UBA PLC & ANOR v. I. U. FOOD LTD & ANOR

CITATION: (2018) LPELR-45397(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON THURSDAY, 28TH JUNE, 2018Suit No: CA/J/141/2012

Before Their Lordships:

UCHECHUKWU ONYEMENAM Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal

Between1. UNITED BANK FOR AFRICA PLC2. MATTHEW ADEGBOLA - Appellant(s)

And1. I. U. FOOD LIMITED2. MUSA MOHAMMED - Respondent(s)

RATIO DECIDENDI1. DAMAGES - MEASURE OF DAMAGES: Measure of damages in an action for negligence

"The law is and settled that that the measure of damages in an action for negligence isfounded on the principle of restititio in integrum, which means that the owner of a damagedvehicle as a result of the negligent act of another is entitled to restitito in integrum. In otherwords, the owner should recover a sum such as will replace his loss as far as can be done bycompensation in money, and to be in the position as if the loss had not occurred, subject tothe rules of law on remoteness of damages. See the case of LAGOS CITY COUNCIL CARETAKERCOMMITTEE V. BENJAMIN O. UNACHUKWU (1978) 3 SC 199."Per WILLIAMS-DAWODU, J.C.A. (P.12, Paras. B-E) - read in context

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2. DAMAGES - SPECIAL DAMAGES: How to plead and prove special damages"Special damages are such that the law will not infer from the nature of the act. All lossesclaimed on every item must be specifically stated in the pleading in terms of value andamount. See the case of SHODIPO & CO. LTD. V. DAILY TIMES (1972) ALL NLR 842. The apexCourt in ODULAJA V. HADDAD (1973) 11 SC 357 held that,"Strict proof does not mean unusual proof or proof beyond reasonable doubt. What is requiredis that the party should establish his entitlement to that category of damages by such credibleevidence of such character as would suggest that he indeed is entitled to an award under thathead.'' In SPDC NIG. LTD V. TIEBO VII ORS (2005) 9 NWLR (PT. 931) 439 the apex Court statedthus in that regard per Oguntade JSC as he then was, ?"..... In some cases, it may benecessary to show documentary proof of loss sustained while in others it may be unnecessary,the important thing is that the evidence proffered must be qualitative and credible and suchas lends itself to quantification.....'' This Court, in EZENWA BROS. NIG LTD. V. ONA-JONES NIG.LTD. (2012) LPELR-9789 CA, per Adamu Jauro JCA, in similar vein held that, "proof of specialdamage is not radically different from the general method of proof in civil cases.'' See furtherthe cases of NWABUOKU V. OTTIH, OSHINJIRIN V. ALHAJI ELIAS (1970) 1 ANLR (PT. 1) 153 andEMIRATE AIRLINE V. MISS PROMISE MEKWUNYE (2014) LPELR-22685 CA. Going through thegamut of the Record, one is able to agree with the position of the Court that: "the defendantsdid not dispute the amount claimed in their pleadings neither do they cross examined (sic) theprosecution witnesses on this issue or call evidence to disprove same which amounts toadmission. I am of the firm view that plaintiffs are entitle (sic) to their claim for lost of revenuedue to the accident. '' ?See pages 13-14, 19-22, 24-26, 40-41 and 128 of the Record. It isimportant to note that, for proof of special damages as afore stated, it is not to be unusualproof, or proof beyond reasonable doubt and it is not in all cases that the documentary proofof loss sustained must be tendered. See the cases ODULAJA V. HADDAD supra, SPDC NIG. LTDV. TIEBO VII ORS supra, NWABUOKU V. OTTIH supra, OSHINJIRIN V. ALHAJI ELIAS supra andEMIRATE AIRLINE V. MISS PROMISE MEKWUNYE. The Court consequently entered judgment inthat regard as follows: "The sum of N4, 000. 00 special damages for loss of user payable perday from 15th June, 2009 till the date the defendants repairs (sic) and hand over the vehicleto the plaintiffs.''Per WILLIAMS-DAWODU, J.C.A. (Pp. 15-17, Paras. B-D) - read in context

