AJIGBOTOSHO v. RENOLDS CONSTRUCTION CO. LTD (2018)

In The Supreme Court of Nigeria

On Friday, the 8th day of June, 2018

SC.133/2010

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN  Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD  Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN  Justice of The Supreme Court of Nigeria
EJEMBI EKO  Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE  Justice of The Supreme Court of Nigeria


Between

ALHAJI MUSA AJIGBOTOSHO-Appellant

AND

RENOLDS CONSTRUCTION CO. LTD.-Respondent

………………..A………………..

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Ibadan Division delivered on the 17th April, 2008 in Appeal No. CA/1/15/2007 wherein the lower Court dismissed the appeal of the Appellant therein. The relevant facts leading to this appeal as can be garnered from the record of appeal are stated hereunder.
In executing the contract awarded to it by the Federal Government to dualise the Ibadan/Ife Road, the Respondent, a Construction Company, entered into a number of lease Agreements with the Appellant to use his land for “site erection and excavation of materials.” Clause 5 in the Agreements dated 10th April 1995, 26th November 1996, 16th May 1997, & 10th June 1997, reads: –
“It is herein agreed that the said parcel of land shall be levelled and made usable by Reynolds after the completion of the Road before handing it over to the said owner. The land owner shall make available a trustworthy watchman and shall be employed by Reynolds within the period of operation.”
On completion of the project, the Appellant approached the Respondent to make good the land as previously agreed and after repeated demands to no avail, he instituted an action at the Ibadan High Court of Oyo State, claiming:
(a) A declaration that the defendant is in breach of the various lease Agreements on land entered with Plaintiff by failing to level and make usable the various parcels of land leased to her for the purposes of road construction by the Plaintiff at Idi-Omo Village, Egbeda Local Government Area, Ibadan particularly, the Agreements dated 10th April, 1995, 10th and 15th May 1995, 23rd January and 26th November 1996, 16th May and 10th June 1997.
(a) DAMAGES
SPECIAL

(1) Cost of repair of damage road – N743,149.20
(2) Amount required to rehabilitate damaged Parcel of land as per the lease Agreements – 3,712,500.00
(3) Cost of claim survey – 25,000.00
GENERAL DAMAGES – 1,000,000.00
5,480,649,20.
At the end of trial in which the Appellant called seven witnesses and one witness testified for the Respondent, and after hearing addresses of counsel, the learned trial Judge, A. A. Sanda, J., delivered his Judgment on the 18th of July 2005, wherein he granted the declaration as claimed by the Appellant.
He awarded the sum of N250,000.00 to him as general damages and N25,000.00 as cost of survey, but he dismissed the claim for special damages. Aggrieved by the decision, the Appellant appealed to the lower Court.
The lower Court in its judgment dismissed the appeal and affirmed the decision of the trial Court. Not being satisfied with the decision of the lower Court delivered on the 17th April 2008, the Appellant has further appealed to this Court.
The Appellant filed Notice of appeal containing four grounds of appeal. The Notice of Appeal is dated 9th July, 2008.
From the four grounds of appeal, the Appellant distilled one issue for the determination of this appeal as follows: –
“Whether in view of the concurrent funding (sic) of the lower Court and the Court of Appeal that the Respondent was in breach of the various lease Agreement entered with the Appellant by failing to level and make usable the various parcels of land leased to her for purposes of road construction, it (the Court of Appeal) was justified in dismissing the Appellant’s claim for money required to level and make the said piece of land and road usable.”
The above issue is contained in Appellant’s brief filed on the 28th May, 2010 by Bioye O. Asanike Esq., counsel for the Appellant who also adopted the said brief when the appeal was heard.
In the brief of argument filed on 19th May, 2015, by Adeleke O. Agboola Esq., on behalf of the respondent, sole issue was also formulated as follows: –
“Whether in view of the pleadings, evidence adduced and the state of the law the lower Court was right in upholding the decision of the trial Court thereby dismissing the Appeal.”
The issues as formulated by both Appellant and Respondent counsel are relatively the same. However, the issue formulated by the Respondent is more direct and clear and it will be adopted in determining this appeal.
Learned counsel for the Appellant submitted that the object of all forms of damages is to put the Appellant in the position he would have been had the Respondent not committed the tort for which the Appellant complained of. He cited NEPA VS. ALLI (1992) 10 SCNJ 34 at 49.
Learned counsel further observed that the Appellant at page 31 of the Record of Appeal pleaded the damages he is claiming from the Respondent.

