B.J. Ngilari V. Motehrcat Limited (1999)
LAWGLOBAL HUB Lead Judgment Report
O. ONU, J.S.C
In the High Court of Borno State holden at Maiduguri in suit No. M.396/1989, the plaintiff, now the appellant (a legal practitioner by profession) claimed as per his paragraph 10 of the Statement of Claim against the defendant, the respondent herein, special and general damages suffered by him in an accident that involved his car with a third party’s vehicle. This was stated to be as a result of the respondent’s obstruction and diversion of the highway without putting up notice to the road users as follows:-
“10. Whereof the plaintiff claims from the defendant as follows:
(a) As special damages the sum of N35.050.00 being cost of the repairs paid by the plaintiff as a result of the accident as per Bill No. 000073 dated 24/11/89, issued to the plaintiff by Denjoe Panel Beating and Spraying Works for the sum of N14,600.00 (Fourteen thousand, Six hundred Naira), and Delivery Note No. 000068 dated 24/11/89 for the sum of N20,450.00 (Twenty thousand. four hundred and fifty Naira) also issued to the plaintiff by Adirika Gaddy Enterprises Nigeria, both documents covering the cost of materials and labour charges paid by the plaintiff
in effecting repairs to his said car.
(b) Thirty five thousand Naira (N35,000.00) as general damages for pain and suffering and mental anguish caused as a result of the accident.
(c) Interest at the court’s rate of 10% on the above total sum of N70,050.00 with effect from the date of judgment until final liquidation thereof.
(d) Costs of this suit.”
Pleadings having been filed, delivered and exchanged as ordered, the case went to trial, at the close of which the learned trial judge Kuyatsemi J. in a considered judgment, (having earlier visited the locus in quo) dismissed the appellant’s claims in their entirety.
An appeal was lodged at the Court of Appeal, Jos which also in a well considered judgment on the 17th day of May, 1993, affirmed the decision of the High Court. It is that judgment of the court below which is now the subject matter of this present appeal wherein, in place of the original Notice of Appeal containing three grounds and dated 16th August, 1993, there was by leave of this court,
. substituted an amended Notice of Appeal containing five grounds dated 14th June, 1994, and filed on 15th June, 1994.
The parties exchanged Briefs of argument in accordance with the rules of court. The four issues formulated by the learned counsel for the appellant which necessitated the amendment of his brief and which learned counsel for the respondent adopted for the determination of this appeal, are as follows:-
“1. Whether the Court of Appeal was right in dismissing the nine grounds of appeal out of ten before it and refusing to consider most part of the argument in the appellant’s brief before it
- Was the Court of Appeal right when it held that mere failure to put up any warning sign by the defendant is not sufficient to hold it liable to the plaintiff’
- Having regard to all the circumstances of this case, the pleadings and evidence on Record, could it be right to say that the plaintiff failed to establish his case
- Is the Appellant entitled to the reliefs claimed”
Before I proceed to consider these issues, I deem it pertinent to state briefly the facts of this case which, by and large, are undisputed save the inferences drawn by the two courts below from the evidence placed at their disposal and to which I shall later advert in the course of this judgment.
The respondent was engaged in carrying out excavation work and the laying of underground water pipes across Sir Kashim Ibrahim Road, Maiduguri. It is a dual carriage way with flowers enjoying the protection of concrete wall almost 1 1/2 feet high along its middle.
The right hand side of the road was closed by the respondent and traffic from that direction was diverted to the other lane, the left handside. There was a high post on the right hand side- notifying motorists from that direction of the diversion. On the left-hand side, there was no signpost at all indicating that there was a diversion ahead. Motorists from this side, which is the West-end Roundabout, had no warning whatsoever that only their own side of the dual carriageway was open to traffic from both directions at the material time.
