Alhaji Amusa Ajigbotosho V. Reynolds Construction Co. Ltd. (2008)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
In executing the contract awarded to it by the Federal Government to dualise the Ibadan(Ife Road, the Respondent, a Construction Company, entered a number of lease Agreements with the Appellant to use his land for “site erection and excavation of material”. Clause 5 in the Agreement dated 10th April 1995, 26th November 1996, 16th May 1997, & 10th June 1997, reads-
“It is herein agreed that the said parcel of land shall be leveled and made usable by Reynolds after the completion
of the Road before handing it over to the said owner. The land owner shall make available a trustworthy watchman and shall be employed by Reynolds within the period of operation”. (Italics mine).
On completion of the project, the Appellant approached the Respondent to make good the land as previously agreed and after repeated demands to no avail, he instituted an action at the Ibadan High Court of Oyo State, claiming-
(a)A declaration that the defendant is in breach of the various lease Agreements on land entered with the Plaintiff by failing to level and make usable the various parcels of land leased to her for the purposes of road construction by the Plaintiff at Idi-Omo Village, Egbeda Local Government Area, Ibadan particularly Agreement dated 10th April 1995, 10th and 15th May 1995, 23rd January and 26th November 1996, 16th May and 10th June 1997.
(b) DAMAGES
SPECIAL
(1) Cost of repair of damaged road 743,149.20
(2) Amount required to rehabilitate damaged parcel of
land as per the lease Agreements 3,712,500.00
(3) Cost of claim survey 25,000.00
GENERAL DAMAGES 1,000,000.00
5,480,649.20
At the end of trial in which the Appellant called seven witnesses and one witness testified for the Respondent, and after hearing addresses of counsel, the learned trial Judge, A.A. Sanda, J., delivered his Judgment on the 18th of July 2005, wherein he granted the declaration as claimed by the Appellant. He awarded the sum of N250,000,00 to him as general damages and N25,000.00 as cost of survey, but he dismissed the claim for special damages, Aggrieved by the decision, the Appellant appealed to this Court with a Notice of Appeal containing one Ground of Appeal and in the Appellant’s brief of Argument settled by Prince Abioye A. Oloyede Asanike, It was submitted that the sale Issue that calls for determination in this appeal is simply as follows-
“Whether the Appellant is entitled to the cost of repairing the damaged land and road in this case”.
The Respondent however submitted in its own brief prepared by Babatunde A, Aiku, Esq. that “the crucial Issue for Determination is-
“Whether in view of the pleadings, evidence adduced and the state of the law, the lower Court was right in refusing the Appellant’s claim for special damages?”
I will adopt the Respondent’s issue in dealing with this appeal, there is no appeal against the declaration granted by the lower Court and the issue outstanding is whether it was right to refuse the claim for special damages. The Appellant submitted, citing A.A. Amadi v Thomas Aplin & Os (1977) 7 NSCC 262, that where the words used in an Agreement are clear and Unambiguous the Court must enforce it, and since the Respondent failed, refused and neglected to comply with Clause 5 of the Lease Agreements (Exhibits A, A1, C, & C1) it is in breach of the Agreement; that the measure of damages is the loss flowing naturally from the breach committed by the Defendant, citing Wilfred Omonuwa v. B.A. Wahab (1976) 10 NSCC 233. It was further argued that the Respondent did not challenge the estimate of the repairs in Exhibits B & B, which should have been accepted by the lower Court, citing Obasuyi & 1 Or V. Business Ventures Ltd. (2000) 2 SCNQR (Pt. 1) 61, and that the lower Court fell into an error
when it described the said Exhibits as estimates and refused to accord them the required value. The Court was therefore urged to rely on NEPA V. Alli (1992) 10 SCNJ 34 to correct the error, set aside the Judgment and grant
the Appellant’s claim.
The Respondent however argued that the law is that if there is any special damage which is attributable to the wrongful act of the Defendant that special damage must be averred and proved, and if proved, will be awarded, citing A.G Oyo State & Anor vs. Fairlakes Hotels Ltd. & Anor (No.2) (1989) 5 NWLR (Pt.121) 255, UBA Plc vs. Ogunsanya (2003) 8 NWLR (Pt. 821) 111, Halsbwy’s Laws of England, Vol. 12, 4th Edition, paragraph 1113 & Garba V. Kur (2002) 8 NWLR (Pt. 831) 280; that the Appellant’s contention that he is entitled to special damages is misconceived, unsupportable and ought to be rejected by this Court; that the lower Court properly appraised and evaluated the evidence of the parties and this Court should not disturb or interfere with the decision, citing Walda vs. Malzare (2001) 4 NWLR (Pt. 704) 557, and that the Appellant’s contention that it did not challerlge Exhibits B & B1 and that the lower Court erred in equating them to an estimate is misconceived. Now, damages are the pecuniary compensation obtainable by success in an action for a wrong, and the meaning of ‘compensation’ includes the payment of damages, or any other act that a Court orders to be done by a person who has caused injury to another and must therefore make the other whole – See Black’s
law Dictionary. 7th Ed. What this translates to is that there must be a wrong committed before damages can be recovered in an action, whether the wrong is a tort or a breach of contract. In this case, it will not be necessary to consider the preliminary issue of whether or not a wrong was committed because the lower Court found as a fact, and since there is no appeal against that finding, it must be accepted as settled that the Respondent was in breach of the various lease Agreements entered with the Appellant “by failing to level and make usable the various parcels of land leased to her for the purposes of road construction – at Idi.Omo Village”. The lower Court refused the Appellant’s claim for special damages, but it did award the Appellant N250,000,00 as general damages. There is a distribution between the two – “General damages” are such,
as the law will presume to be the direct, natural or probable consequence of the act complained of. “Special damages” on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly – see McGregor on Damages, 13th Ed., Gonzee (Nig.) Ltd. V. NERDC (2005) 13 NWLR (Pt. 943) 634 SC, Adecentro (Nig.) Ltd. V. C., OAU (2005) 15 NWLR (Pt. 948) 290 SC, & S.P.D.C. (Nig.) Ltd. V. Tiebo VII (2005) 9 NWLR (Pt. 931) 439 SC where the Supreme Court further explained the rule as follows-
“The rule that special damages, unlike general damages, must be strictly proved is well founded in law. What this
rule requires is that anyone making a claim in special damages must prove strictly that he did suffer such special damages claimed. All that the rule requires is that the person making a claim in special damages should establish his entitlement by credible evidence of such character as would satisfy the Court that he is indeed entitled to an award under that head.
