DORTMUND COMPANY (NIG.) LIMITED & ANOR V. MR. ABUGU ELIAS
(2013)LCN/6741(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2013
CA/EK/31/2012
Before Their Lordships
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria
Between
1. DORTMUND COMPANY (NIG.) LIMITED
2. MR. OLABANJI ROBERTAppellant(s)
AND
MR. ABUGU ELIASRespondent(s)
RATIO
WHETHER OR NOT ISSUES NOT COVERED BY A GROUND OF APPEAL IS INCOMPETENT
It is trite that any issue not covered by a ground of appeal is incompetent and it should be struck out. An appellate Court can only hear and decide an appeal based on the issue raised on the grounds of appeal before it.
See the case of: ACHIAKPA VS NDUKA (2001) 14 NWLR PART 734 PAGE 623 at 663 PARAGRAPHS A – C, F-G. PER BADA, J.C.A.
WHETHER OR NOT THE COURT CAN GRANT A RELIEF NOT CLAIMED BY PARTIES BEFORE IT
The pertinent question that comes to mind at this juncture is – Can the Court grant a relief not claimed by the parties?
In ONAKOYA VS SANTILLI (SUPRA), the Supreme Court at Page 303 held among others that:-
“In the first place, it is not the duty of a Court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of a claim by a party to a dispute and then proceed to make a declaration or finding which such a party has not specifically sought and may not in fact desire. It would be certainly improper for the Court so to do unless, of course it were prepared to order an amendment of pleadings in which case it would be necessary to give the other party an opportunity of what would be an entirely different case…… put differently, it is not and has never been the function of a court of law by its own ingenuity or exercise to imagine, speculate on or to supply evidence or work out the mathematics of arriving at an answer in a case which only evidence tested under cross-examination could supply……….
In the second place, it is a basic principle of law that parties are bound by their pleadings and that evidence which is at variance with the averments in the pleadings goes to no issue and should be discountenanced or disregarded by the Court.
Thirdly, it is a fundamental principle in the determination of disputes between parties that Judgment must be confined to the issues raised by the parties in their pleadings and not otherwise. It is therefore not competent for the court suo motu to make or formulate a cause for either of the parties before and then proceed to give judgment on the case so formulated contrary to the case of the parties before it.” PER BADA, J.C.A.
WHETHER OR NOT THE COURT MUST CONFINE ITSELF TO ISSUES RASIED BY PARTIES BEFORE IT
It is trite law that in the determination of disputes between the parties, the court should confine itself to issues raised by the parties.
It is my view that the Court is not competent suo motu to make a case for either or both parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it as in the instant case.
See the case of: – LONGE VS F.B.N. PLC (SUPRA) PAGE 1 at 22. PER BADA, J.C.A.
WHETHER OR NOT THE COURT HAS THE POWER TO MAKE AMENDMENT SUO MOTU IN CASES BEFORE IT
I am aware that the Court has the power to make amendment suo motu in certain cases under the rules of court in order to do justice but this does not extend to where issues have been joined by both parties as in this appeal.
The Apex court has settled the issue that parties are bound by their pleadings. In EBEVUHE VS UKPAKARA (1996) 7 NWLR PART 460 PAGE 254 at 267 – 268 PARAGRAPHS H – B, was held thus:
“It is trite law that a party is bound by his pleadings…., A Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.” PER BADA, J.C.A.
WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED
It is an elementary principle of law that special damages must not only be specifically pleaded, it must be strictly proved.
In KOPEK CONSTRUCTION LTD. VS EKISOLA (SUPRA), the Supreme Court held among others that:-
“Special damages are those damages which are the actual but not the necessary result of the injury complained of and which in fact follow as a natural and proximate consequence in the particular case, that is, by reason of special circumstances and conditions……..special damages are such as the law will not infer from the nature of the fact. They do not follow in the ordinary cause. They are exceptional in their character and they must be claimed specifically and proved strictly.”
See also:-
– X.S. (NIG.) LTD. VS TAISEI (W.A.) LTD. (SUPRA).
– ADIM VS N.B.C. LTD. (2010) 9 NWLR PART 1200 PAGE 543 at 558. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice sitting at Ado-Ekiti in the Ekiti State of Nigeria in Suit No.:- HAD/69/2010 – MR. ABUGU ELIAS VS DORTMUND COMPANY LIMITED & 1 OTHER; delivered on the 15th day of December, 2011.
Briefly the facts of the case are that the Plaintiff now Respondent instituted an action against the 1st and 2nd Defendants now Appellants at the lower Court in which he claimed as follows: –
“The sum of Thirty Million Naira (N30,000,000.00) only, being General Damages caused on the Plaintiff by the 1st and 2nd Defendants in that on the 18th day of December 2008 at about 14:30 hours, at Ilawe Roundabout, the 2nd Defendant drove recklessly a tanker with Registration Number AK 725 KSF belonging to the 1st Defendant and ran into the Plaintiff’s shop and damaged goods and properties belonging to the Plaintiff and also caused the Plaintiff bodily injury.”
