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UBA PLC & ANOR v. I. U. FOOD LTD & ANOR
CITATION: (2018) LPELR-45397(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON THURSDAY, 28TH JUNE, 2018Suit No: CA/J/141/2012
Before Their Lordships:
UCHECHUKWU ONYEMENAM Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal
Between1. UNITED BANK FOR AFRICA PLC2. MATTHEW ADEGBOLA - Appellant(s)
And1. I. U. FOOD LIMITED2. MUSA MOHAMMED - Respondent(s)
RATIO DECIDENDI1. DAMAGES - MEASURE OF DAMAGES: Measure of damages in an action for negligence
"The law is and settled that that the measure of damages in an action for negligence isfounded on the principle of restititio in integrum, which means that the owner of a damagedvehicle as a result of the negligent act of another is entitled to restitito in integrum. In otherwords, the owner should recover a sum such as will replace his loss as far as can be done bycompensation in money, and to be in the position as if the loss had not occurred, subject tothe rules of law on remoteness of damages. See the case of LAGOS CITY COUNCIL CARETAKERCOMMITTEE V. BENJAMIN O. UNACHUKWU (1978) 3 SC 199."Per WILLIAMS-DAWODU, J.C.A. (P.12, Paras. B-E) - read in context
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2. DAMAGES - SPECIAL DAMAGES: How to plead and prove special damages"Special damages are such that the law will not infer from the nature of the act. All lossesclaimed on every item must be specifically stated in the pleading in terms of value andamount. See the case of SHODIPO & CO. LTD. V. DAILY TIMES (1972) ALL NLR 842. The apexCourt in ODULAJA V. HADDAD (1973) 11 SC 357 held that,"Strict proof does not mean unusual proof or proof beyond reasonable doubt. What is requiredis that the party should establish his entitlement to that category of damages by such credibleevidence of such character as would suggest that he indeed is entitled to an award under thathead.'' In SPDC NIG. LTD V. TIEBO VII ORS (2005) 9 NWLR (PT. 931) 439 the apex Court statedthus in that regard per Oguntade JSC as he then was, ?"..... In some cases, it may benecessary to show documentary proof of loss sustained while in others it may be unnecessary,the important thing is that the evidence proffered must be qualitative and credible and suchas lends itself to quantification.....'' This Court, in EZENWA BROS. NIG LTD. V. ONA-JONES NIG.LTD. (2012) LPELR-9789 CA, per Adamu Jauro JCA, in similar vein held that, "proof of specialdamage is not radically different from the general method of proof in civil cases.'' See furtherthe cases of NWABUOKU V. OTTIH, OSHINJIRIN V. ALHAJI ELIAS (1970) 1 ANLR (PT. 1) 153 andEMIRATE AIRLINE V. MISS PROMISE MEKWUNYE (2014) LPELR-22685 CA. Going through thegamut of the Record, one is able to agree with the position of the Court that: "the defendantsdid not dispute the amount claimed in their pleadings neither do they cross examined (sic) theprosecution witnesses on this issue or call evidence to disprove same which amounts toadmission. I am of the firm view that plaintiffs are entitle (sic) to their claim for lost of revenuedue to the accident. '' ?See pages 13-14, 19-22, 24-26, 40-41 and 128 of the Record. It isimportant to note that, for proof of special damages as afore stated, it is not to be unusualproof, or proof beyond reasonable doubt and it is not in all cases that the documentary proofof loss sustained must be tendered. See the cases ODULAJA V. HADDAD supra, SPDC NIG. LTDV. TIEBO VII ORS supra, NWABUOKU V. OTTIH supra, OSHINJIRIN V. ALHAJI ELIAS supra andEMIRATE AIRLINE V. MISS PROMISE MEKWUNYE. The Court consequently entered judgment inthat regard as follows: "The sum of N4, 000. 00 special damages for loss of user payable perday from 15th June, 2009 till the date the defendants repairs (sic) and hand over the vehicleto the plaintiffs.''Per WILLIAMS-DAWODU, J.C.A. (Pp. 15-17, Paras. B-D) - read in context
