OCHUBA v. LAGOS STATE AGRICULTURALDEVELOPMENT AUTHORITY

CITATION: (2018) LPELR-45828(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON WEDNESDAY, 18TH APRIL, 2018Suit No: CA/L/319/2012

Before Their Lordships:

MOHAMMED LAWAL GARBA Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

BetweenPETER OCHUBA - Appellant(s)

AndLAGOS STATE AGRICULTURAL DEVELOPMENTAUTHORITY (LSADA) - Respondent(s)

RATIO DECIDENDI

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1. DAMAGES - SPECIAL DAMAGES: Principles guiding the award of special damages"By way of a general restatement of the law on special damages, they are required tobe specially pleaded and strictly proved by a claimant who owes the initial evidentialburden of proof of assertions made by him, if judgment was to be entered in his favourby a Court, SPDCN Ltd. v. Isaiah (1997) 6 NWLR (Pt. 508) 236; Ngilari v. Mothercat Ltd.(1999) 13 NWLR (Pt. 636) 626; Walter v. Skyll Nig. Ltd (2001) 3 NWLR (Pt. 701) 438;Saleh v. B.O.N. Ltd. (2006) 6 NWLR (Pt. 976) 316; Kopek Constr. Ltd v. Ekisola (2010) 3NWLR (Pt. 1182) 618; N.N.P.C. v. Klifco Nig. Ltd. (2011) 10 NWLR (Pt. 1225) 209; O.M.T.Co. Ltd v. Imafidon (2012) 4 NWLR (Pt. 1290) 332. By specific pleadings, a claimant isrequired to provide essential particulars and details of the facts of the special damagessuffered and claimed with adequate clarity to enable the other party know precisely, thenature of the claim. Adim v. N.B.C. Ltd (2010) 9 NWLR (Pt. 1200) 543; Reynolds Constr.Co. Nig. Ltd v. Rockonoh Prop. Co. Ltd. (2005) 4 SC 1 (2005) 10 NWLR (Pt. 934) 615;N.B.B.B. Manuf. Co. Ltd. v. African Continental Bank Ltd (2004) 1 SC (Pt. 1) 32, (2004) 2NWLR (858) 521. Strict proof required for special damages does not mean an unusual orextra ordinary proof beyond and above the required standard of preponderance ofevidence or balance of probabilities in all civil cases. See Nzeribe v. Dave Engr. Co. Ltd(1994) I SCNJ, 161 @176-7; Dumez Nig. Ltd v. Ogboli (1972) 1 All NLR (Pt. 1) 241. Strictproof simply imports production of cogent, credible, admissible and sufficient evidencethat would readily and easily support and make the items of the special damagesclaimed, certain, accurate and quantifiable. It is proof that is characterized by evidencethat ties each item of the special damages claimed to the particulars of the factspleaded by a claimant in his specific pleadings of the damages. Adecentro Nig. Ltd. v.Council of O.A.U. (2005) 5 SC (Pt. 1) 13, (2005) 15 NWLR (Pt. 948) 290; F.B.N. Plc v.Associated Motors Ltd. (1998) 10 NWLR (Pt. 569) 227; Okorokiro v. Chukwe (1992) 1NWLR (Pt. 216) 175; Joseph v. Abubakar (2002) 2 NWLR (Pt. 759) 185; Basil v. Fajebe(1990) 6 NWLR (Pt. 155) 172; B.E.O.O. Ind. Nig. Ltd v. Maduakoh (1975) 12 SC 91 @108.Another settled principle of law on the claim for special damages is that they cannotproperly be awarded on mere failure by a Defendant to deny them in the pleadings, butthe claimant must still prove them as required by the law before he would be entitled toan award by the Court. Himma Merchants Ltd. v. Aliyu (1994) 3 NWLR (Pt. 347) 667;Anazodo v. Pazmeck Inter. Trade Nig. (2007) LPELR-5147 (CA), (2008) 1 NWLR (Pt. 1084)529; Sabbach Bros. v. BWA Ltd (2006) 1 ALL NLR, 240; Anthony v. Giwa (2011)LPELR-5103 (CA); Reynolds Constr. Co. Nig. Ltd v. Edomwonyi (2003) 4 NWLR (Pt. 811)513; Arab Constr. Ltd v. Isaac (2012) LPELR-9787 (CA); N.N.P.C. v. Klifco Nig. Ltd (supra)also reported in (2011) 4 MJSC, 142 @ 174."Per GARBA, J.C.A. (Pp. 11-13, Paras. B-E) -read in context

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2. DAMAGES - SPECIAL DAMAGES: Whether a claim for loss of use is a claim for specialdamages that must be specifically pleaded and proved"It must be pointed out that the claim for loss of use being in the class of specialdamages cannot be awarded merely because the Respondents did not raise it in itspleadings or on the ipse dixit of a Claimant, even if unchallenged. Boshali v. AlliedComm. Exporters Ltd (1961) ALL NLR, 917; Odulaja v. Haddad (1973) 11 SC, 357; NMSLv. Afolabi (1978) 2 SC 79; Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393, (1992) SCNJ,98. The Appellant had the duty to adduce credible evidence to show that he was indeedentitled to the claim of N5,000 daily from the period of 21st November, 2007 to 20thJuly, 2008 as loss of use of the vehicle which he denied the Respondent the opportunityto repair. Apart from the ipse dixit of the Appellant, there was other credible and cogentevidence to support and prove the claim for the period in question and the High Courtwas right to have made an award for thirty (30) days within which the Appellant'svehicle would have been repaired by the Respondent if he had not prevented it from sodoing by unreasonably insisting on his chosen company. In the case of TranskompletNig. Ltd. v. Galadima (1998) LPELR-6478(CA) it was held that:-"Any evidence no matter how unchallenged or uncontroverted which falls short of whatis required to prove special damages must be rejected."The case of Arinze v. State (1990) 6 NWLR (Pt. 155) 158 was referred to by the Court forthe position. Perhaps, I should point out that what the High Court did in the award for 30days for loss of use is not an assessment of amount or quantum of the sum claimed bythe Appellant, but rather on the pleadings and evidence by the Respondent that thedelay in repairs of the Appellant's vehicle occurred as result of his refusal to allow therepairs to be carried out by a company proposed by the Respondent and so he is notentitled to the claim for the whole of period of eight (8) months he claimed. Ordinarily, aCourt cannot use its own criteria or assessment of the quantum of special damagesoutside or apart from what was claimed and satisfactorily proved by credible and cogentevidence of the Claimant.Therefore a trial Court cannot make its own individual or arbitrary assessment of what itconceives the Claimant may be entitled to, but the law requires that it should only acton the hard facts and evidence accepted by it as establishing the amount or sumclaimed as justification for the award. UBN, Plc. v. Ajabule (2011) 18 NWLR (1278) 152,(2011) LPELR-8239 (SC); Texaco Nig. Plc. v. Iloka (2011); C.A.P. Plc. v. Vital Inv. Ltd(2006) 6 NWLR (Pt. 976) 220. The Appellant here did not satisfactorily prove hisentitlement to the loss of use for the whole of the period he claimed."Per GARBA, J.C.A.(Pp. 35-38, Paras. E-A) - read in context(2