………………..B………………..

He also pleaded all facts relating to the agreement of the parties.
Learned counsel argued that at paragraph 5 of the Amended statement of claim and plan, the Appellant states that he entered in to various Lease Agreement with the Respondent between 1995 and 1997. He further argued that all the Lease Agreement entered into were pleaded.
Learned counsel submitted that the lower Court aligned itself with the trial Court when it labelled Exhibit B & B1 as mere estimates. Instead of looking at it as the cost that must be borne by the Respondent in fulfilment of her obligation under the terms of the agreement with the Appellant.
Learned counsel argued that there is no doubt that the above findings may constitute concurrent findings of the lower Courts, and the attitude of this Court is not to disturb such findings of facts. However, where such findings of facts are perverse, as in this case, this Honourable Court will intervene. Counsel cited ONUOHA NWOKOROBIA VS. DESMOND UCHICHI NWOGU (2009) 4 – 5 SC (Pt. 11) page 144 at 786.

Counsel submitted that the reasoning and conclusion of the lower Court could also be faulted when one looks at Exhibits B & B1 where details of work to be carried out with their cost is copiously stated.
Learned counsel observed that neither the trial Court nor the lower Court adverted their minds to the evidence of PW.2 who testified as Quantity Surveyor that he has visited the site and he saw the damage done by the Bulldozer.
Learned counsel argued that Appellant had led credible evidence of the amount required to level and make usable the Appellant’s land as agreed by the parties.
Counsel finally urged this Court to grant the Appellant’s claim on special damages as he had laid what was sufficient, credible and most satisfactory evidence on the claim of damages pleaded which have remained uncontroverted. Also counsel urged this Court to resolve the sole issue for determination in favour of the Appellant.
On the other hand, learned counsel for the Respondent argued that the position of the law is that a party who asserts or claims a relief must prove it by credible and admissible evidence, and the grant of such claims must be based on legal evidence of the highest probative value and weight. Counsel cited G. T. INVESTMENT LIMITED VS W. H. & BUSH LIMITED (2011) 8 NWLR (Pt.1250) 500 SC.
Learned counsel submitted that the Appellant did not discharge the burden of proof placed on him or it by Section 135 of the Evidence Act.
Learned counsel argued that in a claim for special damages, it must be specifically pleaded and particulars of same itemized and proved at the trial for the Appellant to succeed. Counsel cited ODUMOSU VS. ACB LTD. (1976) 1 SC 55, OTARU & SONS VS IDRIS (1999) 68 RCN 823.

Learned counsel submitted that the lower Court rightly observed what constitutes special damages in page 158 of the Record. Therefore, the Appellant’s claim was not specific or clearly ascertainable but rather the Appellant gave an estimate of the amount it will cost him to repair the damaged road and rehabilitate the damaged parcel of land.
Learned counsel observed that even while giving evidence at the trial Court, PW.2 did not with authority say that a particular amount is what is to be paid, instead they made an assessment and gave an estimate.
Learned counsel submitted that the trial Court gave due consideration to the definition of estimate at page 126 of the record and rightly held that the Appellant’s claim for special damage was not proved. The Court of Appeal rightly upheld and affirmed the decision of the trial Court.
Counsel finally urged the Court to resolve this issue against the Appellant and affirm the decisions of the lower Courts.
On the part of the Court, the lower Court, in affirming the decision of the trial Court held as follows: –
“To all intents and purposes therefore, the Appellant presented the lower Court with a preliminary statement of what it would probably cost to repair the damaged road and parcels of land that the Respondent failed to “level” and make Usable” as agreed to, which cannot translate to the strict proof needed. Special damages are generally capable of substantially exact calculation, and an estimate of what it may or may not cost to carry out the said repairs leaves room for conjecture, and the lower Court was therefore right to attach no value to Exhibit B & B1, and to hold that the claim of N743,149.20K and N3,712,500.00K as special damages had not crystallized into pecuniary losses.”

