Alhaji Musa Ajigbotosho V. Renolds Construction Co. Ltd (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the judgment of the Court of Appeal Ibadan Division delivered on the 17th April, 2008 in Appeal No. CA/1/15/2007 wherein the lower Court dismissed the appeal of the Appellant therein. The relevant facts leading to this appeal as can be garnered from the record of appeal are stated hereunder.
In executing the contract awarded to it by the Federal Government to dualise the Ibadan/Ife Road, the Respondent, a Construction Company, entered into a number of lease Agreements with the Appellant to use his land for “site erection and excavation of materials.” Clause 5 in the Agreements dated 10th April 1995, 26th November 1996, 16th May 1997, & 10th June 1997, reads: –
“It is herein agreed that the said parcel of land shall be levelled and made usable by Reynolds after the completion of the Road before handing it over to the said owner. The land owner shall make available a trustworthy watchman and shall be employed by Reynolds within the period of operation.”
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On completion of the project, the Appellant approached the Respondent to make good the land as previously agreed and after repeated demands to no avail, he instituted an action at the Ibadan High Court of Oyo State, claiming:
(a) A declaration that the defendant is in breach of the various lease Agreements on land entered with Plaintiff by failing to level and make usable the various parcels of land leased to her for the purposes of road construction by the Plaintiff at Idi-Omo Village, Egbeda Local Government Area, Ibadan particularly, the Agreements dated 10th April, 1995, 10th and 15th May 1995, 23rd January and 26th November 1996, 16th May and 10th June 1997.
(a) DAMAGES
SPECIAL
(1) Cost of repair of damage road – N743,149.20
(2) Amount required to rehabilitate damaged Parcel of land as per the lease Agreements – 3,712,500.00
(3) Cost of claim survey – 25,000.00
GENERAL DAMAGES – 1,000,000.00
5,480,649,20.
At the end of trial in which the Appellant called seven witnesses and one witness testified for the Respondent, and after hearing addresses of counsel, the learned trial Judge, A. A. Sanda, J., delivered his Judgment on the 18th of July 2005, wherein he granted the declaration as claimed by the Appellant.
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He awarded the sum of N250,000.00 to him as general damages and N25,000.00 as cost of survey, but he dismissed the claim for special damages. Aggrieved by the decision, the Appellant appealed to the lower Court.
The lower Court in its judgment dismissed the appeal and affirmed the decision of the trial Court. Not being satisfied with the decision of the lower Court delivered on the 17th April 2008, the Appellant has further appealed to this Court.
The Appellant filed Notice of appeal containing four grounds of appeal. The Notice of Appeal is dated 9th July, 2008.
From the four grounds of appeal, the Appellant distilled one issue for the determination of this appeal as follows: –
“Whether in view of the concurrent funding (sic) of the lower Court and the Court of Appeal that the Respondent was in breach of the various lease Agreement entered with the Appellant by failing to level and make usable the various parcels of land leased to her for purposes of road construction, it (the Court of Appeal) was justified in dismissing the Appellant’s claim for money required to level and make the said piece of land and road usable.”<br< p=””
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The above issue is contained in Appellant’s brief filed on the 28th May, 2010 by Bioye O. Asanike Esq., counsel for the Appellant who also adopted the said brief when the appeal was heard.
In the brief of argument filed on 19th May, 2015, by Adeleke O. Agboola Esq., on behalf of the respondent, sole issue was also formulated as follows: –
“Whether in view of the pleadings, evidence adduced and the state of the law the lower Court was right in upholding the decision of the trial Court thereby dismissing the Appeal.”
The issues as formulated by both Appellant and Respondent counsel are relatively the same. However, the issue formulated by the Respondent is more direct and clear and it will be adopted in determining this appeal.
Learned counsel for the Appellant submitted that the object of all forms of damages is to put the Appellant in the position he would have been had the Respondent not committed the tort for which the Appellant complained of. He cited NEPA VS. ALLI (1992) 10 SCNJ 34 at 49.
Learned counsel further observed that the Appellant at page 31 of the Record of Appeal pleaded the damages he is claiming from the Respondent.
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He also pleaded all facts relating to the agreement of the parties.
