EFAB PROPERTIES LIMITED v. LEADWAY ASSURANCE COMPANY LIMITED (2019)

EFAB PROPERTIES LIMITED v. LEADWAY ASSURANCE COMPANY LIMITED

(2019)LCN/13852(CA)

In The Court of Appeal of Nigeria

On Monday, the 11th day of February, 2019

CA/A/164/2017

RATIO

SPECIAL DAMAGES: WHAT A PLAINTIFF MUST PLEAD AND HOW

SPECIAL DAMAGES: WHAT A PLAINTIFF MUST PROVE AND HOW
In the case of NEKA BBB MANUFACTURING CO. LTD v. AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt. 1) 32 the apex Court stated thus:
“Where the claimant specifically alleges that he suffered special damages he must perforce prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms, easily cognizable, the loss or damages he has suffered so that the opposing party and the Court will see and appreciate the nature of the special damages suffered and being claimed.”
The law in fact is also well settled, that special damages must be strictly proved by the person who claims to be entitled to them even though the nature of proof depends on the circumstances of each case. See Gabriel a Okunzua v. Mrs. E. B. Amosu & Anor (1992) NWLR (Pt. 248) 416 or (1992) 7 SCNJ 243. In proof of special damages, the claimant must therefore lead evidence to prove the type of damages of such a character as would suggest that he 15 indeed entitled to such award under the head. See OSHINJINRIN & ORS v. ELIAS AND ORS (1970) All NLR 153 at 156.” PER ABDU ABOKI, J.C.A.

PROVE OF SPECIAL DAMAGES: EXTENT OR LEVEL OF PROOF REQUIRED

Strict proof in the con of special damages does not mean an unusual proof or proof beyond reasonable doubt. What is required is that the Plaintiff should establish his entitlements to that category of damages by credible evidence of such character as would suggest he is entitled to an award under the head. So where a Plaintiff pleads special damages with particularity and the defendant admits and/or does not challenge or contradict the evidence given, the Plaintiff is deemed to have discharged the onus of proof and unless the evidence given is such that no reasonable tribunal can accept it, the evidence ought to be accepted as strictly proved. See:
S.P.D.C. NIG LTD v. TIEBO VII (2005) 9 NWLR (PT 931) 439;
S.P.D.C. NIG LTD v. OKONEDO (2007) LPELR 8198 (CA). PER ABDU ABOKI, J.C.A.

Before Their Lordships

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

EFAB PROPERTIES LIMITED Appellant(s)

AND

LEADWAY ASSURANCE COMPANY LIMITED Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory Abuja, delivered by on the 16th of January 2017, wherein the Trial Court ordered the Appellant to pay the Respondent special damages in the sum of N3,556,505.00 (Three Million, Five Hundred and Fifty Six Thousand, Five Hundred and Five Naira), being the cost of replacing the antennae and water tank mounted on top of the Respondent’s building which the Appellant’s admitted was damaged by its Tower Crane on the 18th of April 2014.

The brief facts of this case as can be gleaned from the Record is that Respondent, as Plaintiff at the Trial Court alleged that a tower crane, brought upon the Defendant’s land situate or lying adjacent the Respondent’s building, which was being managed and/or controlled by the Appellant or its agents for construction purposes, collapsed unto its building on the 18th of April 2014, and damaged several items. The Respondent therefore, by a Writ of Summons and Statement of Claim filed on the 21st of October, 2014, claimed against the Appellant, the following reliefs: 1. A DECLARATION that the Defendant’s action in erecting the crane in the position it erected same, and failing to relocate or remove it, even after the Plaintiff’s complaint and warning that damage was likely to result and after the damage did in fact occur, was negligent and constituted a nuisance.
2. The sum of N5,736,505.00 (Five Million, Seven Hundred and Thirty Six Thousand, Five Hundred and Five Naira) as damages, being the cost of replacing the items that were damaged by the Defendant’s crane, when the first incident of collapse occurred.
3. The sum of N5,000,000.00 (Five Million Naira), as exemplary damages for the conduct of the Defendant and its gross negligence and nuisance.
4. AN ORDER directing the Defendant to forthwith remove the crane from its current location and place it in an area that is not near the Plaintiff’s building and in a manner that will ensure the crane cannot hover over the Plaintiff’s airspace.
5. AN ORDER of perpetual injunction restraining the Defendant either by itself or its agents, privies, servants and/or officers howsoever described near the Plaintiff’s building in any location/position that is likely to expose the Plaintiff tom potential danger.