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3. EVIDENCE - ADMISSIBILITY OF EVIDENCE: Duty of both trial and appellate Courtwhen an objection is raised to the admissibility of avidence"It may be recalled that the first complaint by the Appellant is that the High Court didnot consider his objection to the admissibility of the Exhibits D1-D6 on the ground thatthey were made by persons interested in the matter, relying on Section 91(3) of theEvidence Act. The Appellant is correct that the High Court did not at the time he raisedthe objection to the admissibility of said documents consider it before admitting them inevidence as Exhibits. Again, the Appellant had raised the objection in his final address,at pages 98-103 of the Record of Appeal, but the High Court did not consider or avert toit in its judgment. The law requires that all relevant issues or points raised by the partiesin the course of the proceedings of a case; either by way of objection or submissions,should be pronounced upon by the Court either at the time they were raised or in thefinal determination of the case. X.S. Nig. Ltd v. Taisei (WA) Ltd (2006) 15 NWLR (1003)533; Orji v. PDO (2009) 14 NWLR (Pt. 1161) 310; State v. Ajie (2000) 11 NWLR (Pt. 678)434. Objection to the admissibility of any piece of evidence, parole or documentary,timeously raised before a trial Court by a party is a relevant and material issue or pointon which the Court has the duty to make a pronouncement before admitting it inevidence and using or relying on it to making finding(s) of facts in the case. Where thetrial omits or chooses to defer the pronouncement on the objection to the final decisionof the case, it must before using and relying on the evidence in respect of which theobjection was raised, to base its finding, make a categorical or specific pronouncementon the objection, in the final decision. Although the admission of the evidence in spite ofthe objection to its admissibility may constitute overruling the objection, the trial Courthas the primary duty to specifically and clearly state or give reasons for the decision tooverrule the objection and to admit the evidence. A trial Court cannot ignore anobjection to the admissibility of a piece of evidence, admit the evidence and thenproceed to use or rely on it to make finding(s) on which its final decision in a case maybe predicated as that would constitute an infringement of a party's right to a fairhearing in the conduct of the proceedings. Buhari v. I.N.E.C. (2008) 19 NWLR (Pt. 1120)246; Onuoha v. Nwabueze (2002) 2 NWLR (Pt. 750) 172.Since the High Court has failed to consider the objection, this Court has the power andjurisdiction to do so in this appeal since it by way of a rehearing under Order 7, Rule 2 ofCourt of Appeal Rules, 2016 and possesses the full jurisdiction of the High Court in thedetermination of the appeal pursuant to Section 15 of the Court of Appeal Act, 2004.Uduma v. Arunsi (2012) 7 NWLR (Pt. 1298) 55; Ekpemupolo v. Edremoda (2009) 8 NWLR(1142) 166. Before proceeding to consider the objection to the admissibility of theExhibits D1-D6 based on Section 91(3) of the Evidence Act, it is expedient to find out ifthe High Court has used or relied on the said Exhibits to make finding(s) whichmaterially influenced its final decision on the Appellant's case or any material partthereof. This is necessary because in the event that the said Exhibits were not used orrelied on by the High Court for findings upon which its judgment was based orpredicated, then the admission of the Exhibits even if wrong in law, would have no legalconsequence on the decision since the law is that mere wrongful admission or exclusionof evidence, ipso facto, would not ordinarily lead to the reversal of a lower Court'sdecision by an appellate Court. See Section 251 of the Evidence Act; 2011, Buhari v.Obasanjo (2005) 13 NWLR (Pt. 941) 1; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561;Dele v. State (2011) 1 NWLR (Pt. 1229) 508; Ojengbede v. Esan (2001) 18 NWLR (Pt.746) 771."Per GARBA, J.C.A. (Pp. 19-22, Paras. C-E) - read in context

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4. EVIDENCE - STATEMENT MADE BY INTERESTED PARTY: Position of the law on theadmissibility of documents or evidence by a person interested"Section 91(3) of the Evidence Act, 2004 (applicable at the time of trial, now Section83(3) of the 2011 Act) provides that:-"(3) Nothing in this section shall render admissible as evidence any statement made bya person interested at a time when proceedings were pending or anticipated involving adispute as to any fact which the statement might tend to establish."A "person interested" for the purpose of these provisions means a person who has apecuniary or other material interest in the result of the proceedings, a person whoseinterest is affected by the result of the proceedings, and therefore, would have atemptation to pervert the truth to serve his personal or private ends. It does not meanan interest in the sense of intellectual observation or an interest purely due tosympathy. It means an interest in the legal sense, which imports something to begained or lost.A person who merely acts in the discharge of his official duty or performance of officialfunction in respect of a matter that may be the subject of a case before a Court of law orwhich may result in a legal action, does not become a person interested within thecontext of the provisions so as to render any statement made by him inadmissible, Inthe case of H.M.S. Ltd v. F.B.N. (1991) 1 NWLR (Pt. 167) 290 @ 312, the apex Court perKaribi-Whyte, JSC, had held that:"Thus the general principle is that the document made by a party to a litigation orperson otherwise interested when proceedings are pending or is anticipated is notadmissible Barkway v. South Wales Transport Co. Ltd (1949) 1 K.B. 54. The disqualifyinginterest is a personal not merely interest in an official capacity - See Bearmans Ltd. v.Metropolitan Police District Receiver (1961) 1 NLR 634. Where however the interest ofthe maker is purely official or as a servant without a direct interest of a personal nature,there are decided cases that the document is not thereby excluded. - See Evon v. Noble(1949) 1 K B. 222. See: The Atlantic and the Battyk (1946) 62, T.L.R. 461. Re Powe,Powe v. Barclays Bank Ltd. (1956) P. Galler v. Galler (1955) I W.L.R. 400.?The nature of the disqualifying interest will depend upon the nature of duty undertakenby the servant. Where from the nature of the duty he can be relied upon to speak thetruth, and that he will not be adversely affected thereby, the document has always beenadmitted in evidence. This is because the rationale of the provision is that he must be "aperson who has no temptation to depart from the truth on one side or the other - aperson not swayed by personal interest, but completely detached judicial, impartial,independent."See also Anyaebosi v. T. T. Briscoe Nig. Ltd (1987) 3 NWLR (59) 84; Asuquo v. Asuquo(2009) 16 NWLR (Pt. 1167) 225; Okenwa v. Mil. Gov. of Imo State (1997) 6 NWLR (Pt.507) 136; Republic Bank Nig. Ltd. v. C.B.N. (1998) 13 NWLR (Pt. 551) 306; N.S.I.T.F. v.Klifco (2010) 13 NWLR (Pt. 1211) 307.In the premises of the above position of the law, the persons who wrote the queries andreplies in Exhibits D1-D6 cannot properly be considered as persons interested within thecontemplation of Section 91(3) of the 2004 Evidence Act so as to render the Exhibitsinadmissible in evidence. The ground of the objection by the Appellant, apparently, iswanting in merit and is overruled."Per GARBA, J.C.A. (Pp. 24-27, Paras. D-D) - read incontext

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5. EVIDENCE - ADMISSIBILITY OF EVIDENCE: The legal basis governing theadmissibility of evidence"By the provisions of Section 6 of the Evidence Act, 2004, ordinarily, admissibility ofevidence was governed primarily, by relevance to the issues for decision in judicialproceedings of a Court. Once a piece of evidence is relevant, subject to other conditionsthat may be prescribed by the evidence law, it is admissible in evidence and once apiece of evidence has no relevance or connection with the issues or facts of a case, thenit is of no moment to the case and so it would be fruitless to admit in evidence. A pieceof evidence which is not relevant is on that basis, not admissible or is inadmissible inevidence. See Elias v. Disu (1962) 1 SCNLR, 361, (1962) 1 ALLNLR 214; Igbinovia v.State (1981) 2 SC, 5; Ogonzie v. State (1997) 8 NWLR (Pt. 515) 566; Oyetunji v. Akanji(1986) 5 NWLR (Pt. 42) 461; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386;Agbahomovo v. Eduyegbu (1999) 3 NWLR (Pt. 594) 170; Torti v. Ukpabi (1984) 1 S.C.370."Per GARBA, J.C.A. (Pp. 27-28, Paras. F-E) - read in context

