MIDLAND GALVANISING PRODUCTS LIMITED v. COMET SHIPPING AGENCIES NIGERIA LIMITED
(2014)LCN/7540(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of November, 2014
CA/L/198/2010
RATIO
CONSTITUTIONAL LAW: THE FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER IT CONSTITUTE BREACH OF FAIR HEARING FOR A COURT TO RAISE AN ISSUE SUO MOTU WITHOUT HEARING THE PARTIES
There is a plethora of authorities, many cited by learned counsel for the appellant that it is a fundamental flaw and a mistrial in breach of the rule of fair hearing for a court to raise an issue suo moto and rely on same to decide the case without giving the parties the opportunity to address him on the new issue. In the case of CHUKWUMA OKWUDILI UGO v. AMAMCHUKWU OBIEKWE & ANOR (1989) 1 NWLR (Pt. 99) 566 @ 569 cited by learned counsel; NNAEMEKA-AGU, J.S.C. (of blessed memory) held:
“It is basic and fundamental in our system of administration of justice that no one can have a decision entered against him without his being heard. This is the essence of the maxim: audi alteram partem. That implies not only that all the parties to be affected by a decision are entitled to be heard on the case at hand before the decision is given but also that if, in the course of hearing, any new point material to the decision arises, each of such parties shall be heard on it before a decision based upon it can rightly be handed down…… Quite apart from this, A JUDGE WHO IN OUR SYSTEM MUST BE AND BE SEEN AS AN IMPARTIAL UMPIRE WILL BE ANY THING BUT THAT IF HE TAKES UP A POINT, NO MATTER HOW CLEAR IT MAY APPEAR, AND, WITHOUT HEARING ANY OF THE PARTIES TO BE AFFECTED BY THE DECISION DECIDES IT. THAT CANNOT BE EVEN – HANDED JUSTICE. A COURT OUGHT NEVER RAISE AN ISSUE FOR EITHER OF THE PARTIES AND, WITHOUT HEARING BOTH PARTIES PROCEED TO BASE ITS JUDGMENT ON IT.”
I had occasion to deal with this same point in the recent case of Ijewere v. Eribo (2014) CA/L/515/1999 delivered on 10/7/14 and reported in Law Pavilion LPELR-23263(CA) where I held:
“I agree with counsel that the Respondent did not in his counter affidavit or anywhere else canvass these issues and they were not issues in the appellants affidavit. They were raised suo motu by the court in its Ruling. The learned trial Judge was clearly in error in basing his decision on grounds not canvassed by the parties and without giving the Appellant any opportunity to put across his own point of view on the matter. In Adedayo & Ors v. PDP & Ors (2013) LPELR-20342(SC), Onnoghen, JSC observed:
“it is trite law that a court of law is not permitted to raise an issue suo motu and proceed to determine the case before it on the issue so raised without calling on the parties or counsel representing them to address it on the said issue. It follows therefore that it is not the raising of the issue suo motu that is frowned upon by the law but the failure of the court to hear the parties on the issue in question before proceeding to determine the care on the issue. Where the court fails to listen to the parties, particularly the party to be adversely affected by the decision on the issue so raised, it is said to have fallen foul of the principles of the rules of fair hearing, and such a decision is liable to be set aside.”
See also the following cases cited by learned counsel for the appellant: SPACO VEHICLE & PLANT HIRE CO. LTD v. ALRAINE (NIG) LTD (1995) 8 NWLR (Pt. 416) 665 @ 673; MALCOM OLUMOLU v. ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (Pt. 430) PAGE 253 AT 266; AFRICAN CONTINENTAL SEAWAYS LTD v. NIGERIA DREDGING ROADS AND GENERAL WORKS LTD (1977) 5 SC 235 at 28 and 250. per. CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MIDLAND GALVANISING PRODUCTS LIMITED Appellant(s)
AND
COMET SHIPPING AGENCIES NIGERIA LIMITED Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the leading Judgment): The Appellant instituted this action at the lower court against the Respondent the Nigerian agent of M.V. “AFRICAN HAWK” the vessel engaged for the carriage of the Appellant’s cargo of 73 cold rolled steel coils from Saldanha Bay to Tin can Island Seaport, Lagos, Nigeria claiming the sum of N4,173,830.00 (Four million, one hundred and seventy-three thousand, eight hundred and thirty naira) for 15 of the cold rolled steel which got damaged as the goods were being off loaded from the vessel. During the trial of the case, after the appellant concluded the evidence in chief of its witnesses, the cross-examination elicited from the witnesses the fact that they were not officers of the Plaintiff but insurers exercising a right of subrogation. The Appellant then filed an application to further amend its amended statement of claim to plead facts relating to the subrogation. It also prayed to re-open its case and to call further evidence which was opposed by the Respondent. The Appellant consequently withdrew those prayers and they were struck out. The prayer to further amend its amended Statement of Claim was granted. The Respondent without any consequential amendment to its statement of defence opened its case and called one witness. Written Addresses were filed, exchanged and adopted by the parties. The Learned trial judge in his judgment adopted the three issues for determination formulated by the Respondent. After analyzing the evidence led, the learned trial judge concluded that even if he found the Respondent liable to the Appellant for the damage caused to the Appellant’s goods, the Appellant having been already compensated by its insurer was not entitled to pursue compensation for the same loss in its own name.