At the conclusion of hearing, the lower court gave Judgment in favour of the Plaintiff and granted the reliefs sought.
The Appellants dissatisfied with the Judgment of the lower court appealed to this Court.
The Learned Senior Counsel for the Appellants formulated four issues for determination of the appeal. The issues are reproduced as follows: –
“1. Whether having regard to the Judgment of the trial court which awarded the sum of Three Hundred and Thirty Thousand Naira only (N330,000.00); special damages in favour of the respondent, the trial Judge could be said not to have made a different case for the Respondent. (Grounds 3 & 5)
2. Whether the trial court was right in placing the burden of proof of negligence on the 2nd Appellant, (Ground 4)
3. Whether the trial court was right in awarding specific damages neither pleaded nor proved by the Respondent. (Ground 1)
4. Whether having regard to the nature of items of general damages awarded in favour of the Respondent, the trial court did not fail to follow the principles relating to the award of damages. (Grounds 2 and 5).”
The Learned Counsel for the Respondent in his own case formulated three issues for the determination of the appeal. The issues are reproduced as follows:-
“a. Whether the brief of argument in this appeal is not incompetent.
b. Whether the record of appeal in this appeal is not incompetent.
c. Whether the entire appeal is not incompetent by virtue of the incompetency of the brief of argument and the Record of Appeal.”
At the hearing, the Learned Counsel for the Appellants referred to the Appellants’ brief of argument and Appellants’ reply brief of argument. He adopted the two briefs of argument as his argument in urging that the appeal be allowed.
On the other hand, the Learned Counsel for the Respondent referred to the Respondent’s brief of argument filed on 18th December, 2012 but deemed filed on 21st January, 2013. He adopted the said brief as his argument in urging that the appeal be dismissed.
I have carefully gone through the issues for determination formulated by counsel for the parties and I consider the issues formulated on behalf of the Appellants relevant and apt in the determination of this appeal.
The issues formulated on behalf of the Respondent is more of preliminary issues than the main issues for determination of the Appeal. The Respondent’s Counsel later responded to the issues formulated on behalf of the Appellants.
ISSUE 1
Whether having regard to the Judgment of the trial court which awarded the sum of (N330,000.00) Three Hundred and Thirty Thousand Naira only; special damages in favour of the Respondent, the trial Judge could be said not to nave made. a different case for the Respondent. (Grounds 3 & 5)
The Learned Senior Counsel for the Appellants referred to the Judgment of the lower court where it was held that:
“The claim of the plaintiff is both of special damages and general damages. The point must be made that the Plaintiff lumped all the special claims together without attaching specific sums to each of them. The fact that the plaintiff (sic) offered him something or the fact that there is evidence that he lost everything in his shop which is not controverted, points to the fact that he would be entitled to something by way of special damages.
To do justice to this case and from the fact before the court, I add N300,000,00 cash lost in the accident to the N30,000.00 offered by the plaintiff (sic)………,to make a sum of N330,000,00. I award a sum of N330,000,00 to the Plaintiff as special damages against the Defendants. I award a sum of N1,000,000,00 to the plaintiff as general damages against the defendants.”
He submitted that it is not the duty of the court to imagine or speculate on the true nature of a litigant’s claim.
He relied on the following cases:
– OKOYA VS. SANTILLI (1994) 4 NWLR PART 338 PAGE 256 at 303.
– LONGE VS F.B.N. PLC (2010) 6 NWLR PART 1189 PAGE 1 at 22.
– PROSPECT ILE MILLS (NIG.) LTD. VS. IMPERIAL CHEMICAL INDUSTRIES PLC. ENGLAND (1996) 6 NWLR PART 457 PAGE 668 at 688.
– NGIGE VS. ACHUKWU (2004) 8 NWLR PART 875 PAGE 383 at 391 – 392.
– ONYEAMA VS OBODOH (2008) 16 NWLR PART 11114 PAGE 576 at 594 – 595.
– P.D.P VS TAIWO (2004) 8 NWLR PART 876 PAGE 656 at 672.
– U.A.C. (NIG.) PLC. VS. SOBODU (2007) 6 NWLR PART 1030 PAGE 368 at 388.
He submitted that the Respondent’s case ought to have been dismissed when the trial court discovered that his case was neither here nor there.
The Learned Senior Counsel for the Appellants referred to Paragraph 6 of the Reply to Statement of Defence which he said the trial Court amended suo motu. He went further that it was when the Appellants’ Counsel addressed the trial court on the issue that the Respondent’s counsel struggled to refer to the contradiction as a typographical error.
He submitted that Counsel’s address, no matter how beautifully prepared cannot be a substitute for evidence at the trial. He relied on the case of:
– LUKE VS RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY (2010) 5 NWLR PART 1188 PAGE 605 at 618.