Learned counsel argued that at paragraph 5 of the Amended statement of claim and plan, the Appellant states that he entered in to various Lease Agreement with the Respondent between 1995 and 1997. He further argued that all the Lease Agreement entered into were pleaded.
Learned counsel submitted that the lower Court aligned itself with the trial Court when it labelled Exhibit B & B1 as mere estimates. Instead of looking at it as the cost that must be borne by the Respondent in fulfilment of her obligation under the terms of the agreement with the Appellant.
Learned counsel argued that there is no doubt that the above findings may constitute concurrent findings of the lower Courts, and the attitude of this Court is not to disturb such findings of facts. However, where such findings of facts are perverse, as in this case, this Honourable Court will intervene. Counsel cited ONUOHA NWOKOROBIA VS. DESMOND UCHICHI NWOGU (2009) 4 – 5 SC (Pt. 11) page 144 at 786.
Counsel submitted that the reasoning and conclusion of the lower Court could also be faulted when one looks at
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Exhibits B & B1 where details of work to be carried out with their cost is copiously stated.
Learned counsel observed that neither the trial Court nor the lower Court adverted their minds to the evidence of PW.2 who testified as Quantity Surveyor that he has visited the site and he saw the damage done by the Bulldozer.
Learned counsel argued that Appellant had led credible evidence of the amount required to level and make usable the Appellant’s land as agreed by the parties.
Counsel finally urged this Court to grant the Appellant’s claim on special damages as he had laid what was sufficient, credible and most satisfactory evidence on the claim of damages pleaded which have remained uncontroverted. Also counsel urged this Court to resolve the sole issue for determination in favour of the Appellant.
On the other hand, learned counsel for the Respondent argued that the position of the law is that a party who asserts or claims a relief must prove it by credible and admissible evidence, and the grant of such claims must be based on legal evidence of the highest probative value and weight. Counsel cited G. T. INVESTMENT LIMITED VS W. H. & BUSH LIMITED (2011) 8 NWLR (Pt.1250) 500 SC.
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Learned counsel submitted that the Appellant did not discharge the burden of proof placed on him or it by Section 135 of the Evidence Act.
Learned counsel argued that in a claim for special damages, it must be specifically pleaded and particulars of same itemized and proved at the trial for the Appellant to succeed. Counsel cited ODUMOSU VS. ACB LTD. (1976) 1 SC 55, OTARU & SONS VS IDRIS (1999) 68 RCN 823.
Learned counsel submitted that the lower Court rightly observed what constitutes special damages in page 158 of the Record. Therefore, the Appellant’s claim was not specific or clearly ascertainable but rather the Appellant gave an estimate of the amount it will cost him to repair the damaged road and rehabilitate the damaged parcel of land.
Learned counsel observed that even while giving evidence at the trial Court, PW.2 did not with authority say that a particular amount is what is to be paid, instead they made an assessment and gave an estimate.
Learned counsel submitted that the trial Court gave due consideration to the definition of estimate at page 126 of
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the record and rightly held that the Appellants claim for special damage was not proved. The Court of Appeal rightly upheld and affirmed the decision of the trial Court.
Counsel finally urged the Court to resolve this issue against the Appellant and affirm the decisions of the lower Courts.
On the part of the Court, the lower Court, in affirming the decision of the trial Court held as follows: –
“To all intents and purposes therefore, the Appellant presented the lower Court with a preliminary statement of what it would probably cost to repair the damaged road and parcels of land that the Respondent failed to “level” and make Usable” as agreed to, which cannot translate to the strict proof needed. Special damages are generally capable of substantially exact calculation, and an estimate of what it may or may not cost to carry out the said repairs leaves room for conjecture, and the lower Court was therefore right to attach no value to Exhibit B & B1, and to hold that the claim of N743,149.20K and N3,712,500.00K as special damages had not crystallized into pecuniary losses.”
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To start with, special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly.
For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. See DUMEZ (NIG) LTD. VS OGBOLI (1972) 1 All NLR 241 TABER VS BASMA 14 WACA 140.
In GONZEE (NIG) VS NERDC (2005) 13 NWLR (Pt. 943) at 639. This Court held that: –
“Strict proof in the con of special damages means 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. OSHINJINRIN VS. ELIAS (1970) 1 All NLR 153, DUMEZ (NIG) LTD VS. OGBOLI (1972) 1 All NLR 241.”