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3. DAMAGES - MITIGATION OF DAMAGES: Effect of failure of a claimant to mitigate hisloss/damage"In my considered view and humbly, the Court was right to have found in favour of theRespondent for the loss of revenue as it did. However, it would appear from the Record thatthere were certain factors that the Court ought to have considered before concluding the issueof the loss of revenue. It is the law that, a party has the responsibility to ''mitigate his loss asthe incident is not an avenue for hitting undeserved gold mine ad infinitum.'' See the cases ofKEREWI V. BISIRIYU ODUGBESAN (1965) 1 ANLR 98 and UBANI-UKOMA V. G.E. NICOL (1962) 1ANLR 105. From the Record, it would appear that the 1st Respondent did not mitigate its loss.Its vehicle was in the custody of the 1st Appellant from about two three days following theaccident which occurred on June 15th, 2009. PW5 testified as one who was in charge of thebusiness of the 1st Respondent in Bauchi and stated that he agreed that 1st Appellant shouldgo and repair the vehicle in the presence of the DPO at the GRA Police Station. See pages43-44 of the Record. From the testimony of the Respondents and their witnesses, the vehiclewas still with the Appellants even as at the trial at the Court below, unrepaired, which ofcourse was the reason for the said relief granted and the instant appeal. The accidentoccurred on June 15th, 2009 the hearing of the suit commenced May 4th 2010 and closed onJuly 6th 2011 as on pages 12-85 of the Record. It is also pertinent to state that from theevidence before the Court, the issue regarding the signing of the insuranceform as a precondition for the repairs of the Respondents' vehicle, in my considered andrespectful view was incorrectly concluded by the Court. The reason for the Respondents tosign the said forms was clearly stated and explained by the Appellants. That, since it was theirInsurance Company, Leadway Assurance, that was going to be financially responsible for therepairs of the Respondents' vehicle, they needed the Respondents to sign. The argumentagainst it by the Respondents in my view was misplaced. That, the treatment of the injureddriver must be paid for and that they should repair the vehicle first. One holds the view andhumbly that the issues are different. Reimbursement of the medical bills from the Record wasnot contested or refused at any time, the Appellants requested for receipts of the treatmentreceived by 2nd Respondent. There was no evidence to the effect that the form was toacknowledge that repairs had been effected, the Respondents never complained in that veinand the Appellants explained the need for the forms. See pages 12-78. The Respondents couldhave mitigated their loss if a different attitude was taken with regard to the insurance form.See also pages 44and 45 of the Record. They could have enquired and satisfied themselves onthe need for the insurance forms up to the possible top most management of the 1stAppellant before deciding not to sign the forms. One on this point is in no way exonerating theresponsibility which the 1st Appellant had agreed to, neither is one oblivious of the fact ofdelay or the length of time that elapsed in consequence. The 1st Appellant from the Record isstill ready to repair the 1st Respondent's vehicle. An appellate Court has jurisdiction to look atthe evidence on record to see whether they justify the conclusions of the learned trial Court ornot. Ot is ordinarily not the function of an appellate Court to disturb the findings of fact of thetrial Court as it saw, heard and was therefore ought to be better able to decide with theimaginary scale of justice. See the cases of BALOGUN V. AKANJI (1988) 1 NWLR 301 SC,KODILINYE V. MBANEFO ODU (1935) 2 WACA 365, and FATOYINBO 7 ORS V. WILLIAM ALIASSANNI & ORS (1956) 1 FSC 87.?From the foregoing, as can be seen with regard to the principle of mitigation as well as otherfactors which in my view with respect, which appear were not put into consideration or werewrongly interpreted, one finds the need and justification herein to interfere with the award onspecial damages made by the Court below, having correctly found, as regards the period oftime the sum of N4,000.00 should be paid daily to the Respondent. See the cases ofOMOREGIE V. IDUGIEMWANYE (1985) 2 NWLR (PT. 5) 41 and ANYANWU V. MBARA (1992) 5NWLR 386."Per WILLIAMS-DAWODU, J.C.A. (Pp. 17-21, Paras. E-C) - read in context

