LEGALPEDIA ELECTRONIC CITATION: LER[2019]SC.254/2008

AREAS OF LAW:

Appeal, Court, Law Of Evidence, Law Of Tort, Practice And Procedure, Words And Phrases

SUMMARY OF FACT:

The Plaintiff/Appellant gave some amount of money to the Defendants/Respondent, which was in turn given to a company named Jos-Law Nigeria Limited, with the consent of the Appellant. The aforenamed company swindled the money, and thus, did not deliver the said car. A criminal action was instituted against the company and judgment was obtained against it for the sum of N13,750.00, in suit No. KDH/254/85. The Appellant thereafter, sued the Respondents on grounds that he paid same, some amount of money to purchase a car for him, which was swindled, and that the Respondents failed, refused or neglected to deliver the vehicle, and claimed against them, the sum of four hundred and fifty-seven thousand, one hundred Naira being special damages for conversion and the sum of five hundred thousand Naira being general damages for detinue and conversion. At the end of trial, the trial judge gave judgment for the Appellant against the Respondents. Dissatisfied with the judgment of the trial court, the Appellant appealed to the Court of Appeal on the sole ground of special damages. The lower Court dismissed the appeal on the basis that the Appellant failed to prove special damages. The Appellant has further appealed to this court.

HELD:

Appeal Dismissed

ISSUE FOR DETERMINATION:

• Whether the decision of the Court of Appeal that the appellant did not prove the special damages of N457,100.00 claimed by him was correct.

 RATIONES:

CLAIM FOR SPECIAL DAMAGES- REQUIREMENT FOR A SUCCESSFUL CLAIM FOR SPECIAL DAMAGES

“Special damages must be specially pleaded and strictly proved by the claimant. To succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the court as to how the sum claimed as special damages was quantified. Special damages are awarded for actual or exact losses suffered.” PER O. RHODES-VIVOUR, J.S.C.

ASSESSMENT OF SPECIAL DAMAGES- WHETHER A TRIAL JUDGE CAN MAKE ITS OWN ASSESSMENT OR SPECULATE ON SPECIAL DAMAGES

“On no account can a trial judge make his own assessment or speculate on special damages. As assessment would be correct and valid if it was arrived at strictly on the evidence accepted by him as establishing the amount to be awarded. See Odulaja v Haddad (1973) llSCp.l, Union Bank of Nig PLC v Chimaeze (2014) 4SC (Pt. iii)v.110, Yalaju Amaye _V AREC (1990) 6SC nl57, SPDC Nig Ltd v Terbo & ors (1996) 4 NWLR (Pt.445)v.657.” PER O. RHODES-VIVOUR, J.S.C.

PLEADINGS – DUTY ON COURT TO READ PLEADINGS FILED BY PARTIES TO A SUIT

“I have read the pleadings filed by both sides. This is fundamental as doing so enables the judge to properly understand issues joined in the pleadings. Paragraphs in pleadings should not be considered in isolation. It is only after pleadings are properly read and understood that it can be said that formal admissions of facts in the pleadings need no further proof and the court would be free to act on such admissions.” PER O. RHODES-VIVOUR, J.S.C.

UNCHALLENGED EVIDENCE- ATTITUDE OF THE COURTS TO UNCHALLENGED EVIDENCE LED BY THE PLAINTIFF ON SPECIAL DAMAGES

“What is the attitude of the courts to unchallenged evidence led by the plaintiff on special damages? Evidence led by the appellant in support of his incompetent pleading for special damages was unchallenged. Unchallenged evidence can constitute sufficient proof of special damages. That would be the case where special damages are pleaded with particulars and evidence is led in support, but the defendant fails to challenge the evidence. In such a case the plaintiff would have discharged the standard of proof required for proof of special damages.  A court would act on unchallenged evidence and award special damages except the evidence is moonshine.   This is premised on the position of the law that when evidence led by the plaintiff is unchallenged the plaintiff is entitled to judgment. See Alagbe v Abimbola (1978)2SCy.39 Ajao v Ashiru (1973)USC P.30 (1980)3-4SC p.U7 Nwabuoku v Ornk (1961) lALLNLR p.487.” PER O. RHODES-VIVOUR, J.S.C.

GENERAL AND SPECIAL DAMAGES-DISTINCTION BETWEEN A CLAIM FOR GENERAL OR SPECIAL DAMAGES

“There is a distinction between “general” and “special” damages. “General damages” are such, as the law will presume to be the direct, natural or probable consequence of the act complained of. Whereas, “special damages” are such, as the law will not infer from the nature of the act. They are exceptional in their character, and must be claimed specially and proved strictly-McGregor on Damages, 13^th Ed.

