National Oil & Chemical Marketing Plc V. Kamardeen Leye Adewusi & Ors (2007)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
The 1st Respondent was the Plaintiff while the 2nd, 3rd, 4th Respondent and the Appellant were the Defendants respectively in suit No.I/142/97. There were 34 cases in all and even though there was no formal consolidation of the cases, counsel to (he parties and the trial court agreed that suit No. I/142/97 between KAMARDEEN LEYE ADEWUSI v. (1) SAMUEL AZU, (2) SAMUEL GRAZE (3) ISMAILA ADEDIRAN & NATIONAL OIL & CHEMICAL MARKETING PLC should be treated as a test case for the other cases. In the court below the plaintiff claimed in paragraph 31 of the Amended Statement of Claim filed pursuant to order of court dated 1st August, 1997 as follows:-
“31 WHEREOF the plaintiff claims against the defendants jointly and severally the sum of N1,581,100.00 damages suffered by the plaintiff as a result of the negligence of the 3rd defendant who in the course of his employment negligently drove vehicle No. OY 3682 AB on the 15th of May, 1996 at Dugbe Alawo a public highway and caused the tanker to somersault spilled oil and caught fire which destroyed the plaintiff’s property.
PARTICULARS
The sum of N1,425,200.00 as special damages.
The sum of N1, 156,000,00 as General damages.
The Plaintiff also claims:-
a. Loss of profit from the dale of Writ at the rate of N6,000,00 per day till judgment .
b. Interest at the rate of 10% from the date of judgment till payment of judgment debt”.
The 2 respondent was the registered owner of the tanker and he gave it to the 3rd respondent who in turn engaged the services of the 4th respondent as the driver to convey and distribute the petroleum products to different filling stations from the NNPC depot at Apata Ibadan. In compliance with the directions of NNPC, the tanker was painted in the colour of the Appellant Company with its name inscribed on it. Before the fire incident, there was a contract of haulage between the 3rd respondent and the appellant wherein it was agreed that the appellant would make use of the tanker provided by the 3m respondent to transport and distribute petrol to the appellant’s filling stations in Ibadan. The 2nd and 3rd respondents contested the 1st respondent’s claims and part of their defence was that they had no control of the tanker and its driver, the 4th Respondent, who was driving the tanker that caused the damage to the claimants who were awarded damages at the lower court. The appellant on its part claimed that the 3rd respondent was an Independent Contractor and the 4th respondent was his servant. The 4th respondent was engaged by the 3rd respondent to drive the tanker and he actually was the driver at the lime of the accident. The Appellant also denied and seriously contested the respondents’ claims and allegations that the tanker belonged to her, that she was the employer of the 4th respondent and was therefore not vicariously liable for the alleged negligence of the said 4th respondent.
In support of their case, the parties gave evidence. The 2nd and 3rd respondents called witnesses but did not testify in person. The 4th respondent testified in person. There were witnesses who testified on behalf of the appellant. The other plaintiffs who agreed that suit No. I/142/97 should be used as a lead case thereafter gave evidence regarding their claims for damages and judgment was given against the defendants jointly and severally. Dissatisfied with the said judgment the appellant who was the 4th defendant at the lower court appealed to this court. The appellant formulated the following four issues for determination:-
- Whether the learned Chief Judge was right when he held that the appellant was also vicariously liable for the negligence of the 3rd defendant.
- Whether from the evidence led in this case the learned trial Chief Judge was right to have adjudged the 4th respondent negligent in the driving of the vehicle at the time of the accident
- Whether the learned trial Judge was right not to have considered all the issues properly raised by the appellant before him before arriving at a conclusion that the appellant was vicariously liable for the negligence of the 4th respondent, the driver of an Independent Contractor.
- Whether the learned trial Chief Judge was right to have awarded the special and general damages when the respondents did not strictly prove their entitlements to such amounts as required by law.
The 1st respondent filed a Respondent’s Notice pursuant to Order 9 Rule 2 Court of Appeal Rules, 2007 (formerly Order 3 Rule 14(1) Court of Appeal Rules 2002) urging this court to vary the judgment of the lower court dated the 21st June, 2000 in the following manner:-
“the 4th defendant being the owner of the petrol which the 3rd defendant was carrying to the 4th defendant’s depot was liable in damages to the plaintiff when the petrol escaped and caught fire and damaged the property of the plaintiffs”.