Dissatisfied with this part of the judgment, the appellant filed a notice of appeal with two grounds of appeal. The grounds without their particulars read as follows:
“A. The learned judge erred in law when he raised the issue of whether this suit was sustainable in the name of the plaintiff suo moto and decided the issue against the plaintiff without calling for further address on the issue.
B. The learned trial Judge erred in law when he dismissed the plaintiff’s case on the ground that the suit should have been brought in the name of the Plaintiff’s Insurer and not in the name of the Plaintiff.
Out of the two grounds of appeal, the appellant formulated the following two issues for determination:
ISSUE 1: whether the learned trial judge was right in law when he raised the issue of whether this suit was sustainable in the name of the Plaintiff/Appellant suo moto and decided the issue against the Plaintiff/Appellant without calling for further address on the issue from the parties.
ISSUE 2: Was Leadway Assurance Company Limited, the Plaintiff/Appellant’s insurer right to have instituted and maintained this suit under a right of subrogation in the Plaintiff/Appellant’s name?
The Respondent on its part also formulated two issues for determination:
(a) Whether the failure of the learned trial Judge to invite the parties to address the Court on the propriety of a compensated insurer pursuing a subrogated claim in its own name occasioned a miscarriage of justice to the Appellant.
(b) In the event of this Court coming to a conclusion that the appeal is meritorious what consequential order ought to be made.
Although couched differently the two sets of issues are essentially the same. I shall adopt the appellant’s issues in the determination of the appeal.
On issue one, learned counsel for the appellant submitted that the issue as to whether this suit was sustainable in the name of the Appellant was not in dispute between the Appellant and the Respondent. Counsel argued that when his lordship raised the issue suo moto, that he should have called for further address from the parties before dismissing the Appellant’s claim based on that issue. Counsel called in aid the following judicial authorities: CHUKWUMA OKWUDILI UGO v. AMAMCHUKWU OBIEKWE & ANOR (1989) 1 NWLR (Pt. 99) 566 @ 569 UNIVERSITY OF CALABAR v. ESSIEN (1996) to NWLR (Pt. 477) 225 @ 248; DR. JONATHAN COOKEY v. MRS. EVANGELINE FOMBO & ANOR. (2005) 15 NWLR (Pt. 947) 182 @ 201 C-E; STIRLING CIVIL ENGINEERING (NIG.) LTD. v. AMBASSADOR MAHMOD YAHAYA (2005) 11 NWLR (Pt. 935) 181 and DALEK NIGERIA LIMITED v. OIL MINERAL PRODIJCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007) 7 NWLR (Pt. 1033) 402.
Learned counsel submitted that the error of the learned trial judge is one that substantially affected the decision as this was the sole reason why the learned trial judge dismissed the Appellant’s case and this error has occasioned a miscarriage of justice. Counsel urged the Court relying also on the cases of Imah v. Ikogbe (1993) 9 NWLR (Pt. 316) 159 @ 178 B-C; Florence O. Olusanya v. Olufemi Olusanya (1983) 3 S.C. 41 @ 55, 56, 58 and 61 to resolve issue one in their favour and to set aside the part of the judgment of the lower court appealed against.