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4. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof incivil cases; when such burden will shift"Civil cases are proved on the preponderance of evidence or balance of probabilities. Burdenof proof is on the party who asserts a fact and has to prove same with cogent and credibleevidence before it shifts to the opposing party. See the cases of DAODU V. NNPC (1998) 2NWLR (PT. 538) 355, KALA V. POTISKUM (1998) 3 NWLR (PT. 540) 1, ITAUMA V. AKPA-IME(2000) 7 SC (PT. 11) 24, ELIAS V. DISU (1962) 1 ALL NLR 214 and LONGE V. FBN PLC. (2006) 3NWLR (PT. 967) P. 228. A party is not allowed to rely on the weakness of the case of theopposing party. See the cases of IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) P. 80, ELIAS V.OMO-BARE (1982) 2 SC P. 25 and AGBI V. OGBEH (2006) 11 NWLR (PT. 990) P. 65."PerWILLIAMS-DAWODU, J.C.A. (Pp. 11-12, Paras. E-B) - read in context

5. TORT - NEGLIGENCE: Fundamental ingredients a plaintiff must prove to succeed in an actionfor negligence"Therefore, for a Claimant to succeed in an action for negligence, he must plead and showevidence of the duty of care owed by the opposing party, the breach by the party and thedamages suffered thereby, save where the party admits the wrong."Per WILLIAMS-DAWODU,J.C.A. (P. 12, Paras. E-F) - read in context

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ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,

J.C.A. (Delivering the Leading Judgment): This appeal

is as a result of the Judgment of the Bauchi State High

Court of Justice, Bauchi, delivered by Hon. Justice Kunaza

N. Hamidu on July 27th, 2011 wherein the claims of the

Respondents (the Plaintiffs at the Court below), were

granted.

The gist of the matter between the parties as contained in

the printed Record before this Court was that, an accident

occurred between the Appellants’ and the Respondents’

vehicles around Murtala Mohammed main road, Bauchi on

June 15th, 2009. The 2nd Respondent, a driver with the 1st

Respondent was driving the 1st Respondent’s vehicle, one

Canter Brand tagged Quini with registration number XB

927 BAU through Murtala Mohammed road, the 1st

Appellant’s Bullion van, being driven by the 2nd Appellant

was on Abdulkadir road to enter the said Murtala

Mohammed road when the accident occurred and the

Respondent’s vehicle carrying pure water in sachets was

hit. Between the parties, the 1st Appellant agreed to fix the

1st Respondent’s vehicle

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but it was not done for about ten months. The Appellants’

side of the story was that, the delay was due to the

Respondents’ refusal to sign the form from the Appellants’

Insurance Company, Leadway Insurance. The Respondents

claimed that they would sign only after the work was done.

The repair consequently was not done and the vehicle was

not returned to the Respondents. They therefore

commenced the Suit at the Court below and sought the

following reliefs which as earlier stated were granted:

1. A declaration that the 2nd defendant is negligent

when he hit the 1st Plaintiff (sic) vehicle driven by

the 2nd plaintiff in the morning of 15th June, 2009 at

the T Junction along Murtala Mohammed way and

Abdulkadir Ahmed Road near Investment House,

Bauchi.

2. N3 Million special damages being the cost of the

crushed vehicle of the 1st Plaintiff Canter Brand

tagged Quini with Registration No. XB 927 BAU.

3. N117, 000. Special damages being cost of the

medical expenses of the driver who sustained injury

and his boy.

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4. N15, 000 special damages being cost of the one

load of 300 parks (sic) of pure water destroyed in

consequence of the accident negligently caused by

the second defendant.

5. N4, 000 special damages for loss of user payable

per day from 15th June, 2009 till the date the

defendants pay the cost of the plaintiffs’ vehicle or

replacement of the vehicle.

6. N1 Million general damages for negligence.

7. Cost of the action.

After the trial, where both sides testified and called

witnesses, judgment was entered in the sum of

‘’N15,000.00 special damages as the cost of the 300

packs of pure water destroyed in consequence of the

accident negligently caused by the second defendant

at the rate of N50. 00 per pack. The sum of N4, 000.