It was also submitted on behalf of the Appellants that the court cannot make amendment suo motu where issues are in contention between the parties. He relied on the following cases:
– EBEVUHE VS UKPAKARA (1996) 7 NWLR PART 460 PAGE 254 at 267 – 268.
– SHOLA VS S.G.B. NIG. LTD. (1997) 2 NWLR PART 488 PAGE 405 at 421 PARAGRAPHS E – G.
– ARTRA INDUSTRIES (NIG.) LTD. VS THE NIGERIAN BANK FOR COMMERCE AND INDUSTRIES (1997) 1 NWLR PART 483 PAGE 474 at 592.
The Learned Senior Counsel for the Appellants finally submitted that the decision of the trial court was not based on facts pleaded and proved; he therefore urged that the Judgment of the lower court be set aside.
In his response, the Learned Counsel for the Respondent before responding to the issues raised in the appellant’s brief of argument brought issues that looked like preliminary objection but he has not complied with the rules of this court concerning preliminary objection. But in the interest of justice, I will consider the said issues:-
The said issues are as follows:-
(a) “Whether the brief of argument in this appeal is not incompetent.
(b) Whether the Record of Appeal in this appeal is not incompetent.
(c) Whether the entire appeal is not incompetent by virtue of the incompetency of the brief of argument and Record of Appeal.”
The Learned Counsel for the Respondent submitted that the appellants did not obtain leave of court before filing additional grounds 4 and 5, yet the Appellants’ brief of argument was based on it.
He therefore submitted that the Appellants’ brief of argument is incompetent.
He also referred to the Reply to Statement of Defence in the case of – Mrs. Eunice Oyeyemi Jegede and Dr. Clement Ayeni which is contained in the Record of Appeal but has nothing to do with this appeal. He submitted that it is irrelevant and that it rendered the Record of Appeal incompetent.
Concerning the last of the preliminary issues, Learned Counsel for the Respondent contended that since according to him, the Appellant’s brief of argument and Record of Appeal are incompetent, he urged that the appeal be struck out.
The Learned Counsel for the Appellants submitted that the three issues raised by the Respondent were not raised by appellants’ grounds of appeal. He therefore submitted that the said three issues raised by the Learned Counsel for the Respondent are incompetent.
He submitted that the Respondent has not complied with the provisions of Order 10 Rule 1 of the Court of Appeal Rules. He urged that the said issues should be struck out.
He went further that in case he is overruled, he submitted that the appellants obtained the leave of this court on 7th November, 2012 to amend the appellants’ grounds of appeal. He submitted that the said Notice of Appeal is competent.
Concerning the record of appeal which contained an irrelevant document, Learned Counsel submitted that this is an academic issue and that the Courts do not entertain such an issue.
He relied on the following cases:
– GLOBAL TRANS. OCEANICO S.A. VS. FREE ENTERPRISE (NIG.) LTD. (2001) 5 NWLR PART 706 PAGE 426 at 440 PARAGRAPHS F – H.
TADUGGORONNO VS GOTOM (2002) 4 NWLR PART 757 PAGE 453 at 496 PARAGRAPHS B – D.
He submitted that the inclusion of irrelevant document in the record of appeal has not occasioned a miscarriage of Justice and that it was a mistake of the Registrar of the lower court which he submitted should not be visited on the appellant.
He relied on the case of: ONAKOYA VS F.R.N. (2002) 11 N.W.L.R PART 779 PAGE 595 at 657 PARAGRAPHS D – F.
He submitted that the three preliminary issues be resolved in favour of the Appellant.
The Respondent in this appeal went through the back door to bring something that looks like a preliminary objection and called it issues for determination. This practice is unacceptable. The conditions precedent before a Preliminary Objection can qualify for consideration are well stated in Order 10 Rule 1 of the Court of Appeal Rules, 2011.
The two specific features of the provision are:
(a) Appellant must be given at least three clear days notice of objection before the hearing of the appeal; and
(b) The objection must be filed in court in 20 copies and served on the parties. Furthermore, the two conditions must co-exist and the said preliminary objection has to be filed separately from the Respondent’s brief of argument. Thereafter, the argument in support of the Preliminary Objection shall be included in the Respondent’s brief of argument.
A Respondent who attempts to bring a notice of Preliminary Objection to an appeal by incorporating it in Respondent’s brief of argument without complying with Order 10 Rule 1 of the Court of Appeal Rules 2011 will not qualify for consideration of such an objection.
See the case of: BAYERO VS MAINASARA & SONS LTD. (2006) 8 NWLR PART 982 PAGE 391.
Although, serving the Notice of Preliminary Objection in the Respondent’s brief of argument may satisfy the requirement of giving 3 days notice to the Appellant before hearing of the Appeal, but where the Respondent’s brief of argument is filed and served on the Appellants more than three days to the hearing of the appeal, the second requirement of the law, that the Notice of Objection be filed in Court in 20 copies will certainly not be satisfied by incorporating Notice of Objection in the Respondent’s brief, but the attention of the Registrar in charge of assessment may be drawn to the Notice of Objection for it to be assessed and filing fee paid along with the fees for the brief.