In his Brief of Argument, the 1st respondent urged this court to strike out Ground 5 in the Notice of Appeal since no issue was framed from it and it was therefore deemed abandoned. He noted that issues 1 and 4 were the same. He proceeded to formulate the following three issues for determination namely:-
- Whether or not the appellant was vicariously liable for the negligence of the 4th respondent to the 1st respondent in the appeal?
- Whether from the evidence led in this case the learned trial Chief Judge was right to have adjudged the 4th respondent negligent in the driving of the vehicle at the time of the accident – Ground 2.
- Whether the learned trial Judge was nut right to have awarded the special and general damages claimed by the 1st respondent – Ground 4.
The issue of strict liability raised in the respondent’s Notice was not addressed in the Appellant’s Reply Brief. Order 9 Rule 2 of the Court of Appeal Rules, 2007 provides as follows:-
“A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.”
In paragraph 2.05 at page 4 of the 1st respondent’s amended Brief of Argument dated and filed on 7/10/2003 but deemed filed on 28/4/2004, the 1st respondent maintained that having regard to the judgment of the court below which omitted to pronounce on the primary liability of the Appellant on other grounds contained in the evidence of 1st respondent, other than ground of negligence, the 1st respondent filed a Respondent’s Notice to vary the judgment, to include the omitted grounds. It was argued that there was enough evidence from both the Plaintiff and the Defendant witnesses showing the duties owed by the Appellant to the 1st respondent. It was pointed out that the Appellant had complete control in the loading of the vehicle and singularly had the duties to ensure that the petrol loaded in the tanker was secure and the manholes securely locked.
It is the contention by learned senior counsel for the appellant that the evidence proffered at the lower court regarding sealing and shutting of the manholes and the protection and taking the contents after loading without making a specific finding of fact on whose duty it was to shut the manholes (whether that of the appellant’s workers or that of the 2nd and 3rd respondents), the learned trial Judge should not have unilaterally and without any finding of fact made the appellant liable vicariously for the negligence of the 4th respondent who was alleged to be the servant of an Independent Contractor.
In his judgment, the learned trial Chief Judge reviewed the evidence of all the witnesses for the Plaintiff and the defendants vis-a-vis the pleadings and the submissions of counsel and made the following findings of fact which directly affected the appellant at pages 215 – 216 of the records:-
“1. That vehicle No. OY3682AB was no doubt a very old vehicle
- That 4th defendant registered the vehicle with the NNPC in its name for collection of petroleum products since 1991.
- That on the day of the accident, the 4th defendant’s representative did not check the vehicle before it was loaded because he was not at the NNPC depot.
- That there was no efficient fire extinguisher to put the fire off.
- That before the accident, four of the manholes were opened, the contents spilled and burnt many shops including the properties therein”.
The learned trial Chief Judge proceeded to hold at page 220:-
“That it was the duty of the 4th defendant or its representative to provide adequate and sufficient safety measures after the vehicle must have been loaded with petrol at the NNPC depot. That failure of the 4th defendant to provide adequate and safety measures after the vehicle had been loaded with 30,000 litres of petrol caused the petrol to gush out of the defective manholes and caused fire which destroyed the properties of the plaintiffs.”
There is no appeal against these findings of fact made by the learned trial Chief Judge. All the grounds of appeal were directed at the vicarious liability of the appellant for the negligent conduct of the 3rd defendant, the driver of the vehicle. The above findings of fact bear direct relevance to the pleadings in paragraphs 14(c) 14(d) and 14(c) of the Amended Statement of Claim which were filed pursuant to order of court dated 29/7/97 wherein the plaintiff averred as follows:-
“14(c) the plaintiff will further or in the alternative to paragraph 14(13) and (C) supra rely on the doctrine of Res Ipsa Loquitur.
(b) Further and in the alternative to paragraph 14(a), 14(b) and 14(c) supra the plaintiff avers that the 4th defendant was obliged to prevent the escape of petrol from its tanker and ensure that the plaintiff’s property was not engulfed by the ensuing fire.
(c) The plaintiff avers that with or without negligence, the 4th defendant was in breach of his duty of care to the plaintiff when its petrol escaped from the tanker and caused fire which damaged the plaintiff’s property”.
Thus the issue of strict liability was raised by the plaintiff in the pleadings which comes under the rule in RYLANDS v. FLETCHER (1866) L.R.I. EX.265 which is to the effect that the occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape and is liable for all the direct consequences of its escape, even if he has not been guilty of negligence.