00 special damages for loss of user payable per day

from 15th June, 2009 till the date the defendants

repairs (sic) and hand over the vehicle to the

plaintiffs, immediate repair of the plaintiffs (sic)

vehicle without any reference to insurance forms, and

cost of the action.’’

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The Appellants were dissatisfied with the foregoing

judgment and therefore have come to this Court. Their

Notice of Appeal with five (5) grounds of appeal dated July

29th, 2011 was filed August 1st, 2011. They seek the

following relief;

"An order allowing the appeal and setting-aside the

judgment of the Lower Court.’’

The Appellants’ brief of argument dated July 16th, 2012

was filed on July 17th, 2012 and deemed on February 7th,

2018 and settled by Irorakpor C.C. Esq. of Irorakpor & Co.

The Respondents’ dated September 25th, 2017, filed

September 29th 2017 and was deemed February 7th, 2018.

It must be mentioned that, at the hearing of this appeal on

April 16th 2018, the Respondents were absent and

unrepresented. The Court heard the appeal upon

satisfaction that the Respondents were duly notified of the

hearing through their Counsel, E. E. Uzochukwu Esq. on

April 4th, 2018.

The Appellants submitted the following five (5) issues:

1. Whether the learned trial Judge was right in law to

have entered judgment ‘’of N4, 000 special damages

for loss of user payable per day from 15th June, 2009

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till the date the Defendants repair and handover the

vehicle to the Plaintiffs’’ when same has not been

specifically proved as required.

2. Whether the learned trial Judge was right in law to

hold –"that the Defendants did not dispute the

amount claimed (the sum of N4, 000. 00 per day as

loss of earning) in their pleadings neither do they

cross examine the prosecution (sic) witnesses on this

issue or call evidence to disprove same which

amounts to admission.’’

3. Whether the learned trial Judge was right in law to

have awarded ‘’the sum of N15, 000. 00 as special

damages being cost of one load of 300 packs of pure

water destroyed in consequence of the accident

negligently caused by the 2nd Defendant at the rate

of N50. 00 per pack‘’ in his judgment. When it was

not proved that the packs of pure water were

destroyed as a result of the accident.

4. Was the learned trial Judge right in law to have

held that ‘’I must say that the repairs of the vehicle

ought not to be tied to signing

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any insurance forms. The issue of insurance is an

issue between the defendants and the insurance

company; therefore, the plaintiffs ought not to suffer

as a result of their internal procedure."

5. Whether the judgment of the trial court is

supported by the weight of the evidence adduced by

the Plaintiff.

The following were the issues by the Respondents:

1. Whether the trial Judge was justified in awarding

the claim for negligence.

2. Whether there was sufficient evidence before the

lower Court to justify the award of special damages

for loss of user and the cost of 300 packs of pure

water.

3. Whether the learned trial Judge was right in

holding that the repair of the vehicle ought not to be

tied to signing any insurance form.

In my view and humbly, a sole issue thus should justly and

fairly determine this appeal:

Whether or not the Court below was right in entering

judgment in favour of the Respondents, given the

evidence placed before it.

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At this point, it would assist a great deal in a nut shell to

bring out in the main the Appellants’ grouse. The award of

N15, 000. 00 as special damages for the cost of one load of

300 pack of pure water was unacceptable, as well as the

order to pay the sum of N4000. 00 per day as loss of

earning from June 15th, 2009 till the date repair is effected,

immediate repair of the Appellants’ vehicle and to hand

over same.

ARGUMENTS ON BEHALF OF THE PARTIES

Mr. C. C. Irorakpor Esq. submitted that, there were no

credible and cogent evidence on the sum of N4, 000. 00

claimed by the Respondents as there were no receipts

tendered as pleaded which omission offended Section 149

(d) of the Evidence Act. That, there was no evidence as to

the number of the packs of pure water and the number of

trips to be made with the 1st Respondent’s vehicle that

would amount to the said sum per day. Whether or not the

vehicle was old or new at the time of the accident was not

in evidence, he argued and therefore, the Court was wrong

to have ordered as it did with respect

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to payment of N4, 000. 00. per day, being special damages