On the 23rd day of November, 1989, at about 6.30p.m, the appellant was driving his Peugeot 505 Saloon Car with registration No. BO. 8669 MD from the West-end Roundabout towards the Leventis Stores Junction of Sir Kashim Ibrahim Road when it was already dark. Unknown to the appellant that motorists from his opposite direction were making use of his own lane, a Peugeot 504 No. 39 BOSG 23 driven by one Festus Ayodele was involved in a head on collision with the appellant’s vehicle, or so it appeared. The collision had taken place about 15 meters after the appellant had negotiated the West-end Roundabout and the car was damaged, Repairs had to he carried out on it. The appellant therefore brought the suit in the High Court culminating in this appeal, claiming the cost of the repairs and general damages for the inconvenience he suffered as a result of the accident. Now to the consideration of the issues:
Issue No. 1: Dismissal of nine grounds of appeal and refusal to consider entire argument.
In arguing this issue in relation to the first and second grounds of appeal before the Court of Appeal, our attention was adverted to pages 82-84 of the Record, following which it was pointed out how pertinent it is that the parties herein were never called upon to address the court on whether or not the only issue raised covered all the ten grounds of appeal, adding that the point was taken suo motu by it. This, it was argued, contravened the right of the parties to fair hearing, Furthermore, it was contended,that the respondent did not raise objection to the appellant’s brief on the sole issue for determination. The case of The Road Transport Employers Association of Nigeria v. The National Union of Road Transport Workers (1992) 2 NWLR (Pt.224) 381 at page 392 (per Uwais, J.S.C. as he then was) was called in aid for the proposition that” …. It has numerously been stated that when an appellate court decides to deal with an issue which is not raised by any of the parties before it, it is mandatory for the appellate court to give the parties the opportunity to address it on the issue.”
It was further submitted that the principle was restated in the recent case of Adeyemi v Y.R.S. Ike-Oluwa & Sons Ltd. (1993) 8 NWLR (Pt.309) 27 at page 40 per Uwais. JSC (as he then was). It was further argued that considering the contents of the ten grounds of appeal referred to. it was appropriate to have argued the whole grounds together under the only issue formulated for determination. A careful examination of each ground, it is observed, will clearly show that those grounds which in fact are interwoven, are confined to the use and principles of pleadings at the trial court. The argument based on the ten grounds or appeal before the lower court, is therefore that since the respondent (Defendant) has admitted the issue raised by the appellant as (Plaintiff) through its Statement of Defence, the non cross-examination of its witnesses for the appellant and the respondent’s failure to adduce evidence in support of its averments in the statement of defence enables the appellant to be entitled to judgment. Hence, that sole issue for determination, bearing in mind that it is trite law that one issue can cover several grounds of appeal, vide Olaniran v. University of Lagos (1985) All NLR 363 at 370: (1985) 2 NWLR (Pt.9) 599; Nwosu v. Imo State Environmental Sanitation Agency (1990) 2 NW’LR (Pt.135) 688; and Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt. 131) 137 at 148.
It was further contended that in the Appellant’s brief before the court below, all the grounds of appeal were thoroughly argued and adopted at the hearing as exemplified on page 75 of the Record which contains the submissions of appellant’s counsel to the effect that his argument therein related to all the grounds before the court. It was then maintained that having regard to the fact that the whole grounds of appeal were argued together, the court would have entertained the whole appeal and possibly couched its own issues for determination based on the argument in the brief, adding that it is trite law that a brief cannot be struck out because the issues for determination were not properly framed. The cases cited in support of these propositions were those of Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 537 per Akpata, JSC; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 at 537 per Omo, JSC, and Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 465-6 per Karibi Whyte, JSC. It was further argued that rather than follow the case of Adeniyi v. Fabiyi (1992) 5 NWLR (Pt.242) 489 at 497, which is on all fours with those in this appeal, one would have expected the erudite and highly respected justice (viz. the writer or the leading judgment) to have followed the above philosophy in the instant case: rather, their Lordships of the court below relied on the case of Aja v. Okoro (1991) 7 NWLR (Pt.203) 260 at 272-73 in dismissing the nine grounds of appeal before them and which did not support their position. The latter case, it was pointed out, was considered in its own peculiar con, as for instance, where the learned justices of the court below rightly held. inter alia, as follows:-
“… There is no doubt that a number of grounds of appeal may raise a single issue … ”
It was next argued that with respect to their Lordships, if the grounds of appeal had been carefully scrutinized and pigeon-holed into the sole issue for determination, they would have come to a different decision, adding that the lower court was right when it held at page 82 of the Record thus:-
“Failure to argue grounds of appeal incorporated into an issue for determination amounts to abandonment of the ground of appeal … And again, an issue for determination must be based on the ground of appeal …”
Interestingly, it is contended, the appellant did not offend the above rules; rather he complied with them religiously in the sense that the ten grounds of appeal were succinctly argued under one broad issue for determination. After the court below had dismissed the main nine grounds of appeal, it was pointed out. They proceeded to decree that:-
“Any other matters canvassed on the appellant’s brief will be ignored.”
