OWENA MASS TRANSPORTATION COY LTD. V. KEHINDE IMAFIDON
(2011)LCN/4369(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of March, 2011
CA/B/326/2006
RATIO
NEGLIGENCE: CONSEQUENCE OF THE PLAINTIFF FAILING TO PROVE THE PARTICULARS OF NEGLIGENCE IN A CLAIM FOR DAMAGES FOR NEGLIGENCE ON A TORT
…in the case of UNION BANK OF NIGERIA PLC v. E.D. EMOLE (supra) at 517 – 518, cited by the appellant, the Supreme Court held that the plaintiff “Having failed to prove the particulars of negligence pleaded by him, the plaintiffs claim for damages for negligence on a tort ought to have been dismissed” PER MOORE A.A. ADUMEIN, J.C.A.
SPECIAL DAMAGES: WHERE A PLAINTIFF CLAIMS FOR SPECIAL DAMAGES AND FAILS TO PROVE SAME, WHETHER THE COURT CAN COMPENSATE HIM WITH GENERAL DAMAGES
…where a plaintiff claims for special damages, the court cannot compensate him with general damages if he fails to prove special damages. See THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF G.B.A. TIEBO VII (supra) at 470, where the Supreme Court, per TOBI, JSC, held as follows: “The issue in this appeal is whether a court can award general damages in place of special damages. The answer is, “no”. Where a plaintiff is unable to prove special damages, his case crumbles and a trial Judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed.” PER MOORE A.A. ADUMEIN, J.C.A.
DOUBLE COMPENSATION: WHETHER THE COURTS CAN AWARD DOUBLE COMPENSATION TO A VICTIM IN RESPECT OF THE SAME AND ONE TORTUOUS WRONG
The law is settled that in respect of the same and one tortuous wrong, the courts should avoid double compensation to the victim thereof. See EZEANI v. EJIDIKE (1964) 1 ALL NWLR 402; EKPE v. FAGBEMI (1978) 3 SC 209 and AGBA V. OTOBUSIN (1961) 2 SCNLR 13. See also the case of UNION BANK OF NIGERIA PLC V. E.D. EMOLE (2001) 18 NWLR (Pt.745) 501 at 506 ratio 4. PER MOORE A.A. ADUMEIN, J.C.A.
SPECIAL DAMAGES: MEANING OF THE PHRASE “SPECIAL DAMAGES”
The phrase “special damages” has been explained as follows: “Damages that are alleged to have been sustained in the circumstances of a particular wrong. To be awardable, special damages must be specially claimed and proved.” BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 419.” PER MOORE A.A. ADUMEIN, J.C.A.
PROOF OF SPECIAL DAMAGES: WHETHER SPECIAL DAMAGES MUST BE SPECIFICALLY PROVED WITHOUT SPACE FOR SPECULATION, ESTIMATION OR FRACTIONS
Special damages must be proved with exactitude without space for speculation, estimation or fractions. See NEPA B.B.B. MANUFACTURING CO. LTD. v. A.C.B. LTD. (2004) ALL FWLR (Pt. 198) 1175 at 1189, per PATS-ACHOLONU, JSC. PER MOORE A.A. ADUMEIN, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OWENA MASS TRANSPORTATION COY LTD. Appellant(s)
AND
KEHINDE IMAFIDON Respondent(s)
MOORE A.A. ADUMEIN, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of OLUWOLE FAGBE, J. sitting at Akure Division of the High Court of Ondo State, delivered on the 16th day of January, 2006. The appellant was the defendant in the court below while the respondent was the plaintiff. In the court below, the plaintiff, now respondent, filed a statement of claim of 28 paragraphs. In paragraph 28 the respondent claimed thus:
“Whereof the plaintiff’s claims against the defendant are as follows:
a. An order directing the defendant to replace by purchasing another vehicle, a Toyota Carina Saloon Car 1982 model, which must be in good and serviceable condition, and deliver same to the plaintiff forthwith.
OR ALTERNATIVELY
An order directing the defendant to pay the sum of N500,000.00 (Five Hundred Thousand Naira) being the cost of the plaintiff’s Toyota Carina Saloon Car with registration No. BQ 654 KJA which the defendant’s vehicle crashed into on 25th of September, 2001 and thereby got damaged beyond reasonable repairs
b. The sum of N3,000.00 (Three Thousand Naira) per day from the 26th September, 2001 being the cost of hiring or effecting transportation by the plaintiff until the delivery of another vehicle to the plaintiff or payment of sum adjudged by this court.
c. The sum of N3,000,000.00 (Three Million Naira) as general damages for the inconvenience occasioned by the defendant’s damage of the plaintiff’s vehicle on 25th September, 2001 thereby putting the plaintiff into pain, suffering and disruption of the plaintiff’s way of life”.