It is trite that any issue not covered by a ground of appeal is incompetent and it should be struck out. An appellate Court can only hear and decide an appeal based on the issue raised on the grounds of appeal before it.
See the case of: ACHIAKPA VS NDUKA (2001) 14 NWLR PART 734 PAGE 623 at 663 PARAGRAPHS A – C, F-G.
In this appeal, the Respondent has failed to serve Notice of Preliminary issue/objection as required by Order 10 Rule 1 of the Court of Appeal Rules 2011. And he also failed to raise a Preliminary Objection in the Respondent’s brief of argument; he only formulated three issues for determination.
As I said earlier, this practice is not elegant. However, in the interest of justice, I will carefully examine the said issues.
The Learned Counsel for the Respondent contended that the Appellants failed to obtain leave of court before filing the additional grounds of appeal.
According to the record of proceedings of 7th November, 2012, this Court granted leave to the Appellants to amend their original grounds of appeal by filing additional grounds 4 and 5.
In view of the foregoing, the contention of the Learned Counsel for the Respondent lacks substance and that issue is resolved in favour of the Appellant, against the Respondent.
It was also contended by the Counsel for the Respondent that the record of appeal contained an irrelevant document.
He urged that it should be struck out and also that the entire appeal be struck out.
I have looked carefully at the Record of appeal and discovered that the inclusion of the said irrelevant document in the record of appeal was as a result of mistake on the part of the Registrar of the lower court.
It is my humble view that the mistake of the Registrar of the lower court should not be visited on the appellants, more so, that the inclusion of the irrelevant document has not occasioned a miscarriage of justice. See the case of ONAKOYA VS F.R.N. (SUPRA).
On the whole, the contentions of the Learned counsel for the Respondent lack substance. The said issues (b) and (c) are resolved in favour of the Appellants, against the Respondent.
The preliminary issues raised by the Counsel for the Respondent have been considered and determined.
I will now examine the response of the Respondent to Issue 1 in the main appeal.
The Learned Counsel for the Respondent stated that at the conclusion of trial, the lower court awarded to the Respondent the sum of Three Hundred and Thirty Thousand Naira Only (N330,000,00) as special damages and One Million Naira Only (N1,000,000.00) as general damages; whereas the Respondent’s claim was for (N30,000,000.00) Thirty Million Naira general damages.
He submitted that it is the duty of the trial Court to consider the entire evidence before it before giving Judgment and that the trial Court did not imagine, speculate or make a case not presented by the parties before it.
He relied on the case of:
– OLALOMI INDUSTRIES LTD. VS. NIGERIA INDUSTRIES DEVELOPMENT BANK (2010) 1 NSCR PAGE 1.
He submitted that where a party claiming special damages gives evidence to support his claim for a specific amount, which evidence is unchallenged or controverted by any of the parties, the trial Judge would be entitled to accept the evidence as sufficient proof of the claim.
It was also submitted on behalf of the Respondent that a brief based on proposed grounds of appeal is incompetent.
He relied upon the following cases:-
– OGBECHIE VS ONOCHIE (No.2) (1988) 1 NWLR PART 70 PAGE 370.
– EMEGHARA VS HEALTH MANAGEMENT BOARD (1987) 2 NWLR PAGE 330.
– GOVERNMENT OF GONGOLA STATE VS. TUKUR (No.2) (1987) 2 NWLR PART 56 PAGE 308
He urged that this appeal should be struck out on ground of incompetence.
On the issue of amendment. Learned Counsel for the Respondent submitted that a Court has a duty to amend pleadings whether or not there is a formal application before the Court.
The Plaintiff’s claim was set out earlier in this judgment. It was for the sum of Thirty Million Naira Only (N30,000,000.00) as General Damages for the alleged damaged properties and bodily injury caused by the said accident.
The Learned Senior Counsel for the Appellants referred to part of the Judgment of the lower Court, it is reproduced as follows:-
“The claim of the plaintiff is both of special damages and general damages. The point must be made that the Plaintiff lumped all the special claims together without attaching specific sums to each of them. The fact that the plaintiff (sic) offered him something or the fact that there is evidence that he lost everything in his shop which is not controverted, points to the fact that he would be entitled to something by way of special damages.
To do justice to this case and from the fact before the court, I add N300,000.00 cash lost in the accident to the N30,000.00 offered by the plaintiff (sic)……..to make a sum of N330,000.00. I award a sum of N330,000.00 to the Plaintiff as special damages against the Defendants. I award a sum of N1,000,000.00 to the Plaintiff as general damages against the defendants.”
A careful examination of the Plaintiff/Respondent’s claim set out earlier in this judgment would reveal that the claims were lumped together as rightly observed by the lower court.
The pertinent question that comes to mind at this juncture is – Can the Court grant a relief not claimed by the parties?
