Universal Trust Bank of Nigeria Limited V. Fidelia Ozoemena (2000)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the judgment of Ibeziako, J. sitting at the High Court of Anambra State, Ogidi on 25th November, 1997.
The respondent, as plaintiff at the trial Court, claimed against the appellant as defendant in paragraph 14 of the statement of claims as follows:
“14 WHEREFORE the plaintiff has suffered damage and claims against the defendant sum of N2,000,000.00 (Two Million Naira) being special and general damages for the nuisance and negligent destruction of her landed property and materials by the defendant.
Particulars of special and general damages:-
(a) Special damages:-
(1) Cost of 15 bundles
of corrugated iron sheet…….N75,000.00
(2) Cost of 50 planks
of timber …….. N10,000.00
(3) Cost of 50 sheets
as bestors ceiling boards… N15,000.00
(4) Cost of 10 door frames ….N10,000.00
= = = = = = = =
TOTAL : N110,000.00
= = = = = = = =
General damages:
(1) Estimated cost
of rebuilding the houses … N1,700,000.00
(2) Loss of earning in rent
and other inconveniences.. N190.000.00
= = = = = = = =
TOTAL: N2.000.000.00
= = = = = = = =
For an adequate appreciation of the issues at stake, it is apt to state briefly the background facts culminating in this appeal. The respondent owned a bungalow situate at No 29 Ezekwesili Street, Amafor Nkpor adjacent to a vacant piece of fenced land belonging to the appellant.
The respondent maintained at the trial Court that the said vacant piece of fenced land was not properly maintained by the appellant as the same was overgrown with grasses and a big forest during the peak of harmattan period. The unmaintained or badly maintained land is within a densely populated area. The respondent stated that on 21/1/95, the said vacant piece of land caught fire which affected her said bungalow and according to her, it totally got burnt down as a result.
The appellant maintained that the said land was at all times material to the matter secured by a high fence kept under lock and key. The appellant confirmed the fire incident and that the respondent’s house was badly damaged. She confined that investigation carried out after the fire incident revealed that the said piece of land was, around the material time, broken into by unknown persons. As well, neighbours heaped rubbish on the vacant piece of land. Investigations also revealed that children hunting for rabbits set the fire and holes were dug on their vacant piece of land. This assertion is contained in paragraph 13 of the statement of defence.
The trial at the lower court went through a full circle. The trial Judge garnered the evidence proffered by both sides. Thereafter, learned Counsel on both sides addressed the trial court at will. On 25/11/97, the learned trial Judge handed down his considered judgment. He found for the respondent and awarded her the total sum of N2,000,000.00 (Two million naira only) as claimed and reproduced above.
The appellant felt dissatisfied with the judgment. A notice of appeal dated 12/12/97 was duly filed on 16/12/97. Six grounds of appeal accompanied same. The complaint of the appellant related to the whole decision of the trial Judge. The grounds of appeal without their particulars, are as follows:-
“(i) The learned trial Judge erred in law and on facts in holding that the defendant was liable in negligence and nuisance.
(ii) The learned trial Judge erred in law and on facts in holding that the estimated cost of rebuilding the house is general damages.
(iii) The learned trial Judge erred in law and on fact in relying on what the court itself calls an unreliable evidence to determining the distance between the fence surrounding the defendant’s property and the plaintiff’s building.
(iv) The learned trial Judge erred in law and on fact by holding that there is no contradiction in the evidence of PW1 and that of PW2 with regard to the extent of damage to the house.
(v) The learned trial Judge erred in law and on fact in holding that the plaintiff proved her special damages.
(vi) The judgment is against the weight of evidence.”
On 16/10/2000, when this appeal fell due for hearing, Miss I.M. Umejiego, learned Counsel for the appellant and Chief Greg Okpala, learned Counsel for the respondent adopted the respective Briefs of argument filed on behalf of the parties.
On page 3 of the appellant’s brief, four issues were formulated for determination. They read as follows:-
(1) Was the Court below right in holding that the appellant was negligent in the circumstances of the case?
(2) If the answer to the above is in the affirmative, was the court below justified in holding that the respondent’s bungalow was completely destroyed by fire in view of Exhibits D 12-D24?