The Appellant joined issues with the Respondent by filing its statement of defence dated 26th November 2014.

In its judgment delivered on the 16th of January 2017, the Trial Court, per Peter O. Affen J., held as follows:
1. It is declared that the Defendant was negligent and breached the duty of care owed to the Plaintiff when it failed to secure or prevent its tower crane from crashing unto the Plaintiff’s building on 18/4/14 and causing damage to items mounted on top of the said building.
2. The Defendant shall pay to the Plaintiff special damages in the sum of Three Million, Five Hundred and Fifty Six Thousand, Five Hundred and five Naira (N3,556,505.00) being cost of replacing the antennae and water tank mounted on the top of the Plaintiff’s building which was damaged by the Defendant’s Tower Crane on 18/4/14 as admitted by the Defendant.
3. The special damages claimed in respect of the residue of alleged damaged items not admitted by the Defendant as well as the claim for exemplary damages fail and are hereby dismissed.
4. The Defendant shall forthwith remove or relocate the Tower Crane from its current position and manage or control same in a manner that will ensure that it does not hover over or overhang the Plaintiff’s building or expose the Plaintiff to potential injury, loss or damage.
5. I assess the cost of this suit at N50, 000.00 in favour of the Plaintiff and against the Defendant.

It is against this decision that the Appellant herein filed a Notice of Appeal in the Registry of this Court, on the 10th of February, 2017 upon two grounds. See pages 172 to 174 of the printed Record.

In line with the extant Rules of this Court, parties filed and exchanged briefs of argument, which they adopted and relied on, in support of their various positions, when the appeal came up for hearing on the 17th of January 2019.

The Appellant’s brief was dated the 24th of March 2017 and filed on the 27th of March 2107. Obinna Ajoku Esq., who settled the Appellant?s Brief of argument, formulated a sole issue for this Court’s determination, to wit:
“Whether the learned trial judge was right to have relied on Exhibits P2 and P6 that admitted damage to the Items, to award special damages in the sum of N3,556,50500, being the cost of replacing the damaged items, after he had held that the Respondent did not prove damage to its properties?”

J.M.M. Majiyagbe Esq., who settled the Respondent’s brief of argument dated 20th November 2017, filed 5th December 2017 but deemed properly filed and served on the 7th of May 2018; also distilled a sole issue for determination, that is:
“Whether the Respondent discharged the burden of proof required to succeed in its claim for special damages?”

The sole issue distilled by counsel on both sides is the same in purport, though couched differently. I adopt the sole issue formulated by the Appellant, in the determination of this appeal, that is:
“Whether the learned trial judge was right to have relied on Exhibits P2 and P6 that admitted damage to the items, to award special damages in the sum of N3,556,505.00, being the cost of replacing the damaged items, after he had held that the Respondent did not proof damage to its properties?”

It is for the Appellant that for the Respondent to succeed in its claims, it must prove the following: That the Appellant owes it a duty of care; that the Appellant breached that duty of care; that the Respondent suffered damage arising from the breach. He called in aid the case of AYARE v. B.F.F.M (2008) 18 NWLR (PT 119) 300.

Learned counsel for the Appellant referred this Court to the judgment of the Trial Court at page 165 of the Record and contended that the Trial Court, having held that the Respondent did not prove damage of its items, ought to have dismissed the Respondent’s suit. He stated that the Trial Court was in error to have relied on the Appellant’s admission of the purported damage to the Antennae and water tank (Exhibits P2 and P6) to award the Respondent special damages in the sum of N3, 556,505.00

Learned counsel for the Appellant opined that in a claim for special damages, failure to file a defence will not relieve the Plaintiff of the burden of proof of its entitlement to the special damages. Reliance was placed on the cases of:
UNILORIN TEACHING HOSPITAL v. ABEGUNDE (2015) 3 NWLR (PT 1447) 421; S.P.D.C. NIG. LTD v. TIEBO VII & 4 ORS (2005) 9 NWLR (PT 931) 439; N.N.P.C. v. KLIFCO NIG. LTD (2011) 10 NLWR (PT 1255) 209

It is his view that if without conceding that the Respondent’s items were damages, it ought to mitigate its loss by repairing instead of replacing the damages items. He maintained that the Appellant agreed to repair the purported damaged items or the cost of repairs of the purported damages items agreed by the parties and same was pleaded in its statement of defence.

