks the foundation of justice and violates the known principles of law, on how to question capacity of a party in an action, and the effect of lack of capacity to sustain an action, especially as the trial Judge just raised the issue, suo motu, in the judgment and wrongly decided on it, without seeking to be addressed by the Appellant’s Counsel, before taking the decision.

I believe if the Learned trial Judge had sought to be addressed on the issue, or had even done some personal research on the point, the Court would have been saved the embarrassment of the perverse decision of striking out a case it had earlier considered on the merits and resolved for the same party it later held to lack capacity to sue!

That brings to focus the law that a Court should not raise an issue bothering on facts in a case, suo motu, and proceed to resolving it, without calling on the affected parties to address it on the issue. See the case of Tinubu Vs I.M.B. Securities Plc (2001) LPELR – 32448 (SC); Essien Vs Samuel & Ors (2020) LPELR – 49724 (CA); Okochi & Ors Vs Animkwoi & Ors (2003) LPELR – 2455 (SC); Igwe Vs Mbadiwe (2019) LPELR – 46615 CA.
In the case of Wagbatsoma Vs FRN (2018) LPELR – 43722 (SC), my Lord, Okoro JSC stated the law again thus:
“The law is trite that it not the function of any Court to raise, suo motu, issue not canvassed in the written brief or oral argument of Counsel before the Court, to which Counsel were not asked to address it on. This Court has always frowned at the practice. See Onifade Vs Olayiwola & Ors (1990) LPELR – 2680 (SC); Mojekwu Vs Iwuchukwu (2004) LPELR – 1903 (SC); Odedo Vs PDP (2015) LPELR – 24738 (SC).”

The law is also trite on how to fault the capacity of a party to bring or defend a Suit. By Order 13 Rule 12(1) of the High Court (Civil Procedure) Rules of Imo State, 2017:
“Where there are numerous persons having the same interest in one Suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.”
In the case of Alafia Vs Gbode Ventures Nig Ltd (2016) NWLR (Pt.1510) 116 at 149 – 150, the Supreme Court held:
“The law is that when an action is brought in a representative capacity, those represented must have a common interest and a common grievance and the relief sought must, in its nature, be beneficial to all those whom the Plaintiff is representing.”
Similarly, in Durbar Hotels Plc Vs Ityough (2011) NWLR (Pt.1251) 41 at 44 – 45, this Court held; as to the features of a representative action, as follows:
(a) There must be numerous persons interested in the case or the side to the represented;
(b) All those represented must have the same interest in the Suit, that is, the interest must be joint and several;
(c) All of them must have the same grievance;
(d) The proposed representative must be one of them; and
(e) The relief or reliefs sought must be, in its nature, beneficial to all the persons being represented.”
And in the case of Mbanefo Vs Molokwu (2014) NWLR (Pt.1403) 377 at 385, the Supreme Court held:
“In a representative action, it is not only the named Plaintiffs or Defendants who are the parties to the action. The others who are not named, but whom the plaintiff or defendant purports to represent, are also parties to the action. They are parties, because they are bound by the outcome of the litigation.”
A representative action is always expressed on the face of the process, that the named Plaintiff(s) is suing for himself and on behalf of the other persons (who may be family members, community or association); or that the defendant are sued for themselves and on behalf of some specified other persons. Once that disclosure is made in the process and/or on the pleadings, the trial Court is not expected to pry into the detail of the relationship between the parties on records and those represented, unless there is a challenge to such representation, which, normally, must come from the party or parties allegedly represented by the Plaintiff or Defendant.
Even the Defendant cannot question the claim of a Plaintiff to bring the action in a representative capacity, as he (defendant) cannot dabble into the internal problem(s) of the Plaintiffs. See the Mobil Producing Nig. Ltd Vs Kofa & Ors (2018) LPELR – 46709 CA:
“The law, as rightly stated by the Respondents’ Counsel, is that a defendant has no right to challenge the authority of a Plaintiff, who sues in a representative capacity.”
That Position of law was emphasized by the Supreme Court, in SPDC (Nig.) Ltd Vs Edamkue & Ors (2009) LPELR – 3048 (SC):
“It is settled law that, once a Plaintiff/Plaintiffs, expressed on a writ or statement of claim, that the action was brought in a representative capacity, as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence, of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, intervene or challenge, the proper representation or the capacity in which the Plaintiff/Plaintiffs sued. It will be futile for a defendant, who is not one of those the Plaintiff/Plaintiffs purports to represent, to challenge the his/their said authority for or because, if the Plaintiff/Plaintiffs wins/win the losing defendant, cannot share in the victory and if the Plaintiff/Plaintiffs case be dismissed, such dismissal can never affect the defendant adversely.” Per Ogbuagu JSC
The requirement that the party on record and those he represents in the representative action, should have and establish their common interest and/or grievance in the Suit, is all that is necessary to vest the party on record with authority to maintain the action, for himself and on behalf of those others he represents. See Alafia & Ors Vs Gbode Ventures Nig. Ltd & Ors (2016) LPELR – 26065 (SC); Nwanguma Vs Ikyaande (1992) 8 NWLR (Pt.192); Oragbaide Vs Onitiju (1962) 1 ALL NLR 32.
The trial Judge was therefore grossly wrong in my opinion to equate common interest or grievance of the Plaintiff and those she represented in the suit with communality of interest in each of the items listed in the Suit, as having been damaged or destroyed by the negligent act of the Respondents. The Court had said:
“I find in the above case… that a Suit can only be brought in a representative capacity, when the object of ownership is of a common character and not when, the object of ownership are matters of private and or individual ownership or interests as in this case. In this case, the number of people than exists on record are said to be private owners of some items of immovable property in a matter in which such items of properties are not tied to any specific owner. For one thing, no one person is associated with the ownership of any of the items of properties, listed at paragraph 25 of the Plaintiff’s Statement of Claim over which the Court is invited to make an award of N132, 844,000.” (Page 417 of the Records).
The trial Judge went on to bother himself with how the parties would share the award – (the said sum of money, if awarded); whether equally or in what proportion, and whether they would be made to go home and work out the sharing formula (and possibly fight over it); the Judge had concluded that with such exercise, the Court would be cast in the shadow of that of a native arbitration, assuming that was even possible, at the level; that a Court cannot be seen to make an order, which is not specific! See page 418 of the Records.
With due respect to the Learned trial Judge, I think those views and holdings were misconceived, and not properly thought out to represent the law. Individual or private ownership of some of the properties or items claimed as special damages in the Suit, cannot bar the Plaintiff from bringing the action and leading evidence, in her disposal, to prove same in a Suit, fought in representative capacity, once it is established that the owners of the properties had a common interest or grievance in the Suit against the Respondents. The common interest/grievance being the negligent act which affected each of them. It was not even the business of the Judge to think of how the owners would share the award, if made! After all, each of the properties listed had its price tag, and their respective owners would be expected to claim what belonged to each of them, once the damage was established, and the award made!

