UTA v. GOLFIC SECURITIES (NIG) LTD & ORS (2022)

UTA v. GOLFIC SECURITIES (NIG) LTD & ORS

(2022)LCN/16597(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Tuesday, March 15, 2022

CA/PH/259/2018

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

CHARLES UTA APPELANT(S)

And

1. GOLFIC SECURITIES NIGERIA LIMITED 2. SAIPEM CONTRACTING COMPANY NIGERIA LIMITED 3. NIGERIAN AGIP OIL COMPANY LIMITED RESPONDENT(S)

RATIO

THE DOCUMENTS TO BE ACCOMPANIED BY A STATEMENT OF DEFENCE

In resolving this issue, it is important to draw attention to some provisions of the Federal High Court (Civil Procedure) Rules, 2009. Order 13 Rules 2(1-2) and 35(1) of the Federal High Court (Civil Procedure) Rules, 2009 provide: “2. (1) Subject to Sub-rule (2) of this rule, a defendant who enters an appearance and intends to defend the action shall, unless the Court gives leave to the contrary serve:
(a) A statement of defence which may include any preliminary objection he wishes to raise to the plaintiff’s action;
(b) List of witnesses to be called at the trial;
(c) Written statement on oath of the witnesses;
(d) Copies of every document to be relied on at the trial; and
(e) List of non-documentary exhibits at the time he files his memorandum of appearance.
(2) If a summons under Order 12 Rule 1 of these Rules is served on a defendant, sub-rule (1) of this rule shall not have effect in relation to him unless by the order of Court made on a motion on notice he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within fourteen days after the making of the order or within such other period as may be specified in the order.…
35. (1) the statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and the written statements on oath.” PER ADEGBEHINGE, J.C.A.

WHETHER OR NOT A STATEMENT OF DEFENCE IS AN ORIGINATING PROCESS

While it must be appreciated that a statement of defence, which does not harbour a counter-claim is not an originating process, it must equally be appreciated that a party who files a statement of defence may not necessarily seek to adduce oral evidence at the trial, if there are other evidence, before the Court which may help prove the facts pleaded in the statement of defence filed by that party. A party who pleaded material facts and the Court determining such a case may rely on any evidence before the Court as proof of what is pleaded, as may be adduced by any of the parties before the Court. A Court’s duty is to make findings of fact based on facts pleaded and proved, derived from issues joined, before it. See Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426. Order 13 Rules 2(1) & (2) and 35(1) cited and quoted above does not have the effect of compelling ALL defendants, to mandatorily file or frontload statements of witnesses intended to be called and file documents intended to be tendered as evidence at the trial, regardless of the nature of the suit or even where the parties do not desire to call a witness or does not have a witness to call or whether such documents exist or not. A party is at liberty to file a statement of defence wherein only a complaint of law is made against the claim of his opponent by way of preliminary objection. The word “shall” inserted in the provision is merely directory and not mandatory, because it will lead to avoidable absurdity if it were understood or interpreted as such.
In the case of Chidoka v. F.C.F.C. Ltd [2013] 5 NWLR (Pt. 1346) 144 at 161, the Court re-iterated that a counsel is a master of the case he conducts. He may decide not to call any witness or cross-examine the witness or witnesses of the other party. In the case of Okoronwko v. Chukwueke [1992] 1 NWLR (Pt. 216) 175 at 193, the Court insisted that a party is not bound to call any particular witness if he thinks that he can prove his case otherwise. In the case of Sylvester v. Ohiakwu [2014] 5 NWLR (Pt. 1401) 467 at 510-511, this Court stated that frontloading is the upfront filing of all documents to be issued at the trial to ensure that only serious and committed litigants with prima facie good cases with witnesses to back up their claims would find their way into Court and thereby reducing lame duck claims. Frontloading could not be used technically to shut out genuine claimants (which is not even the case here) from exercising their constitutional right to access to justice and fair hearing. Failure to frontload, is an irregularity which should not vitiate the suit so filed. In this case, the issue is raised about a statement of defence. The above-named provision grants power to the Court to give permission or leave for a statement of defence to be filed, without statements on oath being frontloaded along with it.
In the case of Ngere v. Okuruket XIV [2014] 11 NWLR (Pt. 1417) 147 at 175, the Court stated that “Leave” means permission. PER ADEGBEHINGE, J.C.A.

WHETHER OR NOT STATEMENT OF DEFENCE FILED IN CCONTRAVENTION OF THE RULES OF COURT IS A NULLITY

Even where a statement of defence is filed and suggested to be invalid, in the case of Akindele v. Abe (2021) 17 NWLR (Pt. 1804) 1 at 34-35, the Supreme Court broadly stated that a statement of defence filed in contravention of the rules, though irregularly filed, is not a nullity but a voidable document which remains a valid document until it is set aside. If a defence has been put in, though irregularly, the Court would do right in attending to what it contains. In other words, the Court in the exercise of its primary duty to do justice, can invoke its extensive discretionary powers and look at the invalid but not void statement of defence and then do what the justice of that case demands. If before judgment is entered, the defendant serves a defence, even though it is out of time, a Court of trial must never ignore it. So, a statement of defence filed out of time is not void but voidable, meaning that if the plaintiff or claimant raises objection, it can be struck out by the Court. However, where the claimant or plaintiff keeps mum and allows the irregular statement of defence to be used in the litigation until the final judgment, he will not be heard to complain thereafter. PER ADEGBEHINGE, J.C.A.

THE BURDEN OF PROOF IN AN ACTION FOR DAMAGES FOR NEGLIGENCE

The burden of proof in an action for damages for negligence, rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by the negligent act or omission for which the defendant is, in law, responsible. This involves the proof of the following necessary ingredients, viz:
(i) the existence of a duty to take care owed to the complainant by the defendant;
(ii) the breach of that duty; and
(iii) damage suffered by the complainant which must be connected with the breach of duty of care.
Once these requirements are satisfied, the defendant will be held liable in negligence. See also Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356. Once liability is located, award of damages which is proved will follow the finding of the Court. A person injured by another’s wrong is entitled to general damages for non-pecuniary loss such as pain and suffering and loss of amenities and enjoyment of life. PER ADEGBEHINGE, J.C.A.

THE POSITION OF LAW ON DAMAGES

Damages mean a sum of money awarded to a person injured by the tort of another. It is in general that pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another, whether that act or default is a breach of contract or tort.

See Shell Petroleum Development. Co. Nig. Ltd. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 657 and Umudje v. Shell Pet. Dev. Co. of Nig. (1975) 9-11 SC 155.

