SHIPPING AND ADMIRALTY – ARREST OF A SHIP – Whether claim for damages for wrongful arrest or detention of a ship is a claim for special damages which must be specially pleaded and strictly proved


“Assuming that the case is that the 1st respondent is the owner or charterer of the arrested vessel which is not the case before the Court, and it has suffered damage in the circumstance, the law still requires proof by evidence of the claim for US$400,000.00 being alleged calculated daily charter cost. The Court of Appeal before making the award ought to have made an enquiry into how the 1st Respondent arrived at the cost of US$80,000.00 per day which made a total of US$400,000.00 as five (5) days. These heads of costs were lumped together and were not itemised or specifically pleaded as required by law. If one may ask of the sum of US$80,000.00 per day which made up the total of US$400,000.00 allegedly incurred for five (6) days; how much is for security? How much is for bunkers? And how much is for crew welfare? Apart from the fact that the above heads of claims were not specifically pleaded, no evidence whatsoever was led before the Federal High Court being the Court of trial and none was made available at the Court below in support of the various heads of claims. Therefore, the award of US$400,000.00 being alleged calculated daily charter cost was erroneously dished out as no proof was provided as the law requires. In the case of Nwanji v. Coastal services (Nigeria) Ltd (2004) 11 NWLR (Part 885) 552 at 568,57, UWAIFO, JSC had this to say: “The only part of the Statement of Claim where iron rods and cement were mentioned was the final claim paragraph. There it is simply stated thus: ’41 trucks of cement and iron rods cost N74,000.00″. Even if this had been made an averment and not just part of the particulars of claim, it would still have been wrongfully inadequate and lacking in specificity. There is no indication as to how many bags of cement and number of iron rods in one truck. The question remains how N74,000.00 stated was calculated. No Court can determine this without an averment as to the number of iron rods and bags of cement, and the cost of each. In the circumstances therefore, the evidence adduced must be considered inadmissible”. In the above cited case, BELGORE, JSC, in this contributing judgment at page 571, held thus: “In our procedure for trying civil matters the position has always been that all items claimed must be clearly pleaded. In claiming special damages, the pleadings must be clear as to what is being claimed. In this matter on appeal, a lump sum was pleaded as cement and iron rods lost without specifically averring to quantity and cost of each material. The Court must rely on what parties claim specifically and as impartial arbiter must not embark on doing the arithmetic the parties never put forward, The purpose of pleading is to clearly alert the opponent what he is to meet. Certainly pleading must contain facts, only facts, the opponent is to meet and not evidence; but in situation where loss of certain times is claimed, quantity of such items and the value in money must be dearly averred in pleading. This will obviate doubt and allow parties to the suit make preparation to meet the averment.” The position has been well settled on the point and that is why specific damages must be clearly pleaded and strictly proved by evidence. In this case at hand, no evidence was proffered to support the bare allegation of a payment of the sum of US$80,000.00 as daily charter cost to aver security, bunkers and crew welfare. Clearly the averment on this expenditure in the counter claim was bereft of particulars. I shall quote paragraph 6 of the Court claim in vol 111 of the Record of appeal, thus: “6. The Counter claimant avers that owing to the inability of the vessel to set sail due to the arrest, the counter claimant was paying US$80,000.00 daily for security, bunker and crew welfare while the arrest lasted.” Nothing other than the bare averment was said regarding the daily cost of US$80,000.00 allegedly incurred apart from the mere statement in the counter claim quoted above. No indication was given as to the number or kind of security that was provided or the arrested vessel by 1st Respondent and the cost implication for the alleged security provided. No indication was also given on the cost of bunkers or what portion of the daily charter cost covered the cost of bunkers. Furthermore, no indication was given on the cost involved in crew welfare and also on the number of crew men engaged by the 1st Respondent to man the vessel and what was spent on each crew member on board the vessel. And to make matters worse, no evidence whatsoever