………………..C………………..

To start with, special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly.
For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. See DUMEZ (NIG) LTD. VS OGBOLI (1972) 1 All NLR 241 TABER VS BASMA 14 WACA 140.
In GONZEE (NIG) VS NERDC (2005) 13 NWLR (Pt. 943) at 639. This Court held that: –

“Strict proof in the context of special damages means that the person making a claim in special damages should establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the Court that he is indeed entitled to an award under that head. OSHINJINRIN VS. ELIAS (1970) 1 All NLR 153, DUMEZ (NIG) LTD VS. OGBOLI (1972) 1 All NLR 241.”
There is a distinction between special damages and general damages in terms of pleading and proof and model of assessment of each. Special damages is specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim. Where general damages is averred as having been suffered, the law will presume it to be the direct or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court.
See: – IJEBU-ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (pt. 166) 136, ESEIGBE VS AGHOLOR (1993) 9 NWLR (pt.316) 128 BADMUS VS ABEGUNDE (1999) 11 NWLR (pt. 627) 493.
This Court however, in XTOUDOS SERVICES NIG. LTD VS TAISEI (W.A) LIMITED (2006) 15 NWLR (pt. 1003) at 537 on how to plead and prove special damages held as follows: –

“Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage. 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 on a precise calculation must give the defendant access to the facts which make such calculation possible. In the instant case, there was no single paragraph in the statement of claim where the Appellants specifically pleaded facts with particulars in support of their claim for special damages, and also for general damages. As a result, the subject matter of the Appellants’ alternative relief for special and general damages for breach of contract was neither pleaded nor proved to justify being awarded by the trial Court. B.E.O.O. INDUSTRIES NIG. LTD. VS MADUAKOH (1975) 12 SC 91 referred to (Pg. 551, paras. B-E).”
From the foregoing, special damages will only be awarded if strictly proved and for this, the Appellant in this case ought to have gone beyond stating the estimate of the amount it will cost him to repair the damaged road and rehabilitate the damage done to the parcel of land.
After reviewing the evidence as to his claim, the learned trial Judge held as follows: –
“…Exhibits B1 and B2 are Estimates. Estimate is defined by Oxford Dictionary as:”
“Judgment that you make without having 
the exact details or figures about the size, amount or cost.”
“The claim of N743,149.20K and N3,712,500.00K totaling N4,455,649.20K have not yet crystallized into pecuniary losses because neither the 450m Road between Idi-Omo stream before Oderinwale have been repaired nor the two parcels of land of road around Idi-Omo measuring 5 Hectares haven been levelled as requested by the Plaintiff. As a result of the above, the Plaintiff failed to prove the above as special damages as provided by law and are hereby dismissed in their entirety.”

Certainly, the trial Court’s reasoning and the conclusion cannot be faulted, this is more so when it is noted that the Appellant himself testified as PW.4 that he was introduced to PW.2 because the Respondent promised to pay him.
He further stated as follows: –
“I had wanted to do the work if the work is not too much but Engineer Ishola (PW.2) gave me a heavy bill for the repair of the land.”

In other words, he would not have consulted PW.2 if the Respondent had not promised to pay him, and he made no effort to carry out the repairs himself as he made out to PW.2 because PW.2 gave him a “heavy bill”,

………………..D………………..