(3) Assuming but without conceding that the appellant was negligent, was the Court below right in not finding the respondent contributorily negligent having regard to the evidence adduced?
(4) Was the Court below correct in its award of damages by holding the estimated cost of rebuilding the bungalow and loss of earnings in rent to be general damages?”
On behalf of the respondent, three issues were formulated. They read as follows:-
“(1) Whether the Court below was right in holding that the defendant/appellant was liable in negligence and nuisance?.
(2) Whether the Court below was right in its award of damages to the plaintiff/respondent?.
(3) Whether the Court below was right in holding that the defendant/appellant did not establish contributory negligence against the plaintiff/respondent?.
The 1st issue couched on behalf of the appellant is whether the Court below was right in holding that the appellant was negligent. Learned Counsel for the appellant observed that neither PW1 nor PW2 was present when the fire started. As such, they could not be in a position to give evidence as to the origin of the fire. She referred to section 77(a) Evidence Act and Pharmacist Board of Nigeria v. Franklin Adegbesote (1986) 5 NWLR (Pt. 44) 707.
She submitted that a party’s case stands or falls on his pleadings and evidence produced in proof of same. She cited George & 2 Ors. v. Dominion Flour Mills Ltd (1963) 1 All NLR 71, Shell B.P Ltd. v. Abedi & Ors. (1974) 1 All NLR 1 Learned Counsel further submitted that a plaintiff must succeed on the strength of his case. She referred to Akinfosile v. Ijose (1960) SCNLR 447, (1960) 5 FSC 192 as well as Sections 135 (1) & (2),136 and 137 of the Evidence Act.
Learned Counsel opined that the learned trial Judge erroneously relied on paragraph 13 of the statement of defence to hold the appellant liable in negligence and nuisance. She maintained that in law, pleadings cannot constitute evidence. She referred to Emegokwue v. Okadigbo (1973) 4 SC 113; Thompson Organisation v. N.P.I.C & On (1969) NNLR 99; Okafor v. Okitiakpe (1973) 2 SC 49. She observed that the trial Judge’s reliance on paragraph 13 of the statement of defence amounted to elevating pleadings to the realm of evidence. Learned Counsel submitted that the respondent failed to prove her case as the evidence led by her was insufficient to prove that her premises was destroyed due to the negligence of the appellant.
Learned Counsel felt that it was not right to hold the appellant liable in circumstance of the incident. He referred to H & N Emmanuel Ltd v. Greater London Council & Anor. (1971) 2 All ER. 835 at 838-839; Mason v. Levy Auto Parts of England Ltd. (1967) 2 All ER. 62; Musgrove v. Pandelis (1918-19) All ER 589. She asserted that, it has been held that a defendant would be liable for a fire on his land spreading to damage his neighbour’s property if (a) the defendant had brought on to his land things likely to catch fire and had kept them there in such conditions that if they did ignite, a fire would likely spread to his neighbour’s land; (b) the defendant did so in the course of some non-natural use and (c) the thing ignited and the fire spread.
Learned Counsel submitted further that the test of reasonable foresight incorporated in Section 218 of the Torts law of Anambra State should apply to this case. She referred to Donoghue v. Stevenson (1932) A.C 562. Further, learned Counsel felt that the act of a third party who set the fire provided a novus actus intervenien and the defendant should not be held liable. She referred to Weld Blundell v. Stephens (1920) A.C 956, Harnet v. Bond (1925) A.C 669. She urged that the old rule in Re. Polemis and Furness Withy (1921) 3 K.B. 560 which held a defendant liable for all direct physical consequences even though they could not have been foreseen should not be followed. Courts favour the rule of foresight of the reasonable man which alone should determine responsibility. Learned Counsel cited the Overseas Tankship (UK) Ltd v. Morts Dock Engineering Co. Ltd. (The Wagon Mound no 1) (1961) A.C 388. Learned Counsel urged the court to follow the decision in the Wagon Mound case with which sections 218 and 219 of the Torts Law of Anambra State, 1986 are in line.
