Stirling Civil Engineering Nigeria Limited V. Ambassador Mahmood Yahaya (2001)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
This is an appeal against High Court of Justice, in the Zaria Judicial Division, awarding the plaintiff the sum of N500,000.00 as general damages and costs assessed at N500,000.00.
The defendant was dissatisfied with the judgment and has appealed to this court on one original ground and with the leave of court an additional ground of appeal was added. The two grounds of appeal read as follows:-
“(1) The Learned Judge erred in law when he awarded the sum of N500,000.00 to the plaintiff as general damages after he held that the claim for trespass and the destruction of economic trees failed.
PARTICULARS:
(a) Having refused the claim of N5,000,000.00 for economic trees he cannot thereafter award N500,000.00 general damages for trespass, loss of use and mischief done to the economic trees.
(b) The Judge having held that, the plaintiff has not proved his claim for N5,000,000.00 general damages for trespass, loss of use and mischief done to the economic trees.
(c) The Judge having accepted in his judgment that compensation was paid to the plaintiff through his representative cannot thereafter award N500,000.00 for the same purpose of mischief done to the economic trees of the plaintiff.
(2) The learned trial Judge erred in law when he awarded the sum of N500,000.00 damages to the plaintiff/respondent with N5,000.00 costs.
PARTICULARS OF ERROR:
(a) The claim of the plaintiff/respondent as pleaded in his statement of claim was N5,000,000.00 general damages for trespass, loss of use and mischief done to the economic trees planted by him and N70,709,097.00 being costs of filling the craters dug with laterite.
(b) The plaintiff/respondent’s claims for loss of use and mischief are clams of special damages.
(c) The plaintiff/respondent lumped his claim damages for trespass, loss of use and mischief together.
(d) The plaintiff/respondent did not specifically plead the particulars of loss of use and mischief.
(e) The plaintiff/respondent gave evidence of and orally claimed the sum of N6,000,000.00 (sixty Million Naira) (sic).
(f) The learned trial Judge found that the plaintiff/respondent did not prove his claim of what he was earning from his farm.”
Briefs of argument were filed and exchanged as appellant’s and respondent’s briefs of argument. There is no appellant’s reply brief. In appellant’s brief, only one issue which was adopted by the respondent was identified as calling for determination in the instant appeal. The sole issue is set out immediately hereunder as follows:-
“Whether the learned trial Judge was right in awarding N500,000.00 damages to the respondent having regards to the statement of claim, evidence led and the findings of the court.”
It is not immediately quite clear from which of the two grounds of appeal, original or additional, the issue derived. It does not very much matter since neither ground appears competent. But the appellant’s intention becomes clearer when one examines the brief under argument. The issue is therein related to ground 2 of the grounds of appeal. The original ground of appeal is consequently deemed abandoned since no issue has been culled from it. A ground of appeal from which an issue had not been framed is deemed abandoned. See the case of B.P. (West Africa) Ltd. v. Allen (1962) 2 SCNLR 388, Effiong v. State (1998) 8 NWLR (Pt.562) 362, 368 and Tukur v. Government of Taraba State (1997) 6 SCNJ 81, (1997) 6 NWLR (Pt.510) 549.
The second ground of appeal rolled up questions ranging from pleadings vide particulars (a), (b), (c) and (d) to proof or burden of proof in particulars (e) and (f). This ground of appeal clearly does not raise any issue of quantum of damages. The ground of appeal failed to take into account the circumstance in which an appellate court could interfere in the award of damages. This court has the power to interfere in award of damages where a trial Judge, sitting alone, has awarded damages subject, of course, to compliance with certain conditions: Zik’s Press Ltd. v. lkoku (1951) 13 WACA 188, 189. But appellate courts are very slow or reluctant to exercise this power to attempt to reassess the damages a trial court has given.
The principles upon which an appellate court will act in reassessing an award of damages are trite. It is not entitled to substitute a figure of its own for that of trial court mainly because it would have awarded a different figure if it had heard the case at first instance. The appellate court can only intervene if it were satisfied that the trial Judge, while assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factor, or that it was an erroneous estimate of the damages as the sum awarded is ridiculously too high or so ridiculously too small: Flint v. Lovell (1935) 1 K.B. 354, 360; Owen v. Sykes (1936) 1 KB 192, Agaba v. Otobusin (1961) 2 SCNLR 13, All NLR 299, 300; Khawam v. K. Chellaram & Sons Nig. Ltd. (1964) 1 WLR 711, 714; Shodipo & Co. Ltd. v. Daily Times of Nigeria Limited (1972) 1 All NLR 406, 411 and His Highness Uyo 1 v. Nigerian National Press Ltd. (1974) 6 SC 103, 105.
The issues arising from the ground that was impliedly retained are that pleadings and evidence are in conflict, if particulars (a) and (e) of the grounds of appeal are read together. Particulars (b), (c) and (d) raise the question whether the claims had been adequately or specifically pleaded with the particulars and the same had been specially and strictly proved. So also did particulars (c) and (d) deal with consequences of pleading damages for claims for loss of use, mischief and trespass together as if they are all claims for general damages which they are not. While loss of use and mischief require being pleaded specifically or specially and proved strictly, trespass that is allegedly lumped along with them does not require to be pleaded and proved specially and strictly. Particular (f) raise the question of the effect of the court finding that the plaintiff failed to prove his earnings from the farm. The single ground raised the various issues analysed above but surely it failed to raise the question whether the assessment took into account relevant or irrelevant factor or whether the damages was excessive or not.