OLABODE ABIMBOLA ADEGBEHINGE, J.C.A. (Delivering the Leading Judgment): The Facts
The appellant was once an employee of the 1st respondent, as a security guard. At that time, the 1st respondent was in a contract with the 2nd respondent to provide security guards for precincts where the 2nd respondent had its activities. Between the 2nd and the 3rd respondents, there existed a contract. That contract caused the 2nd respondent to have its operations within the precincts of the business premises of the 3rd respondent. Thus, the 1st respondent sent the appellant to give security to the 2nd respondent on the premises of the 3rd respondent. Something unfortunate occurred one day – 01/02/2009. There was a gas explosion. The appellant claimed to have been affected by the explosion, such that his health was affected, among other complaints. He claimed that the defendants initially took care of him, by keeping him in health facilities and paying costs therefore, but later abandoned him. The appellant sued the three respondents, on 14/12/2012, before the Federal High Court, claiming in the writ of summons and paragraphs 16-18 of the statement of claim (pages 1-9 of the record of appeal), the following:
“16. The Plaintiff further pleads that the accident and resulting injury were caused by negligence and/or breach of statutory duty by the Defendants, their employees, servants or agents.
17. The Plaintiff further and/or in the alternative relies on the doctrine of res ipsa loquitur and on the Rule in RYLAND V. FLETCHER (1868) 3 HL 330.
PARTICULARS OF NEGLIGENCE
a. Failure to ensure any adequate protection for the Plaintiff in his work environment.
b. Failing in the circumstances to provide the Plaintiff with a safe place and system of work and to take reasonable care for the Plaintiff’s safety.
c. Requiring Plaintiff to work in proximity of gas cylinders/equipments which the defendants know or should have known presented a risk to the Plaintiff and his welfare.
PARTICULARS OF DAMAGES:
i. Damages for injury suffered – N15,000,000.00
ii. Visa procurement cost for self and one other person – N300,000.00
iii. Psychological trauma, shock, ill-health – N5,000,000.00
iv. Pains and suffering – N5,000,000.00
v. Loss of amenities of life – N20,000,000.00
vi. Loss of earnings from January 2010 when salary was stopped till date of writ: N30,000.00 x 29 months – N860,000.00
vii. Loss of future earnings @ N360,000.00 per year x 40 yrs – N14,400,000.00
TOTAL in Naira – N60,570,000.00
viii. Cost of medical treatment abroad – $20,000.00
ix. Transportation/Flight ticket for self and one other person abroad – $6,000.00
x. Upkeep for self and one other person during treatment abroad – $10,000.00
TOTAL in Dollar – $36,000.00
18. By reason of the matters aforesaid, Plaintiff has suffered injury, loss and damage, WHEREFORE the Plaintiff claims against the defendants jointly and severally the sum of Sixty Million, Five Hundred and Seventy Thousand Naira (N60,570,000.00) only, and Thirty-Six Thousand American Dollars ($36, 000.00) being and representing special and general damages for personal injury.”

The Judgment
The lower Court took the proceedings at its Port Harcourt Division. Judgment was delivered on 15/05/2017, by Justice U. N. Agomoh, in suit no. FHC/PH/CS/433/2012. The sum of N500,000.00 (Five hundred thousand naira) was awarded, as general damages, in favour of the appellant, against the three respondents, jointly and severally (Page 420 of the record of appeal).

The Notice of Appeal and issues for determination
The appellant, who was, somewhat, victorious before the lower Court, was dissatisfied with the judgment. He filed a notice of appeal (on 14/08/2018), which, with leave of Court, was amended. This appeal is predicated on the amended notice of appeal filed on 11/09/2020. There are nine (9) grounds stated for the appeal.

In the appellant’s brief of argument, which Leedum Mitee Esq., settled, four issues were presented for the determination of this appeal. They are:-
“1. Whether the learned trial Judge was right and/or justified in holding that the 3rd Defendant’s pleading which is unsupported by any witness(es) deposition is not abandoned but same is supported by the evidence of DW1? (Distilled from ground 9).
2. Whether the learned trial judge was right and/or justified in holding that there was no iota of evidence before the Court connecting the alleged ailment of the plaintiff to the gas explosion? (Distilled from ground 1).
3. Whether the learned trial judge was right and or justified in holding that the plaintiff failed to adduce evidence in proof of his items of special damages? (Distilled from grounds 2, 3 and 4).
4. Whether the learned trial judge was right and or justified in not giving judgment in favour of the plaintiff? (Distilled from grounds 5, 6, 7 and 8).

The four issues found by the appellant were wisely adopted by the 1st respondent, in its 1st respondent’s brief of argument settled by Chief J. K. Mong.

The 2nd respondent’s brief of argument was settled by Patrick A. Osu Esq. Learned counsel presented only one issue for determination. It is whether the learned trial Judge ought to have granted all the reliefs sought by the appellant, instead of the award of the sum of N500,000.00 as general damages in his favour against the respondents, despite the lack of credible and cogent evidence in proof of his case, which is the same as the second and third issues submitted by the appellant.

In the 3rd respondent’s brief of argument, which O. J. Irerhime Esq., settled, learned counsel set four issues for determination, which in essence, were mimicking the issues submitted by the appellant, except the fourth issue, which in effect, is same as the fourth issue submitted by the appellant.

As the appellant is the owner of the appeal, this appeal will be determined based on the issues submitted by the appellant, because those issues properly delimit the circumstances of this appeal.

Hearing the Appeal
When this appeal was heard, Ledum Mitee Esq., (with G. Major Esq.) appeared for the appellant. He identified appellant’s amended notice of appeal, filed on 11/09/2020, as the basis of the appeal. He adopted appellant’s brief of argument, filed on 11/09/2020 and three reply briefs, deemed filed on 17/10/2022, as argument of the appeal. He urged the Court to allow the appeal.

J. K. Mong Esq. (with J. Nwonode-Morgan Esq.) appeared for the 1st respondent. He adopted 1st respondent’s brief of argument, filed on 13/09/2019, deemed properly filed on 30/11/2020, as argument of opposition to the appeal.

Patrick Osu Esq. (with S. Wokoma Esq.) appeared for the 2nd respondent. He adopted 2nd respondent’s brief of argument, filed on 05/10/2020, but deemed properly filed on 30/11/2020, as opposition to the appeal.

O. J. Irerhime Esq. (with S. E. Iji Esq.) appeared for the 3rd respondent. He adopted 3rd respondent’s brief of argument, filed on 28/09/2020, but deemed properly filed on 30/11/2020, as opposition to the appeal.

Appellant’s Argument of the Appeal
In arguing the first issue, learned counsel relied on Order 13 Rule 2(1) of the Federal High Court (Civil Procedure) Rules, 2009 to make the point that the statement of defence filed by the 3rd respondent did not have any accompanying documents, contrary to the named provision. In his view, the named provision is mandatory, which implies that the 3rd respondent‘s statement of defence is incompetent. He cited the cases of Igbeke v. Emordi [2010] 11 NWLR (Pt. 1204) 1 etc.

He insisted that a statement of defence will be invalid if it is filed without compliance with Order 13 Rule 2(1) of the Federal High Court Rules, except the defendant does not intend to defend the action. Relying on the case of Ajero v. Ugorji [1999] 10 NWLR (Pt. 621) 1 at 19, learned counsel submitted that an averment not supported by evidence will go to no issue and is deemed abandoned. He is of the view that the 3rd respondent did not have a defence before the lower Court.