In ONAKOYA VS SANTILLI (SUPRA), the Supreme Court at Page 303 held among others that:-
“In the first place, it is not the duty of a Court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of a claim by a party to a dispute and then proceed to make a declaration or finding which such a party has not specifically sought and may not in fact desire. It would be certainly improper for the Court so to do unless, of course it were prepared to order an amendment of pleadings in which case it would be necessary to give the other party an opportunity of what would be an entirely different case…… put differently, it is not and has never been the function of a court of law by its own ingenuity or exercise to imagine, speculate on or to supply evidence or work out the mathematics of arriving at an answer in a case which only evidence tested under cross-examination could supply……….
In the second place, it is a basic principle of law that parties are bound by their pleadings and that evidence which is at variance with the averments in the pleadings goes to no issue and should be discountenanced or disregarded by the Court.
Thirdly, it is a fundamental principle in the determination of disputes between parties that Judgment must be confined to the issues raised by the parties in their pleadings and not otherwise. It is therefore not competent for the court suo motu to make or formulate a cause for either of the parties before and then proceed to give judgment on the case so formulated contrary to the case of the parties before it.”
In this appeal, the Respondent at the lower court asked for Thirty Million Naira (N30,000,000.00) general damages, he did not ask for special damages.
It is trite law that in the determination of disputes between the parties, the court should confine itself to issues raised by the parties.
It is my view that the Court is not competent suo motu to make a case for either or both parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it as in the instant case.
See the case of:
– LONGE VS F.B.N. PLC (SUPRA) PAGE 1 at 22.
The Learned Counsel for the Respondent contended that a court is entitled to make formal amendment whether: there is formal application or not.
This issue of amendment will lead us to look at Paragraph 6 of the Reply to Statement of Defence.
It is set out as follows:-
“Plaintiff denies specifically that all the goods, property and cash enumerated above were destroyed as a result of the accident caused by the 1st and 2nd defendants and put them in strictest proof thereof.
The trial in this case was conducted till the address stage and instead of Counsel for the Plaintiff bringing an application for amendment to amend the said paragraph (6), he contended during address stage that the word “denied” used was a typographical error.
The lower court amending the said Paragraph 6 suo motu held as follows:-
“While I agree totally with the principle that evidence which is at variance with the pleadings goes to no issue, I hasten to point out that in the instant case and with particular reference to paragraph 6 of the plaintiffs ‘reply to Statement of Defence. I agree with the submission of the plaintiffs’ counsel that the word “denied” used therein is a typographical error and that the proper word should be “aver” ………The typographical error is hereby corrected. The word “denied” shall read “aver”.
In this case, there was no application for amendment. It was the Counsel’s address that the Learned trial Judge relied upon in making the amendment. Whereas, Counsel’s address, no matter how beautifully prepared cannot take place of evidence at the trial. See the case of:
– LUKE VS RIVER STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY (2010) 5 NWLR PART 1188 PAGE 605 at 618.
The other party was not given any opportunity to react to this issue before the lower court amended it suo motu. This in my humble view is against the principle of fair hearing, since the parties have joined issues. This amounts to making a case for the plaintiff.
I am aware that the Court has the power to make amendment suo motu in certain cases under the rules of court in order to do justice but this does not extend to where issues have been joined by both parties as in this appeal.
The Apex court has settled the issue that parties are bound by their pleadings. In EBEVUHE VS UKPAKARA (1996) 7 NWLR PART 460 PAGE 254 at 267 – 268 PARAGRAPHS H – B, was held thus:
“It is trite law that a party is bound by his pleadings…., A Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.”
Consequent upon the foregoing, it is my view that the Judgment of the lower court was not based on facts pleaded and proved, in fact, the court made a different case for the Respondent.
This issue is therefore resolved in favour of the Appellants against the Respondent.
ISSUE 2
Whether the trial court was right in placing the burden of proof of negligence on the 2nd Appellant. (Ground 4)
The Learned Senior Counsel for the Appellants stated that the Learned trial Judge in resolving the issue of who has the burden of proof of negligence referred to the evidence of PW5, i.e. the V.I.O. and held among others that:-
“I must say that the PW5 failed to give the relevant evidence in whether a reasonable driver would have been noticing or suspecting brake failure before he got to the place where the accident happened or whether the pipe that broke got broken at once or gradually……………
The 2nd Defendant in the circumstances of this case has a duty to explain how the accident happened and that it was not due to his fault……………
………………………………………..”
He stated that it was the Respondent who called the V.I.O., and that the Court held that his evidence is irrelevant. The court went further to place the burden of proof on 2nd Appellant and awarded both special and general damages which were not pleaded.
He submitted that where negligence is alleged, the onus of proof is on the Plaintiff and that it does not shift until the plaintiff has succeeded in discharging same.
He relied on the following cases:-
– HAMZA VS KURE (2010) 10 NWLR PART 1203 PAGE 630 at 649 – 650 PARAGRAPHS H – B.
