Federal Capital Development Authority & Anor V. Mtn Nigeria Communication Limited & Anor (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED MUSTAPHA, J.C.A.
This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja of the 6th March, 2014 Coram M.M. Dodo, J, by an Amended Notice of Appeal filed on the 8th of October, 2014, and deemed properly filed by an order of this Court on the 20th day of May, 2015 on the following grounds, shorn of their particulars:
GROUND ONE:
That the learned trial judge erred in law when he entered judgment in favour of the 1st respondent in the sum of N250,000,000.00 against the appellants as general damages for negligent misrepresentation when the said 1st respondent had failed to plead negligence, enumerate the particulars of negligence and/or state the duty of care owed her by the appellant in his counterclaim relied upon as required by law.
GROUND TWO:
The learned trial judge erred in law when he wholly relied on a hearsay evidence in absolute disregard to the provision of Section 38 of the Evidence Act to hold that the 1st respondent proved her head claim of negligence before the Honourable Trial Judge against the appellants.
GROUND THREE:
That the
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learned trial judge erred in law when without any credible evidence adduced by 1st respondent to preponderate the scale of justice in their favour against the defense of the appellants, it held that the actions of the appellant towards the 1st respondent amount to negligent and at the same time dereliction of duty and thus awarded the sum of N250,000,000.00 damages to the 1st respondent even when the 1st respondent placed no particulars in proof therefore before the Court.
GROUND FOUR:
The learned trial judge misapplied the law with regard to the exercise of judicial discretion when without basis he awarded the sum of N250,000,000.00 against the appellants in favour of the 1st Respondent as general damages for “negligent misrepresentation”.
GROUND FIVE:
That the learned trial judge failed to appropriately appraise the facts relied upon by the parties before making the award of the jumbo damages of N250,000,000.00 in favour of the 1st respondent for ‘negligent misrepresentation’ against the appellants.
GROUND SIX:
The decision of the trial Court is against the weight of evidence.
From these grounds of appeal three issues were
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formulated for the appellants in the brief settled by Dr. Soni Ajala Esq., as follows:
1. Whether the 1st respondents failure to plead the cost of building and cost of dismantling the telecommunications equipment in her Counter-Claim (1st respondent’s Counter-Claim at pages 61 – 64 of the record) did not render the portion of the judgment and award of damages in the sum of N250,000,000.00 to the 1st respondent unsustainable in law.
2. Whether the learned trial judge in the light of 1st respondent’s failure to present particulars of negligence before the Court below as required by law was right and justified to have held that the 1st respondent is entitled to compensation and award of damages in the sum of N250,000,000.00 for the alleged negligent misrepresentation of the appellants.
3. Whether the decision and order of the learned trial judge granting the award of damages in the sum of N250,000,000.00 to the 1st respondent which is unsupported by any pleading and evidence and/or inappropriate appraising of the facts placed before him does not amount to perversion of justice that was adverse to the appellants.
The second
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respondent, represented by Modestus Alozie Esq., of counsel chose not to file a brief; while the first respondent formulated two issues of his own for determination in the brief settled by Rotimi Oguneso Esq., SAN:
1. Whether the award of general damages in the sum of N250,000,000.00 (Two Hundred and Fifty Million Naira) in favour of the 1st Respondent by the trial Court was unsustainable in law or amount to perversion of justice because the 1st Respondent did not plead particulars of damages in its claim for general damages (Ground 1, 2, 3,4, 5 and 6).
2. Whether the 1st Respondent in its pleadings made out particulars of the alleged negligence against the 1st and 2nd Appellants and at trial discharged the requisite burden of proof in respect of the allegation of negligence and was therefore entitled the award of the sum of N250,000,000.00 as general damages by the trial Court (grounds 2, 4, 5 and 6).
This appeal will be decided on the issues as formulated for the 1st respondent, not only for being apt in the circumstances but also for brevity.
Issue One:
Whether the award of general damages in the sum of N250,000,000 in favour of the
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1st respondent is unsustainable in law or amounts to perversion of justice, because the first respondent did not plead particulars of damages in its claim for general damages.
