Diya Fatimilehin & Company. V. Oyewole Oguntade & Ors (2002)

LawGlobal-Hub Lead Judgment Report

FRANCIS FEDODE TABAI, J.C.A

At the Ibadan Judicial Division of the High Court of Oyo State the plaintiff who is respondent herein claimed from the defendants jointly and severally N239,400.00 special and general damages for negligence and trespass on his apartment and premises at No. 38 Dejo Oyelese Street Bodija Estate Ibadan on the 10/5/91 and N250,000.00 general damages for libel and slander in the course of their wrongful and reckless execution of process on his apartment and premises. The 1st Defendant is the owner of the building and premises at No. 25 Dejo Oyesola Street Bodija Ibadan. The 2nd defendant is a

firm of Estate Surveyors and Valuers who manage the 1st Defendant’s said building and premises. The 3rd defendant is a professional debt collector appointed by the 2nd defendant who sued the tenants at No. 25 Dejo Oyelese Street. Mr. & Mrs. Ponle Akande at the Customary Court Grade C Mokola, Ibadan. And the 4th defendant is a bailiff of the said Customary Court and who executed the Court Process on the plaintiff’s apartment and premises. At the trial the plaintiff/respondent and four witnesses gave evidence in support of the plaintiff’s case. The 1st defendant did not file any defence and was absent and unrepresented throughout the trial. The 2nd defendant who filed a defence was represented at the trial but never tendered any evidence. The 3rd defendant attended court only for some time and stopped and his counsel sought and obtained leave to withdraw his appearance. The 4th defendant filed a defence and gave evidence at the trial.

At the end of the trial the learned trial judge T. O. Adeniran, J. entered judgment against the 2nd defendant only for the total sum of N369,400.00. The present appeal is against that judgment. On behalf of the parties their counsel filed and exchanged their Briefs of Argument. The Appellant’s Brief of Argument was prepared by Chief Akin Olujinmi, SAN and it was filed on the 9/3/99. The Respondent’s Brief was settled by Bowofade Aderemi and it was filed on the 11/12/2000.

In his Brief Chief Akin Olujinmi, SAN proposed the following three issues for determination:-

“(i) Whether the award of N369,400.00 against the 2nd Defendant was justified on the pleadings and the evidence before the court.

(ii) Whether having held that the 1st, 3rd and 4th defendants were not liable, the lower court would properly find the 2nd defendant liable.

(iii) Whether the plaintiff’s claim for negligence, trespass and libel and slander could on the facts of this case be maintained.

In the respondent’s Brief of Argument Mr. Aderemi formulated four issues for determination. Issues 2, 3 and 4 are, in substance the same as the Appellant’s issues 1, 2 and 3 respectively. The Respondent’s issue 1 does not arise as there was no ground of appeal which complained about the trial court’s finding of wrongful execution of the processes on the respondent’s apartment and premises. And although the 5th ground of appeal raised the issue of jurisdiction the said ground was abandoned as no issue and argument was based thereon. I would therefore respectfully adopt the three issues proposed in the Appellant’s Brief of Argument.

ARGUMENTS

With respect to the 1st issue it was submitted that the plaintiff failed to plead the special damages distinctly with the relevant particulars as required in law and that the failure was fatal to his case. On the submission he relied on OSUJI V ISIOCHA (1989) (Part 111) 623 at 636 and 638. It was further contended that the plaintiff failed to prove the items of special damages strictly as required in law. It was argued that the failure of the 2nd defendant to give evidence did not relieve the plaintiff of his duty to prove as required. He relied on OSUJI V ISIOCHA (supra) and A-G ANAMBRA STATE V ONUSELOGU ENTERPRISES LTD. (1987) 4NWLR (Part 66) 547 at 561. With regard to the $2,000.00 U.S. Dolars it was argued that there was a variance between the pleading and the evidence and urged an inference that the money if lost could have been lost elsewhere. It was submitted that since the loss of $2000.00 U.S. Dolars was pleaded as a case of negligence the particulars of negligence ought to have been pleaded and that the failure so to plead was fatal to the plaintiff’s case.

He cited UMUOJE V SPDC LTD (1975) 9-11 S.C. 155 at 166-167. It was argued also that since the trial court found the 2nd defendant liable only in trespass and not in negligence the award of $2000.00 was wrong.

Learned Senior Counsel for the appellant further argued that there was no evidence of the rate of conversion from dollars to naira, and that the report in the Business Times newspaper was no proof of the facts recorded therein. He relied on ROYAL NETHERLANDS HABOUR WORKS COMPANY B.V. & ANOR. V SAMA (1991) 2 NWLR (Part 171) 64 at 77.

With respect to paragraphs (i) to (iii) it was contended that there was no proof of the items of claim. It was further argued that there was no evidence of the number, type and costs of doors. He referred to the passage where the learned trial judge said –