in favour of the Respondents. In support, he cited the cases

of ARISONS V. OGUN STATE (2009) 6 SCNJ 141,

NIGERIAN NATIONAL PETROLEUM CORPORATION

V. CLIFCO NIGERIA LTD. (2011) 4 SCNJ 107 and

JOHNSON OKON V. MOBIL PRODUCING UNLIMITED

(2010) 52 WRN 54 amongst others. He argued further

that, it was erroneous for the Court to have awarded the

said sum of N4,000 per day on the basis that the Appellants

did not dispute the amount claimed by the Respondents. He

asserted that, the Appellants denied the Respondents’

claim. Further that, the Respondents did not adduce cogent

evidence as required for proof in special damages and cited

in support the cases o f SYLVESTER CHUMA

CHUKWUMA V. ANTHONY EZECHI NWOYE & 15 ORS

(2010) 30 WRN 79 and MANSON V. H. E. S. NIGERIA

LTD. (2007) 2 NWLR (PT. 1018) 211.

On the award of N15, 000. 00 for the bags of pure water

said to have been destroyed, the learned Counsel submitted

that the Respondents’ testimony was at variance to the

pleading and therefore was of no evidential value and in

support, cited the case of ADU V. GBADAMOSI (2009)

19 WRN 178.

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He argued that, it was wrong for the Court to have held

that the issue of insurance was one between the Appellants

and their Insurance Company as a miscarriage of justice

thereby occasioned to the Appellants. That, as the piece of

evidence regarding the role played by the Appellants’

Insurance Company to repair the Respondents’ vehicle was

not challenged the Court ought to have accepted the

evidence in their favour. He cited in support, the case of

NSITFMB V. KLIFCO NIG. LTD. (2010) 42 WRN 1 and

NASIR V. C. S. C. KANO STATE (2010) 25 WRN 1. He

consequently urged that a re-evaluation of the evidence

before the Court below be done.

He contended that the totality of the evidence by the

Respondents did not support the decision of the Court and

in support cited the case of SANNI V. ABDULSALAM

(2009) 15 WRN 61. In conclusion, he submitted that the

2nd Respondent owed the Appellants’ bullion van a duty of

care which would have avoided the accident and urged on

the overall that the appeal be allowed and the Judgment of

the Court below be set aside.

Mr E. E. Uzochukwu Esq, learned Respondents’ Counsel

submitted that, the Court was right in its

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findings and decision in favour of the Respondents as the

2nd Appellant unequivocally admitted that he owed the

duty of care to observe the road before entering the major

road in his testimony at the trial. That, the Court was right

to have held that, every driver irrespective of the status of

his vehicle owes a duty of care to other road users even

where it is a bullion van. He submitted further that, the

Appellants failed to ask PW3 relevant questions at the trial

on whether and how the Respondents’ vehicle made N4,

000.00 per day as well as the cost of the packs of sachets of

water. That, the evidence in that regard was clear and

uncontroverted. He asserted that, the Respondents apart

from the admissions by the Appellants also led credible and

uncontroverted evidence in proof of the claim for the

special damages of N4,000. 00 and the cost of the packs of

sachets of pure water. In support, he cited the cases of

BENJAMIN OBASUYI V. BUSINESS VENTURES LTD.

(2000) 77 LRCN P. 849, A. G. LEVENTIS V. AKPU

(2007) 17 NWLR (PT. 1050) P. 416 and NBC V. UBANI

(2014) 4 NWLR (PT. 1398) P.421.

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He argued that, the alleged contradiction in the testimonies

of the Respondents’ witnesses was not material to cast

doubt on the Respondents’ case and cited the case of

NWOKORO V. ONUMA (1990) 72 LRCN P. 3015.

He contended that the issue of the insurance form was an

afterthought by the 1st Appellant and the Court was right

to have treated it as a domestic matter between the

Appellants and their insurance company. That, they denied

the Respondents the use of the vehicle when they did not

repair it and failed to return it for ‘’about 8 months’’.

Further that, they failed to prove the necessity for the

Respondents to sign the insurance form.

In conclusion, he urged that the appeal be dismissed and

the decision of the Court below be affirmed.

