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A claim for special damages must be specifically pleaded (1)

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GavelThe most important thing to bear in mind in a claim for special damages is that the claim must be specifically pleaded and strictly proved. Anything short of that is bound to create an entirely different dimension into the whole process. So held the Court Of Appeal, holden at Owerri in a unanimous leading judgment delivered by His Lordship, Fredrick O. Oho JCA with his learned brothers, Raphael Chikwe Agbo and Peter Olabisi Ige JJCA concurring while allowing the appeal and cross-appeal in part. The parties were represented by L.O. KARIM Esq, for Defendant/Appellants/Cross Respondents with him, T. Orumor, Esq. and O. Aireuor while EMEKA OZOANI Esq., for Claimant/Respondent/Cross Appellant with him G.W. Manufor, Esq. Miss S. Chukwu, Mrs. F. I. Osudike- Eke and I. J. Nwaiwu (Miss). The facts are as contained in the body of the judgment.

In this Appeal and cross Appeal, action was commenced at the High Court of Imo State Sitting at Owerri by writ of summons issued on the 1st day of November, 2007 at the instance of the claimant, (who in this Appeal is the Respondent/Cross – Appellant) against the Defendants (who in this Appeal are the Appellants/Cross – Respondents).

At paragraph 31 of the claimant’s Statement of claim, the Claimant claimed against the Defendants as follows; “WHEREFORE the claimants claim against the Defendants as follows; 1. A Declaration that the 2nd defendant’s negligent driving of the 1st defendant truck with Registration No. XA 493 BWR and fleet No. B 4690 on the 8th December, 2006 which collided with the Plaintiff’s car was unlawful, malicious, reckless and negligent. 2. A Declaration that the 1st defendant is vicariously liable for the reckless, malicious and negligent driving of the aforesaid truck by one Godwin Obado, its employee, servants and/ or agent. 3. The sum of N3, 000,000 000.00 (Three – Billion) Naira being special, exemplary, and aggravated damages against the 1st defendant.

Pleadings ordered and duly filed. They consisted of an Amended Statement of Claim together with its front- loaded processes dated and filed on the 15th day of January, 2009; A Further Amended Statement of Defense and Counter – Claim, together with its front- loaded documents filed on 28th day of January, 2009. The Claimant’s Reply and Defense to Counter Claim was dated and filed the 18th day of March, 2009.

Thereafter, the matter went to trial. “WHEREOF the Defendant’s/Counter- Claimants counter – claims against the Claimant as follows; a. A Declaration that the 2nd Defendant had a valid driver’s license (issued on 15-09-2004, expired on 15-07-2007) as at the dated of the accident (8-12-2006) forming the subject matter of this suit and also currently has a drivers license (issued on 15-08-2007 to expire on 15-07-2010). b. AN ORDER deeming both the 2nd Defendant’s drivers license as at the date of the accident (8-12- 2006) between the Defendant’s truck with Registration number XA 493 BWR and the Plaintiff’s Nissan Primera car with Registration number BJ 810 ENU (which driving license was issued by Federal Republic of Nigeria on 15-09-2004, expired on 15-7-2007) and also the 2nd Defendant’s current driver’s/driving license (issued on 15-08-2007 to expire on 15-07-2010) as valid and subsisting for all intent and purposes connected therefore.”

The case of the Claimant/Respondent for which she testified, and called a (10) witnesses, while he 2nd Defendant/Appellant also testified, and called a witness, is that on the 8-12-2006, along the Okigwe – Owerri Highway at a spot somewhere within Onuimo – Okwelle Road Section, a vehicular accident occurred between the Claimant/Respondent’s Nissan Primera Car with Registration No. BJ 810 ENU and the Claimants/Appellant’s articulated truck with Registration No. XA 493 BWR, driven by the Defendants/Appellants’ employee and driver, the 2nd Defendant/Appellant herein.

In a considered judgment the learned trial judge on the 26-10-2009 held the Defendants/Appellants liable to the Claimant/Respondent in Negligence, when the Court said at page 256 of the Printed Records as follows; “…Having said that much, the Court has found out that the Claimant has proved her claims in reliefs 1 and 2 of her Amended Statement of claim.