which can only mean that the estimates prepared by PW.2 were speculative and not definite. In any case, an “estimate” is merely a preliminary statement of the probable cost of a proposed undertaking.
Once again, it is settled law that every item contained in the claim of special damages must be specially proved, and such proof must be characterized by testimony that ties each item with the evidence led. In the instance case, the items described in Exhibit B & B1 were not Proved.
See: – LEVENTIS (NIG.) LTD. VS. AKPU (2002) 1 NWLR (Pt.747) 182, JOSEPH VS. ABUBAKAR (2002) 5 NWLR (Pt.759) BLACKWOOD HODGE NIG. LTD. VS OMUNA CONSTRUCTION CO. (2002) 12 NWLR (Pt. 782) 523 and ADECENTRO NIG. LTD. VS COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY (2005) 15 NWLR (Pt. 948).
The Appellant in this case has not discharged the burden of proof placed on him by Section 131 of the Evidence Act. The Section provides as follows: –
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.”
From all that is stated above, the Appellant has failed to comply with Section 131 of the Evidence Act above.
Thus, the sole issue for determination in this appeal should be and is accordingly resolved against the Appellant.
Having resolved the sole issue for determination against the Appellant, I find no merit in this appeal and it is hereby dismissed. The judgment of the Court below delivered on the 17th July, 2008, in the Appeal No. CA/1/15/2007 is hereby affirmed. Parties shall bear their respective costs.
WALTER SAMUEL NKANU ONNOGHEN, C.J.N: I have had the benefit of reading in draft the lead Judgment of my learned brother BAGE JSC just delivered.
I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
The facts relevant for the determination of the issue in controversy have been stated in detail in the said lead Judgment of my learned brother making it unnecessary for me to repeat them herein except as may be needed to emphasize the point being made.
The sole issue identified by learned counsel for appellant in the appellant brief filed in 28/5/2010 is:
“Whether in view of the concurrent finding of the lower Court and the Court of Appeal that the Respondent was in breach of the various Lease Agreements entered with the Appellant by failing to level and make usable the various parcels of land leased to her for purposes of road construction, it (the Court of Appeal was justified in dismissing the Appellant’s claim for money required to level and make the said piece of land and road usable.”
In arguing the appeal by way of summary, learned counsel for appellant submitted that there is credible evidence on record on the amount required to level and make usable the land of appellant as agreed by the parties in Exhibit ‘A’, ‘A1’, ‘C’ respectively and that Exhibits ‘B’ and ‘B1’ provide detailed costs and nature of work to be done on the road and land to make them usable to the appellant.
It is the further submission of learned counsel that the claims of appellant were forceable in the agreements and not remote and that it is erroneous for the Court to tag Exhibits ‘B’ and ‘B1’ mere estimates which makes the findings perverse and liable to be set aside by the Court.
Learned counsel then urged the Court to set aside the findings of the lower Court on the matter and grant the damages claimed by appellant.
On the other hand, learned counsel for respondent submitted the following issue for determination in the respondent brief filed on 19/5/15:
“Whether in view of the pleading, evidences adduced and the states of the law the lower Court was right in upholding the decision of the trial Court thereby dismissing the Appeal.”
It is the contention of learned counsel for respondent that appellant failed to discharge the burden of proof placed on him by law in a claim for special damages which the law on pleadings requires that it be specifically pleaded. In addition, that rather than specifically plead the special damages claimed, appellant gave an estimate of the amount it will cost to repair the damaged road and rehabilitate the land.
Learned counsel finally urged the Court to resolve the issue against appellant and dismiss the appeal.
The issue under consideration has to do with the requirements for a successful claim of a relief of special damages. It is settled law that for a claim of special damages to be successful, the facts grounding the claim must be specifically pleaded in the Statement of Claim and strictly proved in evidence.

………………..E………………..

