HI-TECH CONSTRUCTION LIMITED v. PATRICK ONOME ONOMUABORIGHO
(2018)LCN/11946(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/B/460/2016
RATIO
DAMAGES: AWARD OF DAMAGES
“The term general damages covers all losses which are not capable of exact quantification. It also include all none financial losses. See OSUJI V. ISIOCHA (1989) 6 SC. (Pt. 11) 158; NEKA B.B.B. MANUFACTURING CO. LTD. V. AFRICAN CONTINENTAL BANK LTD (2004) 1 SC. (Pt. 1) 32. In the light of the fact of this case, it is my humble view and conclusion that the claim of the Respondent under the heading of general damages is appropriate and permissible under the law.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
HI-TECH CONSTRUCTION LIMITED Appellant(s)
AND
PATRICK ONOME ONOMUABORIGHO Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
This judgment is predicated on the appeal by Hi-Tech Construction Company Ltd., as Defendant against the judgment of High Court of Edo State sitting in Benin City in Suit No. HOR/53/2013 delivered on the 25th day of April, 2016 in favour of the Respondent, Patrick Onome Onomuaborigho before the trial Court in the following terms. (See page 202 of the record of appeal)
In the result, the claimant’s case succeeds in part. I hereby make the following orders:
(1) The sum of N20,000,000.00 (Twenty million Naira) is hereby awarded as general damages in favour of the claimant for the loss of the claimant’s left leg, physical, psychological and emotional pains suffered by the claimant as a result of the event of 22nd day of August,2010.
(2) The sum of N50,000.00 is awarded as cost in favour of the claimant.
The summary of the fact of the case as can be gleaned from the record of appeal is that the Respondent as Plaintiff and who had just completed his National Youth Service Corp programme in Kaduna and returned to Orerokpe his place of abode. He left Orerokpe on 22nd August, 2010 for Osubi enroute, Warri in Delta State. He disembark from the vehicle that took him from Orerokpe at old Osuji junction by Osubi express road. While on the right side of the road and at the junction, negotiating with a motorcyclist on the fare to be paid to take him to Osaremien motor park, Enerhen, Warri, a Hilux van with registration number Lagos XL 183 AKD driven by the driver of the Appellant rammed into him.
As a result of the accident, his right hand was broken and his left wrist was fractured. His left leg was also shattered and severed above his knee from the rest of the body as a result of the impact by the Hilux van. He also sustained serious cuts and bruises all over his body. While in the hospital, his shattered and severed left leg was buried.
He became unconscious and when he gained back his consciousness, he found himself at Lily clinic courtesy of the Appellant. He spent over one month in the said clinic. There in the clinic the Appellant claimed he expended not less than N2,000,000.00 (Two million Naira) for the treatment of the Respondent.
After his discharge from the said clinic, the Respondent approached the Appellant for compensation. The managing director of the Appellant offered N50,000.00 (Fifty Thousand Naira) which did not go well with the Respondent. His solicitor wrote to the Appellant and consequent upon the letter by the solicitor, the managing director of the Appellant again offered N350,000.00 (Three Hundred and fifty thousand Naira) as full and final payment.
This again was not agreeable to the Respondent and hence his Suit wherein he claimed in paragraph 17 of the amended statement of claim as follows:
Paragraph 17:
”Consequently, the claimant claims against the defendant as follows:
(a) The sum of N25,000,000.00 (Twenty-five million Naira) as general damages for the loss of his left leg, loss of control over his right hand, physical, psychological and emotional pain as well as the painful state of life he has been reduced as a result of the event of August 22, 2010.
(b) Cost of instituting and prosecuting this case on indemnity basis.”
The matter went through full trial and hence the conclusion of the Court in favour of the Respondent herein before reproduced. Aggrieved by the outcome of the trial hence this appeal. The original notice of appeal was filed on 22nd July 2016. By the order of this Court granted on the 19th day of April 2018, the Appellant’s amended notice of appeal filed on the 26th day of March 2018 was deemed as properly filed and served on 19th day of April 2018. I reproduce herein under the grounds of appeal in the amended notice of appeal but without the particulars.
