IN THE SUPREME COURT OF NIGERIA
On Friday, the 17th day of February, 1978
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
SAMUEL OLA OLADEHIN
CONTINENTAL TEXTILE MILLS LTD
The appeal against the quantum of damages awarded succeeds and it is allowed.
The issues raised in this appeal deal with the quantum of damages awarded by the learned trial judge (Dabiri, J.) who heard this matter in the first instance in the High Court of Justice of Lagos State holden at Ikeja. Before that Court, the plaintiff/appellant on the 18th day of September, 1972 claimed by his writ of summons and paragraph 9 of the statement of claim the sum of 11,000 pounds (eleven thousand pounds) special and general damages for nuisance and perpetual injunction to restrain the defendant, its servants and agents from continuing the said nuisance.
The facts on which this claim was based and founded were pleaded by the appellant in his statement of claim which was filed and duly delivered on the order of the High Court. Of particular importance to this appeal are paragraphs 1, 2, 3, 4, 6, 7 and 8 which read as follows:
“1. The plaintiff is and was at all material times the lessee and occupier of property known as plot 9 Akinola Cole Crescent, Ikeja in the Lagos State.
2. The defendant has been at all material times and is the owner and occupier of a textile factory on a premises at Ayodele Diyan Street, Ikeja which is adjacent to the plaintiffs property.
3. On the 6th day of May, 1978, the plaintiff started the construction of a main building and boys quarters which were estimated to cost 14,639 pounds and for this purpose the plaintiff took a loan of 12,000 pounds from the Nigerian Building Society for which the plaintiff repays 120 pounds monthly to the said Nigerian building Society.
4. In June, 1972, after a considerable progress on the said construction, poisonous and contaminated industrial water escaped into the plaintiffs property from the defendant’s factory and premises, causing tremendous damage to the plaintiffs building under construction and destroying several building materials on the site.
6. Despite plaintiffs solicitors’ letter the defendant continued with the nuisance and on the 4th of September, 1972 an avalanche of poisonous and contaminated industrial water again gushed into the plaintiffs land from the defendant’s factory and premises.
7. On the written advice of the plaintiffs contractors, the boys quarters was demolished and the a main building reconstructed.
8. By reason of the matters aforesaid, the plaintiff has suffered loss and damage.
Particulars of Damage
(A) Special Damage:
1. Cost of construction of boys quarters demolished
2. Cost of demolition of boys quarters
3. Cost of providing wall piers along the main building not provided in original structure and drawings
4. Cost of underpinning main building
5. 100 bags of cement washed away at N15 each including cost of transporting the cement to site
6. Cost of construction of site office removed and reconstructed
Total 6,162.11.5 pounds
General Damages 4,837.8.7 pounds
Grand Total 11,000.0.0 pounds
The defendant duly delivered his statement of defence by which he joined issues on almost all the averments in the pleadings by the plaintiff set out above and in particular denied paragraphs 4, 6, 7, and 8 of the statement of claim. In particular we would refer to paragraph 12 of the statement of defence which reads:
“12. The defendant further avers that none of the plaintiff’s property was destroyed damaged or washed away, nor even reinforced and that the plaintiff is not entitled to any money as claimed in paragraphs 8 and 9 of his statement of claim.”
Evidence was adduced by the parties at the hearing and at the conclusion of the hearing, the learned trial judge delivered a considered judgment in which he found the liability of the respondent proved but disallowed all the items of special damage except N260 cost of iron rods used in the construction of the wall Piers on the ground that they were not proved to his satisfaction. The learned trial judge proceeded thereafter to award only N260.00 damages and struck out the claim for perpetual injunction on the ground that the nuisance had been abated and the respondent had taken satisfactory steps to prevent further escape of water to appellant’s premises.
There is no appeal against the order striking out the claim for perpetual injunction and as said earlier, the complaint before us is against the meagre damages.
