Nigerian Maritime Services Ltd. V. Alhaji Bello Afolabi (1978)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, J.S.C.

In this matter, the appellants were the defendants in the court below, while the respondent was the plaintiff. In the High Court of the then North Central State holden at Kaduna, the plaintiff had sued the defendants claiming diverse sums as damages for negligence arising from the handling of the defendant’s lorry under the control of their driver and servant. The said lorry was negligently driven from the highway into the respondent’s house and shop where it caused damage enumerated in the Statement of Claim.

The appellants appear to have accepted the finding of the learned trial Judge (Mohammed, J.), on the issue of their liability in law for the damage; their complaint deals solely with the award of damage made by the court under one of the particulars of claim.

The respondent under claim (g) of his PARTICULARS OF CLAIM”, claimed:- “Loss of income at N50 a day for 30 days at N1,500.”

There was unchallenged evidence before the court of trial that the respondent’s shop had been rendered unserviceable for two months, during which he could not open for business.

There was also unchallenged evidence that the respondent made daily sales of between N50 and N100 and that he was claiming for loss of sales for a period of one month.

The only ground of appeal canvassed before us reads:-

“That the trial Judge erred in law and in fact in treating the plaintiff’s evidence of average sales of N50 per day as evidence of average income of N50 per day, and thus came to a wrong decision when he awarded the plaintiff the sum of N1,500 for loss of use of the shop for 30 days.”

Learned counsel for the appellants submitted that there was in fact no evidence of what the respondent’s daily income was; what there was, could at best, be regarded as proof of daily sales or takings, which would necessarily involve some capital out-lay as well as profit. It was then argued that, in as much as special damage must be strictly proved, there was no material before the court on which the award of N1,500 could be tied.

For the respondent, it was submitted that, the appellants’ counsel having conceded that sale is equivalent to income, there could be no ground for complaint against the award made by the learned trial Judge. In any case, argued counsel, what caused the loss was the fact that the shop could not open for business for the period established by evidence.

We pause here to examine the rather skimpy evidence produced in proof of this head of claim.

The respondent testified inter-alia as follows while under examination by his counsel:-

“I did not use the shop for a period of 2 months. I normally make N50 business a day – i.e my daily sales are at least N50. I am claiming N500 for 1 month business; ….”

Under cross-examination by defence counsel, he had this to say:-