COURT’S POSITION ON THE SOLE ISSUE

Civil cases are proved on the preponderance of evidence or

balance of probabilities. Burden of proof is on the party

who asserts a fact and has to prove same with cogent and

credible evidence before it shifts to the opposing party. See

the cases of DAODU V. NNPC (1998) 2 NWLR (PT. 538)

355, KALA V. POTISKUM (1998) 3 NWLR (PT. 540)

1,ITAUMA V. AKPE-IME (2000) 7 SC

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(PT. 11) 24, ELIAS V. DISU (1962) 1 ALL NLR 214 and

LONGE V. FBN PLC. (2006) 3 NWLR (PT. 967) P. 228.

A party is not allowed to rely on the weakness of the case of

the opposing party. See the cases of IMAM V. SHERIFF

(2005) 4 NWLR (PT. 914) P. 80, ELIAS V. OMO-BARE

(1982) 2 SC P. 25 and AGBI V. OGBEH (2006) 11

NWLR (PT. 990) P. 65.

The law is and settled that that the measure of damages in

an action for negligence is founded on the principle of

restititio in integrum, which means that the owner of a

damaged vehicle as a result of the negligent act of another

is entitled to restitito in integrum. In other words, the

owner should recover a sum such as will replace his loss as

far as can be done by compensation in money, and to be in

the position as if the loss had not occurred, subject to the

rules of law on remoteness of damages. See the case of

LAGOS CITY COUNCIL CARETAKER COMMITTEE V.

BENJAMIN O. UNACHUKWU (1978) 3 SC 199.

Therefore, for a Claimant to succeed in an action for

negligence, he must plead and show evidence of the duty of

care owed by the opposing party, the breach by the party

and the damages suffered thereby, save where the party

admits the wrong.

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From the evidence as agreed between the parties, ‘’the

accident occurred at a Junction along Murtala Way

while the 2nd defendant was driving his vehicle from

Abdulkadir Way to join Murtala Mohammed Way

while the 2nd plaintiff was driving his vehicle from

Wunti going towards CBN round about.’’

And with the Police investigation and report to the effect

that the driver “Mathew M of UBA drove his motor

vehicle recklessly by crossing without proper

observation of traffic flow.’’

The Court found as follows:

“In the present case, I am convinced that the 2nd

defendant was negligent in the way and manner he

drove his car which resulted into the accident. The

plaintiffs have successfully proved the negligent act

of the 2nd defendant and I so hold.’’

See pages 124-126 of the Record.

The Respondent’s vehicle from Exhibits D1-D3 was not

found to be damaged beyond repairs and the Court found in

evidence that “it was agreed that the defendants were

to repair the plaintiffs vehicle.’’

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See page 126 of the Record. However, the Court held the

view and with respect, wrongly in my view and humbly,

thus:

“Here I must say that the repairs of the vehicle ought

not to be tied to signing any insurance forms.

The issue of insurance is an issue between the

defendants and the insurance company, therefore the

plaintiffs ought not to suffer as a result of their

internal procedure.’’

See page 126 of the Record.

From the foregoing position of the Court, it rightly refused

the prayer for special damages for the sum of N3 Million to

replace the 1st Respondent’s vehicle. It however awarded

the sum of N4, 000 per day as loss of earning in favour of

the 1st Respondent from June 15th, 2009, the date the

accident occurred till the repairs of the vehicle are carried

out. The Appellants were aggrieved by that decision and

have appealed on same that the Respondents failed to

prove such claim. They argued that there was no cogent

evidence as to the number of trips the vehicle would make

with the pure water before earning the said sum.

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The Respondents’ position on the other hand is that, the

Appellants did not dispute or challenge the amount claimed

by them nor did they cross-examine their witnesses and

neither did they disprove the evidence at trial.

Special damages are such that the law will not infer from

the nature of the act. All losses claimed on every item must

be specifically stated in the pleading in terms of value and

amount. See the case of SHODIPO & CO. LTD. V. DAILY

TIMES (1972) ALL NLR 842. The apex Court in

ODULAJA V. HADDAD (1973) 11 SC 357 held that,

“Strict proof does not mean unusual proof or proof

beyond reasonable doubt. What is required is that the

party should establish his entitlement to that

category of damages by such credible evidence of

such character as would suggest that he indeed is

entitled to an award under that head.’’