For that reason, it is argued, they ignored the argument contained in paragraph 5. 09 at pages 60-61 of the Record, adding that the liability of a person who obstructs or diverts the use of the highway without notice to the road users was never considered and determined. A litigant, it is contended, has a constitutional right to have all issues in his case considered and determined one way or the other. The cases of Katto v. C.B.N. (1991) 9 NWLR (Pt.214) 126 at 152 (per Omo, JSC) and Sapara v. U.C.H. (1988) 4 NWLR (Pt.86) 58 at 82 were relied on to ground the submission.
In conclusion, contended the appellant, a careful examination of the nine grounds of appeal dismissed and the said argument on page 60-61 of the Record, which were not considered by the lower court, demonstrated clearly that they fit into the sole issue for determination. As they raised an issue for the court to determine, accordingly it is argued, they ought not to have been dismissed or ignored.
In reply to this first question, the respondent’s concession that the approach of the court below in dismissing the appellant’s appeal contained in grounds 1-9 of the Notice of Appeal on the premise that the issues for determination arising therefrom were not properly formulated, did not meet the interest of justice appears to me to be well taken care of and this, notwithstanding the fact that it was open to the court to identify and reformulate the issues and pronounce on them as the need arose. Be that as it may, in the instant appeal, I take the firm view that although the court below treated grounds 1-9 of the Appeal as having been abandoned, it nevertheless gave due consideration to all the issues of fact pertaining thereto.
The omnibus ground of appeal reflected in ground 10 (see page 51 of the Record) indeed clearly and adequately highlighted the gravamen of the dispute between the parties hereto, thus enabling the court below to deal adequately with the crux of the matter, i.e. as to whether the failure of the respondent to put up a warning notice at the West-end roundabout side of Sir Kashim Ibrahim Road, was the primary/direct cause of the accident.
Consequently, my answer to issue 1 is in the affirmative. Issues Nos. 2 & 3: Is the respondent liable to the appellant for not placing a warning sign indicating the obstruction and diversion
In his treatment of these two issues considered together which relate to grounds 3 and 4 of the Amended Notice of Appeal on damages for negligence and nuisance, we were referred to an extract in the leading judgment of Musdapher, JCA. Wherein the learned justice was quoted as holding at page 87 of the judgment under attack thus:
“The case as filed stood to fail or succeed on whether the mere failure to put up any warning sign should make the respondent liable and it has not been shown that that failure was the cause of the collision.”
The above, it is submitted, was the main ground upon which the court below dismissed the appellant’s case and that from it, emanated the third ground of appeal and the second issue for determination herein.
The appellant then went ahead to contend that the facts on this issue are not in dispute. After proceeding to enquire as to what is the correct inference in law to be drawn from the facts as proved and admitted by the parties, our attention was drawn to appellant’s statement of claim wherein paragraphs 1,2,3,4,5,6, and 9(b)(I)(II) and (e) were admitted by the respondent in its Statement of Defence, adding that under the rules of pleadings, there was no more burden on the appellant to establish those facts as pleaded and admitted. The cases of Olale v. Ekwelendu (1989) 4 NWLR (Pt.115) 326 at 361-362 (per Oputa, JSC) and Jozebsonlnd. Ltd. v. Lauwers (1988) 3 NWLR (Pt.83) 429; (1988) All NLR 310 at 332, were called in aid to demonstrate how a plaintiff can discharge the onus of proof in his pleadings etc. After pointing out how the respondent led no evidence in support of paragraph 7 of the statement of defence, our attention was adverted to the evidence of the respondent’s lone witness at page 16 of the Record, adding that evidence of the respondent in no small way supported the appellant’s case. After referring us to part of the latter’s testimony, to wit:
“I passed through West-end roundabout i.e. junction of Shehu Laminu Way, Baga Road, and Sir Kashim Ibrahim Road, Maiduguri. About 15 metres on the said Sir Kashim Ibrahim Road, in the Leventis Stores direction, I had a head-on collision with 504 Peugeot Saloon Registration No. 39 BOSG 23 … if there were a (sic) warning notice of the West-end roundabout junction, the accident would not have happened. The accident happened as a result of blocking the Leventis Stores junction and consequently diverting traffic from the correct lane on my opposite direction to my own lane. This was what caused the accident.”