Things which have been held to be within the rule include electricity, gas likely to pollute water supplies, explosives, fire and things likely to cause, and which in fact cause tires (including a motor vehicle whether the tank contain, or be emptied of petrol), things likely to give off noxious gases or fumes, water, sewage, and slag heaps. See: Street on Torts 6th Edition at pages 249-250; NATIONAL TELEPHONE v. BAKER (1893) 2 ch.18b; BATCHELLER v. TUNBRIDGE WELLS GAS CO. (1901) 84 L.T. 765; RAINHAM CHEMICAL WORKS LTD v. BELVEDERE FISH GUANO CO. (1921) 2 A.C 465, H.L.; MUSGROVE v. PANDELIS (1919) 2K.B. 43 C.A; PERRY v. KENDRICKS TRANSPORT LTD (1956) 1 ALL E.R. 154 C.A; JONES v. FESTINIOG RY. CO. (1868) L.R. 3.Q.8. 733.
The case of RYLANDS v. FLETCHER supra which is the locus classicus in strict liability cases decided that the owner of a reservoir was liable for the escape of water from his reservoir notwithstanding that he had not been guilty of negligence. The actual cause of the escape was the negligence of an independent contractor for whom a defendant is not normally liable. The two essential elements of liability were: that the defendant collected, or authorized to be collected, on his land the water in the reservoir, and that there was an escape of the water. The law does not forbid mere collection; liability attaches in the event of escape after collection. While the appellant may not be vicariously liable for the negligence of the 4th respondent; nonetheless the fact that the petrol which 4th respondent carried in the tanker spilled after the accident and was the direct cause of the fire that engulfed and destroyed the 1st respondent’s property made the appellant strictly liable for the damage caused. This point is illustrated by the decision in MUSGROVE v PANDELIS supra. The facts in that case are that the plaintiff occupied rooms over a garage. Part of the garage was let to the defendant, who kept a motor car there. The defendant’s servant, who had little skill as a chauffeur, having occasion in the course of his employment to move the motor car, started the engine, and from some unexplained cause, and without negligence on the part of the servant, the petrol in the carburettor caught fire. If the servant had promptly turned off the tap leading from the petrol tank to the carburettor, the fire would have harmlessly burnt itself out. But he failed to do this, and the fire spread and burnt the car, the garage, and the plaintiffs rooms and furniture.
The plaintiff brought an action for damages. The defendant pleaded that the fire “accidentally began” within S.86 of the Fires Prevention (Metropolis) Act 1774 which provided that no action
” … shall be had, maintained, or prosecuted against any person in whose house, chamber, stable, bam or other building, or on whose estate any fire shall. .. accidentally begin ”
The Judge at the trial found that the defendant’s servant was negligent in not promptly turning off the petrol tap and proceeded to hold as follows:
“(1) that the act did not protect a person who brought upon his premises an object likely to do damage if not kept in control, and that a motor car ready to start, or such a car in charge of an unskilled chauffeur, was an object of that kind.
(2) That the fire which caused the damage was not that which look place in the carburettor, but was the fire which spread to the car; and that this fire did not begin accidentally but was caused by the negligence of the defendant’s servant and consequently that the defendant was liable”.
In the instant case, there is the evidence of Salami Amidu Oyediran and Festus Yalekhue who testified as 1st DW and 2nd DW for 1st and 2nd defendants which the learned trial Chief Judge accepted that Mr. Olorunfemi the appellant’s representative at the NNPC depot was not around when the petrol was being loaded and it was his responsibility to see to the roadworthiness of the tanker and also check to ensure that the manholes were properly locked to avoid any spillage. Since Mr. Olorunfemi failed to carry out his duty the manholes opened when the tanker fell down leading to the escape of the petrol and the resultant fire that destroyed the 1st respondent’s property. Following the decision in MUSGROVE v. PANDELIS supra, the appellant must be held vicariously liable for the negligence of Mr. Olorunfemi and even if he was not negligent, the fact that the petrol escaped from the tanker and caused the fire would still make the appellant strictly liable for the destruction of the properties caused by the fire.
