Nigerian Maritime Services Ltd. V. Alhaji Bello Afolabi (1978)
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In this matter, the appellants were the defendants in the court below, while the respondent was the plaintiff. In the High Court of the then North Central State holden at Kaduna, the plaintiff had sued the defendants claiming diverse sums as damages for negligence arising from the handling of the defendant’s lorry under the control of their driver and servant. The said lorry was negligently driven from the highway into the respondent’s house and shop where it caused damage enumerated in the Statement of Claim.
The appellants appear to have accepted the finding of the learned trial Judge (Mohammed, J.), on the issue of their liability in law for the damage; their complaint deals solely with the award of damage made by the court under one of the particulars of claim.
The respondent under claim (g) of his PARTICULARS OF CLAIM”, claimed:- “Loss of income at N50 a day for 30 days at N1,500.”
There was unchallenged evidence before the court of trial that the respondent’s shop had been rendered unserviceable for two months, during which he could not open for business.
There was also unchallenged evidence that the respondent made daily sales of between N50 and N100 and that he was claiming for loss of sales for a period of one month.
The only ground of appeal canvassed before us reads:-
“That the trial Judge erred in law and in fact in treating the plaintiff’s evidence of average sales of N50 per day as evidence of average income of N50 per day, and thus came to a wrong decision when he awarded the plaintiff the sum of N1,500 for loss of use of the shop for 30 days.”
Learned counsel for the appellants submitted that there was in fact no evidence of what the respondent’s daily income was; what there was, could at best, be regarded as proof of daily sales or takings, which would necessarily involve some capital out-lay as well as profit. It was then argued that, in as much as special damage must be strictly proved, there was no material before the court on which the award of N1,500 could be tied.
For the respondent, it was submitted that, the appellants’ counsel having conceded that sale is equivalent to income, there could be no ground for complaint against the award made by the learned trial Judge. In any case, argued counsel, what caused the loss was the fact that the shop could not open for business for the period established by evidence.
We pause here to examine the rather skimpy evidence produced in proof of this head of claim.
The respondent testified inter-alia as follows while under examination by his counsel:-
“I did not use the shop for a period of 2 months. I normally make N50 business a day – i.e my daily sales are at least N50. I am claiming N500 for 1 month business; ….”
Under cross-examination by defence counsel, he had this to say:-
“I have no cash-book as I do not record my sales. My average daily sale is N50. On certain days I sell worth N100.
The respondent’s only witness (his son and shop attendant) also provided evidence on sales of N50 per day. He was not even cross-examined.
We found no merit in the submissions made by the counsel for the appellants. It is our view that he cannot be heard to complain of a situation which he himself had helped to create.
In Adel Boshali v. Allied Commercial Exporters Ltd. (1961) All Nigeria Law Reports – 917 and in Odulaja v. Haddad – 1973 – 11 S.C.- p. 357, both the Privy Council and this court laid down certain guidelines to be followed in a case where proof of special damage is made an issue.
In the Boshali case, the appellant claimed, apart from the market value of the goods, the subject of the action, loss of profits at the rate of 6d per yard.
The only evidence adduced at the trial to support such loss of profit came from the appellant, and he was not cross-examined on the basis that his claim was excessive. The trial court found that the sale was one by description and not by sample, gave judgment in favour of the appellant and awarded damages at the rate of 6d. per yard on the whole consignment.
Lord Guest (delivering the judgment of their Lordships of the Judicial Committee of the Privy Council) had this to say:-
“The Federal Supreme Court took the view that the figure of 6p. per yard for loss of profit on the sale of goods awarded by the trial Judge rested on the ipse dixit of the appellant that he would have made a profit of 6p. and that this was not sufficient proof of his actual loss of profit. The only evidence as to loss of profit came from the appellant who was an expert in the trade and whose evidence was accepted by the trial Judge.
He was not cross-examined on the basis that his claim was excessive. The trial Judge was in their Lordships’ view fully entitled, in the absence of any contrary evidence, to take the figure of 6d. per yard as the appellant’s loss of profit.”
In the Odulaja case, this court, stated inter alia:-
“It was clearly established both on the pleadings and the evidence before the court of trial that whereas the appellant was, as from 6th November, 1961, entitled to possession of the two top floors of the premises known as 47A Lebanon Street, Ibadan, he was effectively prevented from doing so by the respondent until a court order made this possible on 11th May, 1964 – a period of some 30 months. There was also evidence before the court of trial, which was accepted, that because of lack of access the two top floors during the period under review, no tenants could be procured for the rooms situated therein.”
The case made on behalf of the respondent in the Western State Court of Appeal was that, even if it was assumed that the appellant was prevented from letting the property in dispute during the period of 30 months, there was no evidence before the trial court as to what rental value the property would have fetched at the material period.
What evidence there was, it was submitted, should be deemed to relate to the time when the appellant was testifying on oath in 1970 in respect of this action which was filed in 1967. On the above contention, it was urged on the Western State Court of Appeal that since the award of 900 pounds was regarded as special damages, which required to be strictly proved in law, there was in fact no such proof before the court of trial. The above contention was upheld by the Western State Court of Appeal and the award of 900 Pounds was set aside.”
The judgment then continued:-
“We are of the view that strict proof in the above con can mean no more than such proof as would readily lend itself to quantification or assessment. In the case in hand, it was never contested that the appellant was wrongfully deprived of rent on the disputed property for a period of 30 months.
The con is as to evidence of the exact rent that the disputed property could have fetched at the given time. On the facts found in this case, such evidence was clearly impossible of production, since it was the respondent himself who made it impossible for the premises to be let.
This is not the same thing as saying that the appellant had not suffered any loss. It seems to us that the nature of proof in a given case must be dictated by the peculiar circumstances of the available evidence.”
Adverting to the case in hand, the respondent pleaded loss of income at N50 per day for 30 days. He gave evidence of loss of business for some 60 days with daily sales of N50.
Although learned counsel appearing for the appellant was at the trial in the court below, he did not, as the record shows, deem it necessary to ask the respondent how much capital went into his daily sales in order to determine the marginof profit. It is our view that this burden was clearly on the appellant and that he had failed to discharge it. We should like to emphasize here once again that, in the arena of proof in a civil case, the onus of proof does not remain static, but shifts from side to side. The correct position in law is that the onus of adducing further evidence is on the person who would fail if such evidence were not produced. See Section 135 of the Evidence Act (Cap 62 Laws of the Federation of Nigeria 1958) and the unreported decision of this court in Suit SC. 264/68: Elemo & Ors. v. Molade & Ors. delivered on 27th November, 1970.
Accordingly, in the circumstances of this case, the learned trial Judge was entitled to act on the only available evidence, that is, loss of income for 30 days based on daily sales of at least N50. In the result, the appeal fails and it is dismissed.
The decision of the lower court in this matter is affirmed. The appellants are to pay the respondent costs assessed at N150.
Other Citation: (1978) LCN/2106(SC)