On the second issue, the position taken by learned counsel is that there was no issue joined on the occurrence of the gas explosion at the 3rd respondent’s facility and that parties agreed on the point. What was in issue was whether the appellant was seriously injured, for which he received medical attention (as alleged by the appellant) or there was no impact on the appellant, but he received medical attention only because of the sound and suddenness of the explosion (as alleged by the respondents). It is the view of learned counsel that the appellant led evidence that he was unconscious for days, his health severely affected, treated at respondent’s clinic at Omoku and later referred to University of Port Harcourt Teaching Hospital (UPTH), medical tests conducted on him, which revealed that his health was ruined and rendered “almost impotent” because of the aforesaid injuries.

Reference was made to the fact that the 2nd respondent tendered Exhibit D2, photocopy of medical report issued by 2nd respondent’s retained hospital, where the appellant was taken for treatment, immediately after the gas explosion. As the named document was not tendered through a medical doctor, who made the document, it is the view of learned counsel that Exhibit D2 is documentary hearsay. Reliance was placed on the case of Registered Trustees T. L. B. C. C. v. Olubobokun [2017] 1 NWLR (Pt. 1545) 1 at page 52. He explained that the content of Exhibit D2 tends to support the case of the appellant, assuming the Court will consider the document. The attention of the Court was directed to page 81 of the record of appeal. He prayed that this Court should hold that the appellant “must have been injured” by the explosion to have been admitted in the 2nd respondent’s clinic. He urged the Court to hold that there was sufficient evidence before the lower Court connecting appellant’s ailments to the gas explosion.

On the third issue, reference was made to the view of the lower Court about the appellant’s paragraph 14 of his statement of claim, as recorded at page 414 of the record of appeal. He intoned that the lower Court did not grant special damages because the appellant did not tender documentary evidence in proof of his monthly earnings, which he submitted was wrong. He submitted that averments not controverted is deemed admitted and relied on Section 167(d) of the Evidence Act, 2011 on evidence withheld. He explained that no issue was joined on appellant’s monthly salary, going by his deposition in paragraphs 15 and 16 of his statement on oath and the Court ought to have held that the appellant proved his anticipated earning, over the period in issue. He referred to the cases of Dakat v. Dashe [1997] 12 NWLR (Pt. 531) 46 at 54 and Araba v. Elegba [1986] 1 NWLR (Pt. 16) 333 on proof of special damages.

On special damages, the case of SPDCN Ltd. v. Edamkue [2009] 14 NWLR (Pt. 1160) 1 at 33 was cited in aid of the submission that minimum proof is required where appellant’s case is not challenged.

On the fourth issue, learned counsel pointed out that the case of the appellant is evident in paragraphs 6 and 7 of his statement of claim. It was the respondents who took the appellant to the clinic and UPTH. Thus, staff of those institutions are agents of the respondents, and the Court should so hold. He relied, for the proposition, on the case of Koya v. UBA Ltd. [1997] 1 NWLR (Pt. 481) 251. The respondents are therefore bound by the consequence of their referring the appellant to UPTH and PW 2 is their agent. In the view of learned counsel, if the lower Court had not wrongly qualified appellant’s testimony as hearsay evidence, it would have given judgment to the appellant. He urged this Court to accept the evidence and find in favour of the appellant.

In the opinion of learned counsel, the States Torts Law Cap. 131, Laws of Rivers State, 2002, which was cited to the lower Court is applicable to the case. The lower Court did not give any reason for not applying the statute to the case, in its judgment. He urged the Court to apply the law to this appeal. He urged this Court to allow the appeal.

1st Respondent’s Argument of the Appeal
With respect to the first issue, learned counsel for the 1st respondent argued that the issue has no direct relationship with the 1st respondent.

On the second issue, learned counsel submitted that the appellant failed to connect his alleged ailment to the gas explosion, which took place on 01/02/2009, going by pleadings filed and evidence led at the trial. Despite threatening to do so, learned counsel noted that the appellant failed to produce evidence in proof of paragraphs 6, 8 and 12 of his statement of claim, except to repeat, verbatim, the facts pleaded as his deposition. Learned counsel described the evidence presented at the trial by the appellant as vacuous and lacking credibility, in relation to facts of the case. Appellant’s evidence was described as incoherent and unreliable, which cannot support his pleading in paragraph 8 of the statement of claim. He complained that PW2 did not give useful evidence on any of the ailments pleaded in the case. PW2’s evidence, it was submitted, was hearsay, despite Exhibit D2. He relied on the case of Nwoye v. FAAN [2019] 77 NSCQR 215 at 236.

On the third issue, the argument mounted by learned counsel is that the 1st respondent joined issue with the appellant on his income. Learned counsel is of the opinion that none of the respondents admitted what the appellant pleaded. Specifically, the 1st respondent pleaded that the appellant is not entitled to his claims. Relying on the case of Dairo v. R. T. A. D. L. [2019] All FWLR (Pt. 972) 322 at 343, he submitted that a general traverse is sufficient to cause burden of proof to arise, with issues being joined.

On special damages, while agreeing that it may be proved by unchallenged evidence, learned counsel noted that the appellant did not adduce any qualitative evidence in proof of special damages. He submitted that the cases of Honeywell Flour Mills Plc v. Ecobank Nig. Ltd. [2018] LPELR – 45127 (SC) and Araba v. Elegba [1986] 1 NWLR (Pt. 16) 333 are not relevant or applicable to this appeal, as special damages was not proved. In the view of learned counsel, PW2’s evidence did not help the case of the appellant.

With respect to the fourth issue, the position of learned counsel is that the age of the appellant remained 25 in 2009 and 2012 and became 30 when he testified in 2015. Learned counsel submitted that the appellant failed to prove negligence, against the 1st respondent, based, either on the rule in Ryland v. Fletcher or res ipsa loquitur. It was recalled that the appellant absolved the 1st respondent from liability, when he testified, under cross-examination, at page 352 of the record of appeal. He pointed out that the 1st respondent is not the owner of the premises where the gas explosion occurred, which makes the rule in Ryland v. Fletcher inapplicable. He complained that the prayers for psychological trauma, shock, ill-health, pains and suffering are different and separate and distinct items of special damages. He is of the view that they are supposed to be under general damages, as they are incapable of any exact calculation. Having failed to prove them, general damages cannot be awarded in their place, to the appellant. The cases of Anazodo v. P. I. T. (Nig.) Ltd [2008] 6 NWLR (Pt. 1084) 529 at 535 and SPDC (Nig.) Ltd. v. Tiebo VII [2005] 9 NWLR (Pt. 931) 439 were cited.
He urged the Court to dismiss the appeal.

Appellant’s Reply to the 1st Respondent’s Argument
The appellant’s reply to the 1st respondent’s brief of argument was settled by Ledum A. Mitee Esq.