Issue 2 relates to whether the respondent’s bungalow was completely destroyed by fire. Learned Counsel observed that a careful look at Exhibits D12-D23 shows that the respondent’s bungalow was not burnt to ashes. She maintained that, the learned trial Judge noted that Exhibits D4-D11 showed the parts of the bungalow burnt down by fire which implies that the bungalow was not totally destroyed. From Exhibits D16 and D21, it is clear that all the wooden window frames are still intact according to learned counsel. She urged this court to make that finding; citing in aid of her contention – Samson Awoyale v. Joshua Ogunbiyi (1986) 2 NWLR (Pt. 24) 626; Nwenjwe v. Nwabuokei(1978) 2 SC 61; Oladehin v. Continental ile Mills Limited (1978) 2 SC 23; Akpapuna v. Nzeka (1983) 2 SCNLR 1.
Learned Counsel submitted finally on this issue that in the light of Exhibits D16, D19, D21 and D23 it was wrong for the trial Judge to rely on his belief or disbelief in reaching the perverse decision or finding that the bungalow was destroyed completely by fire.
Issue no 3 relates to contributory negligence which appellant tried to heap at the door step of the respondent. Learned Counsel conceded the fact that DW1, a town planning Officer of Idemilia Local Government, said he did not know the distance between respondent’s bungalow and appellant’s boundary wall. Learned Counsel felt that the trial Judge should have visited the locus in quo to take measurements. She referred to Usmar v. Bayero University (1988) 4 NWLR (pt. 86) 85 at 92. Issue no 4 is whether the Court below was right when it held the estimated cost of rebuilding the house and loss of earnings in rent to be general damages. Learned Counsel submitted that an appellate court will interfere with award of damages by a lower court where it is discovered that the lower court came to its award by proceeding upon some wrong principle of law or that the award was on entirely erroneous estimate. She referred to L.C.C. v. Ogunbiyi (1969) 1 All NLR 297; Zik’s Press Ltd. v. Ikoku (1951) 13 WACA 188; Ekpe v. Fagbemi (1978) 3 SC 209. Learned Counsel felt that in assessing damages, the learned trial Judge did not consider properly the principle of restitution in integrum as espoused in British Transport Commission v. Goulrey (1956) AC 185; Leisbosch Dredger v. S.S. Edison (1933) AC 449 at 495. In a claim for special damages in negligence the mere ipse dixit of the plaintiff in the absence of strict proof is not enough. Learned Counsel cited Eseigbe v. Agholor (1990) 7 NWLR (Pt.161) 234.
Learned Counsel felt that award in lieu of rent and award of N1.7 Million on the mere ipse dixit of the respondent as estimated cost of rebuilding the house were erroneous. She contended that the proper measure of damages ought to be the market value of the bungalow at the time of alleged destruction and not the cost of building an entirely new bungalow as that would amount to restitution in opulentiam, giving her a wind fall instead of restitution in integrum. She cited Shell Petroleum Development Company of Nigeria Limited v. Kwameh Ambah (1999) 3 NWLR (Pt. 593) 1, (1999) 3 SCW (Pt. 3) 516; Cross Lines v. Etukudo Thompson (1993) 2 NWLR (pt.273) 74; I.B. Duruyi & Mathew Onuyeka v. Churchill N. Azie (1992) 7 NWLR (pt. 256) 688.
Learned Counsel finally submitted that the failure of the respondent in leading evidence as to the value of the said bungalow at the time of its alleged destruction by fire offends the rule relating to proof of special damages. She urged that the appeal be allowed.
Respondent’s issue no 1 is, whether the court below was right in holding that the defendant/appellant was liable in negligence and nuisance. Learned Counsel observed that the respondent pleaded negligence and specified the particulars to same. He maintained that the appellant never cared about what happened to its neighbours in its occupation and management of its fenced up parcel of land in an urban area. He maintained that, the appellant and any other reasonable man ought to have known that it was not safe to leave or grow the kind of bush or forest found on the fenced up parcel of land of the appellant especially during harmattan periods in the face of incessant fire outbreaks in the locality. The appellant vide Exhibit K, knew that trespassers used to encroach upon it’s property and yet left some parts of the sandcrete wall in ruins.
Learned Counsel further observed that the appellant’s negligence led to the destruction of the respondent’s bungalow. Appellant admitted this fact in it’s letter to the Police – Exhibit L. Learned Counsel submitted that from the circumstances of the matter, it is a non-natural use of land and a nuisance of the highest order for the appellant to maintain and keep the thick dry bush or forest found on it’s fenced up parcel of land on 21/1/95 in an urban area as Nkpor and a built up locality. He referred to Tebite v. Nigeria Marine & Trading Co. Ltd. (1971) U.I.L.R. 432; M.K.O. Abiola v. Felix O. Ijoma (1970) 2 All NLR 268.
