CASE SUMMARY OF:
Uba Usman v. Salisu Abubakar (2001) - CA
(2001) 12 NWLR (pt. 728) 685
Court of Appeal - Kaduna Division
LEAD JUDGEMENT DELIVERED BY:
I.A. SALAMI, JCA.
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
A.S. Usman Esq.
* FOR THE RESPONDENT
K.T. Turaki Esq.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
The respondent (Plaintiff) sued and claimed for special damages in respect of his house which was pulled down. The High Court granted his claim. The Appellant has herein appealed.
1. Whether the learned trial judge properly appraised the evidence before him in holding the 1st defendant/appellant liable for the plaintiff/respondent’s claim of N200,000.00 special damages?
HOLDING & RATIO DECIDENDI
1. Judgement given in favour of the respondent.
*VICTOR AIMEPOMO OYELEYE OMAGE, JCA, dissented.
i. The plaintiff/respondents in the court below has failed to so plead and cannot assume that the failure of the appellant to challenge the evidence of PW4 on the issue relieved him of his obligation at law to make a strict proof of his claim in the court below to prove the claim for special damages. I agree therefore with the submission of the 1st appellant that the court below was in error when he made the award of N200,000.00 to the plaintiff without requiring the plaintiff to make a special and particular pleading of the claim, such a pleading should have shown how many blocks were bought at so much sum. How much was paid for labour with receipt for it and for cement bought, before the claimant can prove with receipts issued in evidence of payment. This was not done at the hearing. The award made by the learned court was not on the loss sustained, which the special damage claim seeks to reimburse but on the likely cost of rebuilding another house. This was appellants issues a, b; and I resolve them in favour of the appellant.
Order 25 rule 7(1) of Kano State High Court (Civil Procedure) Rules 1988 which provides as follows: “7.(1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding, requiring particulars, may in all cases be ordered, upon such terms as to costs and otherwise, as may be just.”
Nnaemeka-Agu, JSC in the cases of NEPA v. Alli observed in this connection as follows: “It should have been accepted in this cases, moreso in this country in which it is a matter of common knowledge that because of the rapid depreciation of Naira, a chattel could be sold for much higher price than it was bought after it has been used for a number of years.”
Senior v. Baker & Allen Ltd. (1965) 1 WLR 429, 432, Lord Denning looked into an award made in 1953 in an accident of an almost identical description and remarked as follows: "We all know the value of money has changed since that time. The award of ... shows how the judges keep pace with time."
Iguh, JSC, in Allied Bank v. Akubueze (supra) 145, (1997) 6 NWLR (Pt. 509) 374, 407 where he said: “I also recognise that the court ought, in appropriate circumstance, to keep up with the time and in particular, with the economic strength or decline, as the cases may be of our national currency the naira. See L.O. Ejisun v. M. Ajao and others (supra) and Dr. O.O. Kalu & Anor. v. Dr. S. Mbuko (1988) 3 NWLR (Pt. 80) 86."
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It is settled law that a civil cases is decided on preponderance of evidence or balance of probabilities and the burden of proof rest squarely on the party who will fail if no further evidence is led. - I.A. SALAMI, JCA. Usman v. Abubakar (2001)
A Court of Appeal will not however interfere with award of damages merely because it is inclined to award a different amount. An appellate court would only intervene where there is clearly a very high or a very low estimate and same is perverse or appears to have been arrived at on wrong principles. - I.A. SALAMI, JCA. Usman v. Abubakar (2001)
The purpose of an award of damages is to compensate the plaintiffs for damage, injury or loss suffered. The guiding principle is restitutio in integrum when a court is called upon to assess compensation in tort. The principle foresees that a party which has been damnified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damage for which he is now being compensated. - I.A. SALAMI, JCA. Usman v. Abubakar (2001)
It is a rule of pleading evolved in many years of legal practice that items of loss alleged to constitute special damages must be specifically pleaded in the statement of claim. Many decision of court of superior jurisdiction have interpreted the special pleading to mean that the items of claim should be particularised in the pleading. - OYELEYE OMAGE, JCA. Usman v. Abubakar (2001)
The requirement to plead on item of lose specially in a claim for special damages distinguishes it from a claim for general damages, which does not require special pleadings. To succeed on the item of loss in special damages it is not enough to plead it in the statement of claim, the items must be proved strictly. - OYELEYE OMAGE, JCA. Usman v. Abubakar (2001)
The requirement of strict proof of claims in special damages has been held, does not mean a proof beyond reasonable doubt, See: Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR 127 but it must be a proof which justifies every item of claims stated; such that a failure to so prove will disentitle the claimant to the special damages claimed. - OYELEYE OMAGE, JCA. Usman v. Abubakar (2001)
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