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There is a distinction between special damages and general damages in terms of pleading and proof and model of assessment of each. Special damages is specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim. Where general damages is averred as having been suffered, the law will presume it to be the direct or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court.
See: – IJEBU-ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (pt. 166) 136, ESEIGBE VS AGHOLOR (1993) 9 NWLR (pt.316) 128 BADMUS VS ABEGUNDE (1999) 11 NWLR (pt. 627) 493.
This Court however, in XTOUDOS SERVICES NIG. LTD VS TAISEI (W.A) LIMITED (2006) 15 NWLR (pt. 1003) at 537 on how to plead and prove special damages held as follows: –
“Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage. The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff
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who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. In the instant case, there was no single paragraph in the statement of claim where the Appellants specifically pleaded facts with particulars in support of their claim for special damages, and also for general damages. As a result, the subject matter of the Appellants’ alternative relief for special and general damages for breach of contract was neither pleaded nor proved to justify being awarded by the trial Court. B.E.O.O. INDUSTRIES NIG. LTD. VS MADUAKOH (1975) 12 SC 91 referred to (Pg. 551, paras. B-E).”
From the foregoing, special damages will only be awarded if strictly proved and for this, the Appellant in this case ought to have gone beyond stating the estimate of the amount it will cost him to repair the damaged road and rehabilitate the damage done to the parcel of land.
After reviewing the evidence as to his claim, the learned trial Judge held as follows: –
“…Exhibits B1 and B2 are Estimates. Estimate is defined by Oxford Dictionary as:”
“Judgment that you make without having
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the exact details or figures about the size, amount or cost.”
“The claim of N743,149.20K and N3,712,500.00K totaling N4,455,649.20K have not yet crystallized into pecuniary losses because neither the 450m Road between Idi-Omo stream before Oderinwale have been repaired nor the two parcels of land of road around Idi-Omo measuring 5 Hectares haven been levelled as requested by the Plaintiff. As a result of the above, the Plaintiff failed to prove the above as special damages as provided by law and are hereby dismissed in their entirety.”
Certainly, the trial Court’s reasoning and the conclusion cannot be faulted, this is more so when it is noted that the Appellant himself testified as PW.4 that he was introduced to PW.2 because the Respondent promised to pay him.
He further stated as follows: –
“I had wanted to do the work if the work is not too much but Engineer Ishola (PW.2) gave me a heavy bill for the repair of the land.”
In other words, he would not have consulted PW.2 if the Respondent had not promised to pay him, and he made no effort to carry out the repairs himself as he made out to PW.2 because PW.2 gave him a “heavy bill”,
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which can only mean that the estimates prepared by PW.2 were speculative and not definite. In any case, an “estimate” is merely a preliminary statement of the probable cost of a proposed undertaking.
Once again, it is settled law that every item contained in the claim of special damages must be specially proved, and such proof must be characterized by testimony that ties each item with the evidence led. In the instance case, the items described in Exhibit B & B1 were not Proved.
See: – LEVENTIS (NIG.) LTD. VS. AKPU (2002) 1 NWLR (Pt.747) 182, JOSEPH VS. ABUBAKAR (2002) 5 NWLR (Pt.759) BLACKWOOD HODGE NIG. LTD. VS OMUNA CONSTRUCTION CO. (2002) 12 NWLR (Pt. 782) 523 and ADECENTRO NIG. LTD. VS COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY (2005) 15 NWLR (Pt. 948).
The Appellant in this case has not discharged the burden of proof placed on him by Section 131 of the Evidence Act. The Section provides as follows: –
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.”
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From all that is stated above, the Appellant has failed to comply with Section 131 of the Evidence Act above.
Thus, the sole issue for determination in this appeal should be and is accordingly resolved against the Appellant.
Having resolved the sole issue for determination against the Appellant, I find no merit in this appeal and it is hereby dismissed. The judgment of the Court below delivered on the 17th July, 2008, in the Appeal No. CA/1/15/2007 is hereby affirmed. Parties shall bear their respective costs.
SC.133/2010