Learned counsel complained that DW1, on whose evidence the 3rd respondent sought to rely, testified at paragraph 18 of his statement on oath absolving only the 1st respondent from liability. He insisted that not having called a witness at the trial, the 3rd respondent abandoned his pleading. Learned counsel advised that the lower Court awarded damages in line with evidence before it. He complained about the lower Court’s decision not to award the special damages claimed. The same Court proceeded to, nevertheless, award general damages to the appellant, rightly. He submitted that the rule in Ryland v. Fletcher and the doctrine of res ipsa loquitur applies to this appeal.

2nd Respondent’s Argument of the Appeal
Learned counsel for the 2nd respondent submitted that the lower Court having found that the case of the appellant was based on speculations ought not to have awarded general damages to the appellant. He is of the view that the appellant failed to prove entitlement to damages and special damages. Reciting decisions in Gari v. Seirafina Nigeria Ltd. [2008] 2 NWLR (Pt. 1070) 1 at 27 and Obasuyi v. Business Ventures Limited [2000] 5 NWLR (Pt. 658) 668 at 685, learned counsel submitted that the lower Court was right in finding that the appellant did not prove his case regarding damages. He insisted that the appellant had a duty to prove his case, even where the parties failed to join issues and that pleading is not same as evidence. He is of the view that the findings of the lower Court on failure of the appellant to prove his case is unassailable. Relying on the case of Obawole & Anor v. Williams & Anor [1996] LPELR – 2158(SC), learned counsel submitted that it was the duty of the appellant to prove his case, as the 2nd defendant unequivocally denied the claim of the appellant in its pleading. He urged the Court to dismiss the appeal.

Appellant’s Reply to the Argument of the 2nd Respondent
The appellant’s reply brief of argument in response to 2nd respondent’s brief of argument was settled by Ledum Mitee Esq. The submissions made therein were not in reply on points of law, but elucidation of existing arguments on behalf of the appellant.

3rd Respondent’s Argument of the Appeal
On its first issue, the 3rd respondent argued that it did not abandon its statement of defence. Learned counsel submitted that a party is not bound to call evidence and is permitted to support its pleadings by eliciting evidence under cross-examination, which is what the 3rd respondent did at the trial, as decided in the cases of Uchiv v. Sabo & Ors. [2015] LPELR – 40360(CA), Akomolafe v. Guardian [2010] 3 NWLR (Pt. 1181) 338 at 351 and Ayoola v. Yahaya [2005] 7 NWLR (Pt. 923) 122 at 140. On Order 13 Rule 2(1) of the Federal High Court Rules 2009, the view of learned counsel is that the provision does not state that such a statement of defence, not filed along with a statement on oath, is deemed abandoned or invalid. It was submitted that the Registry of the Court having accepted the 3rd respondent’s statement of defence for filing, the alleged defence is waived, going by the decision in Spog’s case. Reliance was placed on Order 51 Rules 1(1) and 2(1) of Federal High Court Rules, 2009 to make the point that the appellant being aware of the alleged irregularity, upon an assumption for argument, which was not conceded, is precluded from complaining since it allowed the 3rd respondent to participate in the trial before complaining at the end of trial; Section 68 of the Evidence Act, 2011 and the case of Oruware v. Osler [2013] 5 NWLR (Pt. 1348) 535 and 653. He submitted that the 3rd defendant’s statement of defence is valid, and the 3rd respondent did not abandon its statement of defence.

On the second issue, learned counsel for the 3rd respondent submitted that the appellant failed to prove his claim that he suffered injury or ailment, because of the gas explosion. In the circumstance, appellant needed expert evidence, which PW2 could not provide, not being such an expert. Reference was made to Section 68 of the Evidence Act, 2011 and the case of Muhammed v. Aduda [2009] LPELR-4554(CA). Exhibits 1 and 3 are therefore not expert opinion and PW2’s opinion was not admissible evidence. The lower Court was therefore correct when it held that there was no iota of evidence to connect appellant’s alleged ailment to the gas explosion. The case of Ogiale v. SPDC [1997] NWLR (Pt. 480) 148 at 165 was cited in aid of the submission.

On the third issue, learned counsel stated that a claim of loss of income is a claim for damages, which as a matter of legal duty, the appellant had to prove, whether controverted, challenged or not. Reliance was placed on the cases of Oke v. Aiyedun [1986] 2 NWLR (Pt. 23) 548 at 565, Seven-Up Bottling Co. Plc. v. Nkanga [2008] LPELR-8462(CA) and Order 13 Rule 35(5) of the Federal High Court Rules, 2009. It was explained that in the case before the lower Court, paragraphs 14, 15 and 17 of the statement of claim were traversed specifically by the 3rd respondent in paragraphs 5 and 6 of its statement of defence (pages 89-91 of the record of appeal).

It was submitted that loss of income is special damages which is to be specifically pleaded and strictly proved at the trial, which the appellant failed to do. Reliance was placed on the cases of Ajigbotosho v. RCC [2018] LPELR-44774(SC) and Sommer v. F. H. A. [1992] 23 NSCC (Pt. 1) 82 at 90. The lower Court was therefore justified in holding that the head of claim was not proved.

The same was the fate of appellant’s claim for medical expenses abroad and cost of treatment abroad, as there was no legal basis for the award of such damages. He is of the opinion that the lower Court was right to have rejected appellant’s claim.

On the fourth issue, learned counsel submitted that a party can only recover in negligence, based on particulars pleaded, with the aid of Koya v. U.B.A. [1997] 1 NWLR (Pt. 481) 251 at 291, Diamond Bank Ltd v. Partnership Investment Company Ltd [2009] 18 NWLR (Pt. 1172) 67 at 89-90, Umudje v. SPDC [1975] LPELR-3375 (SC) and Agi v. Access Bank (supra). The particulars of negligence pleaded are at paragraph 17 of the statement of claim, which should be a complaint against appellant’s employer, which the 3rd respondent is not.

Appellant’s Reply to the 3rd Respondent’s Argument
Appellant’s reply brief of argument was settled by Ledum A. Mitee Esq. Learned counsel did not put forward any new or fresh argument. It was rehash of existing argument recorded in the appellant’s brief.

Determination of the Appeal
As already determined above, this appeal will be determined on the issues set by the appellant in his appellant’s brief of argument.

The case of International Messengers Nigeria Limited v. Nwachukwu [2004] 13 NWLR (Pt. 891) 543 at 560 lucidly explains that negligence is the breach of duty to take care. A duty to take care can be imposed by law or can be created by contract or trust. A breach of a contractual duty must be dealt with according to the law of contract, and cannot be regarded as a tort of negligence, although the same facts may in some cases amount to a breach of contract and also the tort of negligence. Thus, where a person is injured from a transaction arising from the contract of two persons, the third party is not precluded from bringing action on the ground that he was not a party to the contract, the mis-performance or non-performance of which has resulted in the damage. The duty imposed here is not because there was a contract but because the defendant had implied undertaking not to injure the plaintiff. The rationale is that, even though not so expressed, the obligations towards the contracting party extended to all such persons who are likely to be injured by the acts or omissions of the defendant. They are neighbours in contemplation or ought to be in contemplation of the defendant. Therefore, to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care had been held to exist. The relevant question is whether, as between the alleged wrong doer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Negligence is the failure to use requisite amount of care required by law in the case where duty of care exist. Thus, if it was proved that in the execution of the contracts entered into and being executed by the parties, the appellant was thereby injured, the respondents may be held liable in the tort of negligence.