In SPDC NIG. LTD V. TIEBO VII ORS (2005) 9 NWLR

(PT. 931) 439 the apex Court stated thus in that regard

per Oguntade JSC as he then was,

“….. In some cases, it may be necessary to show

documentary proof of loss sustained while in others it

may be unnecessary, the important

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thing is that the evidence proffered must be

qualitative and credible and such as lends itself to

quantification…..’’

This Court, in EZENWA BROS. NIG LTD. V. ONA-JONES

NIG. LTD. (2012) LPELR-9789 CA, per Adamu Jauro

JCA, in similar vein held that,

“proof of special damage is not radically different

from the general method of proof in civil cases.’’

See further the cases of NWABUOKU V. OTTIH,

OSHINJINRIN V. ALHAJI ELIAS (1970) 1 ANLR (PT.

1) 153 and EMIRATE AIRLINE V. MISS PROMISE

MEKWUNYE (2014) LPELR-22685 CA.

Going through the gamut of the Record, one is able to

agree with the position of the Court that:

“the defendants did not dispute the amount claimed

in their pleadings neither do they cross examined

(sic) the prosecution witnesses on this issue or call

evidence to disprove same which amounts to

admission. I am of the firm view that plaintiffs are

entitle (sic) to their claim for lost of revenue due to

the accident. ‘’

See pages 13-14, 19-22, 24-26, 40-41 and 128 of the

Record.

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It is important to note that, for proof of special damages as

afore stated, it is not to be unusual proof, or proof beyond

reasonable doubt and it is not in all cases that the

documentary proof of loss sustained must be tendered. See

the cases ODULAJA V. HADDAD supra, SPDC NIG. LTD

V. TIEBO VII ORS supra, NWABUOKU V. OTTIH

supra, OSHINJINRIN V. ALHAJI ELIAS supra and

EMIRATE AIRLINE V. MISS PROMISE MEKWUNYE.

The Court consequently entered judgment in that regard as

follows:

“The sum of N4, 000. 00 special damages for loss of

user payable per day from 15th June, 2009 till the

date the defendants repairs (sic) and hand over the

vehicle to the plaintiffs.’’

The Appellants have appealed against the foregoing.

In my considered view and humbly, the Court was right to

have found in favour of the Respondent for the loss of

revenue as it did. However, it would appear from the

Record that there were certain factors that the Court ought

to have considered before concluding the issue of the loss

of revenue. It is the law that, a party has the responsibility

to ‘’mitigate his

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loss as the incident is not an avenue for hitting

undeserved gold mine ad infinitum.’’ See the cases of

KEREWI V. BISIRIYU ODUGBESAN (1965) 1 ANLR 98

and UBANI-UKOMA V. G.E. NICOL (1962) 1 ANLR

105.

From the Record, it would appear that the 1st Respondent

did not mitigate its loss. Its vehicle was in the custody of

the 1st Appellant from about two three days following the

accident which occurred on June 15th, 2009. PW5 testified

as one who was in charge of the business of the 1st

Respondent in Bauchi and stated that he agreed that 1st

Appellant should go and repair the vehicle in the presence

of the DPO at the GRA Police Station. See pages 43-44 of

the Record. From the testimony of the Respondents and

their witnesses, the vehicle was still with the Appellants

even as at the trial at the Court below, unrepaired, which of

course was the reason for the said relief granted and the

instant appeal. The accident occurred on June 15th, 2009

the hearing of the suit commenced May 4th 2010 and

closed on July 6th 2011 as on pages 12-85 of the Record.

It is also pertinent to state that from the evidence before

the Court, the issue regarding the signing of the insurance

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form as a precondition for the repairs of the Respondents’

vehicle, in my considered and respectful view was

incorrectly concluded by the Court. The reason for the

Respondents to sign the said forms was clearly stated and

explained by the Appellants. That, since it was their

Insurance Company, Leadway Assurance, that was going to

be financially responsible for the repairs of the

Respondents’ vehicle, they needed the Respondents to sign.