– ABUBAKAR VS JOSEPH (2008) 13 NWLR PART 1104 PAGE 307 at 343 PARAGRAPHS D – F.
It was submitted further on behalf of the Appellants that the trial court did not only fail to evaluate the facts to discover that the accident did not occur as a result of 2nd Appellant’s negligence. He relied on the case of: – ALUMINUM MANUFACTURING COMPANY NIG. LTD. VS VOLKSWAGEN OF NIG. LTD. (2010) 7 NWLR PART 1192 PAGE 99 at 124.
He finally urged the Court to hold that the Respondent’s case ought to have been dismissed. He urged that the issue be resolved in favour of the Appellants.
The learned Counsel for the Respondent in his response submitted that in some circumstances, the mere fact that the accident occurred raises without doubt an inference of negligence.
He referred to the evidence of DW1 that he was driving the said tanker when the accident occurred. He also referred to the evidence of PW5.
He referred to the case of:-
– SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED VS CHIEF TIGBARA ADANIIKUE & OTHERS (2010), NSCR PAGE 61 RATIO 7.
He finally submitted that the trial Judge was right in awarding damages in favour of the Plaintiff.
The question that comes to mind under this issue is: Who has the onus of proof of Negligence where Negligence is alleged?
Negligence is the omission or failure to do something which a reasonable man under similar circumstances would do or the doing of something which a reasonable man would not do.
The mere occurrence of accident is not proof of negligence. In order to succeed in a claim of Negligence, it is not enough to prove that there was an accident. The plaintiff must prove that the accident was as a result of the negligence of the Defendant. In that case, the nature, circumstances and extent of the accident must be pleaded and evidence adduced thereon.
The burden of proof falls on the Plaintiff who alleges Negligence, this is because, Negligence is a question of fact and not of law and it is the duty on the person who asserts, to prove it. And the failure to prove the particulars of Negligence pleaded is fatal to the Plaintiff’s case.
In civil cases, the burden of proof is on the party who asserts the fact to prove it.
See the following cases:-
– ARE VS. ADISA (1967) NMLR PAGE 399
– ATANE VS. AMU (1974) 10 SC PAGE 237
– IBRAHIM VS. OJOMO & 3 ORS (2004) 1 SCNJ PAGE 209 at 323
– ABUBAKAR VS. JOSEPH (SUPRA)
– HAMZA VS. KURE (SUPRA)
In this appeal, the evidence of other witnesses along with that of PW5 (the V.I.O.) which the Respondent relied upon could not prove Negligence. The Learned trial Judge described the evidence of PW5 as irrelevant before placing the burden of proof upon the 2nd Appellant.
It is my view that the learned trial Judge was wrong in placing the burden of proof of negligence on 2nd Appellant. This is because, the burden of proof does not shift until the Plaintiff succeeds in discharging same. He must prove that the accident was as a result of the negligence of the 2nd Appellant which has not been done in this case. The Learned trial Judge was not satisfied about the evidence put forward by the Respondents, that was why the burden of proof of the Negligence was now placed on the 2nd Appellant. But as I stated earlier, that is wrong.
In the circumstance this Issue 2 is resolved in favour of the Appellants, against the Respondent.
ISSUE 3
Whether the trial Court was right in awarding specific damages neither pleaded nor proved by the Respondent. (Ground 1)
The Learned Senior Counsel for the Appellants referred to the Respondent’s claim at the trial which was for Thirty Million Naira (N30,000.000.00) general damages. He went further that the learned trial Judge in his judgment awarded both special and general damages.
He submitted that the trial court, not only lack the powers to make a case for the Respondent, it also lacks the powers to award special damages suo motu.
He relied on the case of:
– INTERNATIONAL MESSENGERS NIG. LTD. VS ENGR. DAVID NWACHUKWU (2004) 13 NWLR PART 891 PAGE 543 at 564.
– KOPEK CONSTRUCTION LTD. VS EKISOLA (2010) 3 NWLR PART 1182 PAGE 618 at 660 PARAGRAPHS C-G.
Learned Senior Counsel for the Appellants also submitted that there is no justification for the award of special damages by the trial Court since it was not specifically pleaded.
He relied on the case of:-
– X.S. (NIG). LTD. & ANOTHER VS TAISEI (W.A.) LTD. & ANOTHER (2006) 15 NWLR PART 1003 PAGE 533 at 550 – 551 PARAGRAPHS G – B.
He finally urged that this issue be resolved in favour of the Appellants.
The Learned Counsel for the Respondent referred to the statement of claim where it was averred that the Plaintiff lost cash of Three Hundred Thousand Naira (N300,000.00) which he kept in his shop as a result of the accident. He went further that Thirty thousand Naira (N30,000.00) was offered to the Plaintiff by the Defendant which was rejected.
He therefore submitted that in the circumstances of this case, the learned trial Judge was right in awarding Special Damages to the Plaintiff.
He urged that the issue be resolved in favour of the Respondent.