It is also a flawed legal reasoning, in my opinion, to think or say that, because the special damages could not be proved in the circumstances opined by the learned trial Judge, the Suit should be struck out! This is because, by law, failure to establish special damages (which must be proved strictly), does not mark an end to a Suit, which has been established, otherwise. A claim is established, once the Court finds merit in the case, even when the special damages claimed cannot be established. In that circumstance, the Court has to grant the relief(s) sought, award the necessary general damages, while refusing the special damages. This is because, while special damages must be proved strictly to succeed, general damages is always due, once the Respondents is found liable to a claim as it flows from the wrong done by the Respondent. See the Cases of Okechukwu Vs UBA Plc & Anor (2017) LPELR – 43100 CA; Iyere Vs Bendel Feed & Flour Mill Ltd (2008) LPELR – 1578 (SC); Odulaja Vs Haddad (1973) LPELR 2240 (SC); Onyiorah Vs Onyiorah & Anor (2019) LPELR – 49096 (SC); Agu Vs General Oil Ltd (2015) LPELR – 24613 SC.
In this case at hand, the trial Judge had found as a fact, that the Respondents were, in fact, responsible for the flooding of the property of the Plaintiff, and had caused injury, negligently, which could not be defeated by limitation law. It held on page 415 – 416 of the Records of Appeal, as follows:
“Now the fact of the flooding is not disputed, neither is the fact of the defendants operated at the area in issue in doubt. The issue which to me calls for determination is not that of whether the Defendants removed the Plaintiff’s slabs and culverts, but whether the admitted activities of the defendants at the project site, was the direct result of the flooding that occurred. For the defendants, the area of the Plaintiff’s property was prone to flooding, hence the incident complained against in this case, came as a result of natural order of things within the area and so cannot be associated with their operation at the area in issue. The above position, however, met with that of the Plaintiff that existing structure like slabs and culverts installed by them in the area took care of such features of flooding in the area before the emergence of the Defendants at the scene. I need to state that the existence of those features or structures as stated by the Plaintiff were not denied by the Defendants and I am inclined to agree with the Plaintiffs that such features, existed for no other reason than to check such flood. Hence I do not believe the position of the Defendants, that what occurred on the 3rd day of September, 2014, was a natural disaster. In this case, notwithstanding the admission of the Defendants, that they engaged in some activities at their project site, they failed to state in any way that they equally took any deliberate step to ensure that risk of flooding was arrested by anything they did on that 2nd day of September, 2014, when they operated at the project area. That the Defendants owed the community of the project area a duty of care was not contested by them nor is it in doubt. That there was any step taken to observe that duty of care, in my view, collapsed, not only on the failure of the Defendants in showing that they took any direct measure to eliminate any issue of flooding, but also, on the admitted evidence of the Defendants that they are not a registered outfit, within the meaning the provisions of Section 1(1), 6(1) and (2) as well as 11(2) of the Engineers Registration Act, Cap E11 Laws of the Federation of Nigeria, 2004.
There is no doubt that the operation of the Defendants was carried out during rainy season when the nature of things – flooding was natural and proper expectation and when anyone who embarks on carrying out project such as the Defendants were involved with, particularly when the area of work as stated by the defendants is one prone to flooding, was expected to take extra ordinary care to prevent risk as resulted in this case.
I agree with the Plaintiff’s Counsel, therefore, that the presence of the Defendants on the project site and the operation that they admittedly carried out on it, shifted the onus on them to show, that they did not remove the slabs and culverts the Plaintiff asserted that they removed…
In effect, I hold that the activities the project site was responsible for the flooding that occurred, and it is immaterial, whether it was only the slabs and culverts of the Plaintiff that were then removed.”
On page 417 of the Records the Court added, to defeat the plea of statute bar, as follows:
“Similarly, given the continuous nature of the injury that the injury as submitted by learned Counsel to the Plaintiff, Mr. Ayodeji. I hold that this Suit is not caught up by any limitation law.”
After what appeared to be a brilliant statement of the law, the Learned Trial Judge, then somersaulted to striking out the Suit for alleged incompetence, over the mix-up on the issues of lack of proof of special damages and ownership of some items claimed in the Suit, as being matters of private and individual interests, as opposed to what is required in representative action which should be objects of ownership of common character!
I think having resolved the issue of negligently causing flooding of the Plaintiff’s property, and causing them injury, as held above, the trial Court should have concluded properly, by holding the Respondents liable, in tort of negligence and awarding them general damages, even if it considered the special damages not proved. Striking out the Plaintiff’s Suit, in the circumstances was certainly wrong, illogical and incompatible with the trend of findings and holding of the trial Court. See the case of Ogboru Vs Uduaghan (2012) NWLR (Pt.1311) 357 at 367 ratio 4, where the Supreme Court held:
“Every decision of a Court of law should flow logically from the conclusion of facts and law made by the Court. It must be plainly seen to be a logical result of such exercise.”
In the case of OANDO NIG. PLC v. Adijere (2013) NWLR (Pt.1377) 374 at 381 – 382; (2013) LPELR – 2059 (SC).
The Supreme Court held, on assessment of damages in negligence, thus:
“The measure of damages in an action for negligence is founded on the principle of restitutio intergrum… The effect being that in circumstances, such as the present, while it cannot be run away from that a plaintiff whose property has been damaged and suffers the loss of the earnings from that property no longer being put in use, the owner of the property has a duty to mitigate the loss and not leave the matter wide open so he can claim ad infinitum. See the Lagos City Council Caretaker Committee Vs Benjamine O. Unachukwu (1978) 3 SC 199 AT 202.” In that case too (Oando Plc Vs Adijere Supra), the Apex Court, also held that:“In certain cases, general damages may be awarded in the sense of damages, when the Court cannot point out any measure by which they are to be assessed, except in the opinion and judgment of a reasonable man.” I had earlier held that the trial Court had problems with the special damages, claimed by the Appellant as to whether the same were proved or could be proved. Its apparent difficulty in resolving same led the trial Court to throw out the entire case (wrongly) by striking it out – a case of throwing away the baby with the bath-water!
The law is however trite, that special damages must be pleaded and proved, strictly as pleaded. On the face of the claim (paragraph 25 of the statement of claim which listed particulars of the items allegedly damages), it was clear that Appellants would have difficulties proving the damage/loss of each of the items therein with concrete proves as Appellant did not produce receipts of each of the items allegedly, damaged and the unit costs thereof, and/or that those items were not or could not be retrieved from the flood waters.
In the case of Iwuagwu & Ors Vs Uzoma (2014) LPELR – 23781 (CA), we re-stated how to prove special damages, thus:
The law is well defined, with respect to how damages are proved in Court – whether general or special damages. Whereas, general damages can be inferred, as it normally flows from the wrongs committed by the defendant, and needs not be pleaded and proved by any empirical method, special damages must be specifically pleaded and strictly proved in evidence. See the case of Udeagha vs Nwogwugwu (2013) LPELR – (21819) CA, where this Court said on the determination of special damages:
“The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the context of nominal award, where the sum of N20,000 was awarded to the Respondent as “nominal” damage for his claim of N1,903,196.60 as special damage. Even though the evidence had established that the Respondent’s skin were seized by the Police … and was mishandled and later released (but not in the state it was seized) to qualify for special damages, clear evidence needed to be led to establish the actual monetary value of the skins recovered at the time of release of same to the Respondent, as special damages can only be in respect of ascertainable, proved amount. By making a nominal award of N20,000.00 to the Respondent, the Lower Court had expressly admitted absence of the correct basis for the award, and that cannot be in the domain of special damages.”
Also in a recent case of CHEVRON (NIG) LTD VS CHIMEZIE A. OSIGWE: CA/OW/226/2011, delivered on 11/7/2014. In that case, the trial Court had awarded special damages of about N16.2 Million to the Respondent (who also claimed the same amount) based on a lump claim for physical structure (destroyed and cracked) and for reparation/appeasement, without any evidence of the exact items or what was destroyed and the unit cost of the same and/or of what constituted the reparation/appeasement and the unit cost thereof, it was held that such award was without recourse to the known principles of pleading and strict proof of special damages. See also the case NEKA B.B.B. Manufacturing Co. Ltd vs ACB Ltd (2004) LPELR – 1982 (SC); (2004) 1 KLR (pt.170) 39; (2004) ALL NWLR (pt.198)1175, and Xtoudos Services Nig. Ltd vs Taisei (W.A) Ltd (2006)6 KLR 2411 at 2425; (2006) ALL FWLR (pt.333) 1640; (2006) 15 NWLR (pt.1003) 533, where the apex Court held:
“With regard to how to plead and prove special damages, the law is quite clear that special damages must be specifically pleaded. In this respect, a Plaintiff claiming, special damages has obligation to particularise any item of damage. Obligation to particularise arises not because the nature of the loss is necessarily unusual but because the Plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.” See also Daniel Holding vs UBA Plc (2005) 11 MJSC 69 at 73; Cameroon Airlines vs Otutuizu (2011) 4 NWLR (pt.1238) 512; Spring Bank Plc vs Adekunle (2011) 1 NWLR (pt.1229) 581; NNPC vs KLIFCO Nig. Ltd (2011) NWLR (pt.1255) 29…
where a Respondent, failed to allocate costs to the items claimed in special damages, after he had duly documented and pleaded the damaged items (as in the Exhibit 2), he should, at least, lead evidence at the trial to prove the value of the damaged items, to be able win the discretion of the Court in his favour. He should produce the receipts or documents showing when and where he bought those items and their costs. After-all, most of the items in Exhibit 2 are of common daily uses whose costs and prices should be of common knowledge. That, I believe, would have presented some basis for evaluating the claims of the Respondent under the special damage and how to arrive at the amount awarded…