The argument against it by the Respondents in my view

was misplaced. That, the treatment of the injured driver

must be paid for and that they should repair the vehicle

first. One holds the view and humbly that the issues are

different. Reimbursement of the medical bills from the

Record was not contested or refused at any time, the

Appellants requested for receipts of the treatment received

by 2nd Respondent. There was no evidence to the effect

that the form was to acknowledge that repairs had been

effected, the Respondents never complained in that vein

and the Appellants explained the need for the forms. See

pages 12-78. The Respondents could have mitigated their

loss if a different attitude was taken with regard to

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the insurance form. See also pages 44and 45 of the Record.

They could have enquired and satisfied themselves on the

need for the insurance forms up to the possible top most

management of the 1st Appellant before deciding not to

sign the forms. One on this point is in no way exonerating

the responsibility which the 1st Appellant had agreed to,

neither is one oblivious of the fact of delay or the length of

time that elapsed in consequence. The 1st Appellant from

the Record is still ready to repair the 1st Respondent’s

vehicle.

An appellate Court has jurisdiction to look at the evidence

on record to see whether they justify the conclusions of the

learned trial Court or not. Ot is ordinarily not the function

of an appellate Court to disturb the findings of fact of the

trial Court as it saw, heard and was therefore ought to be

better able to decide with the imaginary scale of justice.

See the cases of BALOGUN V. AKANJI (1988) 1 NWLR

301 SC, KODILINYE V. MBANEFO ODU (1935) 2

WACA 365, and FATOYINBO 7 ORS V. WILLIAM

ALIAS SANNI & ORS (1956) 1 FSC 87.

From the foregoing, as can be seen with regard to the

principle of mitigation as well as other

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factors which in my view with respect, which appear were

not put into consideration or were wrongly interpreted, one

finds the need and justification herein to interfere with the

award on special damages made by the Court below,

having correctly found, as regards the period of time the

sum of N4,000.00 should be paid daily to the Respondent.

See the cases of OMOREGIE V. IDUGIEMWANYE

(1985) 2 NWLR (PT. 5) 41 and ANYANWU V. MBARA

(1992) 5 NWLR 386.

As regards the award of the special damages in the sum of

N15,000.00. One is unable to fault the finding and its

award. The Court stated thus in that regard:

“Here I must say that the evidence before me is that

the packs of pure water the vehicle was carrying were

destroyed as a result of the accident. This piece of

evidence was not challenged in cross-examination

therefore admitted.‘’

The argument by the Appellants’ Counsel that the

Respondents should have picked the pure water after the

accident according to the Court was an after thought. One

would say that such could go no where given the facts of

the case that the driver was unconscious

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and the concern of those at the scene of accident was to

save his life. See pages 13-14, 17-18 19,25, 40, 44, of the

Record. the Court therefore and correctly found thus:

“I am of the opinion that the plaintiffs are entitled to

the cost of the pure water destroyed as a result of the

accident and I so hold.’’

The difference between 300 to 350 packs of pure water and

the amount of one sachet at N50. 00 as opposed to N60. 00

stated by the 2nd Respondent and the PW3 in my view is

not substantial enough to cause for their evidence to be

discredited or discounted.

In the light of the foregoing, this appeal succeeds in part

only with respect to the length of time awarded for the

payment of the sum of N4, 000. 00. The payment of the sum

of N4, 000. 00 per day is upheld only for the period of one

year from the date of the accident, June 15th 2009. It is

hereby further ordered that immediate repair of the

Respondent’s vehicle be effected within the next two

months from the date of this judgment.

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UCHECHUKWU ONYEMENAM, J.C.A.: I was privilegedto read in draft the judgment just delivered by my learnedbrother ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,JCA. I agree with his conclusion that the appeal succeeds inpart.

I abide by the consequential order as contained in the leadjudgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: Ihave had the privilege of reading the lead judgmentdelivered by my learned brother, Elfrieda OluwayemisiWilliams-Dawodu, JCA. His Lordship has considered andresolved the issues in contention in this appeal. I agree.

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Appearances:

Irorakpor C.C. Esq. For Appellant(s)

Mr E. E. Uzochukwu, Esq. For Respondent(s)

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