In the instant case though the items of special damages were pleaded, they were however, not strictly proved as no evidence of the cash losses were adduced at the trial. The lower Courts have carefully gone through the evidence on record and came to the conclusion, rightly in my view, that the evidence adduced by appellant amounts to estimate of the losses allegedly suffered not the actual cash/pecuniary losses incurred by appellant and paid for before the trial.
It should also be noted that the instant appeal is on the concurrent findings of facts by the lower Courts on the issue as to whether there was evidence in support of what was claimed as special damages or what was adduced as evidence is in reality estimates of amounts required to put things right as against a claim for what had actually been expended by appellant to put things right following the failure of the respondent to do so in accordance with the terms and conditions of the contract(s) between the parties.
Appellant has not established the circumstances in which this Court can interfere with the concurrent findings of fact on the issue under consideration.
It is for the above reasons and the more detailed reasons assigned in the lead Judgment that I too find no merit in this appeal which is accordingly dismissed.
I abide by the consequential orders made in the said lead Judgment of my learned brother including the order as to costs.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: On perusing in draft the lead judgment of my learned brother SIDI DAUDA BAGE JSC just delivered and agreeing with His Lordship’s reasoning and conclusion that the appeal is lacking in merit, I too hereby dismiss same.
The appellant had allowed the respondent to source materials for road construction from his parcels of land which both agreed the latter on completion of the road construction will restore and make usable. Aspect of appellant’s claim for special damages found not specifically proved by the appellant were refused and dismissed by the trial Court.
This is a further appeal against the trial Court’s judgment by the appellant following the dismissal of his appeal to the Court of Appeal, Ibadan Division, hereinafter referred to as the lower Court.
Appellant’s grouse in the appeal is on the forms and quantum of special damages arising from breach of contract that is recoverable. Learned appellant’s counsel asserts that both Courts below having concurrently found that respondent was in breach of bending agreements as pleaded should have granted the appellant the totality of what he claimed and proved as special damages to restore him to the position he would have been but for the breach of the agreement. The failure of the two Courts to do so having occasioned miscarriage of justice, it is argued, entitles this Court to intervene notwithstanding the concurrent findings of the two lower Courts. Learned counsel relies inter-alia on NEPA V. Alli (1992) 10 SCNJ 34 at 49, Onuoha Nwokorobia V. Desmond Uchichi Nwogu (2009) 4-5 SC (pt. II) 144 and urges that appellant’s lone issue be resolved in his favour, appeal allowed and the totality of his claim as pleaded and proved granted.
Learned respondent’s counsel opposes the appeal. He submits that the appellant who has not established his claim as envisaged by law is not entitled to the total sum he claims. A claim for special damages, it is contended, must not only be specifically pleaded but so proved as well. Having not met this standard, the two Courts, learned counsel further submits, are right to have granted the appellant only what he is entitled to. Relying onG.T. Investment Limited V. W.H. & Bush Limited (2011) 8 NWLR (Pt 1250) 500 and Odumosu V. ACB Ltd (1976) 1 SC 55, learned counsel concludes that the unmeritorious appeal be dismissed.
My perusal of the record of appeal leaves me in no doubt that Exhibits B and B1 the appellant asserts should have been accepted as proof of the special damages he is entitled to, but which the two Courts below denied him, are mere estimated cost of restoring the bad road and the parcels of land it leads to make both usable. They draw from Exhibits 83 and 84 the appellant himself concedes are feasibility studies. The estimates are by no means the exact amount required to effect the restoration of the road and parcels of land.
It is settled that a claim for special damages succeeds only on the strict proof of the specifically pleaded facts in relation to the sum claimed. Where items of special damages are not specified and strictly proved as in the instant case, recovery of same will not be granted. See Anyanwu & Ors V. Uzowuaka & Ors (2009) 13 NWLR (Pt. 1159) 445, Nwanji V. Coastal Services (Nig) Ltd (2004) LPELR-2106 (SC).

………………..F………………..

The trial Court appears fully informed of the applicable principle vis-a-vis the particular head of damages claimed by the appellant when after referring to the pleadings and the evidence of the appellant, in its judgment at pages 126-127 of the record held: –
“From the above, the claim of N743,149.20 and N3,712,500.00 totaling N4,455, 649.20 have not yet crystallized into precuniary losses because neither the 450m Road between Idi-Omo and stream before Oderinwale have been repaired nor the two parcels of land of road around Idi-Omo measuring 5 Hectares have been leveled as requested by the plaintiff. As a result of the above, the plaintiff failed to prove the above as special damages as provided by law and are hereby dismissed in their entirety.
As for claim of N25,000.00 for preparation of th
Survey Plan – P.W. 5 one Mr. Lateef Adebayo testified thus:
‘I prepared Exhibit D i.e. the Survey Plan after the plaintiff has taken me to the land which there was 
excavation that by the time I visited the land the road was in a bad condition.
I prepare my bill for N25,000 excluding Court attendants.’
This head of claim is proved specially and specifically by going on the site, carrying out the survey of the area and preparation for the survey plan marked Exhibit D.”