The Rule was applied in SHELL PETROLEUM DEV. CO. (NIG) LTD v. AMARO (2000) 10 NWLR (pt. 675) 248 where this court following the Supreme Court decision in MACHINE UMUDJE & ANOR v. SHELL (1975) 9-11 S.C 155 at 172 found the appellant liable for the spillage and went on to explain that the liability on the part of an,owner or the person in control of an oil waste pit such as the one located at Location E in the case in hand, exists under the Rule in RYLANDS v. FLETCHER although the escape has not occurred as a result of negligence on his part. Similarly in NEPA v. ALLI (1992) 8 NWLR (pt. 259) 279 the Supreme Court considered electricity to be a dangerous thing, if it should escape, as it did in this case, and consequently held that the “owner” thereof owes a duty to the consumers to exercise reasonable care and skill to ensure that the rule in RYLANDS v. FLETCHER will apply. But the degree of care which that duty involves is proportionate to the degree of risk involved. In the words of Ogwuegbu J.S.C at page 296:-
“The appellant generates electricity, provides bulk supply of same for distribution and provides supply of electricity to consumers in Nigeria, It is my view that electricity is a very dangerous thing being handled and carried by the appellant If it should escape, it owed a duty to the consumers to exercise reasonable care and skill that the consumers should not be damaged. The degree of care which that duty involved must be proportioned to the risk involved. See: NORTHWESTERN UTILITIES LTD v. LONDON GUARANTEE AND ACCIDENT CO. LTD & ORS.(1936)A.C. 108 at 118 and COLLINGWOOD v. HOME & COLONIAL STORES (1936) 1 ALL, E.R 74”
Nnaemeka-Agu J.S.C. dissented and held that although the rule in RYLANDS v. FLETCHER supra applies to electricity (EASTERN & SOUTH AFRICAN TELEPHONE CO. v. CAPE TOWN TRAMWAYS (1902) A.C. 381), electricity is used or generated under statutory authority, it is necessary to prove negligence in order to establish liability. See: GEDDIS v. PROPERTIES OF BANN RESERVOIR (1878) 3 App Cass 430; DUNNE v. NORTH WESTERN GAS BOARD (164) 2 Q.B. 806.
Strict liability has also been extended to a hotel proprietor for the loss of his guest’s property. This was the decision in HILL STATION HOTEL LIMITED v. ADEYI (1996) 4 NWLR (pt.442) 294 where it was held that the liability of a hotel proprietor for the loss of his guest’s property is strict and absence of negligence is no defence, as it attaches where the goods are within the hospitium of the inn and the goods need not be in the special keeping of the hold proprietor to render him liable.
Since the appellant has not argued that the findings made by the learned trial Chief Judge were perverse or without basis nor has it been suggested that the conclusions reached from the findings were wrong, even if the argument that the appellant cannot be held vicariously liable for the negligence of the 4th respondent succeeds on the ground that he was an employee of the 3rd respondent who is an independent contractor, the appellant will still be liable because the petrol that caused the fire which destroyed the 1st respondent’s goods escaped and was owned by the appellant. I therefore hold that the 1st respondent’s Notice was properly raised and there is sufficient evidence to decide the liability of the appellant based on the Notice. This court exercising its powers under section 16 Court of Appeal Act and Order 9 Rule 2 of the Court of Appeal Rules 2007 can properly decide on the appellant’s liability based on the Rule in RYLANDS v. FLETCHER. I therefore hold that the appellant is strictly liable for the damage done to 1st respondent’s property as a result of the fire caused by the petrol which escaped from the tanker that was being driven by the 4th respondent.
The issue now left for consideration is whether the 1st respondent proved his claims which entitled him to the award of special and general damages by the learned trial Chief Judge.
Learned Senior counsel for the appellant submitted that in a claim for special damages for negligence, the mere ipse dixit of the plaintiff, in the absence of strict proof: cannot constitute proof of the special damages and relied on ESEIGBE v. AGBOLOR (1990) 7 NWLR (pt.161) 234 in support. He referred to the judgment at pages 221 lines 23-27 and 222 lines 19 and 20 of the record where the learned trial Chief Judge held that the 1st respondent strictly proved items (a), (c), (d) and (e) under the head of special damages in the Amended Statement of Claim and awarded the sum of N939,200 to him. He argued that contrary to the findings of the learned trial Chief Judge that these claims (a), (c), (d) and (e) were not controverted, the claims were indeed controverted and some discrepancies were discovered in the total figures the 1st respondent tendered as Exhibit C-C 18 before the court as total worth of goods and the earlier claims to the appellant’s Loss Adjuster who testified as 1st DW.