AMENDED GROUNDS OF APPEAL:
(1) The learned trial judge misdirected himself and thereby came to a wrong decision when he held that the evidence of the claimant on the nature of the road, volume of traffic and the fact that the road was busy at the point where the accident took place was not denied by the Appellant and hence is deemed admitted by the Appellant.
(2) The learned trial judge misdirected himself and thereby came to a wrong decision when he held that the police report of the accident (Exhibit D1) support the case of the Respondent rather than that of the Appellant.
(3) The learned trial judge misdirected himself and thereby came to a wrong decision when he held that the Appellant’s driver, DW2 breached a duty of care owed to the Respondent which resulted in the accident.
(4) The learned trial Court (sic) ab initio did not have jurisdiction to entertain the suit and deliver judgment thereon.
(5) The learned trial judge erred in law by entering judgment in favour of the claimant when in fact the claimant failed to establish a case of negligence against the Appellant.
(6) The learned trial erred (sic) in law when he rejected the defence of inevitable accident whilst failing to properly consider, assess and evaluate the evidence in support of the defence of inevitable accident put up by the defendant.
(7) The learned trial judge erred in law by awarding the Respondent general damages of N20,000,000.00 (Twenty Million Naira) which amount was manifestly arbitrary, excessive and based on wrong principle of law.
(8) The learned trial judge erred in law by failing to properly consider as a factor in the award of damages the over N2,000,000.00 (Two Million Naira) the Appellant spent to restore the claimant thus occasioning a miscarriage of justice.
(9) The judgment of the trial Court was against the weight of evidence.
RELIEFS SOUGHT:
(a) An order setting aside the judgment of the High Court of Edo State contained in the judgment of His Lordship, Hon. Justice T.O. Uloho (Mrs.) delivered in Suit No. HOR/53/2013 – Patrick Onome Onomuoborigho V. Hi-tech Construction Ltd. on 25/4/2016.
(b) An order allowing the appeal, setting aside the judgment of the learned trial judge and dismissing the Suit in its entirety.
The record of appeal was transmitted on the 24th day of November, 2016 and hence respective party filed their brief of argument in the following sequence;
APPELLANT’S BRIEF OF ARGUMENT:
The Appellant’s brief of argument was filed out of time on the 23rd day of May 2018 vide the order of this Court, it was deemed as properly filed and served on 19th day of January 2018. In the said brief, the following issues are distilled for the determination of the appeal.
APPELLANT’S ISSUES FOR DETERMINATION:
(a) Whether the Respondent was able to establish that it was the negligence of the Appellant that caused the accident? (Ground 5)
(b) Whether the Police Report of the accident indicted the Appellant? (Ground 2)
(c) Whether from the circumstances of the whole case and the state of the pleadings, the Appellant breached any duty of care to the Respondent and if so, whether it was substantial enough to be solely responsible for the resultant accident? (Grounds 1 and 3)
(d) Whether upon a proper re-evaluation of the evidence led at the trial, the learned trial judge was right when he rejected the Appellant’s defence of inevitable accident and awarded the sum of N20,000,000.00 (Twenty Million Naira) against the Appellant, a sum that is considered arbitrary and excessive. (Grounds 6 and 7)
RESPONDENT’S BRIEF OF ARGUMENT
The Respondent’s brief of argument was filed on the 1st day of February 2018. Therein, the Respondent distilled the following issues for determination of the appeal.
RESPONDENT’S ISSUES FOR DETERMINATION
(i) Given the fact pleaded and evidence led in this case, whether the Court below was right in holding that the Appellant was negligent. (Grounds 1, 3 and 5)
(ii) Given the content of Exhibit D1 (tendered by the Appellant), whether the Court below was right holding that the document supported case of the Respondent.