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3. DAMAGES - MITIGATION OF DAMAGES: Effect of failure of a claimant to mitigate hisloss/damage"In my considered view and humbly, the Court was right to have found in favour of theRespondent for the loss of revenue as it did. However, it would appear from the Record thatthere were certain factors that the Court ought to have considered before concluding the issueof the loss of revenue. It is the law that, a party has the responsibility to ''mitigate his loss asthe incident is not an avenue for hitting undeserved gold mine ad infinitum.'' See the cases ofKEREWI V. BISIRIYU ODUGBESAN (1965) 1 ANLR 98 and UBANI-UKOMA V. G.E. NICOL (1962) 1ANLR 105. From the Record, it would appear that the 1st Respondent did not mitigate its loss.Its vehicle was in the custody of the 1st Appellant from about two three days following theaccident which occurred on June 15th, 2009. PW5 testified as one who was in charge of thebusiness of the 1st Respondent in Bauchi and stated that he agreed that 1st Appellant shouldgo and repair the vehicle in the presence of the DPO at the GRA Police Station. See pages43-44 of the Record. From the testimony of the Respondents and their witnesses, the vehiclewas still with the Appellants even as at the trial at the Court below, unrepaired, which ofcourse was the reason for the said relief granted and the instant appeal. The accidentoccurred on June 15th, 2009 the hearing of the suit commenced May 4th 2010 and closed onJuly 6th 2011 as on pages 12-85 of the Record. It is also pertinent to state that from theevidence before the Court, the issue regarding the signing of the insuranceform as a precondition for the repairs of the Respondents' vehicle, in my considered andrespectful view was incorrectly concluded by the Court. The reason for the Respondents tosign the said forms was clearly stated and explained by the Appellants. That, since it was theirInsurance Company, Leadway Assurance, that was going to be financially responsible for therepairs of the Respondents' vehicle, they needed the Respondents to sign. The argumentagainst it by the Respondents in my view was misplaced. That, the treatment of the injureddriver must be paid for and that they should repair the vehicle first. One holds the view andhumbly that the issues are different. Reimbursement of the medical bills from the Record wasnot contested or refused at any time, the Appellants requested for receipts of the treatmentreceived by 2nd Respondent. There was no evidence to the effect that the form was toacknowledge that repairs had been effected, the Respondents never complained in that veinand the Appellants explained the need for the forms. See pages 12-78. The Respondents couldhave mitigated their loss if a different attitude was taken with regard to the insurance form.See also pages 44and 45 of the Record. They could have enquired and satisfied themselves onthe need for the insurance forms up to the possible top most management of the 1stAppellant before deciding not to sign the forms. One on this point is in no way exonerating theresponsibility which the 1st Appellant had agreed to, neither is one oblivious of the fact ofdelay or the length of time that elapsed in consequence. The 1st Appellant from the Record isstill ready to repair the 1st Respondent's vehicle. An appellate Court has jurisdiction to look atthe evidence on record to see whether they justify the conclusions of the learned trial Court ornot. Ot is ordinarily not the function of an appellate Court to disturb the findings of fact of thetrial Court as it saw, heard and was therefore ought to be better able to decide with theimaginary scale of justice. See the cases of BALOGUN V. AKANJI (1988) 1 NWLR 301 SC,KODILINYE V. MBANEFO ODU (1935) 2 WACA 365, and FATOYINBO 7 ORS V. WILLIAM ALIASSANNI & ORS (1956) 1 FSC 87.?From the foregoing, as can be seen with regard to the principle of mitigation as well as otherfactors which in my view with respect, which appear were not put into consideration or werewrongly interpreted, one finds the need and justification herein to interfere with the award onspecial damages made by the Court below, having correctly found, as regards the period oftime the sum of N4,000.00 should be paid daily to the Respondent. See the cases ofOMOREGIE V. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41 and ANYANWU V. MBARA (1992) 5NWLR 386."Per WILLIAMS-DAWODU, J.C.A. (Pp. 17-21, Paras. E-C) - read in context