In his consideration of the evidence adduced in proof of special damage (alleged suffered and) pleaded, the learned trial judge observed as follows: “The evidence of the 2nd p.w., the building contractor however did show that they bought one ton of iron rods at a cost of N260 in connection with the construction of the wall, I believe this piece of evidence and since this is the amount proved to my satisfaction with regard to the construction of the piers, I will allow that much to the plaintiff. It is a pity that the plaintiff was not honest enough in his claim which I found rather exaggerated. By his own avarice, he has over-reached himself. There will therefore be judgement for the plaintiff for the sum of N260. 00.”
It is against this meagre award that this appeal was filed on the following grounds;
“(1) The learned trial judge erred in law in refusing to make an award for
(a) Cost of construction of boys quarters
(b) Cost of demolition of boys quarters
(c) Cost of providing wall piers along the main building
(d) Cost of underpinning
(e) Cost of 100 bags of cement
(f) Cost of the construction of the site office removed and reconstructed.
(1) Abundant oral and documentary evidence was given in support of each item of special damage
(2) The defendant did not contradict any aspect of the special damage by evidence
(3) The learned trial judge applied wrong principles of law in assessing the damages suffered by the plaintiff.’
At the hearing, the learned counsel for the appellant abandoned ground 2 and it was accordingly struck out.
Mr. Gani Fawehimmi, learned counsel for the appellant’s main complaint was that the learned trial judge failed to evaluate the oral and documentary evidence adduced before him on the issue of special damages. He contended that the evidence led sufficiently discharged the onus of proof of special damage in this matter and that this was more so as there was neither cross-examination of the appellant and his witnesses on the particulars of special damages nor was there any contrary evidence emanating from the defence on the issue.
Mr. Onafowokan, learned counsel for the respondent conceded that the case was fought on the issue of liability and that the defence led no contrary evidence to challenge the particulars of special damage given in evidence by the plaintiff and his star witness 2nd P.W He contended that the learned trial judge was entitled to consider the issue of liability a second time when he came to consider the particulars of special damage in his judgement.
It is pertinent to observe that the learned trial judge was in no doubt on the question of damage to the appellant’s building by the industrial waste water which escaped from the respondents premises to the appellant’s land when he found: “On the facts before me I am satisfied that a good quantity of industrial waste water escaped from the defendant’s premises into the plaintiffs land and did some damage to the plaintiffs building between June, 1972 and August, 1972. The first question for decision is whether the defendants are responsible in law for the damage caused in the circumstances which I found proved.
I think they are. Ever since Rylands v. Fletcher (1868) LR 3 H.L. 330 the principle is well established that a person, who for his own purposes, brings on his land and collects and keeps anything on his land, does so at his peril and should therefore prevent its escape if he fails to do so, he is prima facie liable for all the damage which is the natural consequences of the escape.” The learned trial judge then proceeded to consider the question of quantum of damages. He did not conceal the fact that he found this question trouble vital to the issue under consideration by us is the fact that he did not believe that there was any demolition and rebuilding of the boys quarters. He believed however that there were cracks on the walls of the main building which were remedied. On the issue of the site office, he observed:
“The cost of changing the site of the store which I was asked to believe was 120 pounds i.e. N240 I find this cost on the high side for such a small job and I do not believe that such an operation could cost so much.” On the issue of payment to 2nd p.w. the character for the repairs done, the learned trial judge observed:
“The story that the plaintiff paid 6,162.11.5 pounds i.e. N12,325.14k in cash to the contractor for which Exhibit B was issued sound rather apocryphal to me. If he paid anything to the builder, I do not believe it was anywhere near the figure stated in the Exhibit.” On the question of cost of repairs to the main building, the learned trial judge observed: “The only point left is the repairs to the main building to remedy the cracks on the wall. These repairs, according to the plaintiff and his witness, the building contractor, were underpinning the foundation of the building and providing piers along a wall of that building. With regard of underpinning the foundation, I must say I do not believe that this took place. When I consider all the lies about bags of cement washed away and the boys quarters being demolished and rebuilt, I do not honestly believe that any underpinning of the foundation took place . . .”