It was argued that there was no cross-examination just like in the evidence of PW2 who was shown as having said:-
“I was also surprised because the defendant did not put any warning sign post at the West-end Roundabout portion of the road, i.e. Kashim Ibrahim Road.”
The appellant further submitted that the issue of not notifying motorists from the appellant’s direction was quite settled as shown on the Record. From the available facts, the relevant applicable law thereto would from the pleadings and evidence establish a case of negligence vide Charlesworh & Percy On Negligence 7th Edition at page 662 under the heading:
“Damages Caused By Diversion Of Highway”
“When a highway is diverted, protection must be provided at the point of diversion. This is in order to prevent those reasonably careful persons, using the highway, from going astray at the point of diversion, since it may be implied otherwise that the original highway can be used safely. See the cases of Mcclelland v. Manchester Corporation (1912) 1 K.B. 118; Coleshill v. Manchester Corporation (1928) 1 K.B. 776 at pages 597-598 of the aforementioned is the following:”
Obstruction On Highway: If a highway is obstructed … a person who is injured as a result of that obstruction, can recover damages against … the tortfeasor himsdf …..
Cases of Penny v. Wimbledon U.D.C. (1899) 2 Q.B. 72, and Hill v. Tottebgan (1899) 79 LT. 495, were cited in support thereof.
The evidence on record, the appellant maintained, shows that the respondent placed a sign post regarding the diversion only at one end of the road. This he added, was not done at the other end, hence the appellant could not know of it until after the accident. Not only that, the respondent admitted this fact in paragraph 3 of the statement of defence. It did not see the need to challenge it under cross-examination or adduce evidence to the contrary. It is a common practice, it is asserted, that where there is a diversion directing vehicles to use one lane instead of the former two lanes, signs are normally placed on both ends to notify road users. The respondent’s failure to carry out this duty, it is further argued, is a clear case of negligence. Two cases, U.B.A. Ltd. v. Ngozi Achoru (1990) 6 NWLR (Pt.156) 254 at 277; and Eseigbe v. Agholor (1990) 7 NWLR (Pt.161) 234 at 247 were cited in support of the propositions wherein Karibi-Whyte, JSC and Uche Omo, JCA (as he then was) each held as follows:-
“… Negligence being the failure to lake reasonable care, where there is a duty. is attributed to the person whose failure to take such reasonable care has resulted in damage to another” and
“To establish negligence the appellant must show that the respondents owe him (her) a duty of care which they have breached. There is no doubt as to the duty of care which one road user owes to the other particularly on the highway.”
In the circumstances of this case therefore, it is contended, the responsibility of the third party is not material in determining liability, adding that if there was a sign at the appellant’s end, the accident might have been avoided. But since the respondent failed or neglected to perform its duty owed to road users the intervention of a third party cannot exonerate it from liability.
Having regard to the above analysis on this second issue, it is maintained that the court below was wrong when it held:
‘The crucial factor to be proved is what caused the accident. The appellant did not lead any evidence as to how the accident occurred. He merely gave evidence, that the respondent have (sic) failed to put a notice warning him that vehicles coming from the opposite direction have been diverted to his side or the dual carriage way. This in my view is not sufficient to ground an action in nuisance or negligence. There must be a factor connecting the accident with the failure to provide the notice…. ”
The appellant next argued that with due respect to their Lordships, the above does not represent the true position of the law albeit in fairness to them, that no legal principle or authority was referred to in support of that stand.