In other words, when it comes to special damages, all the losses claimed on every item must have crystalized in terms and value before the trial – see Shodipo & Co. Ltd. V. Daily Times (1972) All NLR 842. As Elias, CJN, noted in Shodipo & Co. Ltd. V. Daily Times (supra), the difference between a claim for special or general damages is that:

Where one is claiming special damage, the circumstances are such that one is able to put one’s finger on a particular item of loss and say, 7 can prove that I lost so much there, so much there, and so much there’, whereas a claim for general damages means this: ‘We cannot prove particular items, but we can prove beyond all possible doubt that there has been pecuniary loss’. Once that has been proved, I cannot see any difference in principle between special damage and general damage. Thus, special damages are such damages suffered by a Plaintiff that is “quantifiable in money’s worth” – see Calabar East C.T. & C. S. Ltd. V. Ikot (1999) 14 NWLR (Pt. 638) 225 SC and Neka B.B.B. Man. Co. Ltd. V. ACB (2004) 2 NWLR (Pt. 858) 521, wherein Pats-Acholunu, JSC, said:

A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion, which would give rise to speculation, approximation or estimate or such like fraction.”

• PER A. A. AUGIE, J.S.C.

 PLEADINGS AND PROOF- MEANING OF PLEADINGS AND PROOF

“Pleadings are “the formal allegations by the Parties to a lawsuit of their respective claims and defences, with the intended purpose being to provide notice of what is to be expected at the trial”, and proof is defined as follows –

The effect of evidence; the establishment of a fact by evidence. – – Any fact or circumstance, which leads the mind to the affirmative or negative of any proposition. The conviction or persuasion of the mind of a Judge or Jury, by the exhibition of evidence, of the reality of a fact alleged. See Black’s Law Dictionary, 6^th Ed. Obviously, the answer to the above question is NONE. He did not lead evidence to establish the said claim.” PER A. A. AUGIE, J.S.C.

SPECIAL DAMAGES – EXTENT OF THE REQUIREMENT FOR STRICT PROOF IN A CLAIM FOR SPECIAL DAMAGES

“The law say that special damages must be specifically claimed and proved strictly. Strict proof does not imply unusual proof, rather it is basically “proof that would bend or lend itself to qualification”- see Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) 325, and Orient Bank (Nig.) Plc. V. Bilante Int. ltd. (1997) 8 NWLR (pt. 515) 37, wherein per Tobi, JCA (as he then was) further elucidated as follows –

The degree of “strict proof- – depends on the character of the acts which produce the damage and the circumstances under which the acts were done – – Strict proof- – means no more than that the evidence must show the same particularity as is necessary for its pleading. It should – -normally consist of evidence of particular loss, which are exactly known ‘or accurately measured before trial. Strict proof does not mean unusual proof, but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which make such calculation possible – -Strict proof in the context of special damages can mean no more than such proof as would readily lend itself to quantification or assessment.”

• PER A. A. AUGIE, J.S.C.

 SPECIAL DAMAGES – SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND STRICTLY PROVED

“As His Lordship indicated in the leading judgement, special damages have to be pleaded and proved. This must be so for they, [special damages], are damages of the type that the law would not infer from the nature of the act. As they do not flow in the ordinary course – being exceptional in their character – they must be claimed specially and proved strictly, Arisons Trading and Engineering Co Ltd v Military Governor of Ogun State and Ors (2009) LPELR – 554 (SC) 57; C- F; Stroms Bruks Aktie Bolag v Hutchison (1905) AC 515, 525 – 526; Ekenn/a v Nkpakara and Ors [1997] 5 SCNJ 70, 90; Badmus and Anor v Abegunde [1999] 7 SCNJ 96; SPDC of Nig v Tiebo VII [2005] 4 SCNJ 39, 57; [2005] 3 – 4 SC 137; Ngilar v Mothercate Ltd(1999) LPELR – 1988 (SC) 26- 27; F- D.

This is the rationale for the prescription in the vocabulary of pleadings that special damages must be specifically pleaded and strictly proved, Ngilar v Mothercate Ltd (supra); [1999] 13 NWLR (pt. 635) 626; [1999] 12 SC (pt. 11) 1; Okonzua v Amosu and Anor [1992] 7 SCNJ 243; (1992) LPELR – 2531′(SC); Kosiiev Folarin [1989] 4 SC (pt. 1) 120; (1989) LPELR – 7051 (SC); Oshinjinrin and Ors. v Bias(1970) 1 All NLR 153, 156 – 157”. PER C.C.NWEZE, J.S.C

SPECIAL DAMAGES – REQUIREMENT FOR THE SUCCESS OF A CLAIM FOR SPECIAL DAMAGES

“This is, equally, the explanation for the proposition that a claim for special damages succeeds only on the strict proof of the specifically pleaded facts in relation to the sum claimed. Where items of special damages are not specified and strictly proved as in the instant case, recovery of same will not be granted, Anyanwu and Ors v Uzowuaka and Ors [2009] 13 NWLR (pt. 1159) 445; Nwanji v. Coast Services (Nig) Z.fe/(2004) LPELR – 2106 (SC)”. PER C.C.NWEZE, J.S.C

STATUTE REFERRED TO:

Nil