On issue two, learned counsel for the appellant submitted that it is clear from the judgment that the learned trial judge accepted the testimony of PW3 that the Appellant had subrogated the claim the subject of this suit to Leadway Assurance Company Limited, its insurer. Counsel called the attention of the court to the definition of ‘Subrogation’ by R. J. LAMBERTH in his book TEMPLEMAN ON MARINE INSURANCE (Its Principle & Practice) Sixth Edition at page 451. He finally submitted that Leadway Assurance Company Limited, the Appellant’s insurer and/or underwriter was right to have instituted and maintained this suit under a right of subrogation in the name of the assured that is Plaintiff/Appellant. He urged us to so hold and to invoke the court’s powers under section 15 of the Court of Appeal Act cap. C 36 Laws of the Federation of Nigeria 2004 and enter Judgment in favour of the Appellant.
Learned counsel for the Respondent in his brief submitted that whilst they concede that it is desirable for a court when it raises an issue suo moto to give opportunity to parties to address the Court on such issue before a decision on the point is taken, that a failure to adopt the approach would not necessarily render such decision or judgment perverse or defective unless such failure occasioned a miscarriage of justice. He referred to Imah v. Okagbe (1990) 9 NWLR (Pt. 136) NWLR (Pt. 393) 42 at 64. Olubode v. Salawu (1985) 2 NWLR (Pt. 7) 282 and Usman v. Garke (1999) 1 NWLR (Pt. 587) 466 at 482.
On its issue 2, learned counsel for the Respondent submitted that in the event of this Honourable Court finding the Appellant’s appeal meritorious the proper order in the circumstances should be one remitting the case to a trial Court to determine what sum can be properly awarded to the Appellant. Counsel referred to the judgment of the court where it adopted the three issues formulated by the Respondent in its written address at the lower court. He argued that the court ended the judgment on issue one alone and did not determine issues 2 and 3; whether the Plaintiff has proved its entitlement to the sums claimed and what sums can be properly awarded to the Plaintiff as damages in the event that the Defendant is found liable to the Plaintiff. Counsel submitted that the Respondent had challenged the propriety of the Appellant’s claim for solicitor’s fee; the claim for interest; the discrepancies in the number of items alleged to have been damaged and that the Respondent had raised the defence of package limitation which entitles it to limit its liability to the sum of N200 per package in the event that it is found liable. Counsel submitted that none of these issues were considered or resolved by the trial Judge; that the appeal court is not in a position to resolve them and therefore the case has to be remitted to the trial Court for determination. Counsel relied on the case of Int. ile Industry (Nig) Ltd v. Aderemi (1999) 8 NWLR (Pt. 614) 268 at 301-302.
Counsel argued that a further reason why this Court cannot enter judgment for the Appellant on items of its claim even if the Court finds that there was in fact a subrogation is that the law stipulates that an Insurer exercising a right of subrogation where the assured has been indemnified for a parties loss is entitled to recover the amount paid to the assured. The Insurer cannot hold on to the salvage value of the damaged Coils, and make further claims for the invoice value of the Coils, interest and solicitor’s fees.
In the Reply brief, learned counsel for the appellant submitted that the evidence elicited from the appellant’s witnesses under cross-examination in addition to their further amended statement of claim pleading the subrogation which remained uncontroverted was cogent evidence to establish the fact of subrogation. On the Respondent’s issue 2, counsel conceded that the trial Judge did not determine the quantum of damages that should be paid but he submitted that there was ample evidence from the conclusions of the learned trial Judge to enable this court determine the sum payable to the appellants, which is the sum of N4,037,192.85 actually paid by the Insurance company to the appellant less N2 million being the salvage value of the damaged products.
In his judgment the learned trial judge adopted the issues formulated by the Defendant/Respondent in his final written address. The issues are:
“1. Whether having referred to the fact and circumstances of this case the Defendant is liable to the Plaintiff for the alleged damage to the Plaintiffs goods.
2. Whether the Plaintiff has proved its entitlement to the sums being claimed.
3. What sums can be properly awarded to the Plaintiff as damages in the event that the Defendant is found liable to the Plaintiff.”