6. JUDGMENT AND ORDER - AWARD OF INTEREST: Position of the law as regardsaward of post judgment interest"There is also the complaint by the Appellant that the High Court did not award postjudgment interest on the sums awarded in his favour in the judgment.By the provisions of Order 35, Rule 4 of the High Court of Lagos State Civil ProcedureRules, 2004 (applicable to the Appellant's case) a Judge of that Court at the time ofmaking any judgment or order, may order interest at a rate not less than 10% perannum to be paid upon the judgment. Clearly, the provisions vests a discretionarypower on the High Court to order, as it deems fit, that interest at the rate of not lessthan 10% be paid upon a judgment entered by it in favour of a party. Since the power isdiscretionary in the Court, like all other judicial discretion, it is to be exercised judiciallyand judiciously taken into consideration, the peculiar facts and circumstances of thecase leading to the judgment. Bullet Int. Nig. Ltd v. Adamu (1997) 3 NWLR (Pt. 493) 348;Kasunmu v. Shitta-Bay (2006) 1LR (P7 NWt. 1008) 372; Dokubo Asari v. F.R.N. (2007) 12NWLR (Pt. 1048) 320; Sanni v. Agara (2010) 2 NWLR (Pt. 1178) 371. In the presentappeal, since judgment was entered by the High Court and damages; special andgeneral, were awarded to the Appellant, the justice of the case requires that the sumsawarded shall attract the post judgment interest at the rate provided for by the Rules ofthe Court. From the tenor of the judgment by the High Court, it was an omission ratherthan an error on its part not to have awarded interest on the sums awarded to theAppellant in the judgment entered in his favour. The Appellant is entitled to interest onthe sums awarded in the judgment by the High Court and it is ordered to be paid on thesums at the rate of 10% from the date of the judgment until the judgment debt is fullypaid by the Respondent."Per GARBA, J.C.A. (Pp. 42-43, Paras. A-D) - read in context

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MOHAMMED LAWAL GARBA, J.C.A. (Delivering the

Leading Judgment): The Appellant; a Legal Practitioner,

had sued the Respondent before the High Court of Lagos

State in Suit No. ID/1761/2008 wherein he claimed the sum

of Three Million, Six Hundred and Five Thousand Naira

( N 3 , 6 0 5 , 0 0 0 . 0 0 ) a s s p e c i a l a n d g e n e r a l ,

aggravated/exemplary damages for negligence and

damages caused to his car and injuries suffered by him

from the Respondent's driver on the 20th October, 2007.

According to the facts in the statement of claim, the

Appellant was driving his Mercedes Benz car at Apongbon

Bridge, on Lagos Island, on the said date when the

Respondent's Trailer Vehicle driven by its driver, ran into

the back of his car and damaged it, causing him personal

injuries.

After settlement of pleadings, the case proceeded to trial

during which the Appellant testified in proof of his claims

and a sole witness gave evidence in support of the defence

by the Respondent.

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In a judgment delivered on the 15th July 2011, the High

Court found in favour of the Appellant, held and ordered

thus:-

"As stated earlier in this judgment, this Court has

found in negligence for the Claimant and has held

that the Defendant is vicariously liable. I cannot find

that the Defendant has been able to prove strictly all

of the heads of claim for special damages and I so

hold. As stated earlier, I will grant a fraction of what

the Claimant is asking for in the area of taxi fares and

hereby award N150,000 only for a 30-day period

under that head.

The award of general damages is discretionary and

such discretion must be exercised judicially and

judiciously. In the circumstances of this case I

therefore award general damages in the sum of

N250,000 for the negligence of the Defendant."

Not satisfied with some parts of the judgment, the

Appellant brought this appeal by the Notice of Appeal

dated and filed on 30th September, 2011, containing six (6)

grounds of dissatisfaction from which he distilled three (3)

issues for determination by the Court in the Appellant's

brief filed on 21st January, 2014.

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The issues are in the following terms:-

"i. Whether the respondent's failure to reply on points

of law to the appellant's submissions precisely on the

following issues: (a) admissibility of Exhibits D1-D7;

(b) mitigation of loss, (c) special claims/damages (d)

post judgment interest etc amount to the

respondent's admission or concession of those issues

(as raised and argued upon by the appellant at the

trial Court) and that the trial Court as a consequence

ought to have found for the appellant on the issues.

(Grounds 1, 2 and 6).

ii. Whether the trial Court, after holding that the

appellant was entitled to the special claim of loss of

use of N5,000.00 per day as claimed and proved, was

right to have awarded the same only for 30 days

instead of (between 21/11/2007 to 31/07/2008 and up

to the day of judgment) and further refused to award

other heads of special claims/damages. (Grounds 4

and 5).

iii. Whether the trial Court, on the facts and

circumstances of this case, was right to have held

that the respondent was ready to repair the

appellant's car and that the appellant did not mitigate

his loss (Ground 3)."

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In the Respondent's unpaginated brief filed on the 4th

October 2017, deemed on 14th February, 2018, the

following issues are said to arise for determination in the

appeal:-

"1(a) Whether the trial Judge was right in law when

she held that the appellant has not been able to prove

strictly all the heads of claim for special damages.

(b) If the answer to the above is in the affirmative,

whether the Court of appeal should not upset the

award of the special damages."

I intend to consider the Appellant's issues which subsume

the Respondent's issues.

The arguments of the Appellant on Issue (i) are that the

High Court did not consider his objection to the

admissibility of Exhibit D1-D7 in evidence and that the said

Exhibits are inadmissible. A.G. Leventis, Plc v. Akpu

(2007) 9 MJSC, 134 on duty of a Court not to act on

inadmissible evidence and Agbo v. State 25 NSCQR, 137

@ 166 on duty of a Court to consider all issues raised by

the parties before it, were referred to and the Court is

urged to expunged the Exhibits D1-D7. It is also the case of

the Appellant that the Respondent did not plead the fact

that the Appellant did not

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mitigate his loss and so the High Court is said to be wrong

to have held that the Appellant did not mitigate his loss.

Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt.

658) 609 and Kosile v. Folarin (1989) 3 NWLR (Pt.

107) 1 were cited in the brief andOando v. Adijere

(2013) 5-7 MJSC (Pt. 11) 40, at the hearing of the

appeal. The Appellant said the Respondent did not

challenge the N5,000.00 loss of use, the length of time it

was claimed or other special damages claimed and the post

judgment interest claimed and so the Respondent is

deemed to have conceded or admitted them on the

authority ofAdesanya v. Otuewu (1993) 1 NWLR (Pt.

270) 414 and Adeniran v. Alao (2002) 1 MJSC, 1 @ 28.

Under Issue (ii), the Appellant said that by the authority of

Kosile v. Folarin (supra) the High Court ought to have

awarded the N5,000.00 per day for loss of use up to date of

judgment as claimed by the Appellant and further reliance

was placed on Cappa & D'Alberto Ltd v. Akintilo (2003)

4 SC (Pt. II) 1 @ 12. According to the Appellant, it was

because the High Court did not understand the claim for

loss of use that it erroneously awarded

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it for only 30 days instead of the period claimed by him,

which was strictly proved as required by the law. Verbose

and repetitive submissions were made to show that the

High Court was wrong in not awarding the sum and the

period claimed for loss of use of the Appellant's vehicle and

reference was made to numerous judicial authorities on

diverse principles of law, including taking judicial notice of

the depreciating value of the Naira.

The Appellant also submitted that the Respondent did not

challenge or controvert the special damages of N70,000.00,

N15,000 being cost of evaluation of repairs of his vehicle

after the incident and N1.5 Million as cost or value of the

vehicles at the time of the incident, which were all pleaded

and proved by him, but not awarded by the High Court.

Garba v. Kur (2003) FWLR (Pt. 148) 1277 @ 1288 and

West African Shipping Agency v. Kalla (1978) 11

NSCC, 114 @ 120, among other cases were referred to. It

is the contention of the Appellant that since the High Court

acknowledged, at page 143 of the Record of Appeal that the

parties did agree that his vehicle was "a write off", it had

the duty to

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award the sum of N1.5 Million claimed and proved for

replacement or as cost of the vehicle.