Learned senior counsel further contended that in the written address submitted by the appellant’s (defendant’s) counsel in the lower court learned counsel drew the court’s attention to the claim in Exhibits H-H7 which totalled N171,950.00. He therefore submitted that in the absence of any explanation to clear the discrepancy in the difference in the amount claimed, the learned trial Chief Judge should have dismissed the 1st respondent’s claim for the alleged goods in his shop. He relied on the case of MESSRS DUMEZ (NIG) LTD v. OGBOLI (1973) 3 SC 196 in support of the submission. He therefore urged this court to allow the appeal based on the fact that the learned trial Chief Judge did not give a full and dispassionate consideration to all the issues properly raised before him.
Learned senior counsel for the 1st respondent referred to paragraph 23 of the Amended Statement of claim and argued that apart from claiming a total loss of N1,425,200 as special damages and N1,156.00 as general damages, the 1st respondent gave particulars of items lost in the fire, And in paragraphs 11 and 12 of the 3rd Amended Statement of Defence, the appellant merely pleaded that the plaintiff’s presence and that of the goods where they were destroyed was illegal and did not suffer the alleged loss which was grossly inflated. It was submitted that without providing facts on what the proper loss could be, the 1st respondent’s items of loss stood unchallenged and the trial court was entitled to award the claim. The case of BRITISH AMERICAN INSURANCE COMPANY v. EKEOMA (1995) 2 NWLR (pt 380) 743 was cited in support of the argument. He said the 1st respondent gave evidence of all the items lost in the inferno and the only question which the appellant’s counsel asked under cross-examination was whether or not the 1st respondent made up Exhibits C-C 18 after the incident.
He argued that since 1st respondent was not discredited under cross-examination he was entitled to the cost of the items. He said Exhibits H-H7 were tendered by 1st defence witness and that the appellant did not call any evidence to disprove each leg of the claim in respect of the damages suffered. He therefore submitted that where injury or legal wrong has been established there ought to be some compensation., See: FBN PLC v. ASSOCIATED MOTORS (NIG) LTD (1998) 1 NWLR (pt.570) 441. It was further submitted by relying on OSHINJIRIN v. ELIAS ENGINEERING CO. LTD (1994) 8 NWLR (pt. 361) 124 and DANIEL ESIKA & ORS v. GODWIN MEDOLU (1997) 2 NWLR (pt.485) 54 that where the plaintiff establishes entitlement of the items claimed by credible evidence of such character as would suggest that he indeed is entitled to an award under special damages he has discharged the duty placed on him. It is learned senior counsel’s contention that proof of special damages does not mean that the law required an extra ordinary measures of evidence or special category of evidence to establish entitlement to special damages. It does not mean that an award in special damages cannot be made unless they are established beyond reasonable doubt as is the position in criminal cases. He submitted that the appellant failed to show that there was a breach of any of the conditions laid down in judicial authorities to justify any review of the award made. He therefore urged this court to resolve the issue in favour of the 1st respondent.
The law is well settled that in order to justify interfering with any decision of a trial Judge on the amount of damages awarded, it is necessary for the appellate court to be convinced, either:-
(a) That the Judge acted upon some wrong principles of law; or
(b) That the amount awarded was so extremely high or so very small as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.
The test should be an objective one whether the Judge reached his judgment at first instance on a correct principle of law and thereby reached a correct estimate of damages. However, the appellate court will decline to reverse the finding of a trial Judge as to amount of damages merely because it thinks that if it had tried the case in the first instance it would have given a lesser sum. See: AGBABA v. OTUBUSIN (1961) 1 ALL NLR 291; JARMAKANI TRANSPORT v. ABEKE (1963) 11 ALL NLR 180 SHODIPO & CO. LTD v. DAILY TIMES OF NIGERIA LTD (1972) 11 S.C. 69.
In BENSON v. ASHIRU (1967) 1 ALL NLR 184 Brett J.S.C observed at page 191 that-
“It is easier for an appeal court to decide whether the damages awarded can be upheld if it knows how they were assessed and hope that in cases of this kind Judges will set out the reasoning by which they arrived at their final estimate.”