The learned trial judge dealt with the first issue and resolved same in the affirmative. His Lordship however went on to hold:
“PW3 testified that…. ‘This is a subrogated claim. We can now seek what we paid out from the negligent party.’ And this again is only made under cross-examination. This is where the problem lies. The Plaintiff has been compensated for its loss. How is this action for further compensation against the supposedly negligent party to be sustained? The Insurer is not suing the carrier’s agent. It is the compensated importer that is suing the carrier’s agent. How is that sustainable? And so even it is accepted on PW3’s testimony that there was subrogation of the Plaintiff’s claim to the insurer, the insurer is not the Plaintiff in this suit. I have no precedent before me suggesting that this is either industry or indeed acceptable legal practice. And so while I can respond to the first issue posed by the Defendant being for determination in this suit in the affirmative I cannot find that the Plaintiff is entitled to recover the sum claimed from the Defendant. And there the matter rests. Case dismissed.”
It is obvious then that the judgment of the court is based primarily on the fact that the Plaintiff/Appellant was not the right party to institute the action. The court felt that if there was subrogation of the Plaintiff’s claim to the insurer then the insurer should have been the one to institute the action. None of the parties raised this issue. It was taken up by the learned judge suo moto. He did not call on the parties to address him on the issue but simply went ahead to rely on same to decide the case. There is a plethora of authorities, many cited by learned counsel for the appellant that it is a fundamental flaw and a mistrial in breach of the rule of fair hearing for a court to raise an issue suo moto and rely on same to decide the case without giving the parties the opportunity to address him on the new issue. In the case of CHUKWUMA OKWUDILI UGO v. AMAMCHUKWU OBIEKWE & ANOR (1989) 1 NWLR (Pt. 99) 566 @ 569 cited by learned counsel; NNAEMEKA-AGU, J.S.C. (of blessed memory) held:
“It is basic and fundamental in our system of administration of justice that no one can have a decision entered against him without his being heard. This is the essence of the maxim: audi alteram partem. That implies not only that all the parties to be affected by a decision are entitled to be heard on the case at hand before the decision is given but also that if, in the course of hearing, any new point material to the decision arises, each of such parties shall be heard on it before a decision based upon it can rightly be handed down…… Quite apart from this, A JUDGE WHO IN OUR SYSTEM MUST BE AND BE SEEN AS AN IMPARTIAL UMPIRE WILL BE ANY THING BUT THAT IF HE TAKES UP A POINT, NO MATTER HOW CLEAR IT MAY APPEAR, AND, WITHOUT HEARING ANY OF THE PARTIES TO BE AFFECTED BY THE DECISION DECIDES IT. THAT CANNOT BE EVEN – HANDED JUSTICE. A COURT OUGHT NEVER RAISE AN ISSUE FOR EITHER OF THE PARTIES AND, WITHOUT HEARING BOTH PARTIES PROCEED TO BASE ITS JUDGMENT ON IT.”
I had occasion to deal with this same point in the recent case of Ijewere v. Eribo (2014) CA/L/515/1999 delivered on 10/7/14 and reported in Law Pavilion LPELR-23263(CA) where I held:
“I agree with counsel that the Respondent did not in his counter affidavit or anywhere else canvass these issues and they were not issues in the appellants affidavit. They were raised suo motu by the court in its Ruling. The learned trial Judge was clearly in error in basing his decision on grounds not canvassed by the parties and without giving the Appellant any opportunity to put across his own point of view on the matter. In Adedayo & Ors v. PDP & Ors (2013) LPELR-20342(SC), Onnoghen, JSC observed:
“it is trite law that a court of law is not permitted to raise an issue suo motu and proceed to determine the case before it on the issue so raised without calling on the parties or counsel representing them to address it on the said issue. It follows therefore that it is not the raising of the issue suo motu that is frowned upon by the law but the failure of the court to hear the parties on the issue in question before proceeding to determine the care on the issue. Where the court fails to listen to the parties, particularly the party to be adversely affected by the decision on the issue so raised, it is said to have fallen foul of the principles of the rules of fair hearing, and such a decision is liable to be set aside.”
See also the following cases cited by learned counsel for the appellant: SPACO VEHICLE & PLANT HIRE CO. LTD v. ALRAINE (NIG) LTD (1995) 8 NWLR (Pt. 416) 665 @ 673; MALCOM OLUMOLU v. ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (Pt. 430) PAGE 253 AT 266; AFRICAN CONTINENTAL SEAWAYS LTD v. NIGERIA DREDGING ROADS AND GENERAL WORKS LTD (1977) 5 SC 235 at 28 and 250.
