MR. JIMMY OJEAHERE v. SEAN ALAKIJA & ORS.
(2011)LCN/4403(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/I/201/03
RATIO
NEGLIGENCE: WHETHER MENTAL SUFFERING OR INJURY TO FEELINGS IS BY ITSELF SUFFICIENT DAMAGE TO GROUND AN ACTION IN NEGLIGENCE
The established law in terms of mental suffering or injury to feelings, which is the basis of the cross-appellants claim at the Lower court as a result of the negligence of the appellant, untimely death of the deceased occurred, is to be found in MC Gregor on Damages (14th Edition page 47-where in it is stated:- “Mental suffering is not by itself sufficient damage to ground an action. As Devlin J. said in Behrens Vs. Bertram Mills Circus (1957) 2 Q.B. 1 at 28. “The general principle embedded in the common law is that mental suffering caused by grief, fear, anguish and the like is not assessable. However, once liability has been established then in certain torts compensation for injury to feelings may be included in the damage and indeed in torts infringing family relationship the injury to feelings represented the principal loss.” PER SIDI DAUDA BAGE, J.C.A.
SPECIAL DAMAGES: WHETHER A CLAIM FOR SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND STRICTLY PROVED
…a claim for special damages must be specifically pleaded and strictly proved. In other words-the plaintiff should sufficiency particularize it to enable the court decides whether all or part of it can be granted and should establish his entitlements to special damages claimed by credible evidence. See: – Neka BBB Mfg. Co. Ltd. Vs. A.C.B Ltd. (2004) 2 NWLR (pt 858) 521 at 557. PER SIDI DAUDA BAGE, J.C.A.
STRICT PROOF: MEANING OF THE TERM “STRICT PROOF” REQUIRED IN PROOF OF SPECIAL DAMAGES
…the term “strict proof’ required in proof of special damages means no more than that the evidence must show the same particularity pleading. It should therefore normally consist of evidence of particular losses which as exactly known or accurately measured before the trial. Strict proof does not mean unusual proof. It simply implies that a plaintiff who has the advantage of being able to base his claim upon must give the defendant access to the facts which make such calculation possible.” See: – Imana Vs. Robison (1979) 3 – 4 SC 1; U.B.N. Vs. Odusote Bookstore Ltd. (1994) 3 NWLR )Pt. 331) 129; Joseph Vs. Abubakar (200) FWLR (Pt. 91) 1525; Okorokwo Vs. Chukwueka (1992) 1 NWLE (Pt. 216) 175. PER SIDI DAUDA BAGE, J.C.A.
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF
The Law is settled that he who asserts must prove and that it is on the Plaintiff who is claiming a relief or remedy to prove his case, and the onus remains on him until it is discharged. See: – Jules vs. Ajani (1980) 5-7 Section 96. See also, Kokorowo Vs. Ogunbambi (1993) 8 NWLR (Pt. 313) 627; Olufosoye vs. Fakorede (1993) 1 NWLR (pt. 272) 1 Balogun Vs. Labiran (1988) 3 NWLR (Pt. 80) 66; Olusesi Vs. Oyelusi (1986) 3 NWLR (PT.31) 634; Jalco Ltd Vs. Owoniboys (1995) 4 SCNJ 256; Famfa Oil Ltd Vs. A.G of the Federal (2003) 11 MJSC 66; Anozie Vs. Aluko (2001) 37 WRN 133; Abasi Vs. Onido (1998) 6 NWLR (Pt. 548) 89. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MR. JIMMY OJEAHERE Appellant(s)
AND
1. SEAN ALAKIJA
2. MATTHEW ALAKIJA
3. GAVIN ALAKIJA
4. MR. O.A. ALAKIJA
5. INDUSTRIAL AND GENERAL INSURANCE COMPANY LIMITED Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated the 5th of September, 1989, the four (4) Respondents/Cross Appellants as plaintiffs at the Trial court instituted the initial suit No. 1/692/89 and seeking the sums of various amounts in Naira and Pound sterling (British) for Loss and Damages. (This is evidenced at pages 4-6 of the Record of Appeal).
The particulars of Loss and Damage suffered by the four (4) Respondents 1st- 4th were given as follows:-
(a) The deceased was at time of his death a healthy and happy man aged 48 and in his business was making an income in excess of N100,000:00 per annum in Nigeria and in excess of 8,500:00 (Euro) per month, overseas.
(b) The 1st-3rd plaintiff were teenagers at the time of the death of the deceased and were totally dependent upon the deceased for their education, care and upkeep at an average cost of 25, 855:00 (pounds) per annum made up as follows:-
School fees
1. Sean Alakija – 5100 (pounds) per annum
2. Matthew Alakija – 5025 (pounds) per annum
3. Gavin Alakija – 5430 (pounds) per annum
Average of 10, 300 (pounds) per annum while the children were in school overseas.
(c) The 1st-3rd plaintiff’s would have been so dependent upon the deceased for a period of at least 6-8 years based on their respective ages and education at the time bf the death of the deceased.
(d) The 4th plaintiff incurred funeral expenses of N15000:00 in Nigeria and 2500:00 (pounds) Overseas.
(e) The plaintiff will lead evidence to show the relative exchange rates between the Nigerian Naira and British Pound Sterling at the hearing.
Whereof the 1st-3rd plaintiffs children of the deceased and the 4th plaintiff claim from the defendant from, and severally the sum of 2, 244, 000:00 (pounds) and N2, 200, 000:00 being the pecuniary loss they suffered as a result of the death of the deceased based on the income the deceased was earning at the time of his death and the assumption that the he had twenty two active working years left ahead of him at the time of his death plus the sum of N5000:00 and 2500:00 (pounds) funeral expenses incurred by the plaintiff in Nigeria and Overseas.
ALTERNATIVELY
The 1st-3rd plaintiffs children of the deceased and 4th plaintiff claim from the defendants jointly and severally the sum of 206, 840:00 (pound) being the value of their dependency upon the deceased for a period of eight years subsequent to his death plus the sum of N5000:00 and 2500:00 (pound) funeral expenses incurred by the 4th plaintiff in Nigeria and Overseas.
In their 5th further and Better Amended statement of claim the 4 respondents (1st – 4th) dated the 18th day of April 2002 which was filed along with the writ of summons. The crux of the four respondent’s case against Appellant at page 4 of the Record of Appeal (hereinafter referred to as “the Record”) is as follows:-
The 4 respondents as (plaintiffs) pleaded that on the 22nd day of September, 1986, at about 19:00 p.m. the deceased person was driving his 504 station wagon peugeot car with registration number OY 602 OY along Dick/Forestry Road Ibadan coming from the direction of the Federal department of Forestry, Ibadan.
Along the said road was a Volkswagen Beetle car with registration Number LU 9425 which had broken down and which the owner thought was due to lack of fuel. The deceased person stopped to lend a helping hand to this person whom he had never met before when they thought the break down was due to lack of fuel the deceased went and purchased a gallon of petrol. Inspite of this the car would not start. It was in this process the Dr. Asuni a friend of the deceased who was also passing by saw the deceased’s car and stopped to inquire about what was happening.
While the three men were standing by the side of the road thinking of what next to do the 1st defendant who was coming from Dick Road facing Forestry direction so negligently drove managed and controlled his Toyota sport car that it veered off his lane to the other side of the road where it violently knocked and carried the deceased on the bonnet of his car off the road and landed him some metres away from the spot. The deceased died on the spot.
In his judgment Sanda, J, delivered on the 30th day of September, 2002 awarded in favour of the 1st-3rd plaintiff (1st – 3rd Respondents) a sum of 682, 000:00 (pounds) as damage against the 1st defendant for the negligence of the 1st defendant in causing the death of Robin Alakija the father of the 1st-3rd plaintiffs on the 22nd of September, 1986.