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4. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof incivil cases; when such burden will shift"Civil cases are proved on the preponderance of evidence or balance of probabilities. Burdenof proof is on the party who asserts a fact and has to prove same with cogent and credibleevidence before it shifts to the opposing party. See the cases of DAODU V. NNPC (1998) 2NWLR (PT. 538) 355, KALA V. POTISKUM (1998) 3 NWLR (PT. 540) 1, ITAUMA V. AKPA-IME(2000) 7 SC (PT. 11) 24, ELIAS V. DISU (1962) 1 ALL NLR 214 and LONGE V. FBN PLC. (2006) 3NWLR (PT. 967) P. 228. A party is not allowed to rely on the weakness of the case of theopposing party. See the cases of IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) P. 80, ELIAS V.OMO-BARE (1982) 2 SC P. 25 and AGBI V. OGBEH (2006) 11 NWLR (PT. 990) P. 65."PerWILLIAMS-DAWODU, J.C.A. (Pp. 11-12, Paras. E-B) - read in context
5. TORT - NEGLIGENCE: Fundamental ingredients a plaintiff must prove to succeed in an actionfor negligence"Therefore, for a Claimant to succeed in an action for negligence, he must plead and showevidence of the duty of care owed by the opposing party, the breach by the party and thedamages suffered thereby, save where the party admits the wrong."Per WILLIAMS-DAWODU,J.C.A. (P. 12, Paras. E-F) - read in context
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ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,
J.C.A. (Delivering the Leading Judgment): This appeal
is as a result of the Judgment of the Bauchi State High
Court of Justice, Bauchi, delivered by Hon. Justice Kunaza
N. Hamidu on July 27th, 2011 wherein the claims of the
Respondents (the Plaintiffs at the Court below), were
granted.
The gist of the matter between the parties as contained in
the printed Record before this Court was that, an accident
occurred between the Appellants’ and the Respondents’
vehicles around Murtala Mohammed main road, Bauchi on
June 15th, 2009. The 2nd Respondent, a driver with the 1st
Respondent was driving the 1st Respondent’s vehicle, one
Canter Brand tagged Quini with registration number XB
927 BAU through Murtala Mohammed road, the 1st
Appellant’s Bullion van, being driven by the 2nd Appellant
was on Abdulkadir road to enter the said Murtala
Mohammed road when the accident occurred and the
Respondent’s vehicle carrying pure water in sachets was
hit. Between the parties, the 1st Appellant agreed to fix the
1st Respondent’s vehicle
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but it was not done for about ten months. The Appellants’
side of the story was that, the delay was due to the
Respondents’ refusal to sign the form from the Appellants’
Insurance Company, Leadway Insurance. The Respondents
claimed that they would sign only after the work was done.
The repair consequently was not done and the vehicle was
not returned to the Respondents. They therefore
commenced the Suit at the Court below and sought the
following reliefs which as earlier stated were granted:
1. A declaration that the 2nd defendant is negligent
when he hit the 1st Plaintiff (sic) vehicle driven by
the 2nd plaintiff in the morning of 15th June, 2009 at
the T Junction along Murtala Mohammed way and
Abdulkadir Ahmed Road near Investment House,
Bauchi.
2. N3 Million special damages being the cost of the
crushed vehicle of the 1st Plaintiff Canter Brand
tagged Quini with Registration No. XB 927 BAU.
3. N117, 000. Special damages being cost of the
medical expenses of the driver who sustained injury
and his boy.
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4. N15, 000 special damages being cost of the one
load of 300 parks (sic) of pure water destroyed in
consequence of the accident negligently caused by
the second defendant.
5. N4, 000 special damages for loss of user payable
per day from 15th June, 2009 till the date the
defendants pay the cost of the plaintiffs’ vehicle or
replacement of the vehicle.
6. N1 Million general damages for negligence.
7. Cost of the action.
After the trial, where both sides testified and called
witnesses, judgment was entered in the sum of
‘’N15,000.00 special damages as the cost of the 300
packs of pure water destroyed in consequence of the
accident negligently caused by the second defendant
at the rate of N50. 00 per pack. The sum of N4, 000.