Learned counsel for the appellant in this appeal also cited the following authorities: UNIVERSITY OF CALABAR v. ESSIEN (1996) 10 NWLR (Pt. 477), 225 @ 248; DR. JANATHAN COOKEY v. MRS. EVANGELINE FOMBO & ANOR (2005) 15 NWLR (Pt. 947) 182 @ 201 C – E; STIRLING CIVIL ENGINEERING (NIG.) LTD v. AMBASSADOR MAHMOOD YAHAYA (2005) 11 NWLR (Pt. 935) 181 and DALEK NIGERIA LIMITED v. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007) 7 NWLR (Pt. 1033) 402. See also the recent Supreme Court case of FRN v. Mohammed (2014) LPELR-22465 (SC).
This principle of law is so basic; so trite and the authorities so many that the error really should not occur. A judge is not supposed to make a case for any of the parties. He should be seen to maintain his independence as an unbiased arbiter and to decide issues presented to him. If the need arises for him to raise a new issue; he must give the parties the opportunity to be heard before taking a decision based on the new issue.
The situation in the instant case is rendered more poignant by the fact that the learned trial judge while considering the propriety or otherwise of the action being instituted by the Plaintiff/Appellant indicated that he had no precedent before him suggesting that this is either industry or indeed acceptable legal practice. That situation should have immediately called his lordship’s attention to the need to ask both counsels to address him on the point. I agree with appellant’s counsel that since neither the appellant nor the respondent raised the issue and they were not called upon to address the court on the issue it raised suo motu the lower court erred by relying on the issue to decide the case against the appellant. It is true as submitted by learned counsel for the Respondent relying on the cases of Imah v. Okagbe (1990) 9 NWLR (Pt. 136) 159 @ 178; Akpunonu v. Bekaert Overseas (1995) 5 NWLR (Pt. 398) 42 at 64; Olubode v. Salawu (1985) 2 NWLR (Pt. 7) 282 and Usman v. Garke (1999) 1 NWLR (Pt. 587) 466 at 482 that it is only where the error results in substantial miscarriage of justice that the appeal court will interfere with the decision of the lower court. Respondent’s counsel argued that there was no miscarriage of justice because even if the parties had been called upon to address the Court on the propriety of an insurer pursuing a subrogated claim in the name of the assured or compensated importer, for the appellant to succeed, cogent evidence to establish the fact of subrogation as pleaded by the Appellant in the further amended Statement of Claim would be required. Counsel referred to Paragraphs 19 and 20 of the Appellant’s further Amended Statement of Claim and submitted that no evidence was led in proof thereof. Counsel conceded to the right of an insurer to pursue remedies accruing under a right of subrogation in the Assureds’ name but argued that the fact and extent of subrogation still requires proof before the Court. He relied on American International Insurance Co. Nig. Ltd v. Edo Agencies Nig. Ltd (1980) O.G.S.L.R. 31 HC. Counsel further argued that no evidence was adduced as to subrogation or its extent and that the decision of the trial Judge was proper given the materials placed before him. He submitted that the appellant did not suffer any miscarriage of justice notwithstanding the failure of the judge to invite parties to address him on the issue raised by the Court suo motu. I do not agree with learned counsel. The appellant further amended the amended statement of claim to plead facts relating to the subrogation; the evidence of which had already been extracted from PW3 under cross-examination. Learned counsel for the Appellant had submitted in his reply brief relying on YAKUBU GAGARAU & 2 Ors v. HAUSA DANBOYI PASHIRI (2006) 1 NWLR (Pt. 902) 521 @ 526 that a party who wishes to use evidence elicited during cross-examination of facts not pleaded should amend his pleading. The appellant did just that and the Respondent who was fully aware of the further amendment and the evidence of PW3 made no consequential amendment to his statement of defence and in fact did not controvert the evidence in any way. I agree with Appellant’s counsel that the uncontroverted evidence of PW3 was cogent evidence to establish the fact of subrogation and that no other evidence was needed. In support learned counsel cited the case of HON. DR. WILLIE OGBEIDE v. MR. E. ARIGBE OSULA & 3 OTHERS (2004) 12 NWLR (Pt. 886) 86 @ 9 where the Court of Appeal held:
“Cross-examination is a part of trial proceedings and the answers elicited there under are given on oath. Consequently, where the answers elicited under cross-examination are relevant and direct to the point in issue, they would be given due probative value and would not be brushed aside simply because they came through cross-examination.”