With respect to the specific damage, the Claimant has also succeeded upon the preponderance of evidence to the sum of N28, 516,680.00 (Twenty Eight Million, Five Hundred and Sixteen Thousand and Six Hundred and Eight Naira) only as special damages for Nigerian treatment and the sum of 108,000:00 Lakh for her overseas medical treatment”……. Dissatisfied with this judgment, the Defendants/Appellants have appealed against the lower Court’s Judgment. The Claimant/Respondent on the other hand, dissatisfied with the issue of award of Damages only Cross – Appealed against the decision of the lower Court. Both side also raised Notices of Preliminary Objections against the hearing of their respective Appeals.

GROUNDS OF APPEAL The Learned trial Judge misdirected himself in law when he wrongly evaluated the evidence before him by holding in page 29 and 30 of her judgment that….. ‘’it is as of fact that the evidence of PW10 was the only eye witness account of what happened.

PW10 in her evidence on oath told the court in her paragraph 7…’’ thereby arriving at the conclusion that the accident between the Respondent/Claimants and the 2nd Appellant which conclusion occasioned a miscarriage of Justice.

The Learned Trial Judge erred in law when he held that the accident between the Claimant/PW10 and the 2nd Defendant/DW1 on the 8th December, 2006, was caused by the 2nd Defendant, placing heavy reliance on the evidence of PW1, PC. Akaninyene Okon who did not witness the accident. The Learned Trial Judge erred in law in failing to uphold or make a finding on the 2nd Appellants/Defendants clear and distinctive evidence which the successfully dislodged the Respondents/Claimants plea and reliance on the doctrine of Res Ipsa Loquitor.

The Learned Trial Judge erred in law when he awarded the Claimant/Respondent the sum of N27,106,500:00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred Naira) only as (part of) Special damages on the strength of Exhibits NN-NN43 (Receipts bearing Hilltop Clinic) which Exhibits were mostly un-pleaded and also inadmissible in law.

The Learned Trial Judge erred in law when he held in page 36 of her Judgment thus;’…PW10 tendered without objection Exhibits NN3 all totaling N27,106,500:00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred Naira) only in arriving at his decision to award the Respondent/Claimant the aforesaid sum of N27,106,500:00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred Naira) only as (Part of) Special damages sum of N28, 516,680:00 (Twenty Eight Million, Five Hundred And Sixteen Thousand Naira, Six Hundred And Eighty Naira).

The Learned Trial Judge erred in law when he placed undue and excessive weight on Exhibits NN-NN43 (Receipts bearing Hilltop Clinic) in awarding the Claimant/Respondent the sum of N27,106,500:00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred Naira) only as (Part of) Special Damages (N28,516,680:00) in pages 36 and 37 of the judgment after she had held that she would not place any such weight on the Exhibits if the Claimant did not proof (sic) the authenticity of the of said Exhibits.

The Learned Trial Judge misdirected himself in law when he relied on the evidence of PW6 (Dr. AMACHI UCHENA KACHI’S) to affirm Exhibits NN-NN43 (Receipts bearing Hilltop Clinic) in awarding the sum of N27,106,500:00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred Naira) only as (Part of) Special Damages (N28,516,680:00) to the Respondent/Claimant.

The Learned Trial Judge erred in law when he awarded the sum of 108,00.000 Lakh to the Respondent/Claimant as part of Special damages. The Learned Trial Judge erred in law when he awarded the Claimant/Respondent the sum of 108,00.00 Lakh as (Part of) Special damages on the strength of Exhibits PP-PP3 (Hospital Bills) and QQ-QQ3 (interim medical Bills) after he had rejected the Respondent/Claimant’s medical reference report.

The Learned Trial Judge erred in law when he awarded the Respondent/Claimant the sum of 108,00.000 Lakh as part of Special Damages after she had duly acknowledged in page 38 of her Judgment thus; ‘’however apart from the evidence on oath of PW10 and the tendering of documents relating to the said claim, no expert in the knowledge of currency rate and exchange was called to give evidence as to the Naira rate equivalent of the Indian Lakh or Rupees. This is necessary arising from the fact that the defendants’ and Counsel contended that the claims were unduly exaggerated’’….



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