00 special damages for loss of user payable per day
from 15th June, 2009 till the date the defendants
repairs (sic) and hand over the vehicle to the
plaintiffs, immediate repair of the plaintiffs (sic)
vehicle without any reference to insurance forms, and
cost of the action.’’
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The Appellants were dissatisfied with the foregoing
judgment and therefore have come to this Court. Their
Notice of Appeal with five (5) grounds of appeal dated July
29th, 2011 was filed August 1st, 2011. They seek the
following relief;
"An order allowing the appeal and setting-aside the
judgment of the Lower Court.’’
The Appellants’ brief of argument dated July 16th, 2012
was filed on July 17th, 2012 and deemed on February 7th,
2018 and settled by Irorakpor C.C. Esq. of Irorakpor & Co.
The Respondents’ dated September 25th, 2017, filed
September 29th 2017 and was deemed February 7th, 2018.
It must be mentioned that, at the hearing of this appeal on
April 16th 2018, the Respondents were absent and
unrepresented. The Court heard the appeal upon
satisfaction that the Respondents were duly notified of the
hearing through their Counsel, E. E. Uzochukwu Esq. on
April 4th, 2018.
The Appellants submitted the following five (5) issues:
1. Whether the learned trial Judge was right in law to
have entered judgment ‘’of N4, 000 special damages
for loss of user payable per day from 15th June, 2009
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till the date the Defendants repair and handover the
vehicle to the Plaintiffs’’ when same has not been
specifically proved as required.
2. Whether the learned trial Judge was right in law to
hold –"that the Defendants did not dispute the
amount claimed (the sum of N4, 000. 00 per day as
loss of earning) in their pleadings neither do they
cross examine the prosecution (sic) witnesses on this
issue or call evidence to disprove same which
amounts to admission.’’
3. Whether the learned trial Judge was right in law to
have awarded ‘’the sum of N15, 000. 00 as special
damages being cost of one load of 300 packs of pure
water destroyed in consequence of the accident
negligently caused by the 2nd Defendant at the rate
of N50. 00 per pack‘’ in his judgment. When it was
not proved that the packs of pure water were
destroyed as a result of the accident.
4. Was the learned trial Judge right in law to have
held that ‘’I must say that the repairs of the vehicle
ought not to be tied to signing
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any insurance forms. The issue of insurance is an
issue between the defendants and the insurance
company; therefore, the plaintiffs ought not to suffer
as a result of their internal procedure."
5. Whether the judgment of the trial court is
supported by the weight of the evidence adduced by
the Plaintiff.
The following were the issues by the Respondents:
1. Whether the trial Judge was justified in awarding
the claim for negligence.
2. Whether there was sufficient evidence before the
lower Court to justify the award of special damages
for loss of user and the cost of 300 packs of pure
water.
3. Whether the learned trial Judge was right in
holding that the repair of the vehicle ought not to be
tied to signing any insurance form.
In my view and humbly, a sole issue thus should justly and
fairly determine this appeal:
Whether or not the Court below was right in entering
judgment in favour of the Respondents, given the
evidence placed before it.
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At this point, it would assist a great deal in a nut shell to
bring out in the main the Appellants’ grouse. The award of
N15, 000. 00 as special damages for the cost of one load of
300 pack of pure water was unacceptable, as well as the
order to pay the sum of N4000. 00 per day as loss of
earning from June 15th, 2009 till the date repair is effected,
immediate repair of the Appellants’ vehicle and to hand
over same.