Also awarded is the sum of N5000:00 and 2, 500:00 (pound) respectively in favour of the 4th plaintiff (4th Respondent) Mr. A.O. Alakija against the 1st defendant for funeral expenses of Late Robin Alakija (his brother). The court discharged the 2nd Defendant from the proceedings having held that the Appellant had “no insurable interest” with the 2nd defendant at time of the accident.
That the award of the above judgment sum in a foreign currency i.e. Pounds sterling wherever it appears is right and proper and in accordance with Law. However such judgment sum can only be claimed in Naira under the relevant exchange rate as established by the plaintiff as at the 23d day of May, 2002 per Exhibit SA 23.
The Appellant was irked and dissatisfied with the decision of the trial court and hence filed his Notice of Appeal dated 15th day of November, 2002. Learned counsel to the appellant Akin Ige Esquire, filed 8 grounds of appeal from which he distilled 4 issues for the determination of the court as follows:-
(1) Whether or not the 4 plaintiff (4th Respondent being a brother of the deceased could properly join as Co-plaintiff and be awarded damages when regard is had to the provisions of Section 4 and 6 of the Torts Law of Oyo State which set out the category of persons who can initiate proceedings under the Law.
(2) Whether or not the trial Judge property and correctly evaluated the evidence and came to the right decision on the issue of the alleged negligence of the Appellant and the resultant death of the deceased.
(3) Whether or not the damages awarded in favour of the Respondents was in accordance with established principles of Law relating to damages and/or not excessive in the circumstance.
(4) Whether or not the trial court was right when it dismissed the Appellant’s claim for indemnity against the 5th Respondent founded on the insurance cover note. Exhibit SA5 issued by the Respondent.
The 1st – 4 Respondents in their brief of argument settled by Dr. BAM. Ajibade SAN, titled Cross-Appellants/Appellants/Respondents brief dated 24th October, 2008, stated that in view of the substantial overlap between some of the appellant’s grounds of appeal and some grounds of appeal and cross appeal filed by the cross appellants the cross appellants propose to argue the two appeal together in this brief.
The Notice of Appeal and cross-Appeal dated the 17th December 2002 contains 9 grounds of appeal.
From the eight grounds of appeal contained in his notice of appeal the appellant formulated four issues for the determination of this court. The cross-Appellant/Respondents contend that the real issues that arose for determination from the appellant’s eight grounds of appeal and the cross appellants nine grounds of appeal and cross-appeal are as follows:-
(i) Whether the claim of the 4 Cross-Appellant being an elder brother of the deceased was not maintainable.
(ii) Whether from the totality of the pleadings in this case and the evidence led at the trial, the trial Judge was not right in holding that the death of the deceased was caused by the negligence of the appellant and rejecting the appellants plea of contributory negligence on the part of the deceased.
(iii) Whether the trial Judge did not err in his assessment of the evidence led with regard to the income and spending habits of the deceased and in his consequent assessment of the sum to which the 1st – 3rd cross appellants were entitled as a result?
(iv) Whether the trial Judge did not err in his application of the principles applicable to the assessment of damages for causing wrongful death and thereby comes to an erroneous assessment of the sum to which 1st – 3rd cross- appellant were entitled?
(iv) Whether on the pleadings the admissible evidence led in this case and the applicable law the learned trial Judge did not err in holding that the appellant had no insurable interest with the respondent and discharging the respondent from liability to both appellant and cross-appellant?
(vi) Whether the learned trial Judge was not wrong when he held that the judgment delivered in foreign currency could only be claimed in Naira under relevant exchange rate as established by the plaintiff as at 2nd May, 2002 as per exhibit SA237.
The 5th Respondent by his brief of argument dated 6th of May, 2008 adopts the issues for determination as distilled by the Appellant from the judgment under appeal, particularly issue No. 4 which directly concerns the 5th Respondent.
The Appellants reply/Cross-Respondents brief of argument dated 2nd December, 2008, issues were not distilled separately from the 9 grounds of appeal contained in the Cross-Appellants Notice of Appeal dated 17/12/02. What was canvassed was a general reply.
Having carefully examined the 4 issues formulated by the appellant/Cross respondent, and the 6 issues formulated by the 1st – 4th respondents/ cross appellants, and the 5th respondent having adopted the 4 issues as formulated by the appellant. The appellant’s issue 1 may be conveniently considered under issue 2. A1so the cross appellant’s issue 1 may be conveniently consider under issue 2, which both are exactly similar in content. All the remaining issues of the Appellant, 3 and 4, and the remaining issues of the Cross appellants 3, 4, 5 and 6 gravitates all around issue No. 2 of the 2 briefs. The sole issue for determination in this appeal is therefore the appellant’s issue 2, and the cross-appellant’s issue 2, slightly modified as follows:-
“Whether or not the trial Judge properly and correctly evaluated the evidence and came to the right decision in holding that the death of the deceased was caused by the negligence of the appellant and awarded damages in accordance with established principles of Law.”
Arguing in support of the appeal, learned counsel for the appellant submitted that the provisions of sections 3 and 4 of the Torts Law Cap 124 Laws of Oyo State clearly provided for the categories of relatives for whose benefit an action may be brought clearly excludes the 4th respondent described as the Elder brother to the deceased person, the trial court was therefore in, error when it awarded damages in favour of the 4th Respondent for funeral expenses, Section 6(1) of the Law. The 4th respondent ought to be struck out of the proceedings See:- Owodunni vs Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315 at 338 paragraph E; Ojukwu Vs. Ojukwu (2000) 11 NWLR (Pt 677) 65 AT 93 paragraphs C-E; Pacers Multi-Dynamic Vs. M.V. Dancing Sisters (2003) 3 NWLR (Pt.648) 241 @ 253 paragraph H.
Learned counsel further submitted that the 4th respondent/cross appellant aside from not being entitled to be a party to the proceedings for lack of locus standi, the award to him for burial expenses sound in special damages requiring strict pleading and proof. See- S.P.D.C (Nig,) Ltd. Vs. Tiebo, IV (2005) 9 NWLR (Pt. 937) 43 at 467 paragraph B; Dumez Vs. Ogboh (1972) 3 SC 196.
Learned counsel further submitted that, in view of the fact that the trial court cited upon a wrong principle in Law, such damages should be set aside. See:- Nzeribe Vs. Dave Engineering Co. Ltd. (1994) 9 NWLR (pt. 361) 124; A.C.B. Vs. Nelca B.B. B. Manufacturing Co. Ltd. (1996) 4 NWLR (pt. 444) 564.
Learned counsel further submitted on the negligence of the Appellant which was to have caused the death of the deceased, the pleadings of the parties were copious and prolix. The evidence in support were flatly contradictory and since both versions could not be correct, the trial court had a duty to carefully analyze and consider the different eye-witness versions as put forward by the parties. On the contrary the trial court dealt with this most impotent of all issues in almost cavalier manner without properly and demonstrably evaluating the conflicting eye witness accounts.
Learned counsel submitted further that although it is settled law that it is the exclusive preserve of a trial court to evaluate the evidence, appraise the facts and ascribe credibility to witnesses, however, it is also the law that where the trial court has failed to make good use of its advantage of seeing and hearing witnesses during their testimony, an appellate court will interfere and disturb the findings of fact of such trial court. See: – N.O. Gbage Vs. H. Gbage & ors (1996) 6 NWLR (pt. 455) 417.
Learned counsel submitted further that at no point in its judgment did the trial court reject the eye-witness account of the appellant which was consistent with not fault, when the evidence of a witness is so exaggerated that it enters the realm of flamboyancy or appears as an affront to reason and intelligence no credibility ought to be accorded to it. See:- O. Fatunbi & anor. vs. E.O. Olanloye (2004)12 NWLR (pt. 887) 247 paragraph C.