It is submitted for appellant that the absence of pleading by the 1st respondent, on the cost of erecting and dismantling the telecommunications equipment, as well as lack of evidence on same left the trial Court in the dark; learned counsel referred the Court to KARIMU V. LAGOS STATE (2012) 5 NWLR part 1294 page 620 at 649, Order 4 Rule 15 of the High Court of the Federal Capital Territory Abuja Civil Procedure Rules 2004 and OTARU & SONS LTD V. IDRIS (1999) 6 NWLR part 606 page 330 at 357.
It is submitted in response, for the 1st respondent, that DW1 testified to the effect that based on prevailing estimate at the time the suit was instituted the cost of building a new base is One Million USD, and the cost of dismantling is 150,000 USD.
That also the only relief granted to the 1st respondent was the award of N250,000,000 as compensation/general damages for the hardship and loss incurred.
Learned senior counsel admitted that the estimated cost of erecting and
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dismantling a telecommunication mast as stated above was not one of the reliefs sought from the trial Court, and same was not its ratio decidendi of rationale for the decision granting damages.
That the rationale for the award of damages was the appellants’ negligent misrepresentation admitted in Exhibit H and the contradictory statement of DW2 and the testimony of DW1 as alleged.
That also the damage sought was for general damages and not specific or special damages that required pleading of particulars; learned senior counsel referred the Court to YALAJU V. AREC LTD (1990) 4 NWLR Part 145 at 422, British AIRWAYS V. ATOYEBI (2014) 13 NWLR Part 1424 at 254.
It’s clear from the record before this Court that the 1st respondent did not plead particulars of the alleged negligence to entitle it to a claim for N250,000,000 in special or specific damages; indeed by admission of the learned senior counsel to the 1st respondent, at page 8 Paragraph 4.7 of the claim is for “…general damages and not specific or special damages that requires pleading of particulars….
The burden to specifically plead and strictly prove special damages is on a
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party who claims it, although the tendering of documentary evidence in the form of receipts in proof of special damages could be a good mode of discharging the burden on the claimant, it is however not an indispensable or exclusive means of poof of special damages, see PRODUCE MARKETING BOARO V. A.O. ADEWUNMI (1972) 11 SC 111/24, where it was held: “The pleadings and evidence in the claim for special damages must be such that they are of such character and quality for assessment and quantification.” In the case of NBB CO. LTD. v. A.C.B. LTD. (supra), the Supreme Court had stated the requirement as follows:-
“It is trite law that where the claimant specifically alleges that he suffered special damages, he must per force, prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognisable, the loss or damage he has suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. Per Garba JCA.
It was first agued for the first 1st respondent at Paragraph 4-3 of the brief that “…DW1 testified in this matter that based on the prevailing
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estimate at the time 1st respondent instituted this suit the cost of building a new base station is One Million Dollars and the cost of dismantling same is One Hundred and Fifty Thousand US Dollars…”
Now what is the point of this evidence, if same was not pleaded Special damages are such that the claimant has to particularise them in his pleadings to enable him to give evidence thereto and to recover thereon, see ATTORNEY-GENERAL, OYO STATE V. FAIRLAKES HOTELS (NO 2) (1989) 5 NWLR (pt. 121) 255. FURTHER SPECIAL DAMAGES MUST BE STRICTLY PROVED. SEE AGUNWA V. ONNKWUE (1962) 1 ALL NLR 537; (1962) 2 SCNLR 275 AND BASIL V. FAJEBE 1990 6 NWLR (PT. 155) 172.
It is submitted for the 1st respondent, in another breath that the damages sought against the appellants was for general damages and not for specific or special damages, in which case there is no need to plead same; thus admitting the lack of pleadings in that regard.
Learned senior counsel to the 1st respondent also argued that the ratio decidendi of the trial Court was not based on the cost of erecting and dismantling a telecommunication mast but flowed from the negligent
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misrepresentation of the appellants to award the special damage.
In an action for negligence, a claimant can only succeed if in addition to pleading and particularising negligence, he also establishes the duty of care owed to him by the party he accuses of negligence, and a breach of that duly; It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial, or on the converse side lead evidence on them when such particulars are not pleaded, see ANYAH V. IMO CONCORDE HOTELS LTD & 2 ORS. (2002) 12 S.C. (PT. 11) 77, OKOLI V. NWAGU (1960) SCNLR 48; (1960) 3 FSC 126; NIGERIAN AIRWAYS LTD V. ABE (1988) 4 NWLR (PT. 90) 524.