was led in support of the above heads of expenses as was rightly found by the Federal High Court and even the Court of Appeal. Not even a receipt or any form of documentation regarding payments made was brought before the Federal High Court or Court of Appeal. The Federal High Court in its judgment on the Counter claim of the 1st Respondent found as follows: “There is no attempt made by DW2 to show that the 3rd Defendant is entitled to the colossal sum of money claimed in the Counter claim… On the whole, it is my firm view that the Counterclaim is frivolous and misconceived is hereby dismissed”. It is difficult to fault the finding of the trial Court hence one is at a loss on what the Court below did in that regard. This is because the claim of the 1st Respondent for US$400,000.00 being calculated daily charterer cost to cover security, bunkers and crew welfare falls under special damages for which the law requires special proof by evidence. This evidence was not provided in this case. The law does not infer special damages merely from the pleadings or from the state of the facts of a case. Once it is claimed, the law requires proof of the special damage up to the last kobo or cent as the clam in this case is in dollars. In the case of A.T.E. Co Ltd v. MILITARY GOVERNOR, OGUN STATE (2009) 15 NWLR (PART 1163) 26 AT 71, this Court held thus: “Special damages are damages of the type the law will not infer from the nature of the act. They do not flow in the ordinary course and they are exceptional in their character. This is why they must be claimed specially and proved strictly.” At Page 80 of the above cited case, the Supreme Court further held thus: “Strict proof is mandatory in proof of special damages. That is why the determination of a claim for special damages on a party’s pleadings alone may not be prudent. It must be backed by concrete evidence in Court. See also Incar (Nig) Ltd v. Adegboye (1985) 2 NWLR (Part 8) 453; Ekennia v. Nkpakara (1997) 5 NWLR (part 504) 157 at 172 ” The matter is all the more instructive that even if damage is sustained in the circumstances of a particular wrong, the law does not exonerate the claimant from pleading specifically the damage that occurred and providing credible and admissible evidence proof of the damage sustained for an award to be made. In U.B.N. PLC v. AJABULE (2011) 18 NWLR (Part -278) 152 at 174, the Supreme Court held that special damages must be pleaded with distinct particularity and strictly proved because a Court is not entitled to make an award of special damages based on conjecture or on some fluid and speculative estimate of alleged loss sustained by a party. See also DUMEZ (NIG) LTD v. OGBOLI (1972) 1 All NLR 241. Curiously the Court below agreed with the conclusion on the facts as made by the trial Court which is that 1st respondent did not provide evidence in support of its counter claim and special damages but that appellate Court went on to award the sum of US$400,0C0.00 as daily charter cost. I shall quote the Court below per Yargata Byenchit Nimpar JCA as follows:- “Let me first state categorically that the judgment sum awarded against the appellant as outstanding fees for services rendered is duly supported by evidence and it stands. That means that the first head of Counter claim which is general damages for loss income cannot be justified because appellant is liable for the judgment sum as decided by the Trial Judge. This is so because competence of claim is determined on the pleadings of the claimant… The claim though misleading led to the wrongful arrest of the vessel. They would need to prove loss of earnings and reputation as claims under special damages. This was not done”. From the findings of the Court of Appeal, it is clear that the lower court did find that it was imperative on the 1st Respondent to prove that it incurred loss as a direct consequence of the arrest of the vessel which proof the lower Court held was not done. The Court however proceeded to award the colossal sum of US$400,000.00 in favour of the 1st respondent in spite of its holding that proof of special damage or of loss of earning was not done and in spite of the Court’s finding that the judgment sum awarded in favour of the Appellant to the 1st Respondent was supported by evidence and it stands. The only reason that could be deduced for the erroneous award with respect to the sum of US$400,000.00 as daily charter cost is the wrong conclusion arrived at by the Court of Appeal that the arrest was wrongful.” Per MARY UKAEGO PETER-ODILI, JSC in BRONWEN ENERGY TRADING LTD. v. OAN OVERSEAS AGENCY (NIG) LTD & ORS (2022-LCER-46529-SC) (Pp 15 – 22; Paras A – E)

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