Resolution of the first issue
The first issue set by the appellant asks:
Whether the learned trial Judge was right and/or justified in holding that the 3rd Defendant’s pleading which is unsupported by any witness(es) deposition is not abandoned but same is supported by the evidence of DW 1? (Distilled from ground 9).

In resolving this issue, it is important to draw attention to some provisions of the Federal High Court (Civil Procedure) Rules, 2009. Order 13 Rules 2(1-2) and 35(1) of the Federal High Court (Civil Procedure) Rules, 2009 provide:

“2. (1) Subject to Sub-rule (2) of this rule, a defendant who enters an appearance and intends to defend the action shall, unless the Court gives leave to the contrary serve:
(a) A statement of defence which may include any preliminary objection he wishes to raise to the plaintiff’s action;
(b) List of witnesses to be called at the trial;
(c) Written statement on oath of the witnesses;
(d) Copies of every document to be relied on at the trial; and
(e) List of non-documentary exhibits at the time he files his memorandum of appearance.
(2) If a summons under Order 12 Rule 1 of these Rules is served on a defendant, sub-rule (1) of this rule shall not have effect in relation to him unless by the order of Court made on a motion on notice he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within fourteen days after the making of the order or within such other period as may be specified in the order.…
35. (1) the statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and the written statements on oath.”
While it must be appreciated that a statement of defence, which does not harbour a counter-claim is not an originating process, it must equally be appreciated that a party who files a statement of defence may not necessarily seek to adduce oral evidence at the trial, if there are other evidence, before the Court which may help prove the facts pleaded in the statement of defence filed by that party. A party who pleaded material facts and the Court determining such a case may rely on any evidence before the Court as proof of what is pleaded, as may be adduced by any of the parties before the Court. A Court’s duty is to make findings of fact based on facts pleaded and proved, derived from issues joined, before it. See Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426. Order 13 Rules 2(1) & (2) and 35(1) cited and quoted above does not have the effect of compelling ALL defendants, to mandatorily file or frontload statements of witnesses intended to be called and file documents intended to be tendered as evidence at the trial, regardless of the nature of the suit or even where the parties do not desire to call a witness or does not have a witness to call or whether such documents exist or not. A party is at liberty to file a statement of defence wherein only a complaint of law is made against the claim of his opponent by way of preliminary objection. The word “shall” inserted in the provision is merely directory and not mandatory, because it will lead to avoidable absurdity if it were understood or interpreted as such.
In the case of Chidoka v. F.C.F.C. Ltd [2013] 5 NWLR (Pt. 1346) 144 at 161, the Court re-iterated that a counsel is a master of the case he conducts. He may decide not to call any witness or cross-examine the witness or witnesses of the other party. In the case of Okoronwko v. Chukwueke [1992] 1 NWLR (Pt. 216) 175 at 193, the Court insisted that a party is not bound to call any particular witness if he thinks that he can prove his case otherwise. In the case of Sylvester v. Ohiakwu [2014] 5 NWLR (Pt. 1401) 467 at 510-511, this Court stated that frontloading is the upfront filing of all documents to be issued at the trial to ensure that only serious and committed litigants with prima facie good cases with witnesses to back up their claims would find their way into Court and thereby reducing lame duck claims. Frontloading could not be used technically to shut out genuine claimants (which is not even the case here) from exercising their constitutional right to access to justice and fair hearing. Failure to frontload, is an irregularity which should not vitiate the suit so filed. In this case, the issue is raised about a statement of defence. The above-named provision grants power to the Court to give permission or leave for a statement of defence to be filed, without statements on oath being frontloaded along with it.
In the case of Ngere v. Okuruket XIV [2014] 11 NWLR (Pt. 1417) 147 at 175, the Court stated that “Leave” means permission. In the lower Court’s judgment, it pointedly ruled on the validity of the statement of defence, which did not arrive Court with statements of oath of witnesses accompanying the statement of defence. The 3rd respondent did not call any witness of its own and the statement of defence it filed was valid. Apart from the above, the 3rd respondent pleaded, as requisite warning, in paragraph 7 of its statement of defence that it shall rely on the statement on oath filed by the 1st respondent. That is permissible in law. As in the case of legal argument, a party desirous of not wasting the Court’s time may adopt what has already been submitted to the Court. Thus, the statement of defence filed by the 3rd respondent was not without requisite statement on oath, having adopted evidence intended to be led and eventually led by the 1st respondent, which substantially fits into the material facts pleaded by the 3rd respondent in its statement of defence.
Even where a statement of defence is filed and suggested to be invalid, in the case of Akindele v. Abe (2021) 17 NWLR (Pt. 1804) 1 at 34-35, the Supreme Court broadly stated that a statement of defence filed in contravention of the rules, though irregularly filed, is not a nullity but a voidable document which remains a valid document until it is set aside. If a defence has been put in, though irregularly, the Court would do right in attending to what it contains. In other words, the Court in the exercise of its primary duty to do justice, can invoke its extensive discretionary powers and look at the invalid but not void statement of defence and then do what the justice of that case demands. If before judgment is entered, the defendant serves a defence, even though it is out of time, a Court of trial must never ignore it. So, a statement of defence filed out of time is not void but voidable, meaning that if the plaintiff or claimant raises objection, it can be struck out by the Court. However, where the claimant or plaintiff keeps mum and allows the irregular statement of defence to be used in the litigation until the final judgment, he will not be heard to complain thereafter.
To confirm the decisions narrated above, Order 51 of the Federal High Court (Civil Procedure) Rules, 2009 provides, on effect of non-compliance, thus:
1. (1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.

(2) The Court may on the ground that there has been such a failure as mentioned in Sub-rule (1) of this Rule and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, Judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
Application to set aside for irregularity.
2. (1) An application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, Judgment or order therein, shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings.
(2) Any application under Sub-rule (1) of this Rule may be made by summons or motion on notice, and the grounds of objection shall be stated in the summons or motion on notice.
The appellant, who participated at the trial until judgment, did not file any motion or summons before the lower Court to formally challenge the competence of the 3rd respondent’s statement of defence and the appellant is not enabled by law to do so, on appeal, in the circumstances of this appeal.
Having stated the above, in determination of the first issue, it has to be recalled that the appellant failed to mention or show how the 3rd respondent’s failure to frontload witness’ statement of oath occasioned miscarriage of justice in the case on appeal, going by the obvious fact that two other defendants at the trial frontloaded statements on oath for their witnesses, who eventually testified before the lower Court. It is hereby determined that there is no merit in the first issue, which is hereby resolved against the appellant.