Learned counsel submitted further that the obiter dictum expressed by Scru Hon. L.J. in Baker Vs. Long hurst & Sons (1933)2 K.B. 461, at page 110 lines 27 of the record was a grave error because the law is well settled that negligence is a matter of fact not law therefore one case cannot be applied as authority to another as the trial court did in this case in hand. Each case must be decided in the light of its own facts. See: – Silas Osigwe Vs. Unipetrol & anor (2005) All FWLR (PART 287) 1525 at 1542 paragraph H 1543 paragraph A.J. Kala Vs. Jarmakani Trans Ltd. (1961) A LL NLR 747; B.J Ngilari Vs. Mothercat Ltd. (1999) 3 NWLR (Part 636) 626 t 661 paragraphs E-F.
Learned counsel further submitted that the fore giving principles of law are also applicable to the finding of the learned trial Judge that the deceased was not contributory negligent in causing his own death, inspite of overwhelming evidences on the printed record pointing in exorably to the negligence of the deceased by placing himself on a dark unlit road at night with which had little vehicular traffic and without wearing any reflective clothing, the court summarily dismissed the Appellant’s plea of contributory negligence without as much as evaluating any evidence in respect thereof. Instead the trial court erred when it held in effect that the Appellant had admitted primary liability, which is contrary to the Appellants pleadings evidence and stance throughout the proceedings.
Learned counsel further submitted that Damages awardable under the Fatal Accidents law are not meant to be and are not as damages to which a plaintiff is entitled in breach of contract cases where the quantum of damages awardable are such as are expected to return the plaintiff to the position he would have been but for the breach by the defendant.
Learned counsel further submitted by awarding the 2nd – 4th plaintiff what their deceased father would have spent on them precisely for the next 22 years, but for his death at the hands of the Appellant the court was dearly making an award in the realm of damages for breach of contract.
Learned counsel submitted further that in the absence of a figure representing the amount the deceased spent on himself it is impossible to make any consequential deduction from his income before arriving at the available amount left over from which a correct quantum can then be deduced. See:- Jenyo & anor. Vs. Akinreti & anor (1990)2 NWLR (pt. 135) 663 at 678 – 679 Paragraph F – A.
Learned counsel submitted that the award is based on wrong principles of Law and is excessively high that it is an entirely erroneous estimate of the damages to which the plaintiffs are entitled. This is an ideal situation in which this court should interfere to disturb the award of damages. See:- S.P.D.C. (Nig.) Ltd Vs. Tiebo VII (supra); Nzeribe Vs. Dave/Eng. Co. Ltd. (supra).
Learned counsel submitted further that the case of the plaintiffs was that they would have been dependent on the deceased for 6-8 years. The court was without power to enlarge the dependency in its award to 22 years. The award is therefore wrong because the court cannot award a party a relief in excess of his claims. See: – S.B.N. Ltd. Vs. M.P.I.E. Ltd. (2004) 6 NWLR (part 868) 146 at 161 – 162 paragraphs H – A; Ekpenyong & 3 Ors, Vs, Nyong & ors (1975) 2 SC 77 at 80; I.M.N.L, Vs. Nwachukwu (2004) 13 NWLR (pt 891) 543 at 564 paragraph H.
Learned counsel submitted that the trial court failed to consider any factor in diminution of damages before making the award this is wrong and contrary to the principles guiding assessment of damages in torts causing death. The law is well settled that a court would refuse to grant an unreasonable unconscionable exaggerated and oppressive claim for damages. See: – R.C.C. (Nig.) Ltd. Vs. R.P.C. Ltd. (2005)10 NWLR (part 934) 615 at 638 paragraph A.
Learned counsel further submitted that the learned trial Judge erred when he held that the cover note issued by the 5th Respondent Exhibit SA5 was not enforceable by way of indemnity at the instance of the Appellant against the 5th Respondent in respect of the damages awarded by the trial court.
Learned counsel submitted further that the authenticity of the cover note on the payment of the renewal premium was not raised by the parties in their pleadings therefore it was wrong for the trial court to admit evidence on such matter, act on it and give judgment based on it see:- Stirling Civil Eng VS. Yahaya (2005) 11 NWLR (Pt. 935) 181.; Ishola Vs. UBN (2005) 6 NWLR (Pt. 922) 422 at 439; Benneth N. Okere Vs Prince O.D. Amadi & ors (2005) 14 NWLR (Pt 945) 559-861; Chief J.A Ademeso Vs Mrs Maria Okoro & Anor (2005) 14 NWLR (Pt. 945) 308 at 319 paragraph E-F.
Learned counsel to the 1st – 4th respondents/cross appellants in reply the appellant in his arguments in respect of the 4th respondent submitted that it is conceded that the 4th cross-appellant does not come within the category or class of people for whose benefit the action could be brought by virtue of Section 4 of the Torts Law of Oyo State, cap 124, Laws of Oyo State 1978. The 4 cross-appellant, being a brother of the deceased, does not have an independent cause of action arising from his death but has only claimed the funeral expenses he incurred on behalf of the 1st – 3rd cross-appellants Section 6 of the said Torts Law of Oyo State makes provision for award of damages in respect of funeral expenses incurred for burial of the deceased and that applying a literal approach to the interpretation of this section of the law, it would not matter whether the funeral expenses were borne by a brother once it is established that it was incurred on behalf of the named beneficiaries of the deceased.
Learned counsel submitted further that it is trite Law where a plaintiff claims special damages and he pleads and prove same by evidence which was not controverted, than that evidence must be acted upon by the court. See: – Odulaja Vs. Haddad, (1973) 11 SC 357. Maduga Vs. Bai (1981) 3 NWLR (pt 62) 635 at 642.
Learned counsel to the cross-appellants further submitted that, the learned trial Judge did not only properly evaluated the evidence of the parties and their witnesses but he also painstakingly reviewed this evidence as well as the submissions of the respective counsel to the parties on the issue before arriving at his conclusion on the issue of the appellant’s negligence and the absence of contributory negligence on the part of the deceased.
Learned counsel submitted further that it is settled law that a trial court has the primary responsibility of evaluating and appraising the facts and evidence led at the trial and ascribing credibility to witnesses who testified before him because of his advantage of seeing and hearing them during their testimony. It is also established Law that where the trial court has made use of this advantage of seeing and hearing the witnesses in the course of their evidence before him as in this particular case an appellate court should not interfere or disturb the findings of the trial court. See Ango Vs. Awawa (1998) NWLR (pt. 532) 146 at 153 paragraphs C – E.
Learned counsel submitted further that the sole basis for appellants contention that the lower courts finding was perverse is contention that the court should not have believed the evidence of PW1 because he stated that he had his back to the direction from which the appellant approached before hitting the deceased. However, when the evidence of PW1 is properly evaluated, as it was by the learned trial Judge, it will be seen that its probative value was only enhanced and not diminished by the witness honest admission of the position he was in at the time of the accident.
Learned counsel further submitted that these crucial items of the PW1’s evidence which the learned trial Judge accepted were not affected by whether or, not he was facing the direction from which the appellant approached. Those items of evidence were:
1. The fact the PW1, the deceased and the other gentleman with them were standing by the side of the road.
2. That judging by the distance the appellant carried the deceased after making impact he assessed the appellant speed at being at least 90Km per hour and (3) that the appellant caused his car to be on the wrong side of the road. The learned trial Judge accepted all these items of evidence in his judgment.
Learned counsel further submitted that it is the same vice that affected the appellant’s evidence in defence of the allegation of negligence that effected his assertion that the deceased was contributory negligent, his assertion of contributory, and negligence on the part of the deceased suffers the same fate as it was based on inconsistent and unconvincing evidence.
Learned counsel further submitted the attack of the appellant on the trial’s court reliance on the decision in Baker Vs. Lonaherst & Sons Limited (1933) 2 KB pp. 461 & 468 is cured by the Supreme Court of Nigeria decision in Ngilari Vs. Mother cat Ltd. (1999) 13 NWLR Pt 636 pp. 626 at 643 Paragraphs G – H and bears direct application to the facts of this case. If the appellant had not been driving in a negligent manner on that date of the accident and considering the nature and circumstances of the road, he would have been able to stop the car from colliding with the deceased on sighting him.