The learned trial Judge would not have had any difficulty as suggested by the Respondent in finding that the insurer was exercising its right of subrogation. There was nothing to it, other than to show that the insurer is interested in recovering the money already paid to the Appellant and that the action is really not one of appellant seeking double compensation but seeking to recover the money for the benefit of the insurance company. The evidence elicited from PW3 in cross-examination supplied the necessary information. The further amendment to the statement of claim rendered the evidence admissible in proof of the fact.
From all indication, if the learned trial Judge had called on the parties to address him on the new issue he raised suo motu, he surely would have come to a different conclusion on the right of the appellant to institute the action. This is because the authorities suggest that when there is subrogation, a suit in court must be instituted in the name of the insured and not in the name of the insurance company as there is no privity of contract between the insurance company and the defendant. Learned appellant’s counsel had referred us to the book TEMPLEMAN ON MARINE INSURANCE (Its Principles & Practice) Sixth Edition where the author R. J. LAMBERTH at page 451 wrote:
“Subrogation is the right by which an underwriter, having settled a loss, is entitled to place himself in the position of the assured, to the extent of acquiring all rights and remedies in respect of the loss which the assured may have possessed, either in the nature of proceedings for compensation or recovery in THE NAME OF THE ASSURED against third parties, or in obtaining general average contribution thereto…… Subrogation is one of the first principles of insurance, and applies equally to all contracts of indemnity.”
Counsel referred also to page 459 of the above book where the author stated that “Any action in the English Courts in pursuance of the rights and remedies to which the underwriter is subrogated must be taken not in the name of the underwriter but in the name of the assured.” Counsel had further submitted that the Nigerian Federal High Court followed the position of the English Courts in the case of PRESTIGE ASSURANCE NIG. PLC v. OWNERS-CHATERERS OF M/V “WIENIAWSKI” (1995 – 1997) 7 NIGERIAN SHIPPING CASES 257 @ 258 RATIO 3 where the Court held:
“An insurer who is exercising rights of subrogation against a 3rd party must do so in the name of the Assured. Therefore since the Plaintiff instituted this case in their name and not in the name of the assured, the case is wrongfully instituted. It therefore had no locus standi and consequently the Court has no jurisdiction to entertain this action”
Although I have not been able to access the above authorities, the principles make sense. The insurance company has no contract with the defendant and cannot maintain any action in its name against the defendant. Learned counsel for the Respondent did not dispute the proposition that the law allows an insurance company to sue in the name of the insured where there is subrogation. Indeed he conceded to it. His grouse was that there was no evidence of subrogation. That argument has already been punctured. The failure of the learned trial judge to invite the parties to address him consequently led to a serious miscarriage of justice against the appellant.
What consequential orders should the court make in the circumstances? The appellant urged the court to allow the appeal; invoke its powers under Section 15 of the Court of Appeal Act and enter judgment in favour of the appellant. The Respondent disagrees. Its counsel argued that in the event of this court finding merit in the appeal, the proper order should be one remitting the case back to the lower court for determination of the amount due to the appellant. The Respondent premised its contention on the fact that it had joined issues with the appellant in the pleadings on the quantum of appellant’s claim. In the final written address at the lower court counsel submitted that he had challenged the appellant’s claims under issues 1 & 2. He challenged the propriety of the Appellant’s claim for solicitor’s fee, the claim for interest, and the discrepancies in the number of items alleged to have been damaged. Counsel opined that they also raised the defence of package limitation which entitles it to limit its liability to the sum of N200 per package in the event that it is found liable. Counsel submitted that none of these issues was considered or resolved by the trial Judge and that they cannot be determined by an Appellate Court and ought to be remitted to the trial Court for determination. The appellant conceded that the trial Judge did not determine the measure or quantum of damages but he submitted that there was ample evidence from the conclusions of the learned trial Judge to enable this court determine the sum payable to the appellants.