ARGUMENTS ON BEHALF OF THE PARTIES
Mr. C. C. Irorakpor Esq. submitted that, there were no
credible and cogent evidence on the sum of N4, 000. 00
claimed by the Respondents as there were no receipts
tendered as pleaded which omission offended Section 149
(d) of the Evidence Act. That, there was no evidence as to
the number of the packs of pure water and the number of
trips to be made with the 1st Respondent’s vehicle that
would amount to the said sum per day. Whether or not the
vehicle was old or new at the time of the accident was not
in evidence, he argued and therefore, the Court was wrong
to have ordered as it did with respect
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to payment of N4, 000. 00. per day, being special damages
in favour of the Respondents. In support, he cited the cases
of ARISONS V. OGUN STATE (2009) 6 SCNJ 141,
NIGERIAN NATIONAL PETROLEUM CORPORATION
V. CLIFCO NIGERIA LTD. (2011) 4 SCNJ 107 and
JOHNSON OKON V. MOBIL PRODUCING UNLIMITED
(2010) 52 WRN 54 amongst others. He argued further
that, it was erroneous for the Court to have awarded the
said sum of N4,000 per day on the basis that the Appellants
did not dispute the amount claimed by the Respondents. He
asserted that, the Appellants denied the Respondents’
claim. Further that, the Respondents did not adduce cogent
evidence as required for proof in special damages and cited
in support the cases o f SYLVESTER CHUMA
CHUKWUMA V. ANTHONY EZECHI NWOYE & 15 ORS
(2010) 30 WRN 79 and MANSON V. H. E. S. NIGERIA
LTD. (2007) 2 NWLR (PT. 1018) 211.
On the award of N15, 000. 00 for the bags of pure water
said to have been destroyed, the learned Counsel submitted
that the Respondents’ testimony was at variance to the
pleading and therefore was of no evidential value and in
support, cited the case of ADU V. GBADAMOSI (2009)
19 WRN 178.
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He argued that, it was wrong for the Court to have held
that the issue of insurance was one between the Appellants
and their Insurance Company as a miscarriage of justice
thereby occasioned to the Appellants. That, as the piece of
evidence regarding the role played by the Appellants’
Insurance Company to repair the Respondents’ vehicle was
not challenged the Court ought to have accepted the
evidence in their favour. He cited in support, the case of
NSITFMB V. KLIFCO NIG. LTD. (2010) 42 WRN 1 and
NASIR V. C. S. C. KANO STATE (2010) 25 WRN 1. He
consequently urged that a re-evaluation of the evidence
before the Court below be done.
He contended that the totality of the evidence by the
Respondents did not support the decision of the Court and
in support cited the case of SANNI V. ABDULSALAM
(2009) 15 WRN 61. In conclusion, he submitted that the
2nd Respondent owed the Appellants’ bullion van a duty of
care which would have avoided the accident and urged on
the overall that the appeal be allowed and the Judgment of
the Court below be set aside.
Mr E. E. Uzochukwu Esq, learned Respondents’ Counsel
submitted that, the Court was right in its
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findings and decision in favour of the Respondents as the
2nd Appellant unequivocally admitted that he owed the
duty of care to observe the road before entering the major
road in his testimony at the trial. That, the Court was right
to have held that, every driver irrespective of the status of
his vehicle owes a duty of care to other road users even
where it is a bullion van. He submitted further that, the
Appellants failed to ask PW3 relevant questions at the trial
on whether and how the Respondents’ vehicle made N4,
000.00 per day as well as the cost of the packs of sachets of
water. That, the evidence in that regard was clear and
uncontroverted. He asserted that, the Respondents apart
from the admissions by the Appellants also led credible and
uncontroverted evidence in proof of the claim for the
special damages of N4,000. 00 and the cost of the packs of
sachets of pure water. In support, he cited the cases of
BENJAMIN OBASUYI V. BUSINESS VENTURES LTD.
(2000) 77 LRCN P. 849, A. G. LEVENTIS V. AKPU
(2007) 17 NWLR (PT. 1050) P. 416 and NBC V. UBANI
(2014) 4 NWLR (PT. 1398) P.421.
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He argued that, the alleged contradiction in the testimonies
of the Respondents’ witnesses was not material to cast
doubt on the Respondents’ case and cited the case of
NWOKORO V. ONUMA (1990) 72 LRCN P. 3015.
He contended that the issue of the insurance form was an
afterthought by the 1st Appellant and the Court was right
to have treated it as a domestic matter between the
Appellants and their insurance company. That, they denied
the Respondents the use of the vehicle when they did not
repair it and failed to return it for ‘’about 8 months’’.
Further that, they failed to prove the necessity for the
Respondents to sign the insurance form.
In conclusion, he urged that the appeal be dismissed and
the decision of the Court below be affirmed.