It seems to me, however, that the learned trial Judge rejected respondent’s claim for loss of use. The two claims of the respondent that eventually went to trial as per his statement of claim reads as follows:
“24. WHEREOF the plaintiff claims from the defendant the following:-
(a) General damages of five million (N5,000, 000.00) naira for trespass, loss of use and mischief caused or done to the economic trees planted by the plaintiff.
(b) That defendant to pay the plaintiff the sum of seventy million seven hundred and nine thousand and ninety seven N70, 709,097.00 naira (sic) being the cost of filling with laterite the four craters which need 249,450 cubic metre at N283.46 per cubic metre.”
In rejecting the respondent’s claim for loss of use, the learned trial Judge rightly, in my view, reasoned as follows:
“I believe the plaintiff ought to have displayed something before the court to show that and/or give it a cleam (sic) of what he was earning from the farm and not to make a sweeping statement of the amount he is earning. Moreso, it is not the whole farm that is being destroyed by the plaintiff but just a portion of it.”
(Italics mine)
The learned trial Judge further considered some payments already made to the respondent through his representative, Dahiru, as per Exhibits 4, 5 and 6 by the Federal Ministry of Works and Housing and finally concluded thus:-
“On the whole, I hold that the plaintiff has proved his 1st claim against the defendant but will definitely not be entitled to the claim of N5m as he is claiming for reasons enumerated above.
I finally entered judgment for the plaintiff against the defendant in the sum of N500,000 being general damages for trespass, loss of use and mischief done to the economic trees planted by the plaintiff on his farmland along Kaduna – Abuja Road.”
(Italics mine)
The inclusion of “loss of use” in the award of general damages is clearly an accidental slip. It cannot be, otherwise the learned trial Judge having expressly excluded it in his reasoning along with the payment already made by the Federal Ministry of Works and Housing.
These two grounds couple with the fact that the appellant did not destroy the whole farm accounted for the learned trial Judge’s refusal to award N5,000,000.00 claimed by the respondent and his reducing it to or awarding N500,000.00.
Before returning to the issue of competence of this appeal it must be observed that the issue of the plaintiff lumping a claim of trespass, mischief and loss of use was never raised before the trial court to enable it to pronounce upon it. The appellant can only properly appeal against a judgment by raising a ground challenging ratio deciedendi of the trial court’s judgment. It appears the ground of appeal does not relate to the decision. He is raising, therefore, a fresh issue on appeal. He did not raise the issue of lumping together of the loss of use, trespass and mischief in the trial court. Neither did the trial Judge pronounce on same. To successfully raise the new issue, at this stage of hearing, the appellant must specifically seek leave of this court to raise the new issue and merely seeking leave to file additional ground of appeal is not sufficient. See Jov v. Dom (1999) 9 NWLR (Pt.620) 538, Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631,(1994) 10 SCNJ 48 and Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159, 171.
The court, according to appellant’s contention, was left to speculate when the respondent lumped together his claim for trespass, loss of use and mischief done to his economic trees or farm. Learned counsel argued that what is claimed for trespass as distinct from loss of use and mischief was not known. But learned counsel for appellant, at the trial court, under Order 24 rule 7 of the Kaduna State (High Court Civil Procedure) Rules Cap 68 Laws of the Kaduna State of Nigeria, 1991 had a duty to ask for better and further particulars which duty he failed to perform. Similarly, he has not raised any ground of appeal challenging the speculative decision of the learned trial Judge. It is therefore late in the day to raise it and the defect is not cured by merely canvassing argument on non existence ground and issues.
A ground of appeal to be proper or valid must relate to its particulars.The penalty for the particulars not flowing from or relating to ground of appeal is striking of the unrelated particular or particulars: Honika Sawmills Ltd. v. Mary Okogie Hoff (1994) 2 NWLR (Pt.326) 252, 262. Once one or more particulars are rendered bad the remaining particulars serve no useful purpose because the court will not carry out a surgical operation on the ground of appeal by excising bad ones: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 and Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 372.
Particulars (a) and (e) deals with contradiction between pleadings and evidence adduced whereas particular (f) touches upon discharge of onus of proof. Particular (c) complained that the respondent lumped his claim for mischief, loss of use and trespass, which require different considerations, together. The ground is incompetent because the particulars do not relate to the ground and is struck out. The issue framed therefrom and the argument canvassed thereon in the appellant’s brief is struck out. The appellant having abandoned the original ground and same struck out, the appeal is deemed abandoned and is dismissed.
There is order as to costs proposed at N4,000.00 in favour of the respondent.
In parenthesis, the respondent’s brief does not contain list of authorities contrary to the express provisions of Order 6 rule 3 of the Court of Appeal Rules Cap 62. Moreover all the cases cited in the brief except one do not carry references. This is not good enough.
Other Citations: (2001)LCN/1008(CA)