Learned counsel submitted that the cross-appellants are challenging the learned trial Judges evaluation and assessment of the evidence led with regard to the income of the deceased and contending that the learned trial Judge erred in his assessment of these sums in ascertaining the income of the deceased.
Learned counsel submitted further that the evidence given by PW6 on this point on behalf of the cross-appellants was neither challenged nor shaken during cross-examination by opposing counsel. Neither was the said evidence faulted by any of the defence witnesses. Where evidence of a witness is neither challenged nor controverted by the opposing parties, such evidence ought to be accepted as true by the court and given its due weight except the evidence is inherently incredible and incapable of belief. See: – Egbunike Vs. A.C.B Ltd. (1995) 2 NWLR (Pt 375) 34: Odulaja Vs. Haddad (supra).
Learned counsel further submitted that the trial Judge was in error when he refused to believe the evidence of PW6 as to the income the deceased earned in Nigeria solely on the ground that neither pay slip nor the annual returns of the companies of which the deceased was a director was tendered in evidence. There is no law that provides that the evidence of income of a person can only be established by way of documentary evidence of the soft sought by the learned trial Judge. See. Ekrebe Vs. Effrizomor II (1993) 7 NWLR (pt. 307) 580 at 607 paragraph B: F Agwaasen Vs. Ejibuwemeraye (2001) 9 NWLR (pt. 718) 395 at 407 paragraph H, 411 paragraph C; Kurobo Vs. Zach Matison Nig, Ltd. (1992) 3 NWLR (pt.339)102.
Learned counsel further submitted that the learned trial Judge erred in his application of the principles applicable to the assessment of damages for the trot of causing wrongful death. The applicable principles are no longer recondite and indeed the relevant authorities were cited to the learned trial Judge and were referred to him in his judgment unfortunately, however, he demonstrably failed to properly apply those principles in his assessment of the damages due to the 1st – 3rd cross-appellants. See: – Jenyo Vs. Akinreti (supra) Also Omole Vs. Adeyemi & ors (supra). The learned trial Judge not only erred in the assessment of the income of the deceased and also made an error in his application of the principles enunciated in the 2 cases cited above.
Learned counsel submitted further that this court should disregard the arguments proffered by counsel to the appellant in his brief to the effect that the failure of the cross-appellant to plead facts and lead evidence in support of the amount the deceased spent on himself and other outgoings in his life time is fatal flaw in the case of the cross appellant.
Learned counsel further submitted that this court is urged to disregard the argument of the appellant that the age of the 1st- 3rd cross-appellants at the date of the judgment has a bearing on the years of purchase that the Lower Court ought to have applied to multiply the datum or that the dependency 6-8 years pleaded by the 1st – 3rd cross-appellants in paragraph 20 (c) of the amended statement of claim ought to have been the outer limit of the number of years purchase to which they would be entitled.
Learned counsel submitted further that in respect of the 1st – 3rd cross-appellants the facts pleaded concerning the number of years of their dependency was pleaded with reference to their alternative claim and relief and not with reference to their main claim. It is trite law that the court will only consider an alternative relief if the principal relief is not granted. See:- Odutola Holdings Ltd. & Ors Vs. Mr. Kunle Ladejobi & Ors (2006) 12 NWLR (Pt.994) 327 at 352; M.V. Caroline Maersk Vs. Nokoy Investment Ltd. (200) 12 NWLR (pt 782) 486 at 509. The principal claim of the 1st – 3rd cross-appellants is not based on an asserted dependency of 6-8 years and the award of the principal relief employing a datum or years of purchase in excess of 8 years would consequently not mean that the court has enlarged the claim of the plaintiff or that the court has granted to the plaintiff more than what they claimed.
Learned counsel submitted further that in carrying out a fair assessment of the damages to which the 1st – 3rd appellants are entitled; regard being had to a proper assessment and evaluation of the evidence led and admitted and the applicable principles for assessment of damages in the circumstances.
Learned counsel further submitted that with respect to the 5th respondent the learned trial Judge was in error in arriving at the conclusion that the appellant did not pay the premium due prior to the issuance of the cover note, based on the pleadings of the parties and the admissible evidence led thereon. On the applicable law the 5th respondent would still remain liable to indemnity to the appellant and settle the judgment entered against the appellant in favour of cross-appellants.
Learned counsel further submitted that the 5th respondent in his pleading as regards the cover note did not plea that the cover not was invalid because the appellant had not paid the premium due on it. On the contrary, the specific pleading was that the cover note could not revive the appellants expired policy of insurance.
Learned counsel further submitted that it is trite law that evidence led on any issue that was not pleaded goes to no issue and will be struck out. See: – Okoko Vs. Dakolo (2006) 14 NWLR (pt. 1000) 401 at 422; Gagarau Vs. Pashiri (2006) 1 NWLR (pt 962) 527 at 538; Nitel Plc. Vs. Akwa (2006) 2 NWLR (pt. 964) 891 at 415. Ndah Vs. Chianuokwu (2006)17 NWLR (Pt.1007) 74 at 84 Also see order 25
Rule 6 of the Oyo state High Court Civil procedure) Rules1988.
Learned counsel further submitted that it is also established law where evidence that is not pleaded is extracted during cross-examination, a party who seeks to place reliance on such evidence must amend his pleadings to plead the facts upon which such evidence will rest. See:- Woluchem & Ors. Vs. Gudi & Ors (1981) NSCC 214 at 217; Gagarau vs. Pashiri (supra). The respondent in this case did not do this and it remained the case that there was no pleading to support the evidence that the appellant did not pay the premium due for the cover note issued to him.
Learned counsel submitted further that before section 149(d) of the Evidence Act can be invoked against a party to a suit, the following conditions must co-exist. It must be established that the piece of evidence is available, that, if a document, it could be produced by the application of due diligence, that the document is capable of production in court, that the party has intentionally refused to produce it and that if produced this evidence would have been unfavourable to the party with holding it. If these conditions do not co-exist then the section cannot be invoked against any party. See: – Aremu Vs. Adetoro (2007) 16 NWLR (pt 1060) 244 at 267: Udo Vs. Okupa (1991) 5 pt 191) 365 at 386.
Learned counsel further submitted that section 149(d) of the Evidence Act was wrongly invoked by the lower court against the appellant because there was no evidence on record that the receipt for the premium paid for the cover note was available but was not produced. Similarly, there was no evidence as to the identity, where about or continued existence of the broker through whom the premium was paid. Also, the appellant did not say that he reported the accident to the respondent’s predecessor in title through one Mr. Jide Adejumo, a broker, but rather he reported the accident in company of Mr. Jide Adejumo. He did describe Mr. Adejumo as a broker. The circumstances under which section 149(d) of the Evidence Act could be invoked did not exist in this case and the learned trial Judge erred in invoking the section against the appellant and using it as a basis of his finding that the appellant had no insurable interest with the respondent at the time when the accident involving the appellant and the deceased accrued.
Learned counsel further submitted that Exhibit SA5 is a legally binding contract of insurance between the appellant and the respondent which the lower court ought to have enforced in favour of the appellant and the cross appellant. The issuance of Exhibit SA5 to the appellant and the appellants reliance on it establishes beyond doubt that the appellant had accepted the offer represented by the issuance of the cover and that a valid contract of insurance had come into being pursuant to which the respondent was bound to provide the cover stipulated in the cover found to pay the premium, if it had not paid already, which is not conceded. See: – Taylor Vs. Allon (1966) 1 QB 304 at 311; Nasidi Vs. Mercury Assurance Co. Ltd (1971) ANLR 523 at 528.