COURT’S POSITION ON THE SOLE ISSUE
Civil cases are proved on the preponderance of evidence or
balance of probabilities. Burden of proof is on the party
who asserts a fact and has to prove same with cogent and
credible evidence before it shifts to the opposing party. See
the cases of DAODU V. NNPC (1998) 2 NWLR (PT. 538)
355, KALA V. POTISKUM (1998) 3 NWLR (PT. 540)
1,ITAUMA V. AKPE-IME (2000) 7 SC
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(PT. 11) 24, ELIAS V. DISU (1962) 1 ALL NLR 214 and
LONGE V. FBN PLC. (2006) 3 NWLR (PT. 967) P. 228.
A party is not allowed to rely on the weakness of the case of
the opposing party. See the cases of IMAM V. SHERIFF
(2005) 4 NWLR (PT. 914) P. 80, ELIAS V. OMO-BARE
(1982) 2 SC P. 25 and AGBI V. OGBEH (2006) 11
NWLR (PT. 990) P. 65.
The law is and settled that that the measure of damages in
an action for negligence is founded on the principle of
restititio in integrum, which means that the owner of a
damaged vehicle as a result of the negligent act of another
is entitled to restitito in integrum. In other words, the
owner should recover a sum such as will replace his loss as
far as can be done by compensation in money, and to be in
the position as if the loss had not occurred, subject to the
rules of law on remoteness of damages. See the case of
LAGOS CITY COUNCIL CARETAKER COMMITTEE V.
BENJAMIN O. UNACHUKWU (1978) 3 SC 199.
Therefore, for a Claimant to succeed in an action for
negligence, he must plead and show evidence of the duty of
care owed by the opposing party, the breach by the party
and the damages suffered thereby, save where the party
admits the wrong.
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From the evidence as agreed between the parties, ‘’the
accident occurred at a Junction along Murtala Way
while the 2nd defendant was driving his vehicle from
Abdulkadir Way to join Murtala Mohammed Way
while the 2nd plaintiff was driving his vehicle from
Wunti going towards CBN round about.’’
And with the Police investigation and report to the effect
that the driver “Mathew M of UBA drove his motor
vehicle recklessly by crossing without proper
observation of traffic flow.’’
The Court found as follows:
“In the present case, I am convinced that the 2nd
defendant was negligent in the way and manner he
drove his car which resulted into the accident. The
plaintiffs have successfully proved the negligent act
of the 2nd defendant and I so hold.’’
See pages 124-126 of the Record.
The Respondent’s vehicle from Exhibits D1-D3 was not
found to be damaged beyond repairs and the Court found in
evidence that “it was agreed that the defendants were
to repair the plaintiffs vehicle.’’
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See page 126 of the Record. However, the Court held the
view and with respect, wrongly in my view and humbly,
thus:
“Here I must say that the repairs of the vehicle ought
not to be tied to signing any insurance forms.
The issue of insurance is an issue between the
defendants and the insurance company, therefore the
plaintiffs ought not to suffer as a result of their
internal procedure.’’
See page 126 of the Record.
From the foregoing position of the Court, it rightly refused
the prayer for special damages for the sum of N3 Million to
replace the 1st Respondent’s vehicle. It however awarded
the sum of N4, 000 per day as loss of earning in favour of
the 1st Respondent from June 15th, 2009, the date the
accident occurred till the repairs of the vehicle are carried
out. The Appellants were aggrieved by that decision and
have appealed on same that the Respondents failed to
prove such claim. They argued that there was no cogent
evidence as to the number of trips the vehicle would make
with the pure water before earning the said sum.
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The Respondents’ position on the other hand is that, the
Appellants did not dispute or challenge the amount claimed
by them nor did they cross-examine their witnesses and
neither did they disprove the evidence at trial.
Special damages are such that the law will not infer from
the nature of the act. All losses claimed on every item must
be specifically stated in the pleading in terms of value and
amount. See the case of SHODIPO & CO. LTD. V. DAILY
TIMES (1972) ALL NLR 842. The apex Court in
ODULAJA V. HADDAD (1973) 11 SC 357 held that,
“Strict proof does not mean unusual proof or proof
beyond reasonable doubt. What is required is that the
party should establish his entitlement to that
category of damages by such credible evidence of
such character as would suggest that he indeed is
entitled to an award under that head.’’