There is no doubt that the learned trial judge, after considering and ruling on the first issue, ought to have considered and determined the other two issues in order to avoid the need to remit the case back to the lower court for determination of those issues. However in the case of Int. ile Industry (Nig) Ltd v. Aderemi (1999) 8 NWLR (Pt. 614) 268 @ 301-302 cited by both counsel, the Supreme Court per Uwaifo, JSC observed:
“… in order to avoid undue prolongation of litigation and to prevent unnecessary expense, the trial Judge should always, as a matter of duty, assess damages he would have awarded even if the decision was against the party claiming damages: see Yakassai v. Messrs Incar Motors Ltd (1975) 5 SC 107 @ 115-116. When the trial court has failed to fulfill this duty, an appellate court in an appropriate situation will assume that duty and award damages it considers the claimant is entitled to rather than remit the case for the purpose of assessment to the trial judge. There is a long line of decisions on this….
It follows that when an appellate court finds it impossible from the record before it to make any justifiable assessment of damages, I am afraid that the question of assessment of damage will, painfully have to be remitted to the trial Judge.”
The question now is whether this court can from the available evidence assess the quantum of damages due to the appellant. In his judgment at page 253 of the Record, the learned trial judge said:
“PW3. The Insurance Practitioner working with Leadway Assurance Company Limited, the Plaintiff’s Insurers testified: ’15 Coils were damaged I recollect.’ Some of them retained some salvage value. The damaged coils were realized their salvage value…. N2 million. ‘We have settled the claim in this matter’. Under cross-examination: PW3 testified ‘we paid out a little over N4 million, N4,037,192.85 specifically’. Leadway has custody of the salvage sale.
This testimony is actually elicited in cross-examination, the Plaintiff not offering any other specific proof of the Insurance Policy, the Insurance claim nor the amount offered and accepted in compensation for the loss suffered on damage to the cargo.
This testimony is unchallenged, undisputed and uncontroverted by the Defendant. I accept PW3’s testimony as to the specific amount settled on the Plaintiff in compensation for its damaged cargo. Insurance Companies are not Mother Teresa and I accept that the Plaintiff’s insurer made the settlement upon verification of a claim or claims made on it by the Plaintiff. The Plaintiff claim against the Defendant is for the sum it had already been paid in compensation and more, specifically N4,178,830 (Four million One hundred and Seventy Three Thousand, Eight Hundred and Thirty Naira Only).”
It is obvious then, that the learned trial judge did arrive at some conclusion as to the amount due. He accepted the evidence of PW3 that 15 coils were damaged; that their salvage value was N2 million and that they paid the plaintiff N4,037,192.85. He believed the settlement was made by the Insurance Company upon verification of the claims made on it by the Plaintiff. The learned trial judge accepted the evidence of PW3 because his evidence was unchallenged, undisputed and uncontroverted by the defendant. The Respondent did not challenge these findings and conclusions of the trial Judge in a cross-appeal. He is consequently bound by the conclusions. There is sufficient evidence to enable this court through the invocation of Section 15 of the Court of Appeal Act to determine the quantum of damages which is the sum of N4,037,192.85 paid by Leadway Insurance Company to the Appellant less the salvage value of N2 million.
In the final result, issue I of the appellant’s brief is resolved in the negative. The learned trial judge was not right in law when he raised the issue of whether the suit was sustainable in the name of the Appellant suo moto and proceeded to decide the issue without calling for further address. The error led to a serious miscarriage of justice and rendered the judgment liable to be set aside. Issue 2 of the Appellant’s brief is resolved in the affirmative. Leadway Assurance Company Ltd was right to have instituted and maintained the suit under a right of subrogation in the Appellant’s name. Consequently this appeal is meritorious. It is hereby allowed. The judgment of Archibong J. of the Federal High Court Lagos in Suit No. FHC/L/CS/436/2007 delivered on the 7th day of December, 2009 is hereby set aside. In its place judgment is entered for the Appellant in the sum of N2,037,192.85 with costs assessed at N30,000.00 against the Respondent.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft before now the lead Judgment just delivered by my brother CHINWE E. IYIZOBA, J.C.A.
I agree with the reasoning and conclusion that the appeal be allowed and same is allowed by me. I abide by the consequential order made in the lead Judgment as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I have had the opportunity of reading before now the lead judgment just delivered by my learned brother Chinwe Iyizoba, J.C.A.
I agree with the reasoning and conclusions contained therein that the appeal be allowed.
I too allow the appeal and abide by the consequential orders contained in the judgment.
Appearances
Ame Ogie Esq.For Appellant
AND
V. O. Ogude, Esq.For Respondent