As argued herein before, the appellant contended, the undisputed fact that the respondent failed to place a sign post at the side of the appellant is enough to adjudge it liable or else why did it (respondent) put the sign post at the other end’ Thus, what is good for the goose is also good for the gander, he concluded.
In respect of the claim for damages for negligence and nuisance, I am of the firm view that both courts below decided matters correctly when they held that the appellant had not satisfactorily proved his case. Instances of such findings by the trial court may be gleaned from the following extracts:-
“There is no pleading and evidence on these by the plaintiff; how the accident happened, the point of impact on the diverted road and the negligence of either or both drivers i.e. the plaintiff as driver of 505 Peugeot GL.BO 8669 MB and Festus Ayodele as driver of Peugeot 504 Saloon:39 BOSG 23. It appears that the plaintiff relies solely on the assertions in paragraph 8 of his Statement of Claim, already set out in detail, that the collision was caused by the nuisance created by the defendant in diverting all traffic on the dual carriage road to the plaintiff’s own lane so that the diversion of traffic on the dual carriage way became an obstruction on the road, which rendered the road dangerous to the plaintiff and other persons lawfully using the same.”
I therefore agree with the respondent’s submission that the sum total of the above observation is that the appellant had failed to establish that the accident was inevitably due to the diversion created by the respondent.
Further, I share the respondent’s view that the learned trial judge took the view and rightly so, that the diversion did not of its own render the carriage way inherently dangerous as there is evidence to show that several other cars plied that same road on the fateful day and there was no record of any other accident apart from the appellant’s. Thus, the learned trial Judge’s position is re-inforced when he observed as follows:-
“Significantly with the period of the closure of one side of the road at 7.30 a.m. at Leventis Stores Junction and the time of the accident in the evening, there is nothing to show that any accident happened apart from the plaintiff’s or the one in question. It was therefore implied that the road was not dangerous or as dangerous as the plaintiff might put it or portray. On the pleadings and evidence, that at the time of accident, behind the motor vehicle involved in the accident there were other motor vehicles.”
Further, the learned trial Judge did inspect the scene of the accident and from the report of the scene contained in the record (see page 38 hereof) the carriage way in question was a tarred road divided into two equal sections by a flower bed bounded by concrete cement blocks. Expatiating on how the accident occurred or would have been averted and at what location it happened, the learned trial Judge observed that:- .
“Because there are at least two convenient motor traffic lines on each side of the road into which motor vehicles were diverted, the accident in the normal course of driving of the plaintiff and Festus Ayodele in opposite directions on the same side of the road would not have happened. That the accident happened without any explanation as to what occurred (sic) between them suggest (sic) that either or both of them were to blame for not driving with due care and attention or with reasonable consideration for other road users or themselves.”
Throwing more light on above reasoning the learned trial Judge added thus:-
It has been settled as far back as 1952 in R. v. Tatimu (1952) 20 NLR 60 that mere occurrence of an accident is no proof of negligence. Therein a lorry was being driven by an unlicensed driver who was arraigned as an accused following the accident which occurred (sic). This, it was held, was not by itself proof of reckless or dangerous driving, nor was it proof of negligence.
The circumstances, nature and extent of the accident must be pleaded and evidence be adduced thereon. Then the court would be able to determine whether partially or wholly either the plaintiff or the other driver or both or the defendant caused the accident. Such is a matter of evidence based on pleading; and it is non-existent in the present case.”
It is pertinent to state at this juncture that the learned trial Judge in the course of his judgment referred to the provisions of section 21 of the Road Traffic Law and took the view that the appellant was obliged to drive on the diverted side of the road with due care and attention. In this regard, I am of the firm view that the learned trial Judge was right in the view he took as it is the duty of all road users at all times to keep a proper look-out so as to avoid colliding with other road users. In particular, it is the duty of those driving when it is dark to drive at such a speed in a way that they are able to stop within the range of visibility. Thus, in Baker v. Longhurst & Sons Ltd. (1933) 2 K.B. 461 at 468 Scrutton L.J. observed as follows:”
If a person rides in the dark he must ride at such pace that he can pull up within the limits of his vision and if, in those circumstances, he strikes something, either he is going too fast or he has not been keeping a proper look out.”