On the claim for the loss of N70,000.00, the Appellant cited

and relied on Cameroon Airlines v. Otutuizu (2011) 2-3

MJSC (Pt. II) 56 @ 89-90.

On Issue (iii), the Appellant submitted that the High Court

was wrongly swayed by the Exhibits D1-D7 which are

inadmissible to find that the Respondent was ready to

repair the Appellant's vehicle after the incident, in breach

of the Appellant's right to fair hearing. Then citing Omoha

v. State (1989) 1 NSCC (2000) 411 @ 417-8 on factors

to be considered in the determination of the veracity and

credibility of a witness, Appellant argues that the sole

witness who testified for the Respondent did not know the

facts of the incident involving his vehicle or other vehicles

and disowned the letter written by the Respondent to him;

Exhibit C1, admitting liability for the damage to the

Appellant's vehicle. He said the High Court ought to have

critically satisfied itself that there is no danger in believing

the witness or acting on his evidence and was wrong to

have

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believed his evidence which was contradictory on material

facts of the Respondent's defence without alluding to the

contradictions. Inter alia, U.N.I.C. Ltd (1999) 3 NWLR

(Pt. 593) 17; Ajie v. State (1976) 2 SC, 43 @ 44-5 and

Ezemba v. Ibeneme (2004) 10 MJSC, 54, were cited and

arguments were made on Respondent's admission of the

Appellant's case on pleadings and again, on the issue of

mitigation of loss by the Appellant, showing that the vehicle

was in the custody of the Police as a possible exhibit, after

the incidents and relying on Obasuyi v. Business

Ventures Ltd (supra) and Adisa v. Afuye (1994) 1

NWLR (Pt. 318) 75 @ 85. The High Court was said not to

have properly evaluated the evidence and on the authority

ofPopoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 @

33-4, the Court is said to be entitled to intervene to set

aside the perverse decision as defined in State v. Ajie

(2000) 11 NWLR (Pt. 679) 434 @ 449.

Finally, the case of A.G. Leventis Ltd. v. Akpu (supra)

were referred to on when an appellate Court may upset the

award of damages by a trial Court, and in conclusion, the

Court is urged to, pursuant to Section 16

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of the Court of Appeal Act, re-appraise the evidence, allow

the appeal and grant/award all the Appellant's reliefs as

claimed.

In the Respondent's five (5) pages brief, it submitted that

parties are bound by their respective pleadings and the

evidence which is to be placed on an imaginary scale by a

Court in order to find out which side out weights the other.

Reference was made to page 142 of the Record of Appeal

where the High Court made findings on the special

damages of N70,000.00 and N1,270,000.00 claimed by the

Appellant and it is said that:-

"the failure by the Respondent to reply on points of

law to the mitigation of loss, special claims and post

judgment interest would only be relevant if the

evidence placed before the Court by the appellant is

not faulty."

Also,

"we submit that what the appellant engaged in under

issue one is called indulgence in technicality. The

submissions as to whether the failure of the

respondent to rely to the heads of claim amounts to a

concession or an admission of the appellant's

submission on the issues did not do damage to the

case of the

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parties. The Appellant know very well that his

evidence is inherently faulty."

The case of Afolabi v. Adekunle (1983) 2 SCNJ, 141 was

cited on the need for Courts to eschew technicalities in

favour of substantial justice and it is submitted that the

findings of fact made by the High Court were well founded

on law and the evidence before it. The Court is urged to

dismiss all the issues in the Appellant's brief and uphold

the Respondent's argument.

In addition, it is said that it is not every error or mistake in

a judgment that necessarily results in an appeal being

allowed, and that it is only when it occasions a miscarriage

of justice that an appellate Court would interfere, on the

authority of A.G. Leventis Ltd. v. Akpu (supra) which

also stated when an appellate Court may interfere with the

award of damages by a Lower Court. The Court is urged to

resolve the Appellant's issues against him and dismiss the

appeal.

A calm consideration of the complaints raised in the issues

formulated by the Appellant, though argued in a windy

round and about and

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obfuscating manner, would show that they are predicated

on the allegation of improper evaluation of the evidence

and case of the Appellant on the special damages claimed

by him.

By way of a general restatement of the law on special

damages, they are required to be specially pleaded and

strictly proved by a claimant who owes the initial evidential

burden of proof of assertions made by him, if judgment was

to be entered in his favour by a Court, SPDCN Ltd. v.

Isaiah (1997) 6 NWLR (Pt. 508) 236; Ngilari v.

Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626; Walter

v. Skyll Nig. Ltd (2001) 3 NWLR (Pt. 701) 438; Saleh

v. B.O.N. Ltd. (2006) 6 NWLR (Pt. 976) 316; Kopek

Constr. Ltd v. Ekisola (2010) 3 NWLR (Pt. 1182) 618;

N.N.P.C. v. Klifco Nig. Ltd. (2011) 10 NWLR (Pt.

1225) 209; O.M.T. Co. Ltd v. Imafidon (2012) 4 NWLR

(Pt. 1290) 332. By specific pleadings, a claimant is

required to provide essential particulars and details of the

facts of the special damages suffered and claimed with

adequate clarity to enable the other party know precisely,

the nature of the claim. Adim v. N.B.C. Ltd (2010) 9

NWLR (Pt. 1200) 543; Reynolds Constr. Co.

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Nig. Ltd v. Rockonoh Prop. Co. Ltd. (2005) 4 SC 1

(2005) 10 NWLR (Pt. 934) 615; N.B.B.B. Manuf. Co.

Ltd. v. African Continental Bank Ltd (2004) 1 SC (Pt.

1) 32, (2004) 2 NWLR (858) 521. Strict proof required

for special damages does not mean an unusual or extra

ordinary proof beyond and above the required standard of

preponderance of evidence or balance of probabilities in all

civil cases. See Nzeribe v. Dave Engr. Co. Ltd (1994) I

SCNJ, 161 @176-7; Dumez Nig. Ltd v. Ogboli (1972) 1

All NLR (Pt. 1) 241. Strict proof simply imports

production of cogent, credible, admissible and sufficient

evidence that would readily and easily support and make

the items of the special damages claimed, certain, accurate

and quantifiable. It is proof that is characterized by

evidence that ties each item of the special damages claimed

to the particulars of the facts pleaded by a claimant in his

specific pleadings of the damages. Adecentro Nig. Ltd. v.

Council of O.A.U. (2005) 5 SC (Pt. 1) 13, (2005) 15

NWLR (Pt. 948) 290; F.B.N. Plc v. Associated Motors

Ltd. (1998) 10 NWLR (Pt. 569) 227; Okorokiro v.

Chukwe (1992) 1 NWLR (Pt. 216) 175; Joseph v.

Abubakar (2002) 2 NWLR (Pt. 759)

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185; Basil v. Fajebe (1990) 6 NWLR (Pt. 155) 172;

B.E.O.O. Ind. Nig. Ltd v. Maduakoh (1975) 12 SC 91 @

108.

Another settled principle of law on the claim for special

damages is that they cannot properly be awarded on mere

failure by a Defendant to deny them in the pleadings, but

the claimant must still prove them as required by the law

before he would be entitled to an award by the Court.

Himma Merchants Ltd. v. Aliyu (1994) 3 NWLR (Pt.

347) 667; Anazodo v. Pazmeck Inter. Trade Nig.

(2007) LPELR-5147 (CA), (2008) 1 NWLR (Pt. 1084)

529; Sabbach Bros. v. BWA Ltd (2006) 1 ALL NLR,

240; Anthony v. Giwa (2011) LPELR-5103 (CA);

Reynolds Constr. Co. Nig. Ltd v. Edomwonyi (2003) 4

NWLR (Pt. 811) 513; Arab Constr. Ltd v. Isaac (2012)

LPELR-9787 (CA); N.N.P.C. v. Klifco Nig. Ltd (supra)

also reported in (2011) 4 MJSC, 142 @ 174.