In this case, the claim of the Respondent at the lower Court was for (N30,000,000.00) Thirty Million Naira Damages (See page 18 of the record of Appeal).
The Learned trial Judge in his Judgment held among others as follows:-
“……To do justice to this case and from the fact before the Court, I add N300,000.00 cash lost in the accident to the N30,000.00 offered by the plaintiff (sic) to make a sum of N330,000.00 (Three Hundred and Thirty Thousand Naira), I award a sum of N330,000.00 to the plaintiff as special damages against the defendants. I award a sum of N1,000,000,00 to the plaintiff as general damages against the defendants”
It is an elementary principle of law that special damages must not only be specifically pleaded, it must be strictly proved.
In KOPEK CONSTRUCTION LTD. VS EKISOLA (SUPRA), the Supreme Court held among others that:-
“Special damages are those damages which are the actual but not the necessary result of the injury complained of and which in fact follow as a natural and proximate consequence in the particular case, that is, by reason of special circumstances and conditions……..special damages are such as the law will not infer from the nature of the fact. They do not follow in the ordinary cause. They are exceptional in their character and they must be claimed specifically and proved strictly.”
See also:-
– X.S. (NIG.) LTD. VS TAISEI (W.A.) LTD. (SUPRA).
– ADIM VS N.B.C. LTD. (2010) 9 NWLR PART 1200 PAGE 543 at 558.
The Respondent in this appeal failed to specifically plead and prove special damages.
It is therefore my view that the trial Court lacked the power to award the said special damages since a Court is not permitted to grant a relief which has not been specifically prayed for.
See the case of:-
– INTERNATIONAL MESSENGERS NIG. LTD. VS. ENGR. DAVID NWACHUKWU (SUPRA).
In view of the foregoing, this Issue 3 is hereby resolved in favour of the Appellants against the Respondent.
ISSUE 4
Whether having regard to the nature of items of general damages awarded in favour of the Respondent, the trial Court did not fail to follow the principles relating to award of damages. (Grounds 5)
The Learned Senior Counsel for the Appellants referred to the Judgment of the trial Court on Page 84 of the Record of Appeal where the court based the award of general damages on the following:
(a) Loss of earning
(b) Bodily injury
(c) Effect of accident since 2008 till date
(d) Psychological trauma; and
(e) Loss of shop and articles of trade.
He submitted that the learned trial Judge failed to follow the guiding principles for the award of damages. He relied on the following cases:-
– ANAMBRA STATE EVIRONMENTAL SANITATION AU.THORITY & ANOTHER VS RAYMOND EKWENEM (2009) 13 NWLR PART 1158 PAGE 410 at 439 PARAGRAPH D.
– IYERE VS B.F.F.M. LTD. (2008) 18 NWLR PART 1119 PAGE 300 at 347.
– TANKO VS. MAI-WAKA (2010) 1 NWLR PART 1176 PAGE 468 at 491 PARAGRAPHS B-C.
– C.A.P. PLC. VS. VITAL IND. LTD. (2006) 6 NWLR PART 976 PAGE 220 at 261 PARAGRAPHS C-D.
It was also submitted on behalf of the Appellants that loss of earnings under which general damages was awarded is in the nature of Special Damages which requires to be strictly proved.
Learned Senior Counsel also submitted that the award of General Damages in the circumstances of this case amounts to double compensation. This is because, the lower Court also awarded special damages to the Respondent.
It was also submitted on behalf of the Appellants that where the value of the properties allegedly destroyed is not individually known, as in the case at hand, the right measure of damages to be awarded cannot be determined.
He finally urged that this issue be resolved in favour of the Appellants.
The Learned Counsel for the Respondent submitted that General damages are losses that flow naturally from the adversary and it is generally presumed by Law, as it needs not be pleaded or proved. They are awarded by the trial Court to assuage a loss caused by an act of the adversary. He further submitted that an Appeal Court is always loath to interfere with such award but will be compelled to do so under the following conditions and circumstances:-
(a) Where the trial Judge acted under the misrepresentation of facts or law,
(b) Where he failed to take into account relevant matters,
(c) Where the amount is too low or too high,
(d) Where failing to interfere would amount to injustice.
He submitted that the trial Judge awarded general damages after careful evaluation of facts and Law before it.
Learned Counsel for the Respondent finally urged that this issue be resolved in favour of the Respondent.
General Damages, when averred as having been suffered, the law will presume it to be the direct, natural or probable consequence of the act complained of. The Judge cannot point out any measure by which the damages are to be assessed, except the opinion and Judgment of a reasonable man. In other words, general damages are always made a claim at large. The quantum need not be pleaded and proved. The award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the acts or conduct of the Defendant, It does not depend upon calculation made and figure arrived at from specific items.
See the following cases:-
– LAR VS STIRLING ASTALDI LIMITED (1977) 11-12 SC PAGE 53.
– OSUJI VS. ISIOCHA (1989) 3 NWLR PART 111 PAGE 623.