The court below as earlier pointed out affirmed the decision of the trial court thus resulting in concurrent decisions of the two lower courts which ought not to be disturbed unless there is some miscarriage of justice or violation of some principles of law or procedure. See Osayeme v. The State (1966) NMLR 399; Sanyaolu v. The State (1976) 5 S.C. 37; Wankey v. The State (1993) 5 NWLR (Pt.295) 542 at 552; Enang & Ors. v. Adu & Ors. (1981) 11-12 S.C. 25 at 42, and Kofi v. Kofi 1 WACA 284.
Consequently, when the court below affirmed the decision of the High Court by concluding in the leading judgment of Musdapher, J.C.A. to the effect that:
“The crucial factor to be proved is what caused the accident. The appellant did not lead any evidence as to how the accident occurred (sic). He merely gave evidence that the respondent have failed to put up a notice warning him that vehicles coming from the opposite direction have been diverted to his side of the dual carriage way. This in my view is not sufficient to ground an action in nuisance or negligence. There must be a factor connecting the accident with the failure to provide the notice. From the evidence, it cannot be said that “but for” the failure to put up the notice, the accident would not have occurred (sic), I agree with the learned trial Judge that the appellant has failed to prove the fact that it was the fault of the respondent that caused the accident” this was an unimpeachable finding of fact.
The result is that my answer to these two issues argued together is in the positive. Issue No.4: which is concomitant with ground 5 asks whether the appellant is entitled to the reliefs he has claimed.
Before answering the question whether the appellant is entitled to the reliefs he claimed, one cannot help but set out the following paragraphs of the Statement of Claim as a guide to wit: Paragraphs 3, 8, 9 and 10 (the latter having earlier on been set out in this judgment one does not need any recapitulation of it here as follows:-
“3. The plaintiff avers that in or about Thursday the 24th of November, 1989, at about 6.30 p.m. when it was already dark, the plaintiff was driving his aforesaid Peugeot 505 carefully and slowly on his own side of the West-end to Leventis Stores dual carriage section of the Sir Kashim Ibrahim Road (a public highway owned and maintained by the Borno State Government.
- The plaintiff will contend at the trial of this suit that the collision referred to herein was caused by the nuisance created by the defendant in diverting all traffic on the dual carriage road to the plaintiff’s own lane in the circumstances described above so that the said diversion of traffic on the said dual carriage road which thereby rendered the said road dangerous to the plaintiff and other persons lawfully using same.
- Further or in the alternative, the said collision was caused by the negligence of the defendant, its servants or agents.
Particulars
(a) Failing to take any or any proper precautions for the safety of the plaintiff and other road users coming from the Westend roundabout side of the said Kashim Ibrahim dual carriage road.
(b) Diverted all traffic on the said Kashim Ibrahim dual carriage road at the Leventis Junction to the plaintiff’s own lane without sign or notice placed at the said West end roundabout side of the road to warn the plaintiff then lawfully coming from the said Westend side of the dual carriage road that all traffic on the said dual carriage road has been diverted at the Leventis Junction of the road to the plaintiffs lane.
Particulars of dam/age to plaintiff
(i) As a result of the collision, the plaintiffs vehicle was extensively damaged and had to undergo
repairs.
(ii) Following the accident the plaintiff did suffer mental pain and suffering.