The appellant, as defendant, contested the case with an amended statement of defence of 11 paragraphs (pages 11 – 14 of the record of appeal).
The parties and their witnesses were heard. Learned counsel for the contending parties addressed the trial court before it proceeded to deliver its judgment on the 16th day of January, 2006. The defendant/appellant was not satisfied with the judgment and filed a notice of appeal containing 4 (four) grounds (pages 44 – 47 of the record of appeal). The plaintiff/respondent was also dissatisfied and he filed a notice of cross appeal (pages 48 – 50 of the record of appeal)
The appellant filed its undated brief of argument on the 22nd day of July, 2007. The respondent filed his cross appellant’s brief on the 30th day of April, 2008. The appellant, as cross respondent, filed the cross respondent’s brief on the 18th day of June, 2008.
At the hearing of this appeal, Pius Olu Daodu, Esq. learned counsel for the appellant adopted and relied on both the appellant’s brief and the cross respondent’s brief and urged the Court to allow the appeal and dismiss the cross appeal. Wumi Fabuluje, Esq; learned counsel for the respondent/cross appellant adopted the cross appellant’s brief and urged the Court to dismiss the appeal and allow the cross appeal.
In his brief of argument, Mr. Daodu, learned for the appellant distilled the following 2 (two) issues for determination:
1. Whether or not if the trial court had considered all issues raised and evaluate (sic) the evidence led by the parties correctly it would not have arrived at a different conclusion.
2. Whether or not where the trial court found that the plaintiff did not prove special damages the court can still award general damages. (Page 3 of the appellant’s brief).
On Issues No. 1, learned counsel for the appellant referred to the amended statement of defence and the evidence adduced by the parties in the court below. Counsel contended that the trial court failed to consider and evaluate the evidence on the issue of contributory negligence and mitigation of losses. The counsel for the appellant argued that since the respondent parked his vehicle on the road, and admitted under cross- examination that the road was not dualized, he (the respondent) was contributorily negligent and the trial court ought to have made findings on contributory negligence and apportion blame accordingly. He referred the Court to the case of OLOLO V.AGIP (2001) 13 NWLR (Pt.729) 88 at 90.
The learned counsel for the appellant argued that the respondent ought to have mitigated his losses “instead of spending a lot of money to the level of N3,000 per day to hire another vehicle”. He argued further that the respondent refused to collect his car, after it had been repaired, on the ground that the paint “was not auto – base” and more time than the 2 weeks agreed upon was wasted. Counsel contended that the respondent had “a duty not to increase the damages recoverable by him” and failure to do so would not entitle him to damages. He referred to and relied on the cases of KOSILE V. FOLARIN (1939) 3 NWLR (Pt.107) 1 and R.C.C. NIG. LTD. v. R.P.C. LTD. (2005) 10 NWLR (Pt. 934).
The appellant referred to the case of U.B.N. V. EMOLE (2001) 18 NWLR (Pt.745) 501 at 505 and submitted that the respondent did not particularize the negligence pleaded by him as required by law. It was further contended that what happened was an ordinary accident caused by the obstruction of the respondent. The case of SUSAINAH (TRAWING VESSEL) V. ABIGUN (2007) 1 NWLR (Pt. 1016) 456 at 465 was cited and relied upon.
On the second issue, the appellant argued that the award of general damages (N200,000.00) “in place of special damages not proved is wrongful” and should be set aside. Counsel for the appellant relied on the case of S.P.D.C. NIG. LTD. v. TIEBO VII (2005) 9 NWLR (Pt. 931).
In his reaction, the respondent formulated the two following issues in his cross appellant’s brief:
1. Whether the trial court was right when it held that the plaintiff has proved its case against the defendant (Grounds 1 & 2).
2. Whether the trial court was right when it awarded the sum of N200,000.00 as general damages in favour of the plaintiff (Grounds 3 & 4).