Learned Counsel submitted that a plaintiff should succeed on the strength of his case and not on the weakness of the defence. But if there is any aspect of the defence that supports the plaintiff’s case, he is entitled to rely on it. He cited Josiah Akinola & Anor. v. Fatoyinbo Oluwo & Ors. (1962) 1 SCNLR 352, (1962) All NLR 224; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) All NLR 324. Learned Counsel maintained that the trial Judge was right in holding the appellant liable in negligence and nuisance after believing the evidence of the plaintiff and her witnesses and making use of paragraph 13 of the statement of defence as well as evidence adduced by DW2.
Respondent’s issue no 2 is whether the Court below was right in it’s award of damages to the plaintiff/respondent. Learned Counsel maintained that the respondent proved her items of special damages to the tune of N110,000 as she tendered receipts for their purchase and gave evidence that the items got burnt in the inferno. PW3 saw when the items were kept in the locked up store prior to the incident.
Learned Counsel opined that the claim of N1,890,000.00 as general damages was well made. He maintained that the respondent claimed the sum of N1,700,000 as the estimated cost of rebuilding the house. He submitted that such ranks as general damages. He asserted that the lower court was entitled to rely on the evidence of the respondent without that of an expert. Learned Counsel felt that, as the appellant did not give a contrary estimate to that given by the respondent, such remained unchallenged and the lower court was entitled to act on it. He referred to Richard Ezeanya & Ors. v. Gabriel Okeke & 2 Ors. (1995) 4 SCNJ 60 at 87, (1995) 4 NWLR (pt.388) 142; A.C.B. Ltd. v. Po. Ewarami (1978) All NLR 114.
Respondent’s issue no 3 is, whether the court below was right in holding that the defendant/appellant did not establish contributory negligence against the plaintiff/respondent. Learned Counsel observed that DW1, the expert called by the appellant, said he did not know the distance between the wall of the empty plot and the wall of respondent’s bungalow. Learned Counsel observed that, it is not the duty of any court to fish evidence for any of the parties or descend into the arena to conduct the case for any of the parties. He cited I.A. Onibudo & Ors. v. A. W. Akibu & Ors. (1982) All NLR 207, (1982)7 SC 60. Learned Counsel felt that the appellant, who had the burden to prove contributory negligence, failed to do same.
Learned Counsel submitted that in writing judgment, slips may occur and it is not every slip that will inevitably lead to a reversal of the judgment unless there is a miscarriage of justice. He referred to U.B.A v. Europharm Nigeria Ltd. & Anor. (1990) 6 NWLR (pt. 155) 239; Nwosu v I.S.E.S.A. (1990) 2 NWLR (Pt.135) 688 at 717.
Learned Counsel finally urged that the appeal be dismissed. He urged the court to make a consequential order directed to the Deputy Chief Registrar of this Court to cause the judgment debt together with accrued interest now lying in Account no 00304390046 at the First Bank of Nigeria Plc. Okpara Avenue, Enugu to be paid over to the respondent.
The first issue formulated on behalf of both parties is whether the Court below was right in holding that the appellant was liable in negligence and nuisance. Negligence has been defined as the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. It is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It is a departure from the conduct expectable of a reasonably prudent person, under like circumstance. See Pence v. Katchum La, 326 so 2d 831, 836 as contained in Black’s Law Dictionary, 5th Edition, pages 930-931.
The contest also touched on nuisance. This takes place when physical injury is inflicted on the plaintiff’s property or that the ordinary use of the same is materially interfered with or impaired. Whether anything is a nuisance is to be determined not merely by an abstract consideration of the thing itself, but with reference to the locality, the duration and all the circumstances.
In short, nuisance is that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another; such that law will presume resulting damage. The learned trial Judge in his judgment at page 73 of the record of appeal asserted, rightly, that the defendant is responsible for all the consequences he could foresee or reasonably be expected to foresee as the natural result of his negligent act or omission. This is the state of the law as espoused in Donoghue v. Stevenson (supra) at page 562; given a stamp of approval in The Wagon Mound no 1, (supra) and codified in sections 218 and 219 of the Torts Law of Anambra State, 1986.