In SPDC NIG. LTD V. TIEBO VII ORS (2005) 9 NWLR
(PT. 931) 439 the apex Court stated thus in that regard
per Oguntade JSC as he then was,
“….. In some cases, it may be necessary to show
documentary proof of loss sustained while in others it
may be unnecessary, the important
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thing is that the evidence proffered must be
qualitative and credible and such as lends itself to
quantification…..’’
This Court, in EZENWA BROS. NIG LTD. V. ONA-JONES
NIG. LTD. (2012) LPELR-9789 CA, per Adamu Jauro
JCA, in similar vein held that,
“proof of special damage is not radically different
from the general method of proof in civil cases.’’
See further the cases of NWABUOKU V. OTTIH,
OSHINJINRIN V. ALHAJI ELIAS (1970) 1 ANLR (PT.
1) 153 and EMIRATE AIRLINE V. MISS PROMISE
MEKWUNYE (2014) LPELR-22685 CA.
Going through the gamut of the Record, one is able to
agree with the position of the Court that:
“the defendants did not dispute the amount claimed
in their pleadings neither do they cross examined
(sic) the prosecution witnesses on this issue or call
evidence to disprove same which amounts to
admission. I am of the firm view that plaintiffs are
entitle (sic) to their claim for lost of revenue due to
the accident. ‘’
See pages 13-14, 19-22, 24-26, 40-41 and 128 of the
Record.
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It is important to note that, for proof of special damages as
afore stated, it is not to be unusual proof, or proof beyond
reasonable doubt and it is not in all cases that the
documentary proof of loss sustained must be tendered. See
the cases ODULAJA V. HADDAD supra, SPDC NIG. LTD
V. TIEBO VII ORS supra, NWABUOKU V. OTTIH
supra, OSHINJINRIN V. ALHAJI ELIAS supra and
EMIRATE AIRLINE V. MISS PROMISE MEKWUNYE.
The Court consequently entered judgment in that regard as
follows:
“The sum of N4, 000. 00 special damages for loss of
user payable per day from 15th June, 2009 till the
date the defendants repairs (sic) and hand over the
vehicle to the plaintiffs.’’
The Appellants have appealed against the foregoing.
In my considered view and humbly, the Court was right to
have found in favour of the Respondent for the loss of
revenue as it did. However, it would appear from the
Record that there were certain factors that the Court ought
to have considered before concluding the issue of the loss
of revenue. It is the law that, a party has the responsibility
to ‘’mitigate his
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loss as the incident is not an avenue for hitting
undeserved gold mine ad infinitum.’’ See the cases of
KEREWI V. BISIRIYU ODUGBESAN (1965) 1 ANLR 98
and UBANI-UKOMA V. G.E. NICOL (1962) 1 ANLR
105.
From the Record, it would appear that the 1st Respondent
did not mitigate its loss. Its vehicle was in the custody of
the 1st Appellant from about two three days following the
accident which occurred on June 15th, 2009. PW5 testified
as one who was in charge of the business of the 1st
Respondent in Bauchi and stated that he agreed that 1st
Appellant should go and repair the vehicle in the presence
of the DPO at the GRA Police Station. See pages 43-44 of
the Record. From the testimony of the Respondents and
their witnesses, the vehicle was still with the Appellants
even as at the trial at the Court below, unrepaired, which of
course was the reason for the said relief granted and the
instant appeal. The accident occurred on June 15th, 2009
the hearing of the suit commenced May 4th 2010 and
closed on July 6th 2011 as on pages 12-85 of the Record.
It is also pertinent to state that from the evidence before
the Court, the issue regarding the signing of the insurance
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form as a precondition for the repairs of the Respondents’
vehicle, in my considered and respectful view was
incorrectly concluded by the Court. The reason for the
Respondents to sign the said forms was clearly stated and
explained by the Appellants. That, since it was their
Insurance Company, Leadway Assurance, that was going to
be financially responsible for the repairs of the
Respondents’ vehicle, they needed the Respondents to sign.