(iii) Whether the learned trial judge was right in holding that the defence of inevitable accident did not avail the Appellant. (Ground 6)
(iv) Taking into consideration the physical state of the Respondent, the pleadings and evidence before the Court below, whether the award of N20,000,000.00 is arbitrary and excessive. (Ground 7)
On the 19th day of April, 2018, respective counsel adopted their brief of argument while the Appellant urged the Court to allow the appeal and set aside the judgment of the trial Court, the Respondent urged the Court to dismiss the appeal and affirm the judgment of the trial Court.
I have carefully read all the aforementioned processes filed by the respective party in this appeal. I have also compared and contrast the issues formulated by the respective counsel. In my view, the issues are same except for issue two by the Respondent which is different. It is my candid view that adopting the issues formulated by the Appellant for the determination of this appeal would also provide answer to the questions posed by the issues distilled by the learned counsel representing the Respondent.
Accordingly therefore, the four issues distilled by the Appellant, and herein before reproduced are adopted for the determination of this appeal. But before the consideration of the issue, I will like to quickly put on record that out of the nine grounds of appeal in the amended notice of appeal, the Appellant, only distilled issues on grounds 1, 2, 3, 5, 6 and 7 respectively. By that token he did not distill any issue from grounds 4, 8 and 9. It is trite that when an Appellant failed to distill issue from any ground of appeal, such ground of appeal is deemed as abandoned and liable to be struck out. Such ground of appeal from which no issue is distilled can be described as impotent and or a toothless bull dog. Grounds 4, 8 and 9 having being abandoned are hereby struck out.
Be that as it may, I will now proceed to consider the adopted issues for the determination of this appeal.
ISSUE ONE
Whether the Respondent was able to establish that it was the negligence of the Appellant that caused the accident.
The contention of the Appellant on this issue is that the Appellant at no time admitted liability, and neither was he responsible for the accident. He argued that the pleadings and evidence proffered by parties, particularly that of the Respondent failed to show anything suggesting that DW2 (driver of the vehicle) was reckless, careless and negligent and neither was it established by any scintilla evidence that the driver was on excessive speed when the accident occurred. Further he argued that both parties at the trial showed that the road where the accident happened is an express way (a Federal High way) but the Respondent never proffer evidence of the minimum or maximum required speed limited on that portion of the road.
All the Respondent was able to do was to adduce evidence that there are buildings on both side of the road and where the accident occurred is close to an Army check point and that is all. But there was no evidence of how close the accident scene was to the Army check point. He submitted that no sketch map was tendered and hence the fact that DW2 was driving at 80KM per hour is not necessary evidence of over speeding nor does it indicate dangerous driving. Commenting on the Police report, Exhibit D1 he argued that the said report is a complete exoneration of the Appellant.
He argued that the only query that the Respondent and the trial Judge made was that the Appellant’s pleadings mentioned only one motorcycle being involved in the accident but the Police report mentioned two motorcycles ”on the basis of this ‘contradictions’ the learned trial Judge rejected the evidence of the Appellant that the accident was caused by a motorcyclist that suddenly left his lane and crossed over unto the lane that DW2 was driving on. He argued that if there are contradictions, there is no material contradiction because the said Police report further confirm that:
(a) There was a sketch map taken by the Policeman from the Motor Traffic Division of the Orerokpe Police Station.
(b) That statements were taken from available (eye) witnesses (including the Respondent). (See paragraph 14 of the amended statement of claim and paragraph 14 of the amended statement on oath.
(c) That the driver of the Appellant lost control in his effort to dodge the motorcyclist that suddenly crossed over.
He submitted that the alleged contradiction is not material and does not remove anything from the substance of the Police report which is that, it was the sudden crossing of a motor bike rider from the other side of the road unto DW2’s lane that caused the accident and completely exonerated the Appellant of being the cause of the accident. He then after posed the following questions which he said affects the credibility of the evidence of the Respondent;
(a) Why did the Respondent refuse to call the officer from MTD who documented the incident on the day it happened and when it was very fresh?
(b) Why did the Respondent refuse to provide the ‘rough sketch map – produced by the MTD’
(c) Why did the Respondent refuse to call any of the available witnesses, instead of just calling only his mother?