Particulars of Special damages
“Cost of spare parts, panel beating, spraying and labour paid by the plaintiff in effecting repairs to his said vehicle as per Bill No. 000073 and Delivery Note 000068 both dated 2/11/89 – N35,050.00 (Thirty five thousand, and fifty naira),”
Now, in paragraph 3 of his Statement of Claim (supra) the appellant did in fact aver that he drove “carefully and slowly on his own side of the Westend to Leventis Stores dual carriage section of the Sir Kashim Ibrahim Road” hut at no time in the course of giving his testimony did he confirm this averment by oral evidence. The other eye witness PW2, John Jilantikiri, also never gave evidence on this point. However, in the course of his evidence, the appellant mentioned that one Ibrahim Gazali also witnessed the accident. Unfortunately, Gazali also never gave evidence in the matter. As matters therefore stood, the appellant pleaded that he drove carefully and slowly, but no such evidence was given at the trial. It is trite law that pleading is no evidence. See Ohmiami Brick & Stone (Nigeria) Limited v. A.C.B. Limited (1992) 3 NWLR (Pt.229) 260 at page 293. Thus, where as in the instant case, evidence is not led to support the pleading evidence led thereat goes to no issue. See Olarewaju v. Bamigboye (1987) 3 NWLR (Pt.60) 353 at 359, following Emegokwue v. Okadigbo (1973) 4 S.C. 113.
In the circumstances, there is no evidence before the court to negative any inference of negligence on the part of the appellant himself. And this buttresses the fact that the appellant failed to establish by direct evidence that the accident was caused by the negligence of the respondent.
On the issue of nuisance, I am in entire agreement with the respondent that the nuisance constituted by the obstruction was commonly suffered by other road users and the inconvenience was not peculiar to the appellant. In the circumstances, unless the appellant is able to establish damage which is particular i.e. (special), direct and substantial, he cannot sustain any claim. See Benjamin v. Storr (1874) L.R. 9 C.P. 43 LJCP. 162. (Reported also on page 155 of the case book on Tort by Tony Weir.3rd ed.) Wherein he observed inter alia:
” … If the alleged nuisance be the obstruction of a highway…
Other cases show that the injury to the individual must be direct and not a mere consequential injury; as where one way is obstructed, but another (though possibly a less convenient one) is left open; in such a case the private and particular injury has been held not to be sufficiently direct to give a cause of action. Further, the injury must be shown to be of a substantial character, not fleeting and evanescent. If these propositions be correct, in order to entitle a person to maintain an action for damage caused by that which is a public nuisance, the damage must be particular, direct and substantial.”
See also Adeshina v. Lemonu (1965) All NLR 233; Paddington Corporation v. Attorney General (1906) A.C.I, and this court’s latest decision of Abraham Ipadeola & Anor v. Abiodun Oshowole (1987) 3 NWLR (Pt.59) 18, in which what constitutes a private or public nuisance is defined. See Nigerian Law of Torts by Kodilinye at page 90 as to when a public nuisance is committed. When pitched against the above pronouncement, it will be seen that the appellant’s case is tenuous given the unsatisfactory nature of the evidence or none at all led by him. The evidence led failed to satisfy the key requirement of directness of the injury which is necessary to sustain the claim.
Compare the case of Benjamin v. Storr (supra), where the principle of Law that to entitle a private person to maintain an action for a thing which amounts to a public nuisance, he must show that he has sustained a particular damage or injury other than and beyond the general injury to the public, and that such damage is direct and substantial, was applied.
In that case, the plaintiff kept a coffee-house in a narrow street near Covent Garden. The defendants carried on an extensive business as auctioneers in the same neighbourhood, having an outlet at the rear of their premises next adjoining the plaintiffs house, where they were constantly loading and unloading goods into and from vans. The vans intercepted the light from the plaintiff’s coffee-shop to such an extent that he was obliged to burn gas nearly all day, and access to the shop was obstructed by the horses standing in front of the door, and the stench from their frequent staleing there rendered the plaintiff’s dwelling incommodius and uncomfortable:-
It was held, inter-alia, (1) that the evidence disclosed such a direct and substantial private and particular damage to the plaintiff beyond that suffered by the rest of the public, as to entitle him to maintain an action, and (2) that evidence that the premises were rendered uncomfortable by reason of the offensive smells arising from the staleing of the horses which were kept constantly standing opposite to them, was properly admitted.
