Ganiyu Badmus & Anor Vs A.O. Abegunde (1999)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

This is an appeal against a judgment of the Court of Appeal, Ibadan Division, given on 8 December, 1988. The Judgment is being contested on a very narrow issue. The trial judge (J.D. Ogundere, J.) sitting at the High Court, Ibadan, gave judgment on 9 March, 1983 for the plaintiff for a total amount of N20,000.00 as special damages arising from the negligence of the defendants in causing damage to his shop and main building, together with some items of property therein although the learned trial judge thought the evidence led by the plaintiff to support the special damages claimed by him was at variance with what was pleaded, or was unsatisfactory. Upon an appeal by the defendants, the Court of Appeal found there was evidence to support only N3,000.00 special damages out of the said N20,000.00. That court then went on to hold, per the judgment of Ogwuegbu, J.C.A. (Concurred in by Omololu-Thomas J.C.A., but dissented from by Kutigi J.C.A.). as follows:

“The awards of N12,000.00 for repairing the house and N5,000.00 as the value of the shop made by the learned trial judge were not strictly proved as special damages. I therefore set them aside. Since the plaintiff/respondent suffered damage which is quantifiable. I will therefore substitute the award of N 17,000.00 as general damages.”

It was from that aspect of the judgment that the defendants further appealed to this court and have asked that the appeal be decided on one issue. The plaintiff relies on that same issue although he states it slightly differently from how the defendants have framed it. I shall combine what both parties have stated to put the issue thus: Whether the Court of Appeal was right in awarding, by way of substitution, N17,000.00 as general damages for the value of the shop and cost of repairing the main building having disallowed it under the claim for special damages although the plaintiff did not cross-appeal nor file respondent’s notice to affirm the judgment on other grounds.

The issue as so stated must make the appeal look quite straightforward, and indeed it is, placed against the background of the facts before the court which may now be given in a nutshell. The plaintiff (to whom I shall hereafter refer to as the respondent) had his building and shop (as an annex) in Iroko village near Ibadan along Ibadan-Oyo Road. He carried on petty trading in beer, soft drinks detergent etc in the shop. On or about 26 November, 1978, the 1st appellant, in the course of driving a commercial vehicle registered as No. LAD 3639 A on behalf of and owned by the 2nd appellant, swerved off the road and collided with the said building and shop, causing extensive damage. The learned trial judge found the 1st appellant to have been negligent in the doctrine of res ipsa loquitur in causing the damage in question. The respondent asked in his statement of claim for compensation of N77,020.00, being special and general damages, as follows:

“Particulars of special damages

1. Cost of the said building 50,000.00
2. Cost of the goods kept in the shop

– 25 cartons of beer at N10.00 each

15 crates of soft drinks at N5.00 each,

soap, perfumes, surf, eggs etc. 1,000.00

3. Cost of 6 Vono beds at N20.00 each

Cost of plates and pots 20.00

Cost of clothes 700.00

52,020.00

General Damages 25, 000.00

N77,020.00”