The damages have in my opinion been manipulated in such a way as to produce a result far in excess of any damage caused by the flood. I will therefore allow the cost of building the wall piers in so far as I found that established to my satisfaction. What I am called upon to believe in this connection is that these piers cost 895.1.94pounds i.e. N1, 790.00 to build as shown under (3) is Exhibit H.
I think their costs are exaggerated and I cannot with any peace of mind believe that these piers cost as much as the plaintiff wants to believe.’ We may ask, Where is the evidence that the repairs cost less? We have perused the record and heard counsel in this appeal. We have not been shown any record of evidence establishing a lesser amount and so find ourselves unable to share the learned trial judge’s revulsion to the evidence tendered by the appellant in proof of his particulars of special damages. We are more inclined to feel that he strayed from the path of justice in his assessment of special damage when tested by the guiding principles which he correctly stated as fellows: “It should be remembered as I have already pointed out that the plaintiff in a case of nuisance causing damage to real property is not entitled to general damages, but where the property is destroyed, to only the value of the property before it was destroyed, and where there is no question of destruction but only physical damage to the cost of repair.
Cost of repair therefore is a special damage which should be proved strictly.”
Summing up this attitude of mind or impress
“Indeed the various items which I have had to consider were pleaded by the plaintiff under special damage but regrettably, I do not believe either, in some cases that the repairs allegedly took place or the amount urged on me by the plaintiff in other cases as the cost in each such case and I cannot substitute what I consider reasonable cost in the circumstances.” It appears to us that the term strict proof required of special damages was used as a lever by the learned trial judge to reject nearly all the evidence establishing particulars of special damage pleaded. We are unable to find any justification for the rejection of most of the evidence tendered in view of the finding (that damage was done) of liability against the respondent and the failure of the respondent to adduce contrary evidence of cost of repairs.
This court has on a number of occasions explained what the term strict proof of special damage implies and we will do no more than refer to a few cases decided by this Court on the point.
It is relevant at this stage to observe that it is the duty of a trial judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him. He cannot abandon that duty by taking refuge in the clouds of ‘I believe’ and ‘I do not believe’ without really evaluating the evidence of vital witnesses.
If he abandons this duty, the use of the expressions ‘I believe’ and ‘I do not believe’ will not estop the appeal court from itself evaluating the evidence and seeing whether there is any Justification for the use of such expressions. [See ALHAJI AKIBU v. JOSEPH OPALEYE (1974) 11 SC 189 AT 803].
We now ask ourselves (in the context of proof of special damages pleaded), what does strict proof entail?
In the case of OSHINJIRIN AND ORS v. ELIAS AND ORS (1970) 1 ALL N. L. R 153 AT PAGE 156, Coker, J.S.C . delivering the judgement of this Court said: “Undoubtedly, the rule that special damages must be strictly proved applies to cases of tort. In effect, the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.” Still on the issue of strict proof we refer to the case of E. K. ODULAJA v. A. F. HADDED (1973) 1 All N.L.R. 191 AT 196 were Irikefe, J.S.C. delivering the judgement of this Court observed:
“We are of the view that strict proof in the above context can mean no more than such proof as would readily lend itself to quantification. It seems to us that the nature of proof in a given case must be dictated by the peculiar circumstances of the available evidence.” The main reason given for his disbelief of the evidence that plaintiff demolished the boys quarters and rebuilt the same appears to be the alleged failure of plaintiff to depose to that fact in his affidavit of 18th September, 1972 filed in support of his motion for an interim injunction. This is apparent from a portion of his judgement which reads:
“Likewise when one looks at paragraphs 9 and 14 of Exhibit C which was an affidavit sworn to by the plaintiff on the 18th of September, 1972 and consider that plaintiff never mentioned in these paragraphs that he had had to demolish the boys quarters and rebuilt same even though the evidence of the plaintiff was that the reconstruction of the boys quarters started in August and was completed towards the end of September, one cannot believe that the plaintiff demolished the boys quarters and rebuilt them. I certainly do not believe that the plaintiff demolished the boys quarters and had to rebuild same.”