I should say it in passing that the learned trial Judge goofed when as a follow up to the above correct position of the law, he said the defendant is also liable for all the direct physical consequences of his act even though they could not have been foreseen. He cited Re Polemis (supra); the decision of which was over-ruled in The Wagon Mound no 1. In short, the proposition is no longer tenable in law.
It is clear and realistic that a defendant would be liable for a fire on his land spreading to damage his neighbour’s property if – (a) he had brought on to his land or allows to remain thereon things likely to catch fire and kept them there in such condition that, if they did ignite, a fire would be likely to spread to his neighbours land; (b) he did so in the course of some non-natural use and (c) the thing ignited and the fire spread. See Mason Levy Auto Parts of England Ltd (supra); Musgrove v. Pandelis (1918-19) All ER. 589.
I need to state it clearly here that the respondent, in her statement of claim pleaded negligence and furnished needed particulars to same. The particulars are – (a) “the fenced up parcel of land is surrounded by other buildings including the building owned by the plaintiff” ,(b) “allowing a very thick dry bush to grow on the same”; (c) “negligently left the said dry bush to stay on the said parcel of land”(d) “all through the harmattan periods”; (e) “in spite of the incessant fire outbreaks during these periods”; (1) “and in breach of his duty of care to the plaintiff whose landed property ….. shares a common boundary with the fenced up parcel of land belonging to the defendant”, and (g) “the said thick dry bush negligently maintained by the defendant caught fire and totally burnt down the plaintiff’s building”.
From a cursory look at Exhibits D13, D14, D15 and 22, photographs of the scene of incident of 21/1/95, it is manifest that appellant’s fenced piece of land was over-grown with bush which remained unkempt and unmaintained. The appellant never cared about what happened to its neighbours in its occupation and management of its fenced parcel of land in an urban area. The appellant like any other reasonable man, ought to know that it was not safe to keep such untidy premises especially during hammattan periods in the face of incessant fire out breaks in a densely populated environment. This is more so as the appellant, from the tone of its letter to the police – Exhibit K, knew that trespassers used to encroach upon it property. Yet it left some parts of the sandcrete wall in ruins. The appellant admitted in its letter to the Police – Exhibit L that fire from its land spread on to the respondent’s house and ‘badly damaged’ it. I agree with respondent’s Counsel that from the circumstances of the matter, it is a non-natural use of land and a nuisance of the highest order for the appellant to maintain and keep the thick dry bush found on its fenced up parcel of land in an urban area and a built up locality. It will be preposterous to find otherwise. Refer to Tabite N.M.T.C. Ltd. (Supra); M.K.O. Abiola v. Felix O. Ijoma (supra).
There is no gainsaying the fact that the appellant was, no doubt, liable in negligence/nuisance. It sounds unreal that the appellant complained that the learned trial Judge employed paragraph 13 of the statement of defence to find it liable in negligence. Therein, the appellant averred that ‘it was discovered during investigation that the land was set ablaze by children from adjoining properties who were attempting to kill rabbits as there were holes dug in the land, Essentially the evidence of DW2, appellant’s witness, buttressed the averment.
It is the law that the plaintiff should succeed on the strength of his case and not on the weakness of the defence. But if there is an aspect of the defence that supports the plaintiff’s case, as herein, he is entitled to rely on it, Refer to Josiah Akinola & Anor. v. F. Oluwo (supra); Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (surpa)
The appellant is caught by the web of the factors laid down in Mason v. Levy Auto Parts of England Ltd. (supra) cited by its learned Counsel. The appellant kept an unmaintained dry bush on its piece of land in such condition that if it got ignited, fire would likely spread to its neighbors. It did so in the course of some non-natural use. The thick bush got ignited and fire spread to cause havoc on the respondent’s nearby building. The appellant was rightly held liable in negligence/nuisance. I strongly feel that the act speaks for itself.
In short I resolve issue no 1 against the appellant without any shred of hesitation.
Appellant’s issue no 3 as well as respondent’s issue no 3 relates to whether there was contributory negligence on the part of the respondent or not. The onus of proving contributory negligence rests squarely on the appellant who asserted same. This is the dictate of section 135 (1) Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.