The findings of the trial Court are very clear; it held in page 419 that: “I agree in toto with the Defendant/Counter Claimant that the actions of the 2nd and 3rd Defendants by counter claim towards the Defendant/Counter claimant amount (sic) to negligent I therefore unhesitatingly hereby award the sum of N250,000,000 only against the 2nd and 3rd Defendants by counter claim for their negligent misrepresentation.”
Learned senior counsel for the appellant made a
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valiant effort of categorizing the award as one falling under general damages, so that it will be needless to plead or prove same, but the trial Court made clear references to negligence in its judgment which cannot be ignored, especially the evidence of DW2; learned senior counsel cannot have it both ways: the award of N250,000,000 “…for their negligent misrepresentation,” cannot hold because it is neither pleaded nor proved and there does not appear to be any basis for the award in the circumstances.
This Court cannot help but agree with learned counsel for the appellants that the trial Court cannot also be assisted in any way by the evidence of estimated cost coming from DW1, not only because there is a need in law to plead and front load same but because the law does not give for speculation by way of estimates.
It is for these that this issue is resolved in favour of the appellants, against the 1st respondent.
Issue Two:
Whether the 1st respondent in its pleadings made out particulars of the alleged negligence against the 1st and 2nd Appellants and at the trial discharged the requisite burden of proof in respect of the allegation of
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negligence and was therefore entitled to the award of the sum of N250,000.000 as general damages by the trial Court.
It is submitted for the appellants while referring to KOYA V. UBA LTD (1997) 1 NWLR part 481 Pg 251 at 291 and ABUBAKAR V. JOHN JOSEPH (2008) 34 part 2 NSCQ 1195 that 1st respondent failed to plead the cost of dismantling the equipment throughout its counter claim, and cannot be reconciled with the award of N250,000,000 damages.
That the trial Court was wrong in awarding damages of N250,000,000 for negligent misrepresentation; learned counsel referred the Court to OGIRI V. NAOC (2010) 14 NWLR part 1213 208 at 222-223 and Paragraphs 7, 8, 9 and 10 of the written deposition of the 1st respondent’s witness.
That even though 1st respondent claimed at Paragraph 7 of the witness’ deposition to have incurred huge expenses no particular of such expenses was pleaded or tendered in evidence.
That also Exhibit H, the letter by the appellants, informing the 1st respondent the error of the allocation of the land in dispute was written about eight months after the allocation to the 1st respondent on the 25th of April, 2002, thus giving the
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1st respondent notice its occupation of the land was illegal and so damages cannot be accruable to the 1st respondent from the time of taking the writ in 2005.
Learned counsel submitted that the trial Court was wrong to have relied on the evidence of the 1st respondent from when it took out the writ; he referred the Court to NSEFIK V. MUNA (2007) 10 NWLR part 1043 page 502 at 514 and Sections 135, 136 and 137 of the Evidence Act, 2011 .
In response it is submitted for the 1st respondent that the appellants’ witness DW2 admitted that he knew that the grant to the 1st respondent was in error, but the 1st and 2nd appellants were not aware; and it is on the basis of Exhibit H and the testimony of DW2 that the trial Court awarded damages.
Learned senior counsel also submitted while referring to BLYTH V. BIRMINGHAM WATERWORKS CO. (1856) 11 Ex 781 at 784 and DONOGUE V STEVENSON (1932) A.C 526 that what is required in a claim based on the tort of negligence is to prove the existence of a legal duty of care, and a breach of such duty.
That the appellants owed the 1st respondent a duty of care to check their record and ensue that the plot
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allocated to the 1st respondent was vacant before approving same, and the appellants failed in the performance of that duty of care to check their record.
That the fact that the 1st respondent has suffered financial loss and hardship means that can only be remedied by the award of general damages in its favour as was done by the trial Court, learned senior counsel referred the Court to BELLO & ORS V. A.G. OYO STATE (1986) 5 NWLR part 45 at 890 and OYEKANMI V. NEPA (2001) FWLR part 34 pg 404 at 436.