He submitted that a party who asserts must prove that the failure of the Respondent to tender the material evidence amounted to withholding evidence. Therefore the learned trial Judge was wrong when he held at pages 196-197 of the record of appeal that:
“There is nothing in Exhibit D1 to suggest or connote that the driver of the Hilux vehicle, DW2 was absolved from blame by the Police or that the Police found that the claimant and the motor cycle rider whom the claimant flagged down were negligent and reckless —-Exhibit D1 do not support the case of the Defendant —–the Defendant in their pleadings and evidence of DW2 maintained that it was the claimant and the motor cycle rider whom the claimant flagged down that caused the accident. The facts contained in Exhibit D1 is in conflict with the pleadings and evidence of the Defendant and that of DW1. Exhibit D1 knocked and rocked off the bottom of the Defendant’s case.”
He urged the Court to evaluate the said Exhibit D1 in the light of the admission of the espondent and the power vested in the Court to so do. He relied on the case of EDEH V. ADAH (2016) ALL FWLR (Pt. 864) Ratio 1 AT 1859-1860. He added that the onus of proving that the Appellant was negligent is on the Respondent and not on the Appellant. But the trial Court has wrongly placed the burden on the Appellant and that Exhibit D1 clearly showed that the Appellant was not negligent nor caused the accident. He added that there are no pleading to support the evidence that the accident happened at a junction and that houses are built on both sides.
He also argued that the evidence extracted from the Respondent under cross-examination where the Respondent said:
”It is correct that I stopped a motor cycle on the other side of the road and the motor cycle was crossing to pick me and that was when the accident happened to my knowledge. It was myself, the motorcycle rider that the Defendant hit that were involved in the accident.”
(pages 161 – 162 of the record) constitutes admission against interest as against the finding of the trial Court that the Respondent denied under cross-examination that he ever stopped a motorcycle on the other side. He relied on the case of ADEBOYE V. BAJE (2016) ALL FWLR (Pt. 845) page 12 Ration 5 para. E-G. He submitted that the finding of the learned trial judge in this circumstance is perverse. He relied on the case of MOHAMMED V. KLARGESTER NIG. LTD (2002) FWLR (Pt. 127) at 1081 ratio 3.
He submitted further that the evaluation and ascription of probative value to it resides in the trial Court that saw, heard and assessed the witness. However an appeal Court would be entitled to intervene. He relied on the following cases. OKOROJI V. ONWENU (2017) ALL FWLR (Pt. 871) ratio 1 at 1387 para D; OSSAI-UGBAH. V. AGOLO (2014) ALL FWLR (Pt. 758) ratio 2 at 934.
On the failure of the Respondent to prove negligence against the Appellant he submitted that the claimant failed woefully to establish negligence as required by law. He added that the law makes it incumbent on the claimant to copiously and sufficiently plead particulars of the negligent act of the Defendant and prove that the accident was as a result of the negligence of the Defendant. He relied on JOSEPH V. ABUBAKAR (2002) 5 NWLR (Pt. 759) pg 185 at pg 202 para E- F; OTARU V. IDRIS (1999) 6 NWLR. (Pt. 606) P. 330 at pp. 343 ? 344 para H-A.
He submitted that the Respondent could not prove by way of credible and compelling evidence that DW2 caused the accident by way of reckless and negligent driving. Further to this he argued that there is no credible and conclusive evidence by the Respondent that the driver of the vehicle was driving on the wrong lane, more than the required speed limit on a double lane highway, overtaking, hit a car or vehicle or drove negligently or recklessly without regard to other road users. There is no proof that the driver did not apply reasonable care and due diligence in the course of driving the vehicle.
He added that the law places a burden on the claimant to prove that the driver was entirely and solely blameworthy. This burden was not discharged by the Respondent as the Police report (Exhibit D1) weighs so much in favour of the Appellant. On proof of negligence he relied on ABUBAKAR V. JOSEPH (2008) 13 NWLR. (Part. 1104) P. 307.