The pleadings of the Appellant for the special damages are

in paragraphs 8, 23, 36, 40, 43 and 44 of the statement of

claim dated the 25th and filed on the 26th November, 2008.

They are as follows:-

"8. On the day of the Accident, the claimant who was

coming from his

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client house in Victoria Island lost the sum of

N70,000.00 given to him that very day by his said

client i.e. Senator F. K. Ogunwale to the people or the

area boys that were helping the claimant and other

victims that day as the claimant was the only person

in his car. The said N70,000.00 was a fee paid to the

claimant by the senator, his client. The money was

put in an envelope and kept in the front passengers

seat, the windscreen of the door of which was

shattered.

23. Eventually Mrs. Gbadamosi asked the claimant

what he wants in respect of his car. The claimant told

her that the accident affected the chassis of the car

and he would want another car of same grade with

that of the claimant's and that he has priced it at

Beggar, Lagos and it is N1,500,000 and told her to

cross check the price at Beggar. Mrs. Gbadamosi told

the claimant that she would communicate claimant's

demand to the Programme Manager and on the next

meeting she would inform the claimant the stand of

the defendant.

35. On 19/5/2008, the claimant approached an Auto

Centre, MOTOR PLUS INTERGRATED SERVICES LTD

and on it s request paid N15,000.00 for the evaluation

of the estimates of

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repairs of the claimant car. The estimated of the

claimant's car are hereby pleaded. The tyres of the

car are no longer safe for use or road worth due to

long months of non use while attached to the ground.

Also the battery (Diko brand), the sound system of the

care and other things of the car have been stolen at

the Police Station.

36. The receipt of the payment of N15,000.00 to

Motor Plus Integrated Services Ltd and the estimates

were served on the defendant via the letter dated

31/05/2008 but the defendant did not reach the

claimant or the Motor Plus people for the claimant's

care to be fixed. Not even the other three cars,

involved in the accident were repaired by the

defendant.

40. Since the accident, the claimant has been hiring

Taxi each day for his business/domestics at the rate of

N5,000.00 per day.

43. The claimant has been compelled by the situation

in which the defendant has put him to engage the

legal services of senior legal advisers and counsel to

prosecute his claim and have forwarded their bills for

settlement The claimant holds the defendant

responsible and liable for the payment of the said bill.

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44. WHEREFORE, the claimant claims from the

defendant the sum of N3,605,000.00 as special and

General, aggravated/exemplary damages from the

defendant.

I. Particulars of Special Claimant/Damages:

(a) Cash lost in the accident to Area boys N70,000.00

(b) Taxi fares for the lost of use to the claimant of the

Mercedes Benz Car 190 from 21/11/2007 to

31/07/2008 till the date of judgment and thereafter

N1,270,000.00

(c) Cost of evaluation of repairs of the accidented car.

N15,000.00

(d) Cost of the said car i.e. its replacement cost or

value as at the time of the accident N1,500,000.00

( e ) L e g a l C o n s u l t a n c y , S o l i c i t o r s a n d

Counsel/litigation fee N250,000.00

II. Particulars of General Claim/Damages:

Compensation/aggravated/exemplary damages for use

of Taxi without Air conditioner and loss of client's as

a result of non use of the claimant's car and

injury/shock to the claimant. N500,000.00

TOTAL N3,605.000.00."

In the Appellant's statement on oath deposed to on the 26th

November, 2008, the above paragraphs of the pleadings

were repeated, word for word, as the evidence in support of

the special damages pleaded and claimed.

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The Respondent's paragraphs 2, 13, 14, 15, 16 and 18 of

the statement dated the 13th but filed on the 18th March,

2009 denied the special damages claimed by the Appellant

against it, in the following terms:-

"The Defendant deny paragraphs 18, 19, 20, 21, 22,

23, 24, 25, 26, 27, 29, 29, 30, 31, 32, 33, 34, 35, 36,

37, 39, 39, 40, 41, 42, 43 and 44 of the Statement of

Claim and put the Claimant to the strictest proof of

same at the trial of this action.

13. In definite answer to paragraphs 17, 18, 19, 20,

21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 37, 32, 33, 34,

35 and 36 of the Claimant Statement of Claim. The

Defendant state that the engagement of Auto Centre,

MOTOR PLUS INTERGRETED SERVICES LTD by the

Claimant was without the Defendant’s consent.

14. The Defendant state that all it effort to assist in

the repair of the vehicles involved in the accident,

Claimant’s car inclusive, was frustrated by the

claimant who was making outrageous demands some

of which are that the Defendant should replace his

car or that an Auto Centre solely engage by him

should carry out the

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repair work with outrageous bill despite being

informed that the Drivers and their colleagues

involved in the accident will foot part of the bills for

the repairs to be carried out.

16. The Defendant state in reply to paragraphs 37, 38,

39, 40, 41, 42, 43 and 44 that all they did was advice

the Claimant to be flexible and reasonable in his

approach for the repair of his car.

18. The defendants deny and put the Claimant to the

strictest proof of paragraphs 40, 41, 42 and 44 as well

as the particulars of damages."

The averments were repeated in the Respondent's sole

witness' Deposition on oath filed on the same date with the

statement of defence; i.e. the 16th March 2009, as the

evidence in support of the denial.

At the hearing/trial of the case 15th June, 2010, the

Appellant adopted his statement on Oath as his evidence in-

chief in the case and tendered documents with consent of

the Respondent's counsel which were admitted in evidence

and marked as Exhibits C1-C14. Under cross-examination,

the Appellant explained that his vehicle was second hand,

brought from abroad which had not been used

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in Nigeria and registered by him. That he could not say who

precisely stole the N70,000.00 he kept in the vehicle at the

time of the incident because "area boys" were trying to help

the victims and his "mind was not there".

The deposition of the Respondent's witness was adopted as

evidence on 4th October, 2010 and even though the

Appellant objected to the admissibility of some documents

tendered by the Respondent, they were admitted in

evidence and tagged as Exhibits D1-D7 by the High Court.

It may be recalled that the first complaint by the Appellant

is that the High Court did not consider his objection to the

admissibility of the Exhibits D1-D6 on the ground that they

were made by persons interested in the matter, relying on

Section 91(3) of the Evidence Act. The Appellant is correct

that the High Court did not at the time he raised the

objection to the admissibility of said documents consider it

before admitting them in evidence as Exhibits. Again, the

Appellant had raised the objection in his final address, at

pages 98-103 of the Record of Appeal, but the High Court

did not consider

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or avert to it in its judgment. The law requires that all

relevant issues or points raised by the parties in the course

of the proceedings of a case; either by way of objection or

submissions, should be pronounced upon by the Court

either at the time they were raised or in the final

determination of the case. X.S. Nig. Ltd v. Taisei (WA)

Ltd (2006) 15 NWLR (1003) 533; Orji v. PDO (2009)

14 NWLR (Pt. 1161) 310; State v. Ajie (2000) 11

NWLR (Pt. 678) 434. Objection to the admissibility of any

piece of evidence, parole or documentary, timeously raised

before a trial Court by a party is a relevant and material

issue or point on which the Court has the duty to make a

pronouncement before admitting it in evidence and using

or relying on it to making finding(s) of facts in the case.

Where the tr ia l omits or chooses to defer the

pronouncement on the objection to the final decision of the

case, it must before using and relying on the evidence in

respect of which the objection was raised, to base its

finding, make a categorical or specific pronouncement on

the objection, in the final decision. Although the admission

of the evidence in spite of the objection to its

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admissibility may constitute overruling the objection, the

trial Court has the primary duty to specifically and clearly

state or give reasons for the decision to overrule the

objection and to admit the evidence. A trial Court cannot

ignore an objection to the admissibility of a piece of

evidence, admit the evidence and then proceed to use or

rely on it to make finding(s) on which its final decision in a

case may be predicated as that would constitute an

infringement of a party's right to a fair hearing in the

conduct of the proceedings. Buhari v. I.N.E.C. (2008) 19

NWLR (Pt. 1120) 246; Onuoha v. Nwabueze (2002) 2

NWLR (Pt. 750) 172.