Learned counsel for the Appellant stated that the Appellant, in its statement of defence averred facts which put the failure of the Respondent to mitigate the purported loss in issue. He relied on the case of OKAFOR v. ILUKWE & ANOR (2013) 10 NWLR (PT 1363) 465, and submitted that Exhibits P2, P4 and P6 put the Respondent on notice, which placed the onus on it to minimize the purported damage by complying with the requirements in the Exhibits.

He posited that the Respondent ought to have taken all reasonable steps to reduce the cost or expenses the Appellant will incur, before rushing to file an action at the Trial Court. He cited the case of NIGERIAN MARITIME ADMINSTRATION AND SAFETY AGENCY & ANOR v. HENSMOR NIG LTD (2015) 5 NWLR (PT 1452) 278.

This Court is urged to resolve this sole issue in favour of the Appellant, allow the appeal and set aside the award for special damages.

Reacting to the above, it is submitted for the Respondent that the special damages awarded the Respondent was pleaded in Paragraph 30 of its statement of claim and Exhibits P9 and P9A, which are the Proforma Invoice and Payment receipt issued the Respondent by Habcom Limited which evidenced the replacement of the damaged Antennae at the cost of N800, 000.00 were itemized in Paragraph 31(VI) of the Amended Statement of Claim.

Learned counsel for the Respondent referred this Court to Exhibits P12 and P12 A, which are Proforma Invoice and Payment Receipt issued to the Respondent for the replacement of the water tank and accessories damaged by the Appellant at the cost of N,755,800.00 by Sunkaj Limited, which were itemized in Paragraph 31(VII) of the Amended Statement of Claim.

Relying on the case of U.T.B NIG v. OZOEMENA (2007) 3 NWLR (PT 1022) 448, he submitted that the production of receipt as evidence of payment constituted strict proof of special damages notwithstanding that the maker was not called to give oral evidence.

The further view of learned counsel for the Respondent having admitted that its crane damaged the Respondent’s antennae and water tank, there was no need for further proof. He relied on:
SECTION 123 OF THE EVIDENCE ACT 2011; SABRU MOTORS NIG LTD v. RAJAB ENTERPRISES NIG LTD (2002) 4 SCNJ 370; OLOHUNDE v. PROF. S.K. ADEYOJU (2000) 6 SCNJ 470; OBINECHE & ORS v. AKUSOLA & ORS (2010) 6 SCNJ 88

The concomitance of the above, in the view of learned counsel for the Respondent, is that the claim for special damages was specially pleaded and strictly proved. Reliance was placed on these cases:
OBASUYI & ANOR v. BUSINESS VENTURES LTD (2000) 4 SCNJ 20; ADIM v. NBC LTD & ANOR (2010) 4 SCNJ 222.

He urged this Court to so hold, resolve this issue in favour of the Respondent and dismiss the appeal.