That also it is not enough for the appellants to merely admit their blunder, the 1st respondent has to be compensated especially as it provided particulars of negligence before the trial Court which led to the award of N250,000,000.
The appellants clearly admitted by pleadings, testimony and especially by Exhibit H, a letter dated 25th of April, 2002 that the 2nd respondent and not the 1st respondent is the rightful and therefore legal owner of the land in dispute, as the allocation was made in error; the 1st respondent having been allocated the land in dispute on the 13th of August, 2001.
Exhibit H clearly put the 1st respondent on notice,
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as to the error of the allocation eight months after the blunder, but the 1st respondent continued to be in occupation up to the time the 2nd respondent took up a writ in 2005; the 2nd respondent wrote to the 1st respondent on the 28th of August, 2002 complaining about the trespass, as per page 28 of the record of appeal, and the 1st respondent by a letter dated 11th April, 2002 not only acknowledged the said letter but promised to look into the matter, see page 29 of the record of appeal.
This Court agrees with learned counsel for the appellants that the period of mistake or negligence for which the trial Court could have compensated the 1st respondent, if it had done what as expected of it is eight months, i.e. up to the time of writing Exhibit H, on the 25th of April, 2002 from which time the 1st respondent had notice of the error, which it chose to ignore and not up to 2005 as is the case.
This clearly is a proper case of improper evaluation of evidence, born out of substitution of evidence by inference; speculation is not acceptable in our Courts, because neither the parties nor the Court is permitted or entitled to speculate anything; where a
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decision is based on speculation it is liable to be set aside, for good reason, see OVERSEAS CONSTRUCTION CO. (NIG.) LTD V. CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (PT. 13) 407; BAKARE V. A.C.B. LTD (1986) 5 SC 48; OLAWUYI V. ADEYEMI (1990) 4 NWLR (Pt. 147) 746; SEISMOGRAPH SERVICE (NIG) LTD V. OGBENI (1976) 4 SC 85.
Even the eight months which the 1st respondent could have otherwise been entitled to compensation for cannot be supported by either pleading or evidence. There is no basis therefore, for the award of the N250,000,000 in damages, in the absence of evidence or pleading in support of same.
It is therefore glaringly clear in view of the above finding, that the conclusions of the trial Court have no basis in law: Paragraph 8 of the 1st respondent’s witness on oath dated 14th of May, 2008, cannot by any stretch of imagination be of any help either, because even though it gave evidence on the cost of building and dismantling the telecommunications mast, it did not plead facts nor particulars in the counter claim to warrant the award; see page 224 of the record of proceedings.
It is very important in the considered opinion of this Court
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to take serious note of the fact that if the trial Court had itself taken note of the fact that the 1st respondent became aware of the error in allocation of the land to it, at least on the 25th of April, 2002, eight months after the allocation, and yet it stayed on, until 2005, in utter disregard to the information until the filing of the writ, it would not have arrived at the conclusion it did, with regard to the award of damages; thus lending credence to the contention that the award is erroneously based on a wrong principle, because the 1st respondent is being compensated for a period in excess of ten years, for negligent misrepresentation, without pleading or providing proof of particulars of negligence, to be entitled to such an unjustifiably huge amount of N250.000.000.
It is an accepted part of our jurisprudence that award of damages is ordinarily within the discretion of a trial Court in respect of which an appellate Court would be reluctant to interfere; but an appellate Court will readily interfere if the trial Court acted on a wrong principle of law or under a mistake of law, or where its decision on damages is perverse or the award is
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unjustified, see KOTUN V. OLASEWERE (2009) ALL FWLR (PT. 477) 41.
Accordingly this issue is resolved in favour of the appellant, against the 1st respondent; having resolved the two issue for determination in favour of the appellant, and against the 1st respondent this appeal succeeds, and it is hereby allowed.
The part of the judgment and order of the trial Court of the 6th of March, 2014 awarding N250,000,000 to the 1st respondent is hereby set aside.
Parties to bear their respective costs.
Other Citations: (2016)LCN/8957(CA)