Since the High Court has failed to consider the objection,

this Court has the power and jurisdiction to do so in this

appeal since it by way of a rehearing under Order 7, Rule 2

of Court of Appeal Rules, 2016 and possesses the full

jurisdiction of the High Court in the determination of the

appeal pursuant to Section 15 of the Court of Appeal Act,

2004. Uduma v. Arunsi (2012) 7 NWLR (Pt. 1298) 55;

Ekpemupolo v. Edremoda (2009) 8 NWLR (1142) 166.

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Before proceeding to consider the objection to the

admissibility of the Exhibits D1-D6 based on Section 91(3)

of the Evidence Act, it is expedient to find out if the High

Court has used or relied on the said Exhibits to make

finding(s) which materially influenced its final decision on

the Appellant's case or any material part thereof. This is

necessary because in the event that the said Exhibits were

not used or relied on by the High Court for findings upon

which its judgment was based or predicated, then the

admission of the Exhibits even if wrong in law, would have

no legal consequence on the decision since the law is that

mere wrongful admission or exclusion of evidence, ipso

facto, would not ordinarily lead to the reversal of a lower

Court's decision by an appellate Court. See Section 251 of

the Evidence Act; 2011, Buhari v. Obasanjo (2005) 13

NWLR (Pt. 941) 1; Olayinka v. State (2007) 9 NWLR

(Pt. 1040) 561; Dele v. State (2011) 1 NWLR (Pt.

1229) 508; Ojengbede v. Esan (2001) 18 NWLR (Pt.

746) 771.

I have perused the judgment of the High Court and note

that there are only two (2) instances where the said

Exhibits

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D1-D6 were referred to by the High Court as follows:-

(a) at page 136 of the Record of Appeal where it listed them

as documents tendered by the Respondent (as Defendant);

and

(b) at page 140 of the Record Appeal it stated thus:-

"We have established here that the driver was

negligent. There is also no doubt that the driver and

his colleague were servants of the Defendant. Indeed,

after the accident, the Defendant issued the driver

and his colleague, one Mr. Abiola and one Mr.

Emmanuel with queries (Exhibits D1 and D4). The

driver and his colleague responded (Exhibits D2 and

D5) and they were issued with warning letters by the

Defendant (Exhibits D3 and D6). By the Defendant's

own showing, they were servants of the Defendant."

As can easily be observed, the reference to the Exhibits at

page 140 was made in further support of the earlier finding

by the High Court that the Respondent was liable for the

negligence of its servants and so vicariously liable for the

incident involving the Appellant's vehicle. The Exhibits

were not used or relied on for the finding of negligence and

liability by the Respondent, but rather as

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further support of that earlier finding made by High Court

based on other pieces of evidence placed before it by the

Appellant in proof of negligence by the Respondent's

servants or employees and its vicarious liability there for.

So even without the reference to the said Exhibits, the High

Court had made a finding on negligence and liability of the

Respondent and the finding which was/is in favour of the

Appellant would have been the same.

Be that as it may, Exhibits D1-D6 were official queries

issued by the Respondent to its employees and replies by

them, on the incident involving the Appellant's vehicle in

respect of which he sued the Respondent and so are

undoubtedly related and relevant to the case before the

High Court.

Section 91(3) of the Evidence Act, 2004 (applicable at the

time of trial, now Section 83(3) of the 2011 Act) provides

that:-

"(3) Nothing in this section shall render admissible as

evidence any statement made by a person interested

at a time when proceedings were pending or

anticipated involving a dispute as to any fact which

the statement might tend to establish."

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A "person interested" for the purpose of these provisions

means a person who has a pecuniary or other material

interest in the result of the proceedings, a person whose

interest is affected by the result of the proceedings, and

therefore, would have a temptation to pervert the truth to

serve his personal or private ends. It does not mean an

interest in the sense of intellectual observation or an

interest purely due to sympathy. It means an interest in the

legal sense, which imports something to be gained or lost.

A person who merely acts in the discharge of his official

duty or performance of official function in respect of a

matter that may be the subject of a case before a Court of

law or which may result in a legal action, does not become

a person interested within the context of the provisions so

as to render any statement made by him inadmissible, In

the case of H.M.S. Ltd v. F.B.N. (1991) 1 NWLR (Pt.

167) 290 @ 312, the apex Court per Karibi-Whyte, JSC,

had held that:

"Thus the general principle is that the document

made by a party to a litigation or person

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otherwise interested when proceedings are pending

or is anticipated is not admissible Barkway v. South

Wales Transport Co. Ltd (1949) 1 K.B. 54. The

disqualifying interest is a personal not merely

interest in an official capacity - See Bearmans Ltd. v.

Metropolitan Police District Receiver (1961) 1 NLR

634. Where however the interest of the maker is

purely official or as a servant without a direct interest

of a personal nature, there are decided cases that the

document is not thereby excluded. - See Evon v. Noble

(1949) 1 K B. 222. See: The Atlantic and the Battyk

(1946) 62, T.L.R. 461. Re Powe, Powe v. Barclays

Bank Ltd. (1956) P. Galler v. Galler (1955) I W.L.R.

400.

The nature of the disqualifying interest will depend

upon the nature of duty undertaken by the servant.

Where from the nature of the duty he can be relied

upon to speak the truth, and that he will not be

adversely affected thereby, the document has always

been admitted in evidence. This is because the

rationale of the provision is that he must be "a person

who has no temptation to depart from the truth on

one side or the other - a person not swayed by

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personal interest, but completely detached judicial,

impartial, independent."

See also Anyaebosi v. T. T. Briscoe Nig. Ltd (1987) 3

NWLR (59) 84; Asuquo v. Asuquo (2009) 16 NWLR

(Pt. 1167) 225; Okenwa v. Mil. Gov. of Imo State

(1997) 6 NWLR (Pt. 507) 136; Republic Bank Nig.

Ltd. v. C.B.N. (1998) 13 NWLR (Pt. 551) 306;

N.S.I.T.F. v. Klifco (2010) 13 NWLR (Pt. 1211) 307.

In the premises of the above position of the law, the

persons who wrote the queries and replies in Exhibits D1-

D6 cannot properly be considered as persons interested

within the contemplation of Section 91(3) of the 2004

Evidence Act so as to render the Exhibits inadmissible in

evidence. The ground of the objection by the Appellant,

apparently, is wanting in merit and is overruled.

The Appellant had also objected to the admissibility of

Exhibit D7, which was an estimate for repairs in respect of

Nissan Sunny, on ground that it was irrelevant.

By the provisions of Section 6 of the Evidence Act, 2004,

ordinarily, admissibility of evidence was governed

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primarily, by relevance to the issues for decision in judicial

proceedings of a Court. Once a piece of evidence is

relevant, subject to other conditions that may be prescribed

by the evidence law, it is admissible in evidence and once a

piece of evidence has no relevance or connection with the

issues or facts of a case, then it is of no moment to the case

and so it would be fruitless to admit in evidence. A piece of

evidence which is not relevant is on that basis, not

admissible or is inadmissible in evidence. See Elias v. Disu

(1962) 1 SCNLR, 361, (1962) 1 ALLNLR 214;

Igbinovia v. State (1981) 2 SC, 5; Ogonzie v. State

(1997) 8 NWLR (Pt. 515) 566; Oyetunji v. Akanji

(1986) 5 NWLR (Pt. 42) 461; Abubakar v. Chuks

(2007) 18 NWLR (Pt. 1066) 386; Agbahomovo v.

Eduyegbu (1999) 3 NWLR (Pt. 594) 170; Torti v.

Ukpabi (1984) 1 S.C. 370.