On the issue of damages:
I agree with the respondent that the appellant is not entitled to any damages, not having put forward a convincing case at the trial. To make matters worse, the special damages claimed by the appellant which I had set out herein-before were not sufficiently pleaded in details nor strictly proved as required by law. Per Lord Goddard in British Transport Commission v. Gourley (1955) 3 All E.R. 796. As Lord Bowen L.J, laid down in the leading case on pleading and proof of damages of Ratcliffe v. Evans (1892) 2 Q.B. 524; 61 L.J. Q.B. 535 particularly in relation to special damages:-
”The character of the acts themselves which produce the damage, and the circumstances under which these acts were done, must regulate the degree of certainty ,and particularity with which the damage done ought to be proved. As such certainty and particularity must be insisted on … in … proof of damages as is reasonable, having regard to the circumstances by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”
See also F. O. Akintunde v. Chief E. A. Ojeikere (1971) 1 NMLR 91. This is because a claim for damages is always deemed to be in issue.
See Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623.
Commenting on the claim for damages, the learned trial Judge took the view that the claim for damages was not sufficiently particularised. He further held that aspects of the evidence were at variance with the pleadings. Indeed, the monetary claims put forward by the appellant seemed staggering and unfortunately as the learned trial Judge found, the evidence lacked sufficient credibility. For instance, there was nothing like a police report which would have confirmed the extensive nature of the damage to the car as alleged by the appellant. Hence, the learned trial Judge was right when he stated thus:-
“There is complete silence as to the injury suffered by either the plaintiff or the ..
All these create doubt in my mind of the accident, as to how and what caused the accident.”
The learned Justices of the court below in unanimously affirming the decision of the trial court held that damages were not satisfactorily proved.
It is the appellant’s contention that these conclusions by these courts are erroneous, firstly because the respondent by its pleading did not controvert the claim for damages in that it merely stated in paragraph 12 of its Statement of Defence that it was not in a position to admit or deny the claim for damages. I take the view that the appellant’s stand is misconceived in that it is trite law that any allegation in pleadings that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted. See Produce Marketing Board v. A. O. Adewunmi (1972) 11 SC 111 at 124.
Secondly, the appellant has further contended in his brief that he adduced sufficient evidence to buttress his claims for special and general damages. I am of the view that this contention is tenuous given the rule concerning the pleading and proof of special damages which requires that special damages must be pleaded in detail and strictly proved. See Oshinjinrin v. Elias (1970) 1 All NLR 153 at 156-157; Perestrello v. United. Paint Co. Ltd. (1969) 1 WLR 57; Agunwa v. Onukwe (1962) 1 All NLR 537; (1962) 2 SCNLR 275 and A.-G. of Oyo State & Anor. v. Fairlakes Hotels Ltd. & Anor (No.2) (1989) 5 NWLR (Pt.121) 255 at 277-278 & 279.
In the case in hand, the appellant at paragraph 9(2) of his Statement of Claim set out above merely lumped several aspects of the repairs together without earmarking any sums against particular items of repairs. His evidence did not supply the details required to be pleaded. Thus, in the Perestrello case (supra) Lord Donovan at page 456 summarised the position in the following words:-
“The obligation to particularise in the latter case arises not because the nature of the loss is necessarily unusual but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.”
Furtherstill, the learned authors of Bullen and Leake and Jacobs – precedents on Pleadings 11th Edition at page 200 (or 12th Edition page 379) expressed the matter succinctly in similar terms as follows:-
“Special damages must allege with particularity so that the defendant should know, not what is the amount of loss or damage which the plaintiff alleges he suffered, but also how such amount is made up or calculated.”
It is for these reasons that I agree with the respondent’s submission that the appellant’s pleading and evidence fell short of the legal standard prescribed in the above authorities. It was thus not enough for the appellant to submit to court receipts stamped “paid” when it was the essence of the claim that castings had to be detailed and not lumped up and unrelated documents. See this court’s decision in Horst Sommer v. F.H.A. (1992) 1 NWLR (Pt.219) 548 at 560.
Issue 4 is accordingly answered in the negative.
It is for the above reasons that I see no merit in the entire issues canvassed which accordingly fail.
The appeal is accordingly dismissed with N10,000.00 assessed as costs in favour of the respondents.
SC.223/1993