It is on account of the foregoing that the Court concluded its judgment by dismissing item 3 & 4 of the appellant’s claim for special damages but granting him item 2 thereof pertaining to the cost of producing his survey plan only. The Court in addition granted appellant item 5 of his claim for general damages.
In affirming the foregoing, the lower Court at page 159 of the record stated thus: –
“…… certainly, the lower Court’s reasoning and conclusion cannot be faulted …….the estimates prepared by PW2 were speculative and not definition ………an ‘estimate’ is merely ‘a preliminary statement of the probable cost of a proposed undertaking’. To all intent and purposes therefore, the appellant presented the lower Court with a preliminary statement of what it would probably cost to repair the damaged road parcels of land …… and the lower Court was therefore right to attach no value to Exhibits B & B1 and to hold that …….the claim …………as special damages had not yet crystallized into pecuniary losses ……the lower Court was therefore right to dismiss the claims …..”
Given the principle this Court alluded to in a large number of cases, some of which both Courts below applied in the course of their judgments, this appeal must fail.
It is for the foregoing and more so the fuller reasons contained in the lead judgment that I also dismiss the appeal. I abide by the order of costs made in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, SIDI DAUDA BAGE, JSC, just delivered. I agree entirely with the reasoning and conclusion that this appeal is devoid of merit and should be dismissed.
Learned counsel for the appellant has formulated a single issue for the determination of this appeal. In a nutshell, it is whether the Court below was justified in affirming the judgment of the trial Court dismissing his claim for special damages.
My learned brother has adequately summarised the facts that gave rise to this appeal. I adopt it in making my few comments in support of the lead judgment. The appellant’s claim against the respondent at the trial Court was for special and general damages arising from the breach by the respondent of several lease agreements between the parties wherein the respondent was to level and make usable various parcels of land leased to it for the purposes of road construction.
At the conclusion of the trial, the learned trial Judge awarded general damages in the sum of N250,000.00. It refused heads 3 & 4 of the claim for special damages on the ground that the amounts claimed were based on estimates. It however granted the claim for N25,000,00 only being the cost of survey, which had been specifically pleaded and proved.
On appeal to the Court of Appeal, the sole issue was whether the trial Court was right in refusing the other heads of special damages. The Court answered in the affirmative and dismissed the appeal.
This appeal is against that decision. It is an appeal against concurrent findings of fact by the two lower Courts.

………………..G………………..

The appellant must therefore satisfy this Court that the concurrent findings are perverse.
The law is very well settled that a claim for special damages must be specifically pleaded and strictly proved. In Oshinjinrin & Ors. Vs. Alhaji Elias & Ors. (1970) 1 ANLR 158 @ 161; (1970) LPELR-2799 (SC) @ 6-7 E-B; this Court held per Coker, JSC:
“… the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish his entitlement to special damages. 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 is indeed 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.”
It was further held by this Court in: Xtoudos Services Nig., Ltd. & Anor. Vs Taisei (W.A.) Ltd. & Anor. (2006) 15 NWLR (1003) 533 @ 551 B – E that the obligation to particularise arises, not because the nature of the loss is unusual, but because the plaintiff, who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. See also: SPDC Ltd. Vs Tiebo & Ors. (2005) 9 NWLR (Pt. 931) 439; Dumez (Nig.) Ltd. Vs Ogboli (1972) 1 ALL NLR 241; N.B.C. Plc. Vs Ubani (2014) 4 NWLR (Pt. 1398) 421.
The law requires that the heads of claim for special damages must be proved with exactitude.