Resolution of the second issue
The second issue asks:
Whether the learned trial judge was right and/or justified in holding that there was no iota of evidence before the Court connecting the alleged ailment of the plaintiff to the gas explosion? (Distilled from ground 1).

As depicted in the prayers laid before the Court by the appellant, his claim is one predicated on personal injury, deriving from allegation of negligence against the respondents in this appeal. It is apposite at this point to embark on a narration of some attendant principles leading to the consideration of the type of claim before the lower Court.

The background facts to be immediately recalled is that the appellant was an employee of the 1st respondent. The 1st respondent had a contract, with the 2nd respondent, to provide security men for the operations of the 2nd respondent. The appellant was seconded, by the 1st respondent, to provide security for the operations of the 2nd respondent who was executing a contract for and within the premises of the 3rd respondent. On 01/02/2009, a gas explosion took place within that premises. The appellant claimed to have been affected by the gas explosion. This case was, thereby, ignited. The appellant accused the three respondents of negligence.

There is a critical issue, which the lower Court and the parties obviously overlooked in the appeal. While the appellant’s case is to the effect that there was a gas explosion on 01/02/2009, which affected his health and well-being, the question which remained unanswered is what type of gas exploded which had such an effect. As there are several categories or species of gases, a gas explosion, as a stand-alone statement, conveys nothing perilous, without accompanying introduction of other facts about the type or category of gas, which exploded and which had the potential to cause havoc to the appellant. PW2, who testified as a doctor who treated or attended to the appellant at the University Teaching Hospital Port Harcourt (UPTH), failed to point the lower Court to the type or class or nature of gas he found, which affected the health and well-being of the appellant. It is simply a question of fact and one of science. The appellant, in paragraph 8 of his statement of claim (page 7 of the record of appeal), pleaded thus:
“8. The Plaintiff avers that subsequently that whilst at the University of Port Harcourt Teaching Hospital, medical tests conducted on him revealed that his health has been severely ruined and also confirmed that Plaintiff was being rendered almost impotent as a result of the matters aforesaid.”

It is when that question is answered that it may now be set against the type of symptoms PW2 found in the appellant and which PW2 treated him for.

Apart from the above, the appellant claimed that the gas explosion took place on 01/02/2009. The evidence of PW2 is about his first contact with the appellant sometime in June, 2009. At page 359 of the record of appeal, under cross-examination of PW 2 by Chief J. K. Mong, for the 1st respondent, PW 2 testified:
“It is correct that the examination was conducted on the plaintiff after I took his history. It is also correct that a patient’s medical history includes a patient’s story of how he is feeling and what he has gone through. It is correct that while I was taking the medical history of plaintiff, he told me that he was weak, had weight loss, chest pain and abdominal discomfort. It is also correct that part of his history to me was that there was an explosion at his place of work. It correct that this examination was carried out in June, 2009. I found out from the alleged explosion occurred and what I found was the explosion occurred just before he developed the symptoms he came down to the hospital with. I cannot be precise on what just before entails as I don’t know whether it is a week or less or more. If you say just before, it might be different from what a patient tells me so if a patient tells me just before, it means, minutes or hours ago. It is correct that I conducted several examinations on the plaintiff.”

The natural question which arises is: what happened to the appellant immediately or contemporaneously with the incident of gas explosion? The appellant testified about initial treatments he received at a facility under the control of the 2nd respondent, immediately after the incident, but failed to call any evidence or witness from that facility. There may have been some help from Exhibit D2, but the appellant’s counsel, in his professional opinion, rejected the document by describing it as “documentary hearsay”, which this Court should discountenance.

The evidence of PW2 cannot, by any stretch of imagination, be linked to the gas explosion, which occurred about four months before both PW2 and the appellant first met, except, there is clear evidence linking both dates and activities which occurred on both dates, especially because PW2 testified that the appellant was not referred to University of Port Harcourt Teaching Hospital (UPTH), which evidence fatally contradicted the evidence of the appellant who testified that he was referred to UPTH, by the 2nd respondent’s facility where he was initially treated. At paragraph 8 of the appellant’s statement on oath adopted at the trial (page 12 of the record of appeal), the appellant testified:
“8. That due to the critical nature and severity of my condition, I was initially moved to the 2nd Defendant’s clinic at Omoku and subsequently referred to other hospitals including the University of Port Harcourt Teaching Hospital.”
Under cross-examination by C. S. Ezem Esq., for the 2nd respondent, PW2 testified (at page 362 of the record of appeal), thus:
“The UPTH is a Federal Hospital. The plaintiff was not referred from any hospital to UPTH.”

Referrals between health facilities is usually documented and such a document would easily state what was being referred and reason(s) for such referral. The lower Court was therefore on a very strong wicket when it held at page 412 of the record of appeal:
“It is however important to state at this juncture that the defendants are not disputing that there was gas explosion on the defendant’s premises on the 1st February, 2009, rather their contention is that the plaintiff was not injuriously affected by the explosion as claimed by him.”

The lower Court was correct, when it held, at pages 417-418 of the record of appeal that the appellant failed to link his complaint of impairment of health to the gas explosion, which occurred on 01/02/2009, as follows:
“There is no iota of evidence placed before the Court connecting the alleged ailment of the plaintiff to the gas explosion.
…
More so, the evidence adduced by PW1 and PW2 were largely controverted during cross-examination and such cannot be relied upon. I also agree with Mong Esq., that plaintiff failed to place any evidence before the Court on the alleged frequent heart seizures which he said he will at trial lead evidence to prove.”

The two findings quoted, immediately above, are unassailable and borne out by the record of appeal.

Apart from the above, PW2 admitted that he authored Exhibit 1, which is dated 02/12/2009. In the opening lines of Exhibit 1, it is written: “The above named patient of ours presented to us on 8th of February, 2009 with complaints of weakness, cough, weight loss, chest pain and abdominal discomfort. He also complained of loss of libido. These followed exposure to gas explosion at his workplace at Agip gas plant in Omorku prior to which he was well and never smoked cigerattes.”

An examination of Exhibit 1 will confirm that “February” was struck out with a pen, but still visible and “June” is written above “February”, in an apparent attempt to make the document justify the simulated case of the appellant that he was treated by PW2 in June, 2009. The case of the appellant is that he met PW2 for the first time in June, 2009 but Exhibit 1 was made to read that they met in February, 2009 which is simply factually impossible. So, Exhibit 1 was tampered with. When confronted with the tampering, which is winking at all examiners of the document, PW2, exercising wisdom toward self-preservation, denied being the author of the alteration. If PW2 did not author the alteration and actually, wrote the document unaltered, it means PW2 prepared the document falsely stating that he treated the appellant in February, 2009 which is a blatant falsehood. So, who altered the document? The appellant tendered Exhibit 1, which was not even tendered through PW2, its purported author.