It is trite law that in order to succeed in a claim of special damages, the plaintiff must specifically plead each of the items of the special damages he claims and he must also strictly prove each of the said items to the satisfaction of the Court, as the Court will not act within the realm of conjecture in awarding special damages and also should not rely simply on fluid and speculative estimate of alleged loss or injury sustained by the plaintiff. See TAYLOR v. OGHENEOVO (2012) 13 NWLR (PT 1316) 46 @ 61;
ABI v. CBN (2012) 3 NWLR (PT 1286) 1
B.J. NGILARI v. MOTHERCAT LTD (1999) 12 SC (Pt. 11) 1,
OSUJI v. ISIOCHA (1989) 6 SC (Pt. II) 158.
In the case of NEKA BBB MANUFACTURING CO. LTD v. AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt. 1) 32 the apex Court stated thus:
“Where the claimant specifically alleges that he suffered special damages he must perforce prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms, easily cognizable, the loss or damages he has suffered so that the opposing party and the Court will see and appreciate the nature of the special damages suffered and being claimed.”
The law in fact is also well settled, that special damages must be strictly proved by the person who claims to be entitled to them even though the nature of proof depends on the circumstances of each case. See Gabriel a Okunzua v. Mrs. E. B. Amosu & Anor (1992) NWLR (Pt. 248) 416 or (1992) 7 SCNJ 243. In proof of special damages, the claimant must therefore lead evidence to prove the type of damages of such a character as would suggest that he 15 indeed entitled to such award under the head. See OSHINJINRIN & ORS v. ELIAS AND ORS (1970) All NLR 153 at 156.”
In the instant case, the Respondent by its further amended statement of claim at Paragraphs 30 and 31; (pages 82 to 83 of the Record); pleaded that the Appellant damaged its antennae and water tank. He tendered Exhibits P9, P9A, 12 and 12A. These averments were admitted by the Appellant vide Exhibits P2 and P6. The Appellant expressed regret in Exhibit P2 that its crane damaged some antenna on top of the Respondent’s building and offered to undertake repairs, while in Exhibit P6, the Appellant’s Solicitors (Obinna Ajoku & Co.) stated that “our crane fell due to heavy wind and it affected your client’s antenna and water tank placed on top of the building.” The said averments are therefore deemed admitted and need no further proof. See Section 123 of the Evidence Act.
Strict proof in the con of special damages does not mean an unusual proof or proof beyond reasonable doubt. What is required is that the Plaintiff should establish his entitlements to that category of damages by credible evidence of such character as would suggest he is entitled to an award under the head. So where a Plaintiff pleads special damages with particularity and the defendant admits and/or does not challenge or contradict the evidence given, the Plaintiff is deemed to have discharged the onus of proof and unless the evidence given is such that no reasonable tribunal can accept it, the evidence ought to be accepted as strictly proved. See:
S.P.D.C. NIG LTD v. TIEBO VII (2005) 9 NWLR (PT 931) 439;
S.P.D.C. NIG LTD v. OKONEDO (2007) LPELR 8198 (CA).
I agree with the Trial Court in its judgment, at page 166, where it held inter alia as follows:
“But as it relates to the antennae and water tank, it seems to me that the Plaintiff is eminently entitled to special damages. It hardly bears mention that the Defendant’s admission that the tower crane damaged some antennae and the water tank mounted on top of the Plaintiff’s building relieves the Plaintiff of the burden of proving that these items were actually damaged.

Among the items specifically pleaded and particularized in Paragraph 30 of the amended statement of claim are Network Radio Antenna, 1.8 m C Band Antenna and one roof water storage made of glass reinforced plastic. Exhibits P9 and P9A are Proforma Invoice and payment receipts respectively issued to the Plaintiff by Habcom Limited showing that the damaged antennae were replaced and installed at the cost of N800,625.00 whilst Exhibits P12 and P12,4 are an invoice and payment receipt respectively issued by Sunlaj Limited to the Plaintiff showing that the water tank and accessories were replaced and installed at the cost of N2,755,880.00 These exhibits were tendered by the Plaintiff and admitted in evidence without objections by the Defendant…?
In the instant case, the evidence adduced for the Respondent meets the requirement of strict proof envisaged by law.
I therefore resolve this sole issue against the Appellant.

On the whole, I find this appeal to be devoid of merit and it is hereby accordingly dismissed. The decision of the trial Court delivered on 16th January, 2017 in suit No. FCT/HC/CV/289/2014 is hereby affirmed.

ADAMU JAURO, J.C.A.: I have had the advantage of reading in advance the judgment just delivered by my learned brother, Abdu Aboki, PJCA, and I am in agreement with the reasoning and conclusion to the effect that the appeal is lacking in merit.
I adopt the said judgment as mine and join my brother in dismissing the appeal. I abide by all consequential orders made therein.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE ABDU ABOKI, PJCA, I agree with the reasoning, conclusions and orders therein.

Appearances:

Obunna Ajoku, Esq. with him, Dauby EbizemohFor Appellant(s)

Sylvester Eigbedion, Esq.For Respondent(s)

Appearances

Obunna Ajoku, Esq. with him, Dauby EbizemohFor Appellant

AND

Sylvester Eigbedion, Esq.For Respondent