The law does not allow a Court to speculate on issue of special damages, and allocate value for alleged damages, by resort to sentiment and gestures, where the party who suffered the damages fails to plead the particulars of the same, by mentioning the item(s), in their numbers with the unit costs of each, and lead evidence in proof of it, to enable the Court calculate what is due to him, under the head of the specific or special damages.
In the circumstances, I hold that the special damages claimed by Appellant were not proved, but I think there is merit in this Appeal, and I resolve the issues for the Appellant, (except in respect of the special damages), I allow the Appeal. I hereby set aside the decision of the trial Court, striking out the suit, and instead, enter judgment for the Appellant (as plaintiff), in terms of the findings of the trial Court, that the flooding of Appellant’s property, caused injury to the Appellant. Respondent were liable to pay general damages for the injury which Appellant claimed as N50 Million. I award Ten Million Naira (N10,000.000.00) only, to Appellant as general damages, payable by the Respondents, jointly and severally.

The Respondents shall also pay the cost of this Appeal, assessed at Two Hundred Thousand Naira only N200,000.00, to the Appellant.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE ITA GEORGE MBABA, JCA. I completely agree with his reasoning and conclusions that this Appeal has merit and is hereby allowed by me.
I have nothing more add. I adopt his orders as mine.

Appearances:

AYODEJI ADEMOLA ESQ. For Appellant(s)

NOT REPRESENTED For Respondent(s)