We are unable to find any foundation for this observation and we are of the opinion that the learned trial judge laboured under a misconception of the whole case before him and also misread the affidavit. We find that the record of proceedings shows that the writ of summons with the claim for damages (including cost of demolition of the boys quarters) and injunction endorsed thereon was filed on the 18th day of September, 1972. Simultaneous with the filing of the writ of summons a motion for interim injunction.
“Restraining the defendant, its agents or servants from continuing to cause nuisance occasioned by the continuing escape of water from the defendant/respondent premises and factory to plaintiffs/appellant’s land and building under construction at plot 9 Akinola Cole Crescent, Ikeja.” Was filed. In support of this motion, the affidavit Exhibit C was filed. We observe that the claim endorsed on the writ of summons was set out in paragraph 2 of the affidavit and this paragraph was admitted by the defendant! respondent in paragraph 4 of the counter affidavit sworn by the Managing Director of Respondent company on 20th March, 1973. By that time, the statement of claim giving particulars of special damage in its paragraph 8 had been filed and served.
We would repeat here what this Court pointed out and observed in the case of CHIEF S.O. GBADAMOSI v. ADEROGBA AJAO SC.462/66 DELIVERED ON THE 24TH OF JUNE, 1968,therein Ademola, C.J.N. delivering the judgement of the Court said:
“In our view, when there are materials before a judge upon which he is to assess the evidence of a witness, it is not enough for the judge to say that he believed that witness without proper evaluation of his evidence upon which he could base his belief.” Having deposed to the claim before the court, the plaintiff cannot be said to have failed to mention that he had to demolish the boys quarters. The ground for disbelief stated by the learned trial judge therefore does not exist and in our view he was in error to have disallowed the cost of construction of the boys quarters and cost of its demolition in respect of which the appellant has led uncontradicted evidence.
There was sufficient evidence in proof of these two items and they should have been awarded. We will and hereby allow them. Similarly, the basis for the learned trial judge’s rejection of the evidence of the cost of wall piers along the main building and the cost of underpinning falls to the ground.
Before rejecting these items, the learned trial judge commented as follows: “The only part left is the repairs to the main building to remedy the cracks on the wall. These repairs according to the plaintiff and his witness, the building contractor, were underpinning the foundation and providing piers along a wall of that building. With regard to underpinning the foundation, I must say I do not believe that this took place. When I consider all the lies about bags of cement washed away and the boys quarters being demolished and rebuilt, I do not honestly believe that any underpinning of the foundation took place.
What I am called to believe in this connection is that these piers cost 895.1.9pounds i.e. N1,790.00 build as shown under item (3) in Exhibit H. I think their costs are exaggerated and I cannot with any peace of mind believe that these piers cost as much as the plaintiff wants me to believe.”
There was sufficient evidence tendered in proof of these items. These items were strictly proved and they should have been awarded. We will and hereby allow them.
The learned counsel for the appellant did not press the argument against the refusal to award cost of 100 bags of cement and cost of the construction of the site office removed and reconstructed and we are in entire agreement with the learned trial judge that these two items have not been strictly proved.
The appeal against the quantum of damages awarded succeeds and it is allowed. We accordingly set aside the award and in its stead make the following award:
(1) Cost of construction of boys quarters amounting to N5,560.25
(2) Cost of demolition of the boys quarters N1,107.80
(3) Cost of wall piers N1,790.17
(4) Cost of underpinning N3,457.45
This shall be the judgement of the High court. In addition, the appellant is awarded costs of this appeal assessed at N296.00 (two hundred and ninety six Naira).
Gani Fawehinmi…..For Appellant
K. Onafowokan…..For Respondent