Learned counsel submitted finally that it is an error on the part of the court to insist that where judgment is entered in foreign currency, foreign currency is convertible into naira equivalent at the date of payment or enforcement of judgment. See: – Barclays Bank Ltd vs. Levin Bros. Bros Ltd (1976) 3 ALL ER 900; Broad line Ent. Ltd Vs. Monterey Maritime Corp. (1995) 9 NWLR (Pt. 417) 1 at 30.
On the part of the 5th respondent learned Counsel Victor shodipe Esq., submitted on issue No.4, the claim for indemnity by the Appellant against the 5th respondent, that the decision of the learned trial Judge that the 1st Defendant/Appellant had failed to adduce sufficient evidence to sustain the contract of indemnity arising from the alleged insurance effected with the 2nd Defendant/Respondent cannot be faulted. The Appellant was unable to produce the receipt or proffer any other verifiable evidence of payment of the premium, worse still neither the broker to whom the premiums were paid nor the one whom the report of the accident was made were called to lend credence to the claims of the Appellant. The evidence led was so patchy and unreliable as to render the claim speculative in nature.
Learned counsel submitted further that it is trite law that he who asserts must prove, Section 137 of the Evidence Act. In asserting liability on the part of the 5th Respondent company the Appellant was obliged to establish same through a preponderance of evidence. The Appellant has not only failed to proffer the required evidence but appears also to misconceive the onus on him. The Appellant had a duty to establish its own case and not to rely on the weakness of the 5th respondents cases and misconceive issues.
Learned counsel submitted further that rather than apply strenuous efforts to establish the existence of a contract as a first step, the Appellant has chosen to query the trial Judge’s acceptance of the evidence of DW2, which was legitimate on the part of the trial Judge, given the documents tendered by the witness and the inability of Appellant’s counsel to dent the credibility of DW2 under cress-examination.
Learned counsel further submitted that it is also difficult to appreciate the contention of the Appellant in paragraph 4:51 of his brief that the authenticity of the cover note on the payment of the renewal premiums was not raised in their pleading when the position of the 5th Respondent all along was that there was no record of the renewal of the insurance and in fact no premium was ever paid after June 1986. It is to be pointed out that the Appellants contention does not arise from its Notice of Appeal, in view of the particulars itemized in ground 8 of its Notice of Appeal.
Learned counsel further submitted that it is thus quite clear from the pleadings that the denial of the existence of a contract of insurance was in variably a denial of the authenticity of any cover note, the payment of premium or the satisfaction of any prerequisite for the creation of a contract of insurance. The contentions of the appellant thus evidence an insufficient appreciation of the thrust of the pleadings. See: – J.O. Orojo Nigerian Commercial Law & practice Vol. 1 paragraph 10.33 at page 698.
Learned counsel further submitted that the salient points to be noted from the testimony of DW1 (i.e. the Appellant) is that the insurance allegedly taken out was a “third party policy” and not a “Comprehensive” insurance as pleaded in his amended statement of claim. Further he claimed to have been unable to retrieve the policy from the police and then proceeded to advance orally a reaction of the terms of the policy which had admittedly expired. No evidence was given as to the terms of the cover note, which was allegedly in force. Also no notice to produce was ever given to the 2nd Defendant to produce a counter part of the policy further more there was simply no evidence of payment of premium.
Learned counsel further submitted that the DW2 as a company acquired liberty insurance co. (the Appellants) original insurers upon terms delimiting the scope of liability and that from their records the appellants insurance lapsed on the 11th December, 1984 and that the 1st Defendant’s cover note expired in June 1986.
Learned counsel further submitted that given the flaws in the Appellant’s case, the findings of the learned trial Judge cannot be impugned. Apart from the failure to tender necessary documents DW1 also failed to call crucial witnesses to attest to his claims. See:- Ereku Vs. Queen (1959) NWLR 77 at 79.
Learned counsel further submitted that if the person who appellant dealt with in effecting his insurance were well and alive, there was absolutely no justification for his failure to call them as witnesses in confirmation of his testimony or produce the receipt for the payment of premium. The learned trial Judge thus rightly invoked section 149 against the appellant and the fact that the trial Judge did not invoke the same section against the plaintiffs in relation to some aspect of the claim cannot be a basis for impugning its proper application to the claim against the 2nd defendant for rejecting the claim for indemnity against it. See:- Neka BB Manufacturing Co. Ltd. Vs. A.C.B. Ltd. (2004)4 NWLR (pt. 855) 521 at 549.
Learned counsel finally submitted that in view of the foregoing submissions the appeal as against the 5th-Respondent should be dismissed.
W.R. Olajide learned counsel to appellant and cross- respondent in his reply to the cross-appellant’s brief submitted that the cross-appellants concede that the 4th defendant at the Lower Courts claim does not come within the category or class of people for whose benefit the action at trial court could be brought by virtue of section 4 of the torts Law of Oyo State Cap 124, Laws of Oyo State, 1978. They however argue that upon a literal interpretation of Section 6 of the same law that anybody is entitled to claim expenses under this provision as long as they can establish that these expenses were incurred on behalf of the named beneficiaries of the deceased. This argument is misconceived as the cardinal rules of interpretation of statutory provisions requires that statutory provision should always be construed as a whole and should be given an interpretation consistent with the object of the entire statute. See: – Bakare Vs. NRC (2007) 17 NWLR (Pt 1064) 606 at 639. Odutota Holdings Ltd. Vs. Ladejobi (2006) 12 NWLR (pt. 994) 321 at 358; Unipetrol Vs. E.S.B.I.R (2006) 8 NWLR (Pt. 983) 624 at 641; Rivers State Government Vs. Specialist Konsolt (2005)7 NWLR (Pt 923) 145 at 179.
Learned counsel submits further that the proper approach would therefore be a joint reading of Section 4 and Section 6 of the above Law. A literal Construction of the provision reveal that the only recognized parties entitled to bring an action under the provision of the Torts Law of Oyo State does not include the 4th Defendant.
Learned counsel submitted further that it is trite that where the provisions of a statute are unambiguous the expressions or words therein must be given their plain and ordinary meaning and the court will not expand those provisions to include any extraneous provisions not stated there in. See: – Tasha Vs, UBN. PLC. (2000) 3 NWLR Pt. 753) 99, Araka Vs. Egbue (2003) 17 NWLR (pt. 848) 1 at 21 A.G. Federation VS. Guardian Newspaper (1999) 9 NWLR (Pt. 618) 187 at 264; Oviawe Vs. I.R.P (NIG) Ltd. (1997) 3 NWLR (pt. 492) 126 at 719.
Learned counsel further submitted that a claim for funeral expenses is one in the realm of special damages which must be specifically proved. See: – Obasuyi v. Business Ventuires Ltd (2000) 5 NWLR (Pt 650) 688; R.C.C. (NIG) Ltd. Vs. R.P.C. Ltd. (2005) 10 NWLR (Pt. 934) 515 at 637.
Learned counsel further submitted that the issue of evaluation of evidence would not entail issues of credibility of witnesses but is simply an issue of non-evaluation or improper evaluation or appraisal of evidence by a trial court, an appellate court is in as good position as the trial court to do its own evaluation where the decision of the trial Judge is not properly borne out by the totality of evidence an Appellate Court is competent to re-evaluate and arrive at its own decision. See: – Abisi Vs. Ekwealor (1993) 6 NWLR (Pt.302) 673; Adeleke Vs. Iyanda (2001) 13 NWLR (Pt. 729) 1 at 20; Isokwa Motors (NIG) LTD Vs. UBN Ltd (1996) 9 NWLR (Pt. 417) 129 at 145.
Learned counsel further submitted that what makes any judgment perverse and unreliable can be seen in the following cases: – chukwu vs. Nneji (1990) 6 NWLR (pt. 156) 363 at 375 Uwegba Vs. A.G. Bendel State (Pt. 16) 303 at 323;.