The appellant called DW1, a Town planning Officer of Idemili Local Government, an expert, to testify in a bid to prove contributory negligence against the respondent. DW1 said he did not know the exact distance between the respondent’s bungalow and the appellant’s boundary wall. And so, there was no evidence to sustain contributory negligence. Learned Counsel for the appellant missed direction when she said that the trial Judge should have visited the locus in quo to take measurement. The trial Judge, as an unbiased umpire, had no responsibility to favour the appellant by taking over the prosecution of it’s case. It is not the duty of the Court to fish for evidence for any of the parties. It should not fill in yawning gaps in parties cases as presented by them or descend into the arena; as it were. Refer to I.A. Onibudo & Ors. v. A. W. Akibu & Ors. (supra).
In short, the appellant, who had the burden to prove contributory negligence, failed to do same. Reference to ‘guess work’ on distance between appellant’s fenced parcel of land and respondent’s bungalow by the learned trial Judge was to no avail. Such was a mere slip that did not occasion any miscarriage of justice. It is not every imaginable slip that will inevitably tilt a decision. See U.B.A v. Europharm Nig. Ltd. & Anor. (supra); Nwosu v. I.S.E.SA (supra). This issue is also resolved against the appellant.
I now proceed to appellant’s issue no 2. This is whether the Court below was justified in holding that the respondent’s bungalow was completely destroyed by fire in view of Exhibits D12-D24. Exhibits L, dated 23/1/95, was written to the Police by the appellant soon after the fire incident of 21/1/95. Paragraph 3 of the letter says – ‘consequently, one of the neighbouring properties (a bungalow) was badly damaged during the fire incident. From a close look at Exhibits D16 and D22, it is clear beyond peradventure that the respondent’s bungalow was not completely destroyed or damaged during the inferno. It was not completely burnt to ashes.
It is clear that the wooden window frames and their covers are still intact. It was erroneous to have found otherwise. On my part, I find that the said bungalow was badly damaged; not completely destroyed, damaged or burnt to ashes. There is a gulf of difference between the two versions. This my stand has firm root by the combined effect of section 16 of the Court of Appeal Act, Cap. 75 Laws of the Federation of Nigeria, 1990 and Order 1 rule 20, Court of Appeal Rules, 1981, as amended. See, as well, Samson Awoyale v. Joshua Ogunbiyi (supra) and Akpapuna v. Nzeka (1983) 2 SCNLR 1, Oladehin v. Continental ile Mills Limited v. Continental ile Mills Limited (supra).
In short, I resolve this issue in favour of the appellant. It is clear that the respondent’s bungalow was not completely destroyed by fire. It was only ‘badly damaged’.
Issue no 4 couched on behalf of the appellant is the same with respondent’s second issue. Both relates to award of damages by the learned trial Judge.
Respondent’s claim relates to both special and general damages against the appellant. It is apt to touch briefly on the meaning and purport of each head.
Special damages are those which are the actual, but not the necessary, result of the injury complained of and which in fact follow it as a natural or proximate consequence in the particular case; that is by reason of special circumstances or conditions. It must be pleaded and strictly proved.
General damages are said to be such as the law itself implies or presumes to have accrued from the wrong complained of; for the reason that they are its immediate, direct and proximate result or such as necessarily result from the injury.
General damages compose of such a loss which flows naturally from the defendant’s act. It needs not be specifically pleaded. It arises by inferences of law and need not be proved by evidence. It suffices if it is generally averred. See Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 3 SC 117; Lar v. Stirling Astaldi Ltd. (1977) 11-12 SC. 53; 63; Omonuwa v. Wahabi (1976) 4 SC. 37, 50; Dumez Nig. Ltd. v. Ogboli (1972) 1 All NLR 244 at 252.
The measure of damages in an action for negligence is founded on the principle of restitutio in integrum which means that a plaintiff should recover such a sum as will place him, so far as can be done by compensation in money, in the same position as if the loss has not been inflicted on him. This was asserted with force by Bello, J.S.C., as he then was in Lagos City Council Caretaker Committee & Anor v. Unachukwu & Anor (1978) 11 N.S.C.C. 200 at 204; Henry Ezeani & Ors. v. Abraham Ejidike (1964) 1 All NLR 402 at 405.