Apparently, since Exhibit D7 did not relate to the claims

made by the Appellant against the Respondent in respect of

his vehicle and the parties did not join issues in respect of

the Nissan Sunny vehicle in respect of which was prepared,

it was not relevant to the case before the High Court. This

is

28

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borne out by the fact that apart from listing it as one of the

documents tendered by the Respondent at the trial, the

High Court did not make any mention or reference to it in

the entire judgment appeal against the wrongful admission

of the said Exhibit D7 did not in any way affect or influence

the judgment by the High Court which would have been the

same even if it was not admitted in the first instance, or

expunged. The ground of the objection, though sustainable,

is of no benefit to the Appellant.

Over all, the objection to the admissibility of Exhibits D1-D7

raised by the Appellant is of no substance and dismissed.

The Appellant has complained that the High Court was

wrong in finding that he did not mitigate his loss on the

ground that the Respondent did not plead the issue of non

mitigation of loss by him and did not challenge the claim

for loss of use at N5,000.00 daily from 21st November,

2007 to 31st July, 2008. In dealing with the head of claim

for loss of use, the High Court in its judgment has stated

and held, at page 142 of the Record of Appeal that:-

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"The Claimant also claims the sum of N1,270,000 as

taxi fares for the loss of use to the claimant of the

Mercedes Benz car 190 from 21/11/2007 to 31/7/2008

till the date of judgment and thereafter. What exactly

does this mean? Taxi fares from 21/11/2007 to

31/7/2008 till the date of judgment and thereafter?

What does this mean? That prayer is not clear. He is

asking for taxi fares for over 8 months from

21/11/2007 to 31/7/2008 and then till the date of

judgment and thereafter?

In any case, in his statement on oath, the Claimant

testified that since the accident occurred on

20/10/2007, he had been hiring a taxi each day for his

business/domestics at the rate of N5,000 per day. No

receipts were put before the Court to support this

claim but it is not in every case that receipts must be

produced. Furthermore, it is trite that a person

wronged must always take all reasonable steps to

mitigate his loss caused by another's wrong. A

claimant cannot be allowed to claim or recover

damages for any loss which he could have avoided but

has failed through unreasonable action or inaction to

avoid. There is no doubt that the claimant would have

had to spend

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some money on taxis, but for an 8 months period at

N5,000 a day? It is almost the replacement cost of the

Mercedes Benz 190 as testified by the Claimant. The

Claimant clearly ought to have mitigated his loss - the

claim for N1270,000 as taxi fares is outrageous to say

the least and I so hold. I will only grant a fraction of

that amount."

It then reasoned at page 144 of the Record of Appeal thus:-

"Indeed soon after the accident, by Exhibit C1, the

Defendant gave an undertaking in writing to repair

the vehicle to the Claimant's satisfaction but

disagreement over who was to carry out the repairs

kept the car grounded in the Police Station since the

accident! The Claimant had a duty to mitigate his loss

but did not. Consequently he cannot be entitled to

compensation for any remote damage arising from his

neglect and refusal to take mitigating steps - UBA

PLC v. BTL INDUSTRIES LTD (2006) 19 NWLR (Pt.

1013) 61. In the case of UDEAGU v. BENUE CEMENT

CO. PLC (2006) 2 NWLR (Pt. 965) 600, the Court of

Appeal held that it is trite that a person wronged

must always take all reasonable steps to mitigate the

loss to him caused by

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another party's wrong or breach. A claimant cannot

be allowed to claim or recover damages for loss which

he could have avoided but has failed through

unreasonable action or inaction to avoid. Insisting on

Motor Plus repairing his care and because of

disagreement with the Defendant, leaving the car at

the Police Station from October 2007 till date,

allowing the car to be vandalized and reduced to a

rusty scrap is to say the least, unreasonable and I so

hold."

The principle of law stated by the High Court above on the

duty of a party to mitigate a loss caused him by the wrong

of another, is firmly established by the, authorities of

Obasuyi v. Business Ventures Ltd and Kosile v.

Folarin (both supra) cited and heavily relied on by the

Appeal in his argument of the issue. In particular, the facts

in the case Kosile v. Folarin are different from the facts of

the Appellant's case in the sense that it involved a claim in

detinue by the Respondent at the apex Court, who was

Plaintiff before the trial Court, for the seizure and detention

of a vehicle purchased by him on hire purchase from the

Appellant.

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On ground of refusal to release the vehicle and its

detention by the Appellant, the Respondent sued for, inter

alia, loss of earning from the vehicle from the time of

seizure up to date of judgment. The facts of the Appellant's

case are not that his vehicle was seized and detained by the

Respondent, but that after the incident, the Appellant

reported the matter to the Police even when the

Respondent had formally written and undertaken in Exhibit

C1 to repair the vehicle to his satisfaction, soon after the

incident.

It was the Appellant who took his vehicle to the Police, see

paragraph 11 of the Statement of Claim and Statement on

Oath respectively, where it was left for further action by

the Police and up to the time of the action by the Appellant

and judgment by the High Court, it remained there.

However, the Appellant and Respondent are one on the fact

that the Respondent offered to repair the Appellant's

vehicle, but he refused to let it do so at the proposed

mechanics' workshop and insisted on a company which he

chose for the repairs. In addition, the Respondent had also

initiated an amicable settlement of

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the matter between it and the Appellant before he filed the

action, but he insisted on having his way without

concession, in the efforts to settle and so the vehicle

remained with the police. In paragraphs 16 and 17 of the

Statement of Defence the Respondent has averred that the

delay in carrying out the repairs of the Appellant's vehicle

"was squarely the Claimant's fault by reason of his refusal

to fully co-operate with the Defendant that was ready to

assist in the repair...." At page 27 of the Record of Appeal,

the position of the Respondent's witness, which has no

numbered paragraph, evidence was given in support of the

pleadings on the Appellant's refusal to co-operate in the

repairs of his vehicle by the Respondent. The Appellant in

paragraphs 18 each of the Statement of Claim and

Statement on Oath, admitted that the Respondent has

requested that he arrange for the release of the vehicle

from the Police to enable them carry out the repairs, but

did not do so because he found the request irritating. From

the peculiar facts of the Appellant's case, the High Court is

right that the Appellant had a duty to mitigate the loss

arising from the damage caused by

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the incident involving his vehicle by cooperating with the

Respondent for the repairs of the vehicle immediately after

the incident and when requested for by the Respondent in

fulfillment of its undertaking to do so. For the Appellant to

have insisted on the company he chose to carry out the

repairs was quite unreasonable, in the peculiar

circumstances of the case. It is the facts and circumstances

of a given case that would be the primary determining

factor on the duty of a party to mitigate loss from wrong

committed against by another party and facts and

circumstances of the Appellant's case demanded that he

ought to have mitigated his loss by allowing the repairs of

his vehicle to have been undertaken by the Respondent

soon after the incident as it had undertaken to do.

It must be pointed out that the claim for loss of use being in

the class of special damages cannot be awarded merely

because the Respondents did not raise it in its pleadings or

on the ipse dixit of a Claimant, even if unchallenged.

Boshali v. Allied Comm. Exporters Ltd (1961) ALL

NLR, 917; Odulaja v. Haddad (1973) 11 SC, 357;

NMSL v. Afolabi (1978) 2 SC

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79; Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393,

(1992) SCNJ, 98. The Appellant had the duty to adduce

credible evidence to show that he was indeed entitled to

the claim of N5,000 daily from the period of 21st

November, 2007 to 20th July, 2008 as loss of use of the

vehicle which he denied the Respondent the opportunity to

repair. Apart from the ipse dixit of the Appellant, there was

other credible and cogent evidence to support and prove

the claim for the period in question and the High Court was

right to have made an award for thirty (30) days within

which the Appellant's vehicle would have been repaired by

the Respondent if he had not prevented it from so doing by

unreasonably insisting on his chosen company. In the case

of Transkomplet Nig. Ltd. v. Galadima (1998)

LPELR-6478(CA) it was held that:-

"Any evidence no matter how unchallenged or

uncontroverted which falls short of what is required

to prove special damages must be rejected."