This is the position as regards the award of general damages. If the quantum of loss is ascertainable, the award of general damages is improper, See: KEREWI v. ODEGBESA (1967) 1 NWLR 89; WASA (NIG) LTD v. KALLA (1978) 3 SC 21. Where the issue relates to award of special damages then strict proof is required before the award of such damages can be made. It has been noted that the term ‘strict proof’ is not absolute or extraordinary proof. All that it means is that the plaintiff on whom the burden lies under sections 134, 135 and 136 Evidence Act establishes that having regard to the pieces of evidence led based upon his pleading that he proved them by satisfactory and credible evidence and the surrounding circumstances of the case having put the defendant on notice of the claim by averment in his pleadings that he is entitled to be awarded the sum by the judgment of the court. In IMANA v. ROBINSON (1979) 3 S.C 1, Aniagolu J.S.C. adroitly dealt with the issue at page 23 thus:-
“The term “strict proof’ required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses which are exactly known or accurately measured before the trial. Strict proof does not mean unusual proof, as the play of appellant’s counsel on those words tended to suggest, but simply implies that plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible. (per Lord Donovan in PETRESTRELLO v. UNITED PAINT CO. (1969) 1 WLR 570 AT 579)”
In HYACINTH NWACHUKWU NZERIBE v. DAVE ENGINEERING CO. LTD supra Iguh reinforced the view at page 140 that-
“a claim in special damages must, to succeed, be proved strictly and that the court is not entitled to make its own estimate in such an issue. See: DUMEZ (NIG) LTD v. OGBOLI (1972) 1 ALL NLR 241 and JABBER v. BASMA 14 WACA 140. The rule that special damages, unlike general damages, must be strictly proved is well founded in law and has been repeatedly emphasized by this court. What this rule requires, in effect, is that anyone making a claim in special damages must prove strictly that he did suffer such special damages claimed. This, however, does not mean that the law requires an extra ordinary measure of evidence or that the law lays down or requires a special category of evidence to establish entitlement to special damages. It does not mean either that an award in special damages cannot be made unless such damages are established beyond reasonable doubt as is the position in criminal cases. All that the rule requires is that the person making a claim in special damages should establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the court that he is indeed entitled to an award under that head, otherwise the general law of evidence as to proof on the balance of probabilities or by preponderance of weight of evidence which ordinarily applies in civil cases operates. See: OSHINJIRIN & ORS v. ALHAJI ELIAS & ORS (1970) 1 ALL NLR 153 at 156. See too DUMEZ (NIG) LTD v. PATRICK OGBOLI (1972) 1 ALL NLR (pt.1) 241”
The appellant’s complaint in Ground 4 of the Notice of Appeal is about the award of special and general damages. This ground from which issue NO.4 was formulated reads:-
“The learned trial Chief Judge erred in law when he awarded special and general damages to the plaintiff and thereby came to a wrong decision in the case.
PARTICULARS OF ERROR
(a) Special damages must be pleaded and strictly proved by credible and admissible evidence which the plaintiff failed to do in this case
(b) The mere Ipse dixit of the plaintiff cannot constitute the required proof.
(c) It is trite law that it is necessary for the learned trial Chief Judge to make his own assessment of the quantum of general damages which he failed to do.
(d) The awards of special and general damages are legally wrong and indefensible”
Although issue 4 as formulated is concerned with the award of both special as well as general damages, the arguments advanced by the appellant’s counsel concentrated on the award of special damages.
The learned trial Chief Judge considered only the evidence adduced in proof of items (a), (c), (d) and (e) and it is only in respect of the said items that he awarded the sum of N939,200 as special damages against the 1st – 4th defendants jointly and severally (see: page 221 lines 23-27 and page 222 lines 19-21 of the records)”
In paragraph 23 of the Amended Statement of Claim which was filed pursuant to the order of court dated 1/8/97 the plaintiff pleaded as follows:-
“23. The plaintiff will lead evidence to show the value of the goods in the shops and will also tender list of stock taken on the goods in the shop shortly before the fire incident and the invoices issued in respect of some of the goods by the plaintiffs suppliers.
SPECIAL DAMAGES
a. Goods in the shop N870,000.00
b. Cash in the shop N284,000.00
c. Dummy in the shop N47,000.00
d. Gibson Air conditioner N18,000.00
e. Eternal Standing Fan N3,2000.00
f. Building N80,000.00
g. Interior Decoration N53,000.00
h. Exterior Decoration N30,000.00
i. Electricity N40,000.00
N1,425,200.00
In paragraph 11 and 12 of the 4th defendant (Appellant’s) 3rd Amended Statement of Defence dated 26/8/97 it was averred as follows:-
“11. With reference to paragraph (sic) 20, 21 and 22 of the statement of claim, the 4th defendant avers that the plaintiffs presence and that of his goods where they were destroyed were illegal.
