Incar (Nigeria) Ltd V. Benson Transport Ltd (1975)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C. 

It is of the essence of a judgment based on trial by pleadings, that findings of fact should be made on issues raised as between the parties and whether relief or reliefs sought have been explicitly claimed and proved. It is even more so when special damages are claimed, the nature and particulars of such damages should be explicitly averred and at the trial such must be proved by evidence that the loss was actually sustained either as a result of the natural or probable consequence of the defendants act, or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted.

In claims tried on pleadings a judgment unrelated to the relief sought or issues joined cannot be sustained on appeal. In the present case, which came on appeal from the High Court of Lagos State the writ of summons reads:-

“The Plaintiffs claim against the Defendants is for the sum of Ten Thousand Pounds only (10,0000 being special and general damages for breach of contract, breach of warranty and/or for unlawful seizure of the plaintiffs Bus Registration No. LM 4854 being the defendants’ vehicle which vehicle was supplied to the plaintiffs by the defendants under a hire purchase agreement. The vehicle LM 4954 was unfit for the purpose for which it was supplied and the plaintiffs suffered damages thereof.

The plaintiffs also claim release and possession of  the vehicle No. LM 4954 now in custody of  the defendants or in the alternative, for the value of the said vehicle.”

In paragraph 14 of the Statement of Claim “the Plaintiff claims as per writ  of summons”. There was no averment of the nature and particulars of the special damage as distinct from that of general damages. We wish to draw attention to this pertinent statement of the law to aid those who are charged with the trial of cases in the court below:-
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“As to the allegation of damages, the distinction between special and general damages must be carefully observed. General damages such as the law will presume to be the natural or probable consequence of the defendant’s act need not be specifically pleaded. It arises by inference of law, and need not, therefore, be proved by evidence, and may be averred generally….

“Special damage, on the other hand, is such a loss as the law will not presume to be the consequence of the defendant’s act, but  which depends in part, at least, on the special circumstances of the case.”
ODGERS on Pleading & Practice 20th Edition.

The learned trial Judge in this case (George, J.) considered the issue of special and general damages in this judgment thus:-

“With regard to the quantum of damages the 2nd plaintiff witness testified that if the buses were new, his company could make 40-45pounds a day on each bus, but when the “off and on” started they hardly made 10. At the time of institution of action the bus LM 4954 was four years old; it therefore; had, on the assumption that the 2nd witness was right in estimating the normal span of activities of a Fiat Frigertto at 8 years only four more years of normal activities of a

The average between 40 and 245 is 42 10/- and the average between 42/ 10/- and the minimum earning of 10 is roughly 26pounds. This is an average diminishes as time progress. I would therefore estimate the earning capacity of the bus at 26 per day or 780pounds per month. This on a purely arithmetical basis is roughly 9,000 per annum.

I cannot go further in my calculation as the plaintiffs claim is for only 10,000 General & Special damages.”
…..

“I have proceeded to calculate to the daily returns of the plaintiff/company because I believe the evidence of  P.W.2.

Since the plaintiffs’ claim is limited to 10,000, I would assess the special damages at 9,000pounds and the General Damages at 1,000.”

Against that judgment the learned counsel for the appellants had filed the following grounds of appeal:-

“1.  The learned trial Judge misdirected himself on the facts and thereby erred in law when in considering Exhibit C, and D, he made a finding that there was a legally binding agreement in that, he inferred the existence of such an agreement when there was in fact mere exchange of views as to the conclusions of the meeting held between the parties on the 19th February 1969.
2.  The learned trial Judge erred in law when he held that the losses suffered by the plaintiffs if any was roughly 20pounds. per day or 700 per month when in fact there was no evidence to support this finding.

3.  The learned trial Judge erred in law in awarding special damages of 9000 when in fact no such special damages were specially pleaded nor were any particulars thereof given, nor was any evidence in support of such special damages.

4.  The learned trial Judge erred in law to have awarded 1,000, as general damages when in fact there was no evidence to support this finding.

5.  The judgment is against the weight of the evidence having regards to the circumstance.”

The submissions of learned counsel for the appellants can be considered under two heads:-

(a)  No sufficient evidence of an erroneous consideration of such evidence to support finding of liability, and

(b)  No different averment in Statement of Claim and evidence to support the award of 1,000 for general damage and 9,000 for special damage.

We have considered the arguments of both learned counsel and the judgment of George, J., and we are also satisfied that liability has been proved. We are also satisfied that the award of 1,000 general damage was justified. We are unable to support the award of 9,000 special damage as this was never claimed in the statement of claim or the evidence. The assessment was purely that of the learned trial Judge.

The appeal fails and it is dismissed but we amend the figure of the award to read 1,000 (N2000.00) instead of the amount awarded by the learned trial Judge.

This shall be the judgment of the court.

Other Citation: (1975) LCN/2059(SC)