In the instant case, Exhibits B & B1 relied upon by the appellant are estimates of what it would cost to restore the land and roads to their previous condition. The Oxford Dictionary, Thesaurus and Word Power Guide, 2003 Edition, defines “estimate” as an approximate judgment of something’s quantity, value, etc. “Approximate” is defined as “almost but not quite exact.” An estimate suggests something that is not final or something to be ascertained with exactitude at a later date. It also means that the expense has not yet been incurred.
In the case of Akhigbe Vs. Osondu Co. Ltd. & Anor. (1999) 7 SC 1 @ 8 – 9 per Uwaifo, JSC, cited by learned counsel for the appellant, it was held thus:
“it is a settled principle that money actually spent before the time of hearing a claim for damages for injuries suffered comes under special damages. But any prospective expenditure is money, which has not vet crystallized in actual disbursement, that being so, it does not qualify as special damages but is claimable as part of general damages.”
(Underlining mine for emphasis)
This authority, in my humble view is not in the appellant’s favour. Learned counsel has argued at paragraph 4.26 of his brief that even if the appellant was wrong in making his claim under special damages, this would not be sufficient to preclude him from being entitled to the claim, provided the claim is not unforeseeable as a result of the contract between the parties. It was held in Xtoudos Services Nig. Ltd. & Anor. Vs. Taisei (W.A.) Ltd. (supra) @ 551 A-B that general damages cannot, in any circumstance, be properly substituted for special damages where a plaintiff fails to specifically plead and prove special damages. See also: West African Shipping Agency Vs. Kalla(1978) 3 SC 21 @ 32.
Relying on the case of Odulaja Vs Haddad (1973) 8 NSCC 614 @ 616, he contended that the claim could have been granted as general damages. The authority does not support the submission of learned counsel. It espouses the well settled position of the law that while general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of, special damages are such as the law will not infer from the nature of the act. They are exceptional in character and must therefore be claimed specially and proved strictly. See the English authorities of Bolag vs. Hutchison (1005) AC 515 and British Transport Commission Vs. Gourlay (1956) AC 185, cited and relied upon in Odulaja’s case. It was also held that the special damages claimed must be out-of-pocket expenses and loss of earning incurred up to the date of trial and must be capable of substantially exact calculation.
That is not the position in this case. The appellant had yet to effect any of the repairs for which the estimates in Exhibits B and B1 were prepared at the time he instituted his suit at the trial Court.

………………..H………………..

The concurrent findings of the two lower Courts have, in the circumstances, not been shown to be perverse. I am not persuaded to interfere.
This appeal is devoid of merit. It is hereby dismissed.
The parties shall bear their respective costs in the appeal.
EJEMBI EKO, J.S.C.: My learned brother, SIDI DAUDA BAGE, JSC, had before now graciously made available to me the judgment just delivered in draft. It represents my views in the appeal. I hereby adopt it.
The crux of this appeal is the question: whether the Appellant, as the Plaintiff at the trial Court, precisely pleaded special damages he had claimed against the Respondent, as the Defendant? It is settled and quite trite that special damages claimed must be specifically pleaded, and they must be strictly proved. The party pleading special damages is enjoined to particularise in his pleading the item(s) of special damages claimed. He must base his claim on precise calculation and give the Defendant access to the facts on which such calculation is based. This requirement satisfies one of the twin pillars of fair hearing, that is audi alteram partem
The essence is that the defence shall not be prejudiced or put to embarrassment. The requirement enables the defence to prepare to meet frontally the case put up against him on the special damages claimed.
Claim for special damages based on mere estimates or estimation of the Plaintiff is not precise. It is as good as an exercise in mere conjecture, a guess work, which clearly is the antithesis of precise calculation.
The party who founds an item of his claim on special damage intends thereby to remove from the Court its discretion in the matter to some extent. Equally, in a claim for special damages the Court is not expected to issue its order on mere conjecture. Every order of Court is expected to be precise and certain. A claim founded on mere conjecture is clearly an invitation to the Court to descend to the realm of conjecture and thereby producing an order that is uncertain in terms; and that is not a hallmark of judicial order.
I agree the Appellant in the purported claim for special damages against the Respondent did not in the pleading give the latter sufficient facts or particulars of the special damages claimed. The Court of Appeal was therefore right, in my view, in dismissing his appeal.
I accordingly find no merit in this appeal.
The judgment of the Court of Appeal delivered on 17th July, 2008 in the appeal No. CA/L/15/2007 is hereby affirmed.
There shall be no order as to costs.
Appealed dismissed.

Appearances

Prince Abioye Oloyode-Asaruke, Esq.-For Appellant

AND

Adeleke Agboola with Oluwole Abidaku, Esq.-For Respondent


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