- With particular and further reference to paragraph 22 of the statement of claim the 4th defendant states that the plaintiff did not suffer the alleged loss and was grossly inflated”
The 1st respondent testified as 5th P.W. (see page 117-122) and tendered Exhibit C-C18. He also identified Exhibit B and B1 which are the building plans for the shops burnt and later rebuilt for which he contributed N80,000.00. He was led in evidence on all the items contained in Exhibit C- C18 after the incident. Mr. Martin Babalola Ogunleye, a land adjuster testified for the appellant as DW1. He said the 1st respondent notified their firm about his claim through his solicitors and it was received in evidence as Exhibit H-H7.
Learned senior counsel for the appellant in his submission in paragraph 4(c) at page 15 of the brief stated-
“In the written address of learned counsel for the appellant, the issue of the 1st respondent proving his claim was raised as issue 4 and when elaborating on this issue at page 184 of the Record, learned counsel drew the attention of the court to the claim in those exhibits as N171,950.00” and submitted that in the absence of any explanation to clear the discrepancy in the difference in the amount claimed, the learned trial Judge should have dismissed the 1st respondent’s claim for the alleged goods in his shop. This submission is rather curious and somewhat confusing. Is it that there is a disparity between the amount claimed in the statement and the total amount in Exhibit H-H7 or that the total amount in Exhibit H-H7 is N171,950? The total amount stated in Exhibit H-H7 certainly cannot be N171,950; neither is the difference between the claim and Exhibit H-H7 up to N171,950.00. I agree that there are slight differences between the figures contained in Exhibit H-H7 and the oral evidence of the 1st respondent on the Gibson Air conditioner as well as the grand total of the goods said to have been lost in the shop. While the 1st respondent stated in oral evidence that the Gibson Air Conditioner was N18,000 in Exhibit H., the value was N38,000.00. There is however a cordless phone box whose value was put at N18,000.00. In the case of the grand total of the value of the goods the statement in Exhibit H put then at N870,000.00 but in oral evidence he staled that the grand total was N874,050. The address of learned senior counsel for the appellant cannot be a substitute for the evidence contained in Exhibit H-H7. The discrepancy can be overlooked under the principle of de niminis non curat lex.
The appellant pleaded without leading evidence to show that the location of the 1st respondent’s shop was an illegal location; neither was there evidence led to prove that the 1st respondent had inflated his loss.
Even if evidence was led to show that the location of the shop was an illegal one, it will still not absolve the appellant of liability; at best the 1st respondent would have been found to be contributorily negligent which will only reduce the quantum of damages to be awarded to him. I agree with the submission of the learned senior counsel for the 1st respondent that the appellant’s averment that the loss was greatly inflated without providing facts on what the proper loss could be made the 1st respondent’s pleadings of loss to stand unchallenged and the learned trial judge was entitled to award the claim. There is no doubt that the 1st respondent established that he had suffered injury since his shop was burnt down by the fire and so he is entitled to compensation. He also led credible evidence in proof of the goods damaged and he consequently discharged the duty placed on him by law to be entitled to an award of damages which could be general in nature if the contention of the appellant’s counsel that the award of damages was based on the ipse dixit of the 1st respondent carries any weight This is so in a situation where the judge cannot point out any measure which they are to be assessed except the opinion and judgment of a reasonable man. See: SHELL PETROLEUM DEVELOPMENT COMPANY (NIGERIA) LTD V. TIEBO VII (1994) 4 NWLR (pt 445)657. No receipts were tendered for the goods destroyed but the 1st respondent made out Exhibits H-H7 two days after the fire incident when everything was still fresh in his mind. He also had Exhibit C-C18 which was the stock he had in his shop prior to the incident; so even without producing Exhibits C-C18 and also H-H7 he would still have been entitled to an award for general damages I find that there is no merit in the appeal and it is accordingly dismissed.
I hereby affirm the judgment of N.O. Adekola, Chief Judge delivered on 21/6/2000 with N30,000.00 costs in favour of the 1st respondent against the appellant.
Other Citations: (2007)LCN/2571(CA)