Learned counsel further submits that the cross-Appellants submission on Baker vs. Longherst and sons Ltd (supra) is misconceived and underlines the Less than satisfactory evaluation of evidence of trial Judge. A more apposite case would be: – Kniaht vs. Fellick (1977) R.T.R 316 where a plaintiff was run down at night in an unlit street by a motorist who had his lights on but failed to see the plaintiff.
Learned counsel submitted further on contributory negligence, the defence connotes that in the event that there was indeed negligence, the deceased himself played a role in the circumstances that contributed to his death.
Learned counsel further submitted that the position of the Law with regard to judgment delivered in foreign currency provides that the courts in appropriate cases have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed. The amount shall however be payable at the relevant exchange rate of the naira the Nigerian currency. See: – Broadline Enterprises Ltd. Vs. Monterat Maritime Corporation (1995) 10 SCNJ 1 at 26; Nwankwo Vs. Ecumerical Dev. Co. Society (2002) NWLR (pt 749) 513 at 543: Harka Air Services Ltd. Vs. Keazor (2006) 1 NWLR (pt. 960) 160 at 186.
This court took a calm examination of all the submissions. The clear starting point is the position of the 4th Respondent who was joined as 4th plaintiff at the trial court. His joinder as a party to this suit raised a lot of controversies. The first issue is the provision of Section 4 and 6 of the Torts Law of Oyo State cap 124 Laws of Oyo State 1978. The Law had set the category or class of people for whose benefit the action could be brought. In particular Section 4 of the said Law. The action is brought for the benefit of the “wife or wives, husband, parent and child of the person whose death shall have been so caused.” The 4th respondent (4th plaintiff at the trial) was described as the Elder Brother of the deceased. The 4th respondent had laid a claim for the award of the sum of 2,500 (pounds) and N5000 for his expenses on the funeral rites of the deceased person, and was awarded the stated sum by the trial court in its judgment which is the subject of this appeal. It is this award that the Appellant has challenged. The main contention is that the trial court made an award to a party improperly joined in the suit having not being listed categorically by the Torts Law of Oyo State cap 124, Law of Oyo State 1978.
In reaction to this contention at page 3 paragraphs 3. 1. 2. of the brief of argument of the 1st- 4th respondents stated as follows:-
“It is conceded that the 4th cross appellant does not come within the category or class of people for whose benefit the action could be brought by virtue of Section 4 of the Torts Law of Oyo State, cap 124, Law of Oyo State 1978. The 4th cross-appellant being a brother of the deceased, does not have an independent cause of action arising from his death but has only claimed the funeral expense he incured on behalf of the 1st – 3rd cross-appellants.
Paragraphs 3. 1. 3. States:-
“It is humbly submitted that section 6 of the said Torts Law of Oyo State makes provision for an award of damages in respect of funeral expenses incurred for burial of the deceased and that applying a literal approach to the interpretation of this Section of the Law, it would not matter whether the funeral expenses were borne by a brother once it is established that it was incurred on behalf of the named beneficiaries of the deceased.”
It is a clear principle deeply enshrined in our jurisprudence that admissions made do not require to be proved for the simple reason, among others that “Out of the abundance of the heart the mouth speaketh.”
The 1st – 4th cross-appellants conceded that the 4th cross appellant in their brief of argument does not come within the category or class of people for whose benefit the action could be brought by virtue of section 4 of the Torts Law of Oyo State cap 124, Law of Oyo State 1978. The Law is settled “that no better proof is required than that which an adversary wholly and voluntarily owns up” per Aniagolu, JSC (as he then was) in Chief Chukwuemeka Odumegwu Ojukwu Vs, Dr. Edwin Onwudiwe & Ors. (1984) S.C. 15. at 88. Also See Hauwa Ubudu Vs. Bulana Abdul-razak (2001)7 NWLR (pt 713) 669; Nigerian Industrial Dev. Bank Ltd. Vs. Olalomi (2002) 28 WRN 66; Mohammed Sani Abacha & anon Vs. The State (2002) 9 MJSC 1: A.G. Abia State (2002) NSCQR 153: A.G. of Lagos State Vs. Hon. Justice L.J. Dosumu (1986) 3 NWLR (PT. 111) 552.
Despite the admission by the cross-appellants in relation to the joinder of the 4th cross-appellant, they want the application of a literal approach to the interpretation of the Law, they maintained it would not matter whether the funeral expenses were borne by a brother once it is established that it was incurred on behalf of the named beneficiaries of the deceased. The record of the court is very clear; the award for the funeral expenses was made by the trial court based on the claims expended by the 4th cross-appellant in person not on behalf of the 1st – 3rd cross-appellant. On the interpretation of the provision of a statute which are clear and unambiguous this court agrees with the submission of the learned counsel to appellant in his reply to the cross-appeal that the expressions or words therein must be given their plain and ordinary meaning and the court will not expand those provisions to include extraneous provisions not stated therein. The cases cited by counsel on this point are quite apposite. See: – Tasha Vs. UBN Plc. (supra); Araka Vs. Egbue (supra) A.G. Federation Vs. Guardian Newspaper (supra); Oviawe Vs. I.R.P. (supra).
On the whole therefore the joinder of the 4th cross-appellant (4th defendant) at lower court, to this suit, is declared as improper by this court as it was made not in compliance with Section 4 of the Torts Laws of Oyo State, cap 124 Laws of Oyo State 1978. The award of the sum of 2, 500, (pounds) and N5000:00 made by the trial court in favour of the 4th cross-appellant is hereby set aside by this court. On this point the appeal succeeds.
Another point in this appeal is whether or not the trial Judge properly and correctly evaluated the evidence and came to the right decision on the negligence of the Appellant and the resultant death of the deceased. This aspect of the appeal can be sub-divided into two (2) parts. (1) The contention of the appellant in relation to the evaluation of the facts brought before the trial court; (ii) the position of the cross-appellant’s in relation to the evaluation of the facts by the trial court in its judgment as argued in their cross-appeal.
On the main appeal the sole basis for the appellant’s contention was that the Lower Courts finding was perverse, because the court should not have believed the evidence of PW1, because he stated that he had his back to the direction from which the appellant approached before hitting the deceased.
What then is a perverse decision of a court? A perverse decision of a Court arises where the court misconceived the issue presented before it. See: Udengwu Vs. Uzuegbu (2003) 13 NWLR (Pt 836) 136; Oguleke Vs. Oyelakin (2003) 27 WRN 127; Zaki and Ors Vs. Magayaki & ors (2002) 15 WRN 154; Oba Felix Abidoye Vs. Oba Jacob Alawodwe (2001) 3 SC; R.T.H.P.C.N Vs. Rev. Ayeni (2002) 30 WRN 133; Afri Bank Nig. Plc. Vs. Muraina Adeniyi Alade (2000) 15 WRN 16; Joseph Agbon Ojeme vs. Prince Mark Jimoh Momodu (1994) NWLR (pt. 323) 485; Jacob Bankole Vs. Amodu Tijani Dada (2003) 5 WRN 40; Iwuoha Vs. Nigerian Postal Services Ltd (2003) 8 NWLR (Pt. 822) 308.
From the assessment of the facts contained in the judgment at page 109 of the records, the trial Judge considered the following: – (i) the fact that PW1, the deceased and another gentleman with them were standing by the side of the road (ii) judging by the distance the appellant carried the deceased after making the impact, he assessed the appellants speed at being at leash 90Km per hour and (iii) that the appellant caused his car to be on the wrong side of the road.
Can the trial court after the assessment of the evidence of PW1 who was an eye witness right at the time of the accident stated all that he saw? He PW1 truthfully said that he backed the direction of the approach of the appellant but stated what he saw from the time of the impact to hitting the deceased person. I have no doubt in my mind that the trial Judge had not misconceived those facts presented before him by pw1, and thus his evaluation and final decision in finding appellant negligent which resulted in the death of the deceased person was no perverse, and this court agrees with the decision of the trial court. The Appellants appeal therefore fails on this point.