The argument against it by the Respondents in my view
was misplaced. That, the treatment of the injured driver
must be paid for and that they should repair the vehicle
first. One holds the view and humbly that the issues are
different. Reimbursement of the medical bills from the
Record was not contested or refused at any time, the
Appellants requested for receipts of the treatment received
by 2nd Respondent. There was no evidence to the effect
that the form was to acknowledge that repairs had been
effected, the Respondents never complained in that vein
and the Appellants explained the need for the forms. See
pages 12-78. The Respondents could have mitigated their
loss if a different attitude was taken with regard to
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the insurance form. See also pages 44and 45 of the Record.
They could have enquired and satisfied themselves on the
need for the insurance forms up to the possible top most
management of the 1st Appellant before deciding not to
sign the forms. One on this point is in no way exonerating
the responsibility which the 1st Appellant had agreed to,
neither is one oblivious of the fact of delay or the length of
time that elapsed in consequence. The 1st Appellant from
the Record is still ready to repair the 1st Respondent’s
vehicle.
An appellate Court has jurisdiction to look at the evidence
on record to see whether they justify the conclusions of the
learned trial Court or not. Ot is ordinarily not the function
of an appellate Court to disturb the findings of fact of the
trial Court as it saw, heard and was therefore ought to be
better able to decide with the imaginary scale of justice.
See the cases of BALOGUN V. AKANJI (1988) 1 NWLR
301 SC, KODILINYE V. MBANEFO ODU (1935) 2
WACA 365, and FATOYINBO 7 ORS V. WILLIAM
ALIAS SANNI & ORS (1956) 1 FSC 87.
From the foregoing, as can be seen with regard to the
principle of mitigation as well as other
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factors which in my view with respect, which appear were
not put into consideration or were wrongly interpreted, one
finds the need and justification herein to interfere with the
award on special damages made by the Court below,
having correctly found, as regards the period of time the
sum of N4,000.00 should be paid daily to the Respondent.
See the cases of OMOREGIE V. IDUGIEMWANYE
(1985) 2 NWLR (PT. 5) 41 and ANYANWU V. MBARA
(1992) 5 NWLR 386.
As regards the award of the special damages in the sum of
N15,000.00. One is unable to fault the finding and its
award. The Court stated thus in that regard:
“Here I must say that the evidence before me is that
the packs of pure water the vehicle was carrying were
destroyed as a result of the accident. This piece of
evidence was not challenged in cross-examination
therefore admitted.‘’
The argument by the Appellants’ Counsel that the
Respondents should have picked the pure water after the
accident according to the Court was an after thought. One
would say that such could go no where given the facts of
the case that the driver was unconscious
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and the concern of those at the scene of accident was to
save his life. See pages 13-14, 17-18 19,25, 40, 44, of the
Record. the Court therefore and correctly found thus:
“I am of the opinion that the plaintiffs are entitled to
the cost of the pure water destroyed as a result of the
accident and I so hold.’’
The difference between 300 to 350 packs of pure water and
the amount of one sachet at N50. 00 as opposed to N60. 00
stated by the 2nd Respondent and the PW3 in my view is
not substantial enough to cause for their evidence to be
discredited or discounted.
In the light of the foregoing, this appeal succeeds in part
only with respect to the length of time awarded for the
payment of the sum of N4, 000. 00. The payment of the sum
of N4, 000. 00 per day is upheld only for the period of one
year from the date of the accident, June 15th 2009. It is
hereby further ordered that immediate repair of the
Respondent’s vehicle be effected within the next two
months from the date of this judgment.
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UCHECHUKWU ONYEMENAM, J.C.A.: I was privilegedto read in draft the judgment just delivered by my learnedbrother ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,JCA. I agree with his conclusion that the appeal succeeds inpart.
I abide by the consequential order as contained in the leadjudgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: Ihave had the privilege of reading the lead judgmentdelivered by my learned brother, Elfrieda OluwayemisiWilliams-Dawodu, JCA. His Lordship has considered andresolved the issues in contention in this appeal. I agree.
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