Major James M. Ado (Rtd) V. Hon. Commissioner For Works, Benue State & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

NDUKWE-ANYANWU, J.C.A.

By an order of this Honourable Court dated 17/11/98, three separate appeals filed by the parties were consolidated.

   The first appeal filed by the appellant was against the judgment of Honourable Justice D. T. Ahura of Benue State High Court dated 23/4/97.

   The appellant therein appealed against the quantum of damages awarded to him.

The second appeal by the appellant was against a ruling delivered by the same Judge on 22/01/98 against his decision granting a stay of execution.

   The third appeal was filed by the respondents against a ruling dated 01/08/97 wherein their application to set aside the judgment was refused.

   The appellant had sued the respondents claiming a total sum of One million, seven hundred and thirty five thousand, three hundred and thirty-five Naira (1,735,335.00) being sum for special and general damages. Specifically, the appellant claimed N735, 335 for special damages and 1 million naira for general damages.

Judgment was given against the respondents and the appellant was awarded a total of N107,000.00. The appellant being dissatisfied appealed against the quantum of the damages and formulated 3 issues for determination.

1. Is the appellant entitled to damages of N70, 000.00 (seventy thousand naira) representing amount lost in the course of ejection (grounds 1, 4 and 5 of the grounds of appeal).
2. Did the trial court wrongfully deny the appellant damages following unlawful and forceful ejection? (Grounds 3 and 6 of the grounds of appeal).
3. Was the trial court in error in assessment of quantum of damages for unlawful termination of contract at 1 month in lieu of notice? (Ground 2 of the grounds of appeal).

Issue One

The appellant contended that he was entitled to N70,000.00 representing cash he lost in the cost of his forceful ejection from his quarters. The appellant gave uncontradicted evidence to the fact that he had N70,000.00 in his quaters on that day. The defendants/respondents did not put in their defence and as such the evidence of the plaintiff/appellant required minimum proof.

   The appellant contended that the evidence of his missing N70,000.00 was unchallenged and as such proved. See the cases of Torti Ufere v. Ukpabi Chris & 2 Ors. (1984) All NLR 185, (1984) 1 SCNLR 214; Ekpe N. E. v. Fagbeni S. A. (1978) All NLR 107, (1978) 3 SC 209; H. N. Nzeribe v. Dave Engineering Co. Ltd. (1994) 9 SCNJ 161; (1994) 8 NWLR (Pt. 361) 124.

“It is elementary that special damages are such that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the plaintiff as a matter of course. They are exceptional in their character and connote specific items of loss which the plaintiff alleges are the result of the defendant’s act of breach of duty complained of. Unlike general damages, special damages must be claimed specifically and strictly proved and the court is not entitled to make its own estimate of same” – per Iguh, JSC in Benjamin Obasuyi, Nigeria Construction Ltd. v. Business Ventures Ltd. (2000) 12 WRN 112 at 129; (2000) 5 NWLR (Pt. 658) 668 at 693-694.

   The rule with regard to the award of special damages is that the burden of proof is on anyone claiming to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should establish his entitlement to the special damages claimed by credible evidence of such a character as would establish that he, indeed, is entitled to an award under that head.”

   The trial court rightly denied the appellant the award of N70,000.00 claimed as cash lost in the ejection. Even though the appellant testified that he did a contract for the State Government and made a profit of N43,000.00. Apart from that statement, the appellant was not able to prove that he infact carried out the contract as he failed to produce the contract papers, the mode of payment of the contract and why the money was kept in the house. This subhead was not proved to the satisfaction of the trial Judge.