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
- Cost of the said building 50,000.00
- 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
- 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”
The learned trial judge found that damage was caused to the respondent’s property, concluding that the entire shop and about one-third of the main house would have to be rebuilt. He appeared, however, not to have been satisfied with the evidence on the special damages claimed, although he expressed this, with due respect to him, in a language which was not altogether clear. After stating his view about the evidence which he was unable to accept to make an appropriate award, he then proceeded to make his own assessment of the damages he thought the respondent might be entitled to. I shall quote the relevant portion of his judgment as follows:
“As no precise evidence was led by either party on the principles of assessment of damages set out in the above passage [para. 1417 of Charlesworth on Negligence, 6th edition], it is the duty of the court to assess and award damages as best as it can. There is also uncontradicted evidence that cartons of beer, soft drinks and other merchandise were destroyed in the shop. As the old shop is a total wreck, no evidence could be led of what materials lay under it. Also evidence was led on furniture, soft and hard as well as clothing and kitchen and other utensils which were destroyed in the house. The evidence of the plaintiff on this varied, and the court also could only do its best to assess what is fair and just as to the value of the property destroyed. In the circumstance, I hereby make the following award to the plaintiff:
Cost of repairing the house … N12,000.00
Value of the shop destroyed … 5,000.00
Drinks and other merchandise
destroyed in the shop … 500.00
beds, clothes, pots, chairs,
plates, cooking utensils, tables
and other household goods destroyed… 2.500.00
Total … N20,000.00
(Parenthesis added by me)
What the learned trial judge did was, of course, contrary to the principle of award of special damages. Special damages have to be strictly proved. If various items are claimed for, the plaintiff is entitled to be awarded any of those items of which sufficient evidence is available even if he is not able to prove all the items. But where a plaintiff sets out to adduce evidence in proof of the special damages claimed by him and the evidence, being deficient or unsatisfactory, is rejected by the court that should put an end to that claim. The trial judge is not entitled to embark upon his own assessment of the special damages, using his conceived parameter in place of evidence. In Jaber v. Basma (1952) 14 WACA 140. Foster – Sutton, P., observed at p. 142:
“I feel bound to say that I regard the 250 (250 pounds sterling) awarded for loss of goods and personal effects as being unsatisfactory. As counsel for the appellant has submitted it is clear from the learned trial Judge’s judgment that he substantially rejected the respondent’s evidence regarding his losses. That being so, in my view remembering that special damages have to be strictly proved, the learned trial Judge was not justified in endeavouring to assess the amount of loss since he was obviously unable to indicate which of the articles he believed to have been lost.” (words in parenthesis added by me).
See also Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623 at p. 633 per Wali J.S.C.; Summer v. Federal Housing Authority (1992) 1 NWLR (Pt.219) 548 at p. 561 per Omo J.S.C.
The lower court realised that the learned trial judge made a wrong award of special damages in regard to the sum of N17,000.00 out of the N20,000.00. It set aside the award as it concerned the N17,000.00. That was certainly inevitable and was, in my view, a right approach. But it went on itself to commit a further error by turning that award into general damages. That was wrong, in my respectful opinion, in two respects which I consider should be fairly set out.
First, there is a distinction between special damages and general damages. That distinction was drawn by this court in Ijebu-Ode Local Govt v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt.166) 136 at p. 158; Eseigbe v. Agholor (1993) 9 NWLR (Pt.316) 128 at 145 and other cases. It is usually a question of pleading and proof, and the mode of assessment. One is specially pleaded and strictly proved because it is exceptional in its character such as the law will not infer from the nature of the act which gave rise to the claim. Hence the claim is known as special damages. The other is general damages which, when averred as having been suffered, the law will presume to be the direct natural or probable consequence of the act complained of, but the award is a jury question as the judge cannot point out any measure by which the damages are to be assessed, except the opinion and judgment of a reasonable man: see Stroms Bruks Aktie Bolag v. Hutchison (1905) A,C, 515 at 525 -526. Both arms of damages must be averred, although the award is made in different ways. As Viscount Dunedin said: “If there be any special damage which is attributable to the wrongful act that special damage must be averred and proved, and, if proved, will be awarded. If the damage be general, then it must be averred that such damage has been suffered, but the quantification is a jury question”: see The Susquehanna (1926) AC 655 at p.661, the principle of which was approved by this Court in Nwobosi v. African Continental Bank Ltd. (1995) 6 NWLR (Pt.404) 658 at 680 per Onu JSC. So. in no circumstances can general damages be properly substituted for special damages which a plaintiff has failed to prove, or even if he has led evidence on it, did not in fact make any claim for it: see West African Shipping Agency v. Kalla (1978) 3 SC 21 at 32: (1978) 11 NSCC 144 at 120 per Eso JSC.