While arguing the first issue formulated by him, the learned counsel for the respondent referred to the pleadings of the parties and contended that the appellant admitted liability and undertook to repair his car and exhibit P2 was accordingly executed. He referred to the case of ADISA V. AFUYE (1994) 1 NWLR (Pt. 318) 56 at 87 and argued that the admission was binding on the appellant. It was further contended that “what a party admits to be true needs no further proof it is taken as proved”. Counsel relied on the case of AKIBU V. ODUNTAN (1992) 2 NWLR (Pt.222) 210.
The respondent submitted that the questions of contributory negligence and failure to give particulars were not live issues in view of the admission of liability by the appellant. Counsel contended that the appellant did not even tender evidence in respect of contributory negligence to sustain the claim. He referred the court to be the case of OLOLO V. NIG. AGIP CO. LTD. (2001) 13 NWLR (Pt.729) 88 at 92 and urged the court to disregard the appellant’s argument on contributory negligence.
The appellant argued that the trial court was right in holding that he “established a case against the defendant.”
On the second issue, the respondent argued that the trial court was right in awarding general damages to him but that the amount should have been more than N200,000,00. Counsel for the respondent contended that the award of general damages “is qualified by what in the opinion of a reasonable man is considered (to be the) loss or inconvenience which flows naturally as generally presumed by law from the act of the defendant.”
Learned counsel for the respondent argued the trial court treated his claims for special damages and general damages separately and that the appellant was wrong in his argument that the trial court could not award general damages in place of special damages not proved.
I have considered the submissions of counsel for the parties. In my opinion, having regard to the facts and circumstances of this case and the submissions of both counsel, the live question which calls for determination in this appeal is whether or not the learned trial Judge was right in awarding general damages to the respondent.
In paragraph 9 and 10 of the statement of claim, the respondent averred as follows:
“9- The defendant’s operations manager agreed to the liability of the defendant and offered to repair the plaintiff’s vehicle and wrote a document to that effect.
10. The plaintiff’s vehicle was taken away by the operations manager to the defendant’s premises along Oba-Ile Road, Akure apparently for repairs”. (Page 3 of the record of appeal).
In response, the appellant pleaded in paragraphs 2 and 3 of its amended statement of defence thus:
The Defendant admits paragraphs 2, 5, 7, 9, 10 & 11 of the statement of claim but deny the averment that the Defendant’s agent refused to give his name and that no registration number attached to the vehicle and or the Defendant’s agent ran away.
3. In further answer to paragraph 7, 9 & 10, the Defendant states that the Defendant’s agent could not have refused to give his name and at the same time ran away but merely left to inform his superior officer who agreed to repair the vehicle since it was only the door that was dented and can be straightened by panel beating at their workshop. (Page 11 of the record of appeal).
In his oral testimony, Mr. Cosmos Omolola Falekulo – the Operations Manager of the appellant who testified as DW2 stated inter alia thus:
“On 25/9/2001 there was a report by a Senior driver that vehicle No. 117 plying Akure/Idanre was involved in an accident. On hearing the report I went to the scene of the accident. I asked for the driver of the bus i.e. our vehicle the D.W.1 showed up. On seeing that it was a minor accident I ordered that the vehicle of the plaintiff be taken to our mechanical workshop. After consulting with the General Manager we undertook to repair the vehicle of the plaintiff. In order to assure the plaintiff of our intention we executed Exhibit P2”. (Page 22 of the record).
The facts of this case are simple and straightforward. On the 25th day of September, 2001 the respondent parked his car – a Toyota Carina Saloon car with registration number BQ 654 KJA, along Idanre Road, Oke-Aro, Akure. A servant of the defendant – Mr. Sunday Oluwasuyi, who testified as DW1, was driving one of the appellant’s vehicle and he hit/brushed the respondent’s car. The appellant admitted responsibility and undertook to repair the respondent’s car. To assure the respondent, the appellant executed exhibit P2. (Pages 15, 16, 27 and 22 of the record of appeal).
The pleadings and evidence of the appellant constitute admission that they were liable for the accident in which the respondent’s car was damaged. The issue of particulars of negligence, having regard to the facts and circumstances of this case, are unnecessary. The issue is whether the appellant, who undertook to repair the respondent’s car, repaired the car as agreed in exhibit P2 executed by the appellant. There is some force in the argument of the learned counsel for the respondent that the admission of liability by the appellant is binding.