See also X. S, (Nig.) Ltd. v. Taisei (W.A.) Ltd. (2006) 15 NWLR (pt. 1003) 533 SC; where the Supreme Court per Ogbuagu, JSC observed as follows-
“It need be stressed that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. – – But where a Plaintiff decides or goes further to claim special damages, such must
be specifically pleaded and proved”. (Italics mine).
The Respondent is therefore right, special damages must be strictly proved. However, strict proof of special
damages is no more than such proof as would lend itself to quantification and assessment. As the Supreme Court put it in Arabambi V. Advance Breweries Ind. Ltd. (2005) 19 NWLR (Pf. 959) 1 ”Special damages denote those pecuniary losses which have crystallized in terms of cash and value before trial”. The word “crystallize” simply means – “to make or become definite or concrete” – see The Chambers Dictionary, so the pecuniary losses claimed
as special damages must be crystal-clear in terms of cash or value before trial. In this case, the Appellant claimed the sum of N743,149.20 being “cost of repair of damaged road” and tile sum of N3,712, 566.00 as the “amount required to rehabilitate damaged parcel of land as per the lease Agreements” as special damages and the lower Court dismissed the said claims “for failure to prove them specially and specifically”. To start with, it is well settled that a Court must give adequate consideration to the evidence offered in support of a claim for special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified – see Oshinjinrin & Ors V. Ellis & Ors (1970) 1 ANLR 158.
In other words, a claimant must establish his entitlement to special damages by credible evidence, and credible evidence is evidence worthy of belief, and for evidence to be worthy of credit, it must not only proceed from a credible source, it must be “credible” in itself, in that it should so natural, reasonable and probable in view of the transaction which it describes or to which it relates .as to make It easy to believe it – see Black’s Law Dictionary, 6th Ed, Now, what is the situation in this case? The Appellant called Rauf Ajayi Ishola, a Civil Engineer, who testified as PW2 that the Appellant consulted him about repairing a road and parcels of land, and that he “prepared the estimate” admitted in evidence as Exhibits B & B1, In his evidence In chief, PW2 said-
“I prepared the estimate, which is Exhibits B & B1 – I visited the land, my findings were that the land was water Jogged because the land is not even, and r was also instructed to put the road right and I then prepared the cost estimate to be N743,149,20 for the damaged road, the land is N3,712, 500,00 totaling N4,455, 649,20….”
After reviewing the evidence as to this claim, the lower Court held as follows.
“….Exhibits B1 and B2 ale Estimates, Estimate is defined by Oxford Dictionary as:
“Judgment that you make without having the exact details or figures about the size, amount or cost”,
– The claim of N743,149.20 and NJ,712,500,00 totaling N4;455,649.20 have not yet crystallized Into pecuniary
losses because neither the 450m Road between IdI-Omo stream before Oderinwale have been repaired nor the two parcels of land of road around Idi-Omo measuring 5 Hectares have been leveled as requested by the Plaintiff. As a result of the above, the Plaintiff failed to prove the above as special damages as provided by law and are hereby dismissed
in their entirety”.
Certainly, the lower Court’s reasoning and the conclusion cannot be faulted, this is more so when it Is noted that
the Appellant himself testified as PW4 that he was introduced to PW2 because the Respondent promised to pay him,
He further stated as follows-
“I had wanted to do the Work if the work is not too much but Engineer Ishola (PW2) gave me a heavy bill for the repair of the land”.
In other words, he would not have consulted PW2 if the Respondent had not promised to pay him, and he made no effort to carry out the repairs himself as he made out to PW2 because PW2 gave him a “heavy bill”, which can only mean that the estimates prepared by PW2 were speculative and not definite. In any case, an “estimate” is merely
“a preliminary statement of the probable cost of a proposed undertaking” – see The Chambers Dictionary.
To all intents and purposes therefore, the Appellant presented the lower Court with a preliminary statement of what it would probably cost to repair the damaged road and parcels of land that the Respondent failed to “level and make usable~ as agreed to, which cannot translate to the strict proof needed, Special damages are generally capable of substantially exact calculation, and an estimate of what it mayor may not cost to carry out the said repairs leaves room for conjecture and the lower Court was therefore right to attach no value to Exhibit B & B1, and to hold that the claim of N743,149.20 & N3,712,500.00 as special damages had not yet crystallized into pecuniary losses. The
law is settled that every item contained in the claim of special damage must be specifically proved and such a proof must be characterized by testimony that ties each item with the proof proffered, i.e. the evidence led – see Adecentro (Nig.) Ltd. V. C., OAU (supra). In this case, there was no such evidence and the lower Court was therefore right to dismiss the claims. The end result of the foregoing is that the appeal lacks merit. It therefore fails and it is hereby dismissed.
There will be no order as to costs.
Other Citations: (2008)LCN/2734(CA)