The case of Arinze v. State (1990) 6 NWLR (Pt. 155)

158 was referred to by the Court for the position.

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Perhaps, I should point out that what the High Court did in

the award for 30 days for loss of use is not an assessment

of amount or quantum of the sum claimed by the Appellant,

but rather on the pleadings and evidence by the

Respondent that the delay in repairs of the Appellant's

vehicle occurred as result of his refusal to allow the repairs

to be carried out by a company proposed by the

Respondent and so he is not entitled to the claim for the

whole of period of eight (8) months he claimed. Ordinarily,

a Court cannot use its own criteria or assessment of the

quantum of special damages outside or apart from what

was claimed and satisfactorily proved by credible and

cogent evidence of the Claimant.

Therefore a trial Court cannot make its own individual or

arbitrary assessment of what it conceives the Claimant may

be entitled to, but the law requires that it should only act

on the hard facts and evidence accepted by it as

establishing the amount or sum claimed as justification for

the award. UBN, Plc. v. Ajabule (2011) 18 NWLR

(1278) 152, (2011) LPELR-8239 (SC); Texaco Nig. Plc.

v. Iloka (2011); C.A.P. Plc. v. Vital Inv. Ltd (2006) 6

NWLR (Pt. 976) 220.

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The Appellant here did not satisfactorily prove his

entitlement to the loss of use for the whole of the period he

claimed.

The same thing applies to the claim for the sum of N1.5

Million as special damages for replacement of the

Appellant's vehicle. As rightly observed by the High Court,

the Appellant's car was 17 years as at the time of the

incident and he did not state the amount he bought it in

2006 when it was imported from abroad. The Appellant had

also used it for about or more than one (1) year before the

incident on the 20th October, 2007 and it was no longer "a

new tokunbo" vehicle, but a Nigerian registered second

hand vehicle at the material time. Not being a new tokunbo

vehicle, it was not worth and could not be valued at the

price of N1.5 Million orally claimed by the Appellant as the

price of a new tokunbo vehicle of the same grade at Berger,

Lagos. The N1.5m claimed by the Appellant was not the

pleaded and proved value of his vehicle at the time of the

incident, but rather, the cost of a new second hand

(tokunbo) vehicle which was never used, many months after

the incident. In fact, the Appellant did not plead nor proved

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the real value or worth, in money terms, of his vehicle at

the time of the incidence for him to claim its cost for

replacement as a used second hand (tokunbo) vehicle. On

the basis of these facts, the mere fact that the Respondent,

did not deny the price mentioned by the Appellant without

more, or put forward another price, does not constitute

credible evidence that the Appellant's second hand/more

than one (1) year old in-use, vehicle was worth the price

value of a new tokunbo vehicle which was imported into

Nigeria, but was never used and registered, to amount to

strict proof the sum claimed to entitle him to the award as

special damages.

The next item of special damages claimed by the Appellant

was the N70,000.00 he said he kept on the front seat of his

vehicle at the time of the incident and that it was fees paid

by a client. Apart from the ipse dixit of the Appellant, there

was no other piece of credible evidence to strictly prove the

claim for the Appellant to be entitled to the award, as the

Appellant did not produce the receipt he issued for the

professional fees to show the amount, the date and time

the

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fees were paid to him or call the client to testify as to the

said fees asserted to have been paid by him to the

Appellant on the date in question.

In the absence of credible evidence to prove and support

the entitlement of the Appellant to the alleged missing

N70,000.00 claimed as special damages, the High Court is

right that there was failure of proof on the claim.

The Appellant has also claimed, as an item of special

damages, the cost of evaluation of repairs of his vehicle put

at N15,000.00 which evaluation was done in May 2008,

after he had refused to allow the Respondent to repair it as

it had undertaken to do immediately after the incident. As

rightly stated by the High Court in its judgment, the

Appellant did not claim for repairs of the vehicle in the case

against the Respondent, but he claimed, as seen in both

Statement of Claim and evidence, for cost of replacement

on the ground or because according to him, in paragraph

23 of the Statement of Claim and Statement of Oath

respectively;

"Eventually Mrs. Gbadamosi asked me what I want in

respect of my car. I told her that the accident

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affected the chassis of the car and I would want

another car of the same grade with that of my car and

that I have priced it at Beggar, Lagos and it is

N1,500.000."

The averment and deposition in these paragraphs which

represented the Appellant's claim against the Respondent

show that before the Appellant ordered for the evaluation

of the vehicle, he knew that he did not want repairs but

wanted another car because the chassis was affected. In

spite of that, he still later embarked on an evaluation of the

repairs which the Respondent had undertaken to do on the

vehicle and wants the Respondent to be responsible for the

self imposed and unnecessary evaluation of repairs of the

vehicle for which he wanted a replacement.

Even if unchallenged, the claim for the cost of the

evaluation of the repairs of the Appellant's vehicle lacks the

credibility and cogency in the peculiar circumstances of the

case, to constitute strict proof thereof to entitle the

Appellant to the award. In the premises, I do not find

sufficient justification for the Court interfere with the

decision by the High Court on the head or item of the

claim.

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There is also the complaint by the Appellant that the High

Court did not award post judgment interest on the sums

awarded in his favour in the judgment.

By the provisions of Order 35, Rule 4 of the High Court of

Lagos State Civil Procedure Rules, 2004 (applicable to the

Appellant's case) a Judge of that Court at the time of

making any judgment or order, may order interest at a rate

not less than 10% per annum to be paid upon the judgment.

Clearly, the provisions vests a discretionary power on the

High Court to order, as it deems fit, that interest at the rate

of not less than 10% be paid upon a judgment entered by it

in favour of a party. Since the power is discretionary in the

Court, like all other judicial discretion, it is to be exercised

judicially and judiciously taken into consideration, the

peculiar facts and circumstances of the case leading to the

judgment. Bullet Int. Nig. Ltd v. Adamu (1997) 3

NWLR (Pt. 493) 348; Kasunmu v. Shitta-Bay (2006)

17 NWLR (1008) 372; Dokubo Asari v. F.R.N. (2007)

12 NWLR (Pt. 1048) 320; Sanni v. Agara (2010) 2

NWLR

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(Pt. 1178) 371. In the present appeal, since judgment was

entered by the High Court and damages; special and

general, were awarded to the Appellant, the justice of the

case requires that the sums awarded shall attract the post

judgment interest at the rate provided for by the Rules of

the Court. From the tenor of the judgment by the High

Court, it was an omission rather than an error on its part

not to have awarded interest on the sums awarded to the

Appellant in the judgment entered in his favour. The

Appellant is entitled to interest on the sums awarded in the

judgment by the High Court and it is ordered to be paid on

the sums at the rate of 10% from the date of the judgment

until the judgment debt is fully paid by the Respondent.

In the final result, this appeal succeeds only in respect of

the award of interest on the sums awarded as damages in

favour of the Appellant.

It fails in respect of all the other issues/points canvassed by

the Appellant and is dismissed in that part, accordingly.

Parties shall bear their respective costs of prosecuting the

appeal.

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YARGATA BYENCHIT NIMPAR, J.C.A.: I read the draft

of the leading judgment of my learned brother, Mohammed

Lawal Garba, JCA which was just delivered. The judgment

exhaustively resolved all the issues raised by the parties. I

have nothing more to add.

I adopt the judgment as mine in partially allowing the

appeal in respect of interest on the sums awarded as

damages in favour of the Appellant.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I

agree with the judgment just delivered by my learned

brother, MOHAMMED LAWAL GARBA, JCA and I am in

agreement with the succinct reasoning and conclusion

arrived therein. I have nothing more to add.

I abide by the order as to costs and all other consequential

orders in the leading judgment.

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Appearances:

Appellant appear in person For Appellant(s)

Respondent not represented For Respondent(s)

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