The cross-appellants in their own brief maintained that the trial court evaluated and assessed all the facts presented by the pw1 the eye witness correctly before it and they agreed with the trial court that the appellant was negligent. Thus court also examined the evaluation and the assessment of the facts made by the trial court at page 110 0f the record and a1so agrees with the trial court. It is trite law that where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate court to substitute its own views for those of the trial court. See: – Woluchem Vs, Gudi (1981) 5 SC 291; Agbeje Vs. Ajibola (2002) 93 LRCN 1 at page 17 ratio 10.
Another point for consideration is whether or not the damages awarded in favour of the cross-appellants was done in accordance with the established principles of Law relating damages, whether it was under estimated or made excessive by the trial court. This point is also subdivided into two (2) (1) the side of the appeal. The cross – Appeal.
The established law in terms of mental suffering or injury to feelings, which is the basis of the cross-appellants claim at the Lower court as a result of the negligence of the appellant, untimely death of the deceased occurred, is to be found in MC Gregor on Damages (14th Edition page 47-where in it is stated:-
“Mental suffering is not by itself sufficient damage to ground an action. As Devlin J. said in Behrens Vs. Bertram Mills Circus (1957) 2 Q.B. 1 at 28. “The general principle embedded in the common law is that mental suffering caused by grief, fear, anguish and the like is not assessable.
However, once liability has been established then in certain torts compensation for injury to feelings may be included in the damage and indeed in torts infringing family relationship the injury to feelings represented the principal loss.”
In the case of the appeal of the appellant attempt was made to whittle down the scale of the negligence by arguing contributory negligence. The appellant maintained from the record that the deceased had placed himself in a dark unlit road, and was not wearing reflective clothing which caused the accident. The trial court in its evaluation stated earlier in this judgment defeated this argument when it estimated the speed at which the appellant was travelling about 90Km per hour, and that the accident was avoidable but for the excessive speed. This court earlier had agreed with the assessment of the trial court, so liability for negligence had already been established against the appellant. By going ahead to assess and award damages on these heads as claimed by the cross-appellants was not strictly in compliance with the established law on the subject. The argument of the appellant on this point fails.
On the cross-appeal the arguments of the cross-appellant that the trial Judge erred in his evaluation of evidence in support the income of the deceased person. The cross-appellants are more particular that there is no Law that provides that the evidence of income of a person can only be established by way of documentary evidence of the soft, sought by the learned trial Judge.
In examining this claim by the cross-appellants what the Law requires is that a claim for special damages must be specifically pleaded and strictly proved. In other words-the plaintiff should sufficiency particularize it to enable the court decides whether all or part of it can be granted and should establish his entitlements to special damages claimed by credible evidence. See: – Neka BBB Mfg. Co. Ltd. Vs. A.C.B Ltd. (2004) 2 NWLR (pt 858 521 at 557.
In particular at page 527 ratio 2, on the meaning and requirement of strict proof of special damages.
“Special damages must be strictly proved. And the term “strict proof’ required in proof of special damages means no more than that the evidence must show the same particularity pleading. It should therefore normally consist of evidence of particular losses which as exactly known or accurately measured before the trial. Strict proof does not mean unusual proof. It simply implies that a plaintiff who has the advantage of being able to base his claim upon must give the defendant access to the facts which make such calculation possible.”
See: – Imana Vs. Robison (1979) 3 – 4 SC 1; U.B.N. Vs. Odusote Bookstore Ltd. (1994) 3 NWLR )Pt. 331) 129; Joseph Vs. Abubakar (200) FWLR (Pt. 91) 1525; Okorokwo Vs. Chukwueka (1992) 1 NWLE (Pt. 216) 175.
From the above therefore, the law allows some level of discretion to be exercised by the trial court of the claim of all or part of the claim of damages listed by the claimed is to be granted. From the record before the claims of the 1st – 3rd cross- Appellants were sufficiently particularized at the court of trial. Nowhere in the record had it been shown that the trial court exaggerated those claims. The Appellants appeal on this point fails. The Appellant’s appeal on this point fails.
Turning now to the Cross – Appeal, where the Cross – Appellants, strenuously argued the trial Judge erred in granting part and not all the claims they had put forward. Again the Law is already trite on this the trial court is to decide whether to grant all or part of such claim. I cannot find as part of the argument proffered by the cross Appellant that in the exercise of that discretion the trial court had not acted judiciously or judicially. The trial court had the benefit of hearing from the claimants and or their witnesses, and did assess what it felt was fair and just in the given circumstance. This court has no reason before it to interfere with the award made by the trial Court for the benefit of the 1st -3rd Cross – Appellant. It is the decision of this court remains the award. In respect of this point too the cross – Appeal fails. On the award of cost being discretion on the part of the Trial court. see:- U.B.A. Ltd vs. stalibau Gm6h & CO. kg (1989) 6 SCNJ (Pt.1) At 181; F.A Akinbobola Vs. Plisson Fisko Nigeria Ltd & Ors (1991) 1 SCNJ 129 at 133; Haco Ltd. Vs. S.M. Dapo Brown (1973) 4 Sc 140; Adenaiya Vs. Governor – in – Council (1962) 1 All N.L.R. 308″.
Another point is the dismissal by the trial court of the Appellants claim for indemnity against the 5th Respondent founded on the insurance cover note Exhibit SA5. This point is a1sto sub-divided into two:-
(i) The contention of the Appellant in his brief of Argument.
(i) The contention of the Cross – Appellant in their brief of argument.
The Appellant maintained that the trial court had erred when it discharged the 5th Respondent from liability when in accordance with the Law, Exhibit SA5 being an extension of, and referable to the contract of insurance between the Appellant and 5th Respondent could only stand or fall by the contents of the contract of Insurance. The 5th Respondent who sought to avoid liability did not produce the contract and show what manner any attempt to enforce Exhibit SA5 would be contrary to or at variance with the Insurance contract.
The Cross – Appellants on this issue submitted that Exhibit SA5 is a legally binding contract of Insurance between the Appellant and the Respondent which the Lower Credit ought to have enforced in favour of the Appellant and the Cross – Appellants. The Issuance of Exhibit SA5 to the Appellant and the Appellant’s reliance on it establishes beyond doubt that the Appellant had accepted the offer represented by the issuance of the cover note and that a valid contract-of insurance had come into being pursuant to which the respondent was bound to provide the cover stipulated in the cover note whilst the Appellant was bound to pay the premium, if it had not been paid already, which is not conceded.
In answer to the Appellant, and the Cross -Appellant the 5th Respondent in his brief of argument maintained that it is trite Law that who asset must prove, section 137 of the Evidence Act. In asserting liability on the part of the 5th Respondent Company the Appellant was obliged to establish same through a preponderance of evidence. The Appellant failed to proffer the required evidence and also misconceived the onus on him.
The contention of the Appellant on Paragraph 4:57 of his brief that the authenticity of the cover note on payment of the renewal premiums was not raised by the parties in their pleadings when the position of the 5th Respondent all along was that there is no record of the renewal of the Insurance and in fact, no premium was ever paid after June 1986. It is thus quite clear that from the pleadings that the denial of the existence of a contract of Insurance was invariably a denial of the authenticity of any cover note the payment of premium or the satisfaction of any prerequisite for a creation of a contract of Insurance.
The Learned Trial Court discharged the 5th Respondent from liability as contained at page 115 – 116 of the record of appeal invoking the provisions of Section 149 (d) of the Evidence Act. The Learned Trial Court in reviewing the submissions of the parties before it, on this point came to the conclusion that the Appellant had not provided evidence on record that the receipt for the premium for the cover note was available but was not produced. Similarly, there was no evidence as to the identity where about or continued existence of the broker through whom the premium was paid.
The Trial court invoked the provision of section 149 (d) of the Evidence Act and discharged the 5th Respondent of any liability to the Appellant and by extension to the Cross – Appellants.