To be noted also is that PW2, under cross-examination, admitted that he authored Exhibit 3, which is dated 01/09/2009. In Exhibit 3, PW2 wrote:
“The above named presented to our Family Medicine Department on 8th June, 2009 with 4 month history of loss of libido and excessive weakness and an unspecified duration of abdominal discomfort.
He said he was exposed to gas explosion at work at Agip Plant in Omoku in Rivers State.
On examination, he was found to be stable looking, in no obvious distress, well oriented in time, person and place without any neurologic deficits.
His Cardio-vascular system revealed occasional arrythmia. All other findings were essentially normal except suprapubic tenderness.
An assessment of Occupational Accident (Gas poisoning) and UTI/STI were made.”

Apart from the fact that Exhibits 1 tells a lie about itself and Exhibit 3 is inconsistent with Exhibit 1, both documents are evidently unhelpful to the case of the appellant. The appellant and PW2 have been engaged in unholy acts of generation of unholy documents tendered in evidence before the lower Court. Exhibits 1 and 3 have no value.

Having taken care of the above, this Court is aware that the appellant pleaded the maxim res ipsa loquitur and the rule in Ryland v. Fletcher, as alternative to the pleading of negligence. Pleading alternative issues or alternative means of proving material facts is allowed in civil litigation. However, in this appeal, there is no evidence that the appellant was affected by the gas explosion outside the premises of the 3rd respondent, which is a critical component for the applicability of the rule in Ryland v. Fletcher. See the case of S. P. D. C. N. Ltd. v. Edamkue [2009] 14 NWLR (Pt. 1160) 1 at 37, which states that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default or perhaps that the escape was the consequence of vis major (a superior force) or the act of God. The above is what is now regarded as the rule in Rylands v. Fletcher, a rule that has been applied in our Courts. In the case of S. P. D. C. N. Ltd. v. Okeh [2018] 17 NWLR (Pt. 1649) 420, this Court, stated that for the rule in Rylands v. Fletcher to apply, four conditions must be fulfilled. They are as follows:
(a) the defendant must have brought the thing on his land for his own use;
(b) the thing must be likely to cause harm if it escapes;
(c) the defendant’s use of the land must be non-natural;
(d) the thing must actually escape.
It is the determination of this Court that since the appellant was within the premises of the 3rd respondent, the rule in Rylands v. Fletcher was not applicable to the suit.

Concerning the plea of res ipsa loquitur, the case of NEPA v. Alli [1992] 9 NWLR (Pt. 259) 279 and 302 confirms that the application of the doctrine of res ipsa loquitur rests on three conditions namely:
(a) that the thing which caused the damage was under the care and control of the defendant;
(b) that the occurrence is such that it could not have happened in the absence of negligence;
and
(c) that there is no evidence as to how the occurrence took place.

In the instant case, the appellant did not plead, specifically, that any particular one of the respondents was in control of any gas, which exploded. The appellant did not plead or lead evidence on who was negligent out of the trio of respondents. In addition to the above, since the appellant not only relied upon, but also gave particulars and evidence of negligence, it follows that the doctrine of res ipsa loquitur does not, ordinarily, apply. However, in the case of Strabag Construction (Nig.) Ltd. v. Ogarekpe [1991] 1 NWLR (Pt. 170) 733 at 747-749, Uwaifo, J. C. A. (as he then was) believed that the plea may still be available even where negligence is not proved.

As already concluded above, there was no evidence laid before the lower Court, which proved any link between the complaints of health challenges made by the appellant and the incident of 01/02/2009, which makes it impossible to apply the maxim res ipsa loquitur to the appeal. The appellant had a duty to provide and prove primary facts, upon which the finding of res ipsa loquitur may be predicated. The appellant failed to, evidentially, provide what was required. The case of Dare v. Fagbamila [2009] 14 NWLR (Pt. 1160) 177 at 193-194 admonishes that negligence is a question of fact and not law and each case must be decided on its own facts. To succeed and claim in negligence, it is not enough to prove that there was an accident. The plaintiff must prove that the accident was the result of the negligence of the defendant. The circumstance, nature and extent of the accident must be pleaded and evidence adduced thereon. The most fundamental ingredient of the tort of negligence is the duty of care, which must be actionable in law and not just a moral liability. Until a plaintiff can prove by evidence the actual breach of the legal duty of care against a defendant, the action must fail. To find a defendant liable for negligence, there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part. Such evidence may be direct or inferential depending on the circumstance of each particular case. When it is recalled that the appellant pleaded, in paragraph 16 of his statement of claim, that the respondents shirked their statutory duty to him and are thereby liable to the appellant in negligence, without mentioning any provision of a statute offended, it is easy to conclude, going by all said above, that the lower Court was correct when it held that the appellant did not prove his case.

Resolution of the third issue
The third issue for determination asks:
Whether the learned trial judge was right and or justified in holding that the plaintiff failed to adduce evidence in proof of his items of special damages? (Distilled from grounds 2, 3 and 4).

It must be restated, at this point, that having held that the appellant failed to link his claim to the incident of gas explosion which took place on 01/02/2009, there was no reason or basis for the lower Court to have awarded any form of damages to the appellant. However, for the purpose of completeness, this Court will, for the record, consider and render its opinion on the third issue.

The burden of proof in an action for damages for negligence, rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by the negligent act or omission for which the defendant is, in law, responsible. This involves the proof of the following necessary ingredients, viz:
(i) the existence of a duty to take care owed to the complainant by the defendant;
(ii) the breach of that duty; and
(iii) damage suffered by the complainant which must be connected with the breach of duty of care.
Once these requirements are satisfied, the defendant will be held liable in negligence. See also Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356. Once liability is located, award of damages which is proved will follow the finding of the Court. A person injured by another’s wrong is entitled to general damages for non-pecuniary loss such as pain and suffering and loss of amenities and enjoyment of life.

See Shell Petroleum Development. Co. Nig. Ltd. v. Tiebo VII (1996) 4 NWLR (Pt. 445) 657 and Umudje v. Shell Pet. Dev. Co. of Nig. (1975) 9-11 SC 155.

It is also accepted in law that there can be no action in negligence unless there is damage. Negligence is only actionable if actual damage is proved. The gist of the action is damage and there is even no right of action for nominal damages. Negligence alone does not give a cause of action. Damage alone does not give a cause of action. The two must co-exist. See Iyere v. Bendel Feed & Flour Mill Ltd [2008] 18 NWLR (Pt. 1119) 300.

In this case, the lower Court awarded the sum of N500,000.00 (Five hundred thousand naira), as general damages, to the appellant, in circumstances, which are unclear, as the purpose for its being granted did not find any favour of explanation by the lower Court, as it should be. The lower Court, on the other hand, found that the appellant’s claim for special damages was not proved. It is the refusal to grant the appellant’s claim for special damages which caused the appellant to appeal, among other issues.