Exhibit P2 was executed on 25/09/2001 by the parties to this case. The full content of exhibit P2 is as follows:
“THIS IS TO CERTIFY THAT I LEFT MY DAMAGED CAR (TOYOTA CARINA BQ 654 KIA) IN CARE OF OMTC (OWENA MASS TRANSIT CORPORATION) WHICH WAS DAMAGED BY OMTC BUS 117. THE COMPANY HAS AGREED TO REPAIR IT.
ITEMS LEFT IN THE CAR
(1) Spare Tyre
(21 Jack
(3) Wheel spanner
(SGD) (SGD)
KEHINDE IMAFIDON OPERATIONS MANAGER
FACUTT OF LAW UNAD OMTC”.
I agree that in the case of UNION BANK OF NIGERIA PLC v. E.D. EMOLE (supra) at 517 – 518, cited by the appellant, the Supreme Court held that the plaintiff “Having failed to prove the particulars of negligence pleaded by him, the plaintiffs claim for damages for negligence on a tort ought to have been dismissed”, the facts of this case are clearly distinguishable from U.B.N. P.L.C. V. EMOLE (supra) in that the appellant, who was defendant in the trial court clearly admitted liability for the accident of 25109/2001. The case of U.B.N. PLC. V. EMOLE (supra) is, therefore, not applicable to this case.
The other issue is whether the trial Court was right in awarding general damages in this case when the respondent failed to prove special damages. The appellant’s counsel referred the court to the case of THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF G.B.A. TIEBO VII (2005) 9 NWLR (Pt.931) 439 and argued that the award of “general damages in place of special damages not proved is wrongful”. I agree that where a plaintiff claims for special damages, the court cannot compensate him with general damages if he fails to prove special damages. See THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF G.B.A. TIEBO VII (supra) at 470, where the Supreme Court, per TOBI, JSC, held as follows:
“The issue in this appeal is whether a court can award general damages in place of special damages. The answer is, “no”. Where a plaintiff is unable to prove special damages, his case crumbles and a trial Judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed.”
However, the facts of this case are different from that of THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF G.B.A. TIEBO VII (supra). In that case, the trial judge awarded the sums of N400,000.00 and N6,000,000.00 as general damages for raffia palms and loss of drinking water, respectively – items claimed under special damages but which the plaintiff failed to prove. The awards were set aside but the award of N5,000, 000.00 as general damages by the trial court was upheld by the Supreme Court.
In the present, the award was in respect of general damages only and not as a compensation for the special damages claimed but not proved. The facts of this case show that the respondent’s first relief (replacement of his vehicle), his alternative (payment of N500,000,00 being the cost of his vehicle involved in the accident of 25/09/2001) and his second relief (N3,000,00 per day as cost of transportation until delivery of another vehicle) were tied together. The respondent’s claim of N3,000,000,00 general damages for inconvenience was independent of his other claims.
The learned trial court reviewed the evidence before him and opined that the respondent failed to prove or substantiate his first and second claims. The uncontroverted facts before the trial court were that an accident occurred on 25/09/2001 involving the respondent’s car, which was parked along Idanre Road, Akure, Ondo State and the appellant’s car driven by one of its servant; the appellant accepted liability and undertook to repair the respondent’s car; for sundry reasons, the respondent applied for his car to be released to him during the pendency of this case and it was duly released to him in whatever state/condition it was. This being the case, the trial court was right in holding that granting the respondent’s first relief would have amounted to double compensation to the respondent. The respondent, having had his car released to him, could not have it and keep with one hand and be demanding and excepting another car or its monetary value delivered to him in his other hand. This would have been double compensation. The law is settled that in respect of the same and one tortuous wrong, the courts should avoid double compensation to the victim thereof. See EZEANI v. EJIDIKE (1964) 1 ALL NWLR 402; EKPE v. FAGBEMI (1978) 3 SC 209 and AGBA V. OTOBUSIN (1961) 2 SCNLR 13. See also the case of UNION BANK OF NIGERIA PLC V. E.D. EMOLE (2001) 18 NWLR (Pt.745) 501 at 506 ratio 4.Furthermore, in respect of his alternative relief the respondent never tendered any evidence showing that the cost of his said car was N500,000.00 or any other amount for that matter. The respondent ought to have strictly proved the cost or monetary value of his car before the accident of 25/092001. See HEALTH CARE PRODUCTS (NIG.) LTD. V. BAZZA (2003) FWLR (Pt.162) 1937.