The second reason why the lower court was wrong in substituting the award of N17,000.00 as general damages in place of the award of that amount made by the trial court as special damages is that the respondent did not cross-appeal against the trial court’s award nor file a respondent’s notice for its affirmation on other grounds. The appellant had appealed against the learned trial judge’s award on the ground that the special damages claimed were not proved. That appeal was found to have merit. There was no issue before the lower court as to whether the respondent was entitled to general damages which the trial court did not award, let alone any issue of the propriety of substituting an award of general damages for special damages not proved. The appellant was not given a hearing on that before the lower court decided that issue suo motu. It is well established that a court has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity of resisting. See Obajimi v. Attorney-General Western Nigeria (1967) 1 All NLR 31 at 34. Such an order is wrong and will be annulled on appeal: see Usikaro v. Itsekiri Communal Land Trustees (1991) 2 NWLR (Pt. 172) 150. Before a court decides an issue which it took suo motu it must invite the parties to address it on that issue. That is an aspect of fair hearing: see Kuti v. Balogun (1972) 1 NMLR 180 (Pt.2): and also Kuti v. Balogun (1978) 1 SC 53 (1978) 11 NSCC 21 at 25 where this court per Eso JSC observed:
“…it is not open to a Court of Appeal to raise issues which the parties did not raise for themselves either at the trial or during the hearing of the appeal. There could be instances however when a point which has not been raised is material to the determination of the appeal. When a Court of Appeal feels inclined to raise such point, parties must be given an opportunity to make their comments thereupon before the court takes a decision on the point.”
In the present case, not only were the parties not given an opportunity to address on the issue but, in fact, what was done in the end was not what the law would allow even if that opportunity had been offered. If the parties had been invited to address on the point, or better still, if there had been an appeal against the trial court’s failure to award general damages, perhaps it might have been possible to advert to the distinction between special and general damages. It could then have been necessary, if feasible, to look for other features of the case, apart from the very items of the special damages, upon which a jury might have considered that an award at large would have been appropriate and deserved.
The general damages in this case cannot stem from the mere fact of the very loss occasioned by the destruction of the house and store which by their nature readily lend themselves to quantification or assessment going by evidence of the cost of repairs or replacement as the case may be: see Shell-BP Petroleum Development Co. of Nigeria Ltd v. His Highness Pere Cole (1978) 3 SC 183 at 192. The general damages being at large must depend on some collateral consequence or the negligent act of the present appellants. That would need to be founded on a head or heads of claim as usual with general damages. Such heads of claim that may have been pleaded in this case could well be the shock and agony suffered by the respondent, arising from the violent way the vehicle ran into his properties and the sight of them going into ruins. It could be the inconveniences occasioned by his having to be without shelter and the effort to find one somehow. It could even be, in the circumstances of his native environment, the local odium of being regarded as someone without an abode.
It is recognised that where tort has resulted in some interference with the plaintiffs person short of physical injury yet has caused him physical inconvenience, the latter must necessarily appear as a separate head of damages. see McGregor on Damages, 13th edition, para. 59. Also, in trespass to property (as in the present case) there can be an award for injury to feelings: see Owen and Smith v. Reo Motors (1934) 151 L.T.274. But all these matters should be properly averred in the pleading, and evidence of sort given in order not to fall foul of the rule against double compensation. As was observed by this court in Ezeani v. Ejidike (1964) 3 NSCC 306 at 307 per Brett JSC: “Where … a plaintiff asking for damages begins by setting out specific items of damages and then adds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutinised both by the defendant and by the court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action.” If such general damages are seen to be claimable, it then becomes a question of a jury-type of assessment of damages which will be at large, having nothing directly to do with the items of special damages claimed for. In a proper case, this could possibly give a large measure of compensation provided what is taken into consideration in awarding such general damages is not too remote.
The respondent did not plead at all in support of general damages. The chance of having reasonable damages was not created. However, if there had been an appeal by the respondent on the issue of his entitlement to general damages, even in spite of the failure to plead in enhancement of them, the possibility of his being entitled, at least, to nominal damages for trespass through negligence to his premises would have been examined as that trespass is actionable per se: see Eliochim (Nig.) Ltd v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 (1986) 1 NSCC 42 at 52. That might have been of some comfort to the respondent if the court then decided to be liberal with the so-called nominal damages. I do not mean to suggest that an occasion which warrants only nominal damages can legitimately be turned into a mere benevolent award disproportionate to the real purpose of nominal damages award. I suppose an award of nominal damages could be made liberal if not conceived that such damages are necessarily to be in small figures. As observed by Lord Halsbury L.C. in The Mediana (1900) AC 113 at 116; (1900 – 1903) All ER Rep. 126 at 129:
“Damages are not necessarily nominal because they are small in amount. The term ‘nominal damages’ is a technical one which negatives any real damage, and means nothing more than that a legal right has been infringed in respect of which a man is entitled to judgment. But the term ‘nominal damages’ does not mean small damages. The whole region of inquiry into damages is one of extreme difficulty, and you cannot lay down any fixed principle to a jury as to the amount of compensation which ought to be given.”
It is unfortunate that in the present case, there is nothing upon which general damages of any sort can be based. The damage suffered by the respondent remains largely without remedy owing to procedural errors at every stage of the proceedings and the appeals. I have no alternative but to allow this appeal. The judgment of the Court of Appeal delivered on 8 December, 1988 as it relates to the award of N17,000.00 as general damages is set aside. I make no order for costs.
SC.219/1991