Award of damages is not based on sympathy or sentiments, but on legal principles dictated by proven facts of the case. If a plaintiff claims damages for pain and suffering, he must specifically so plead and lead evidence to that effect. Usually, there must be evidence of reasonably prolonged suffering. Perfect compensation is hardly possible. In the same vein, the law does not permit an unnecessary windfall. All that is required in awarding damages in a personal injury case, is a fair and reasonable compensation that would meet the justice of the case. The Court proceeds with the underlying assumption that damages are compensation for injury sustained and are not meant to be punitive.
In addition to the above, in the assessment of damages, a distinction is always drawn between two main heads of damages. One classification distinguishes pecuniary loss from non-pecuniary loss. Another classification is between special damages and general damages. Special damages mean the pecuniary loss suffered up to the date of the trial e. g. loss of earnings. General damages on the other hand, are those other heads of loss: e.g., pain and suffering. The requirement of the law is that where the damage is based on special damages, it must be pleaded and proved. General damage is implied. See A.G., Leventis (Nig.) Plc v. Akpu (2007) 17 NWLR (Pt. 1063) 416. General damages may be awarded for the pain and suffering and nervous shock, which the plaintiff has undergone in the past and is likely to undergo in the future. This may include a substantial sum for the mental agony due to the plaintiff’s appreciation of the fact that his life has been shortened. In addition, the Court may award substantial damages for loss of amenity or loss of faculty. But these damages can only be fair and adequate compensation; no sum could be perfect compensation for a grave injury. Thus, everything must depend upon the nature of the injury and the circumstances of the plaintiff. See Anamali v. Ijirigho (1960) SCNLR 172.
On the head of pecuniary loss, the principle of law which relates to it is that of restitutio in integrum – so far as actual or prospective pecuniary loss is concerned the amount of compensation can be assessed with a degree of accuracy which will go towards putting the injured person in the same position as he would have been in, had he not sustained the wrong. On the principle relating to non-pecuniary loss, it is that of fair and reasonable compensation.

As we are not concerned with the award of general damages, it is important to note that the lower Court concluded the portion of its judgment refusing to grant that head of claim, at page 417-419 of the record of appeal, thus:
“More so, the evidence adduced by PW1 and PW2 were largely controverted during cross-examination and as such cannot be relied upon.…
It is settled beyond argument that Courts do not act on assumptions and suppositions, I must say that the case of the plaintiff herein is built on speculations and not on concrete facts.…
I am without doubt that there is no credible evidence of such character placed before the Court to cause the plaintiff to be entitled to an award of special damages.”

It is unfortunate that the appellant did not find understandable help from the admonition of the lower Court quoted above, such that this appeal could have been avoided. Special damages are, in law, required to be specifically pleaded and strictly proved. The appellant, who desired to be paid for treatment, had not embarked on any treatment for which retrospective payment may be demanded. The appellant sought an order of the lower Court for him to be paid in foreign currency to enable his paying a visit to a foreign hospital for treatment, which will entail his having to travel out of the country, in company of another person, who was not named or introduced to the lower Court.

In all the demands of the appellant, material details were completely omitted. I will mention two of them. To which country is the appellant headed? Another detail omitted is the hospital the appellant intends to visit for treatment and at what hospital-determined cost? The appellant, through PW2, testified that the figures quoted in the prayers were obtained from the internet or a journal. The evidence of the appellant, which obviously took direction from PW2, who ruinously testified, under cross-examination by Chief J. K. Mong (for the 1st respondent, at page 361 of the record of appeal) as follows:
“I wrote by reports based on the documents I had on me from the patient’s folder. It is not correct that in September, when I wrote my report that I did it without looking at the chat or folder of plaintiff. I am not an agent to any hospital in India or USA but information is available to anyone on the internet or journals on how much it will cost to treat any ailment in India or USA. I don’t know of any particular hospital plaintiff would have gone to either in India or USA if he had gone there, I am not an agent of any hospital. … It is possible to get some of the treatment on the ailment I have listed against plaintiff here in Nigeria. The possibility I mentioned can be found in UPTH.”

PW2 did not give any cogent evidence or offer any tangible basis for the grant of what was claimed as special damages. For example, the appellant desired the lower Court to award a sum for two persons to obtain travel visas without naming the country whose visa fees was named in the prayers. The lower Court was right that the appellant was speculating with his case. The lower Court justly refused to dance to the music sought to be played by the appellant. The third issue is resolved against the appellant. There was no strict proof of the claim for special damages.

Resolution of the fourth issue
The fourth issue asks:
Whether the learned trial judge was right and or justified in not giving judgment in favour of the plaintiff?

The fourth issue, as couched, is inherently defective because it tells a lie that the lower Court did not give judgment in favour of the appellant. The lower Court actually gave judgment in favour of the appellant because it awarded general damages in favour of the appellant. At page 420 of the record of appeal, the lower Court concluded its judgment:
“Consequently, I hold that the sum of N500,000 (Five Hundred Thousand Naira) is hereby awarded as general damages in favor of the plaintiff against the defendants herein jointly and severally.”

In the circumstance, the fourth issue, which is not derived from any of the grounds of appeal is not competent and is hereby struck out.

Even if the issue will have to be answered, the answer is to be found in the resolution of the second and third issues above. The appellant failed woefully to prove his case before the lower Court. The appellant also appears to have muted the allegation that the lower Court failed in its duty when it failed to apply the provisions of the Torts Law of Rivers State, Cap. 131, Laws of Rivers State, 2002, to the case before it. The appellant did not identify any portion of the statute, which should have been applied and how its non-application caused miscarriage of justice to the appellant. It is not the duty of a Court to argue the case of a party before it. In the circumstance, it is determined that there is no merit in the fourth issue, which is hereby resolved against the appellant.

Conclusion
While negligence is one thing, the damages recoverable therefrom is another. Thus, for a plaintiff to recover the damages he claims he must lead evidence in proof of his entitlement thereto. Award of damages depends on the facts which sustain the plea for the award. An award in the absence of these facts is one made on the basis of incorrect principle. See International Messengers Nigeria Limited v. Nwachukwu [2004] 13 NWLR (Pt. 891) 543. The appellant did not lead evidence to sustain the categories of his claim. In the case of Abubakar v. Joseph [2008] 13 NWLR (Pt. 1104) 307 at 335, it was held that the proper order for a Court to make where it finds that a plaintiff’s case in negligence is not made out as pleaded is one of dismissal of the suit.

Having resolved all four issues for determination of the appeal against the appellant, there is no merit in the appeal, which is hereby dismissed.

TANI YUSUF HASSAN, J.C.A.: I read in draft the lead judgment of my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA. I agree that the appeal lacks merit and it is also dismissed by me.

PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Olabode Abimbola Adegbehingbe, JCA just delivered.

I agree with his reasoning that the appeal lacks merit and should be dismissed.

Accordingly, I join his Lordship in dismissing same. The judgment of the lower Court in this appeal is hereby affirmed.
Appeal Dismissed.