– ODULAJA VS. HADDAD (1973) 11 S.C. PAGE 357.
In this case under consideration, the Respondent claimed for (N30,000,000.00) Thirty million Naira General Damages against 1st and 2nd Appellants at the lower Court. This claim was brought because the 2nd Appellant on 18/12/2008 at 14.30 hours at Ilawe Roundabout drove a tanker with Registration Number AK 725 KSF belonging to the 1st Appellant and ran into the Respondent’s shop and damaged goods and properties belonging to the Respondent and also caused the Respondent bodily injury.
The lower Court based upon the facts narrated above awarded One Million Naira (N1,000,000.00) General Damages in favour of the Respondent. Although the lower court based the award on:-
(a) Loss of earnings
(b) Bodily injuries
(c) Effect of accident since 2008
(d) Psychological trauma
(e) Loss of shop and articles of trade;
but in my humble view, General Damages need not be pleaded and proved. Stating what the damages was based upon by the lower Court is a surplus to the requirement.
General damage is quantified by what in the opinion of a reasonable person is considered adequate loss or the inconvenience which flows naturally from the accident. In this case it was established that there was a motor accident involving the 2nd Appellant, when his trailer ran into the Respondent’s shop and damaged goods and properties.
Therefore, the trial Judge is entitled to make his own assessment of the quantum of general damages but on appeal as it is now, such general damages will only be altered or varied if they were shown to be either so manifestly too high or so extremely too low.
In the circumstance, I see no reason to disturb the award of One Million Naira (N1,000,000.00) as general damages by the lower court to the Respondent.
This Issue 4 is resolved in favour of the Respondent against the Appellants.
In the final analysis, with the resolution of Issues 1, 2 and 3 in favour of the Appellants and issue 4 in favour of the Respondent, this appeal succeeds in part.
In the result, with the resolution of Issues 1, 2 and 3 in favour of the Appellants, the award of the sum of (N330,000.00) Three Hundred and Thirty Thousand special damages awarded by the lower Court in favour of the Respondent is hereby refused. But the award of (N1,000,000.00) One Million Naira General Damages in favour of the Plaintiff/Respondent and against the Defendants/Appellants is hereby affirmed.
Each of the parties shall bear their own costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A: I have had the advantage of reading the draft of the leading judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. My noble Lord has admirably and painstakingly dealt with the four issues raised and adopted for determination in this appeal. I have nothing gainful to add without being repetitive. I therefore agree with his reasoning and the conclusion reached therein. Thus, I too agree that the appeal succeeds only in part and also make similar consequential orders as are contained in the said leading judgment of my learned brother, Bada, JCA including the order on costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity to read the draft judgment of the lead judgment delivered by my learned brother, JIMI OLUKAYODE BADA, J.C.A.
On the issue of amendment of paragraph 6 of the Reply to the Statement of Defence. The learned Senior Counsel for the Appellants contended that the learned trial judge made the amendment suo motu which he is not allowed in law to do. He cited Ebeuuhe v. Ukpakara (1996) 7 NWLR (Pt. 460) 254 AT 267 – 268; Shola v. S.G.B. Nig. Ltd. (1997) 2 NWLR (pt.488) 405 at 421 paras E – G; Artra Industries Ltd. v. The Nigerian Bank for Commerce and Industries (1997) 1 NWLR (Pt. 483) 474 at 592.
The amendment of paragraph 6 of the Reply to the Statement of Defence by the trial court was suo motu. I observe that there are seldom occasions when a court can suo motu amend pleadings. The guiding principle must be to bring the dispute or issues sought by the parties into distinct focus. A court is not permitted under any guise to suo motu amend parties’ processes in such a manner to raise new issues or give the dispute a new colouration. A court which will suo motu amend pleadings or any process must hear the parties on the issue in the spirit of fair hearing. See: Joshua Ogunleye v. Babatayo Oni (1990) 2 NWLR (Pt. 135) 745; (1990) 4 S.C. 130; Amusa Yesufu Oba v. Hunmuani Ajoke Ambrose Ini v. Tinko (1929) IX N.L.R. 8.
In the instant appeal, there was no doubt that the court suo motu without inviting the parties to address it amended the word “denied” to read “aver” in paragraph 6 aforesaid. It could be that the word “denied” was a mistake, but the change of the word “denied” to read “aver” which definitely altered the meaning of the entire paragraph could not in law be made by a court suo motu without hearing the parties. Accordingly, the trial court was wrong and breached the principles of fair hearing when it amended paragraph 6 of the Respondents reply suo motu.
For the foregoing and the more clearly set out reasons in the lead judgment on the other issues. I also hold that the appeal succeeds in part.
I abide by the orders made in the lead Judgment.
Appearances
Mr. S.T. Ologunorisa, SAN; with him are: Bamidele Omotoso, Esq., Wemimo Olaniran, Esq,, and L.A. Fasanmi, Esq.,For Appellant
AND
Mr. S.O. NjokuFor Respondent