The respondent’s first relief and the alternative thereto were rightly refused by the trial court.
The respondent’s second relief for the sum of N3,000.00 per day “being the cost of hiring or effecting transportation” from the 26th day of September, 2001 until delivery of another car or payment in lieu was also refused by the trial court. The trial Judge held that the relief was based on special damages and it ought to have been specially proved.
In paragraph 26 of his statement of claim the respondent pleaded, without any particulars, thus:
“The plaintiff as an interim measure had to hire vehicles for each day since the 26th day of September, 2001 at a cost of N3,000.00 per day in order to run his life in part”. (Page 4 of the record of appeal)
The relevant evidence tendered by the respondent in respect of his second claim was his testimony in court:
“The interim steps I took was (sic) to hire vehicles at an average rate of N3,000 per day.” (Page 17 of the record).
As can be seen from his testimony, the learned trial Judge cannot be faulted when he held as follows:
“This relief is one based on special damages. In his evidence the plaintiff merely stated that he hired vehicles for his use at a cost of N3,000, per day without any further proof.”
The phrase “special damages” has been explained as follows:
“Damages that are alleged to have been sustained in the circumstances of a particular wrong.
To be awardable, special damages must be specially claimed and proved.”
BLACK’S LAW DICTIONARY, EIGHTH EDITION, page 419.
Even if the testimony of the respondent on this head of claim, was believable, it left room for approximation when he stated, inter alia, that he spent “an average rate of N3,000 per day” in hiring vehicles. In the absence of receipts of the daily hire of vehicles, the trial court was at the mercy of speculation in this case. Special damages must be proved with exactitude without space for speculation, estimation or fractions. See NEPA B.B.B. MANUFACTURING CO. LTD. v. A.C.B. LTD. (2004) ALL FWLR (Pt. 198) 1175 at 1189, per PATS-ACHOLONU, JSC.
In the present case, the trial court was right in rejecting the respondent’s claim for special damages in that he was hiring vehicle at the rate of N3,000.00 per day from the 26th day of September, 2001 as a result of the accident which liability the appellant had admitted.
As stated earlier, the respondent claimed the sum of N3,000,000,00 (Three Million Naira) as general damages in respect of the tortuous wrong admitted by the appellant. General damages flow naturally from the wrongful act of a defendant complained of. See THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMTTED v. CHIEF G.B.A. TIEBO VII (supra) at 466, para. C. per OGUNTADE, JSC.
To succeed a claimant does not require to strictly prove general damages as in the case of special damages. See THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF G.B.A. TIEBO VII (supra) at 470, para. C per JOBI, JSC where the Supreme Court held thus:
“The issue in this appeal is whether a court can award general damages in place of special damages. The answer is, “no”. Where a plaintiff is unable to prove special damages, his case crumbles and a trial Judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed.”
An appellant court can only interfere with the award of damages by a trial court if any or all the conditions set out by the Supreme Court are satisfied. The conditions are:
“(a) that the Judge acted upon some wrong principles of law or
(b) that the amount awarded was extremely high or very small as to make it in the judgment of the appellate court an entirely erroneous estimate of damage to which the plaintiff is entitled.”
NZERIBE v. DAVE ENG. CO. LTD. (1994) 8 NWLR (Pt.361) 124 see also THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF G.B.A. TIEBO VII (supra) at 464.
In the present case, the appellant has not been able to demonstrate or show that the award of general damages by the trial court was based on an erroneous principle of law or that the amount awarded is unreasonably high. The respondent too, could not show that the amount awarded as general damages was “very small” and how much “a reasonable man” would have awarded. Under the circumstances of this case, I find no reason to interfere with the award of general damages by the learned trial Judge.
On the whole, this appeal is unmeritorious and it is liable to be dismissed. The appeal is, accordingly, dismissed.
CROSS APPEAL
In the cross appellant’s brief the following three issues were distilled, namely:
1. Whether the respondent/cross appellant was entitled to the replacement of his vehicle or the value of his vehicle as claimed before the trial court (Ground 1)
2. Whether the plaintiff/respondent/cross appellant proved his cost of N3,000 per day being cost of hiring vehicle before the trial court.(Grounds 2 & 3)
3. Whether the plaintiff/respondent/cross appellant. (sic) Was entitled to more than the sum by N200,000 as general damages before the trial courts (sic) (Ground 4)
The argument of the issues by the cross appellant spans paragraphs 8.1 to 8.3 of the cross appellant’s brief.