A trial Judge has the discretion to make reasonable award as general damages. Such award must be based on the hard facts and circumstances of the matter. Awards must be based on correct principle of law. It is when a trial Court acted upon some wrong principle of law in making an award or that amount awarded was so extravagant or ridiculously low and not in consonance with the reality of the matter, as to make it an entirely erroneous estimate of the damages that a Court of Appeal may interfere with the assessment. Refer to N. E. Ekpe v. S.A, Fagbemi (1978) 11 NSCC 211 at 215; George Onaga & Ors. v. Micho & Co, (1961) 2 SCNLR 101, (1961) All NLR 234 at 239, Kwabena Oduro v. Daniel Francis Davis 14 WACA 46 at 48. There should be no unjustified double compensation. See again L.C.C. v. Unachukwu (supra) at 204; Cross Line Limited v. Etukudo Thompson (supra) at page 82.
In Odulaja v. Haddad (1973) 11 S.C. 357, Irikefe, J.S.C. maintained that the distinction between proof of general damage as opposed to special damage is a matter of law. The law presumes general damages. The law infers special damages from the nature of the act. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly. A plaintiff should be awarded only such as will fairly compensate him for the loss that he has actually sustained. See Thomas Kerewi v. Bisiriyu Odegbesan (1965) 1 All NLR 95 at 98. The award should not be a windfall or an amount doled out as a charity. For, it should not make a plaintiff opulent in an out of tune fashion.
In most material respects, the learned trial Judge gave a clear exposition of the law guiding award of damages. With due diffidence to him, he failed to match same with factual situations which steered him in the face. I shall give my reasons anon; more especially where we are on parallel lines.
I do not find it difficult to also conclude that the items of special damages were claimed specially and strictly proved. The items were kept in the store to the knowledge of PW3. The receipts for the purchase of the burnt goods are Exhibits ‘B’ and ‘C’ respectively. I think the total sum of N11,000 as special damages was well made and rightly awarded. It stands inviolate.
The second item under general damages is the sum of N190,000 for loss of earning in rent and other inconveniences. Since the two tenants paid the sum of N1,200 per month, I think the claim in this sub-head is clearly ascertainable. From January 1995 to November 1997 is thirty-five (35) months. This will fetch the plaintiff/respondent N42,000. One cannot pinpoint her ‘other inconveniences’. That head of claim is accordingly reduced to N42,000 from the N190,000.00. It has the colour of special damages.
The learned trial Judge awarded a staggering amount of N1,700,000 as general damages ‘to replace the plaintiff’s bungalow house’. The award is premised on the wrong conclusion that the respondent’s house was completely damaged or burnt to ashes. As stated earlier on, it can be seen from Exhibits D16 and D22 which the trial Judge failed to refer to that the bungalow house was only ‘badly damaged’. So, it needs to be repaired and placed in the position that it was before the fire incident. There is nothing that calls for an award of general damages ‘to replace the plaintiff’s bungalow house’. That, in effect puts the plaintiff in opulence as she hits a jack-pot. This is not the essence of the law.
The sum of N848,000 as general damages will suffice to repair the damaged house. In my considered view, this amount sounds reasonable and in tune with the reality of the whole situation. On the whole, the respondent is entitled to the sums of N110,000 loss of goods in the burnt store; N42,000 for loss of rent and N848,000 general damages to repair the damaged bungalow. The total sum awarded as damages is N1,000,000 (One Million naira only). This shall be the judgment of the trial Court.
On the whole, the appeal is allowed in part. The sum awarded is varied to N1,000,000 in favour of the respondent. Since the appeal partly succeeds, appellant is entitled to costs assessed at N2,000.00.
In the summary of the respondent’s brief, learned Counsel urged us to make a consequential order directed at the Deputy Chief Registrar of this Court to cause the judgment debt together with accrued interest now lying in Account no. 00304390046 at the First Bank of Nigeria Plc, Okpara Avenue, Enugu to be paid over the respondent. In the light of my findings and conclusion, it is ordered that the sum in the said account, with accrued interest, shall be shared equally to the parties by the Deputy Chief Registrar.
Other Citations: (2000)LCN/0912(CA)