SHIPPING AND ADMIRALTY – ARREST OF A SHIP – Whether claim for damages for arrest of a ship is a claim for special damages which must be particularized and proved; effect of failure thereof


“At page 1576 the lower Court, in its decision appealed, reproduced the reliefs or claims of the 1st Respondent in the counter-claim. Claim 2, as tersely couched, is for the sum of $400,00 “being the calculated daily charter cost of vessel while the arrest lasted”. It was/is clearly an item of special damage. The Claimant of special damage has an obligation to particularise. In PERESTRELLA v. UNITED PAINT Co. (1969) 1 WLR 570 Lord Donovan held that the obligation to particularise arises ‘”not because the nature of the loss is necessarily unusual but because the Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible”. That is; the Claimant of special damage must give the defendant an opportunity to know the basis of the claim. That is audi alteram partem. The PERESTELLA v. UNITED PAINT CO. decision was cited with approval in A.G. ANAMBRA STATE v. ONUSELOGU (1987) 4 NWLR (pt. 66) 547. See also NWOBOSI v. ACB LTD (1995) 6 NWLR (pt. 404) 658 at 680. The duty on the Claimant of special damage is both an issue of Evidence Law (the burden on he who asserts the existence of a fact on which his right appertains has to prove the existence of such fact in order to succeed – Sections 131 & 132 of the Evidence Act, 2011); and the right to fair hearing (particularly audi alteram partem) guaranteed by Section 36(1) of the 1999 Constitution. From the obligation on the Claimant of special damage to particularise emanates the correlative right of the defendant to be given those particulars. The duty and the correlative right therefore exist in both constitutional law and adjectural law of evidence. The clear breach of this mandatory duty towards the Appellant by the 1st Respondent case, does not warrant or entitle the lower Court to award the special damage of $400,000 “being the calculated daily charter cost of the vessel while the arrest lasted”. I will therefore set aside the award; and it is hereby set aside.” Per EJEMBI EKO, JSC in BRONWEN ENERGY TRADING LTD. v. OAN OVERSEAS AGENCY (NIG) LTD & ORS (2022-LCER-46529-SC) (Pp 47 – 49; Paras B – A)

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