In its response, the cross respondent formulated two issues in the cross respondent’s brief. The two issues are:
1. Whether or not the plaintiff rightly claimed for the replacement of the car or payment of N500,000.00 for the cost of his car which is 1982 model where it is not a write off or total wreckage.
2. Whether the plaintiff proved the cost of N3,000 per day as required by law and whether the plaintiff ought to mitigate his losses if any?
The arguments on the two issues are from paragraphs 1.02 to 1.07 of the cross respondent’s brief.
I have read the cross appellant’s brief and the cross respondent’s brief and the legal authorities cited in both briefs.
The live questions in the cross appeal are whether or not the cross appellant was able to specially prove the special damages claimed by him; whether the cross appellant was entitled to be awarded general damages by the trial court and whether the amount awarded as general damages was too small. All these questions were answered in the resolution of the issues in the main appeal – namely: that the cross appellant was not able to strictly or specially prove the special damages claimed; that the cross appellant was entitled to be awarded general damages and that the amount awarded was not too low. The cross appeal is clearly interwoven with or affiliated to the main appeal.
It is, therefore, unnecessary to go over the arguments of the cross appellant and the cross respondent as this will amount to mere tautology. Under the circumstances of this case, the cross appeal can be summarily dismissed, notwithstanding that the cross appeal is in law a separate and independent appeal from the main appeal. See UNITY BANK PLC & ANOR V. MR. EDWARD BOUHART (2008) 7 NWLR (Pt. 1086) 372 at 413, para. F – G where the Supreme court, per TOBI, JSC, stated the position of the law thus:
“Learned counsel for the appellants argued that the Court of Appeal was wrong in dismissing the cross appeal summarily without making finding on the issues of law that were raised in the appellants’ cross appeal and expatiated in their brief of argument. While I concede that a cross appeal is an independent appeal, having a life of its own in the appellate process, it could have some affinity with the main appeal as they criss-cross. There are instances where a decision of the main appeal affects and in fact disposes of the crux or fulcrum of the cross appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate court to go over the arguments raised by the cross appellant in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate court has the option to dismiss a cross-appeal summarily..”
Under the circumstances, the cross appeal is liable to be dismissed. The cross appeal is hereby dismissed, accordingly.
CONCLUSION
The final result is that both the appeal and the cross appeal are hereby dismissed.
The judgment of the trial court is hereby affirmed.
There is no order ass to costs.
NWALI SWLVESTER NGWUTA, J.C.A: I have read in draft the lead Judgment just delivered by my learned brother Adumein JCA and I agree with his Lordship that the appeal has no merit.
Cross-appeal is defined as an appeal in the appeal by the appellee, that is the Respondent. See Chief F.R.A. Williams v. Daily times of Nig. Ltd. (1990) 1 NWLR (Pt. 124) 1 at 54. There was no need to dwell in the cross-appeal since the issues canvassed therein were the issues already determined in the main appeal.
In the circumstances, I also dismiss both the main appeal and the cross-appeal. I make no order for costs.
CIIINWE E. IYIZOBA, (J.C.A).: I read before now the judgment just delivered by my learned brother, Moore A.A. Adumein, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat.
I wish to comment on the second issue in the appellant’s brief of argument; “whether or not where the trial court found that the plaintiff did not prove special damages the court can still award general damages.” Relying on the case of S.P.D.C. Nig. Ltd. v. Tiebo vii [2005] 19 NWLR (Pt. 931) 439. the appellant’s counsel in his brief submitted “that where special damages failed, the plaintiff’s case crumbles and the court cannot compensate the plaintiff by award of general damages.” As pointed out in the leading judgment, this is a misconception of the judgment in the above quoted case. When there is a claim for special damages and another separate claim for general damages; the failure of the claim for special damages will not stop the court from awarding general damages if merited. In this case, the cross-appellant in the court below claimed N3000 per day as special damages for hire of vehicles and N3,000,000.00 general damages for the inconvenience suffered. The court rejected the claim for special damages as there was no evidence in proof but awarded the N200,000 general damages. The award of general damages under the circumstance was in order. I abide by the orders made by my learned brother in the leading judgment.
Appearances
Pius Olu Daodu, Esq.For Appellant
AND
Wumi Fabuluje EsqFor Respondent