Both the Appellant and the cross Appellants contended that the invocation of section 149 (d) of the Evidence Act by the court in the given circumstance was misdirection.
For the purpose of clarity this court will reproduce the provision of Section 149 (d) of the Evidence Act. It provides:-
“That evidence which could be and is not produce be unfavourable to the person who withholds it”
Looking at the position of the Appellant, his intention to shift liability to the 5th Respondent insisting on an existing Insurance contract, and the information which he himself provided to the court is satisfied that the trial had not misread it, when it invoked section 149 (d) of the Evidence Act to discharge the 5th Respondent from the liability.
It is however apposite to state here that, the submission made by the 5th Respondent in his Brief of Argument relying on the provision of section 137 0f the Evidence Act that, he who asserts the Law requires him to prove would have been more of an assistance to the Trial Court.
From the record before the court, it was the Appellant who had asserted the existence of an Insurance cover – Note contract between the 5th Respondent company and himself. If he intends to take refuge on the existence of a valid contract between the two, which invariably would transfer liability to the 5th Respondent the onus of proof is on him squarely, and will not shift to the 5th respondent or anyone else. See: Section 137 (1) of the Evidence Act which provides:-
“In Civil Cases the burden of first proving the existence of a fact lies on the party against whom the judgments of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
The Law is settled that he who asserts must prove and that it is on the Plaintiff who is claiming a relief or remedy to prove his case, and the onus remains on him until it is discharged. See: – Jules vs. Ajani (1980) 5-7 Section 96. See also, Kokorowo Vs. Ogunbambi (1993) 8 NWLR (Pt. 313) 627; Olufosoye vs. Fakorede (1993) 1 NWLR (pt. 272) 1; Balogun Vs. Labiran (1988) 3 NWLR (Pt. 80) 66; Olusesi Vs. Oyelusi (1986) 3 NWLR (PT.31) 634; Jalco Ltd Vs. Owoniboys (1995) 4 SCNJ 256; Famfa Oil Ltd Vs. A.G of the Federal (2003) 11 MJSC 66; Anozie Vs. Aluko (2001) 37 WRN 133; Abasi Vs. Onido (1998) 6 NWLR (Pt. 548) 89.
Since the Appellant failed to discharge the onus placed on him by Law against his claims to the 5th Respondent, his appeal on this point fails. This is also applicable to the Cross – Appeal, since the Appellant fails the Cross – Appellants too fails with him. The Cross – Appeal a1sto fails on this point.
On the point that the trial Judge was wrong when he held that the judgment in Foreign Currency could only be claimed in Naira under the relevant exchange rate as established by the plaintiff as at 23rd May 2002 as per Exhibit SA23. This point was raised by the Cross – Appellants in their Cross – Appeal. The resolution of this Court to the effect that the issue of award of damages is an exercise of discretion on the part of the trial either to grant all or part of the Plaintiffs claims before it. By the extension of the exercise of the same powers by Court, once the award of damages is made, the Court reserves the right to set how and by what means the Defendant is to settle the award. The order of the Trial Court that the judgment delivered in Foreign Currency and could only be claimed in Naira under the relevant exchange rate is not interfered by this Court as it was made sequel to the exercise of a discretionary power by the Trial Court. The Cross Appeal also fails on this point.
On the whole this Appeal succeeds in part, and this Court makes the following Orders:-
(1) The award of damages made by Sanda J. in his Judgment delivered on the 30th day of September 2002, in suit No. 1/692/89 in the High Court of Justice Ibadan, in the Judicial Division in the Sum of N5000.00 and 2, 500 (pounds) respectively in favour of the 4 Cross – Appellant (Plaintiff) Mr. A.O. Atakija against the Appellant (1st Defendant) for funeral expenses of Late Robin Alakija (his Brother is hereby set aside by this Court.
(2) The award made in favour of the 1st – 3rd Cross-Appellant in the sum of 682, 000.00 (pounds) as damages against the Appellant (1st Defendant) for the negligence of the Appellant in causing the death of Robin Alakija the father of the 1st – 3rd Cross Appellants on the 22nd of September, 1986 remains valid and subsisting.
(3) The order of the Trial Court in its judgment that the Foreign Currency could only be claimed in Naira under the relevant exchange rate established by the Cross – Appellants as at 23rd May, 2002 as per Exhibit SA23 remain valid and subsisting.
(4) All the remaining issues in the appeal, and the Cross -appeal which failed in this judgment, are hereby dismissed by this Court. Parties to bear their own costs.
MODUPE FASANMI, J.C.A.: I have read before now the lead judgment of my learned brother S. D, Bage J.C.A. which I entirely agree.
In the judgment aforesaid, all the issues submitted for the determination of the appeal have been admirably, exhaustively and comprehensively dealt with. I adopt the reasoning as mine.
The appeal succeeds in part while the Cross-Appeal fails in its entirely and it is accordingly dismissed. I abide by the consequential order made on costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Bage, J.C.A., availed me with the opportunity of reading in draft the exhaustive judgment prepared by him. I am in complete agreement with his lordship on the reasoning and conclusion reached in the said judgment.
Section 4 of the Torts Law (Cap.124) Laws of Oyo State, 1978, enumerated the class of persons to benefit brought under the said law thus:
“Wife or wives, husband, parent and child of the person whose death shall have been caused.”
The above quoted law, therefore, restricts or limits the claimants to the nuclear or immediate family of the deceased, not to his or her relations or members of the extended family.
The 4th cross-appellant was described in the court below as the elder brother of the deceased. Certainly, 4th cross-appellant does not belong to the class of persons contemplated by the clear and unambiguous provision of section 4 of the Torts Law (supra). He was, therefore, not a necessary or even desirable party to the suit. His joinder in the suit was, on that basis wrong. The case of Holmes v. Breedy (1961) W.N.L.R. 237, establishes that brothers of the deceased are not parties who can sue under the said Torts Law.
What keeps an insurance policy valid or afloat is up-to-date payment of the premium or consideration by the insured or policy holder, to the insurance company or the insurer. The onus of proof of payment of the from an action of fatal accident premium lies, primarily, on the insured, unless the insurer does not dispute the payment.
The cross-appellants alleged payment of the premium for their insurance cover in Exhibit SA5. The 5th respondent qua insurer vehemently denied the payment. The law is clear. He who asserts must prove before the burden would shift on the other side to rebut the evidence – see sections 135, 136 and 137 (1) of the Evidence Act.
The cross-appellants did not produce evidence to establish payment of the premium to keep the insurance cover in Exhibit SA5 valid or subsisting at the material time. The production in evidence of the receipt or document issued by 5th respondent evidencing the payment of the premium would have been prima-facie proof of the payment and the burden would have shifted to 5th respondent to prove or rebut otherwise – see by analogy the case of Macaulay v. Seriki and Another 6 N.L.R. 92 at 93 thus:
“The giving of the receipt by defendants is of course prima-facie proof of their having received from the plaintiff the sum of E200 referred to therein, but it is not conclusive proof, and the presumption which arises from the giving of the receipt could be rebutted by evidence showing that in fact the money did not pass from the plaintiff to the defendant, but any such evidence would have to be so conclusive a nature as to leave no reasonable doubt on the subject.”
Damages for mental agony, nervous shock or psychological trauma may be claimed and awarded, in appropriate cases, under personal injury I cases, not in fatal accidents claims – see Iyere v. Bendel Feed and Flour Mills Ltd. (2008) 12 SCNJ 412.
For the above reasons and the fuller reasons given in the judgment of my learned brother Bage, J.C.A., I, too, would allow the appeal in part and abide by the consequential orders made in the said judgment.
Appearances
W. A. OlajideFor Appellant
AND
B. A. M. Ajibade SAN for the 1st-4th Respondent/Cross Respondent with J. Moshood
T. A. B. Oladipo for the 5th Respondent with B. Sodipe and M. A. Tejumade.For Respondent