He argued that PW2 was on his rightful lane when the motor-bike rider suddenly and unexpectedly veered at his lane unto the front of the Appellant’s vehicle that was on the proper lane. He stated that the Respondent?s position as to the cause of accident and the party to blame is incongruous. The pleading is contradictory and irreconcilable. The Respondent cannot in one breath admit not knowing how the accident happened and in another breath give particulars of negligence of the Appellant as the cause of the accident. He urge the Court to completely discountenance the contradictory pleadings and evidence thereon.
On the necessity of reliance on VIO’s report, he cited the case of NIGERIAN DYNAMIC LTD. V. DUMBAI (2002) FWLR (Pt. 103) at 825 ration 3 to drive the point made by this Court home on reliance on the vehicle inspection officer’s report in accident cases to establish extent of damages and apportionment of same.
He contended that from the indubitable state of the statement of Defence and Defendant’s witness on oath especially DW2, the following undisputed fact ought to have agitated the mind of the trial Court.
(1) DW2 was diligently driving on his lane when the accident happened.
(2) DW2 was not in excessive speed.
(3) A motor cycle rider was coming from the opposite lanes of the express road.
(4) Rather than wait for DW2 to pass before making a u-turn, the motor bike suddenly veered unto the lane and directly in front of the vehicle being driven by DW2.
(5) Of course, DW2 had no choice other than to apply his brakes all in his human instinct to avoid colliding with the motor bike rider, where upon the accident occurred.
(6) The sudden u-turn made by the motor bike rider directly in front of the moving vehicle driven by DW2 caused the accident.
(7) The reckless and careless action of the motor-bike rider caused the accident and DW2 had no control over the effect which could not be accorded by the exercise or reasonable care and skill
(8) If the motorcyclist had not veered unto DW2?s lane unexpectedly, the accident certainly would not have happed.
He submitted that the negligent act of the motor bike rider in the circumstances of the case occasioned an inevitable accident over which the DW2 had no control and the effect of which could not be avoided the exercise of reasonable care and skill. No where did the Respondent deny the fact that a motor-bike rider was involved in the accident. He contended further that the Appellant ought to have been exculpated in line with the defence of inevitable accident. He relied on the case of N.B.C. PLC V. BORGUNDU (1999) 2 NWLR (Pt. 591). P. 408 at page 426 para A-B.
He submitted that the action of the motor bike rider solely caused the accident. If he had not made a sudden and reckless u-turn on DW2’s lane, the accident would not have happened. This he added is the test for determining the negligent party in motor accident causes resulting to injury. He relied on the cases of JOSEPH V. ABUBAKAR Supra P. 360, para. A-B and UWEGBA V. ATTORNEY GENERAL BENDEL STATE (1986)1 NWLR (Pt. 16), 303. Finally he submitted that the Appellant ought to be exonerated.
At this stage, it is done on me that the Appellant has argued at a stretch issues A, B and C. together. Therefore, I will provide herein under the argument of the Respondent herein under in respect of the three issues:
In respect of issue one, the Respondents contented that this case is not about a damaged truck, car electrical installation, road signs, chatted/goods or any other inanimate object. But about a human being who suffered injuries and permanent disabilities. He submitted that the Respondent is a young man whose life was shattered by the avoidable event of 22/8/2010 which was orchestrated by DW2, the Appellant’s driver. He submitted that DW2 was negligent in the way and manner he drove the Appellants Hilux Van on 22/8/2010 following from this fact he argued that the liability for the permanent injury/incapacitation suffered by the Respondent which culminated in the present state he has been reduced to, lies squarely at the doorstep of the Appellant.
On state of pleading on negligence and the state of Osubi junction where the accident occurred, the Respondent relied on his pleading in paragraphs 3, 3(a) and 12 of the amended statement of claim. He also referred to paragraph 7 of the amended statement of defence of the Appellant which he described as an admission of the averments in paragraphs 3, 3a and 12 of the amended statement of claim. By the foregoing he submitted that the Respondent pleaded and offered credible evidence on negligence of DW2.
He argued that having given evidence on the Osubi road and the spot where the Appellant’s vehicle hit the Respondent, the only reasonable inference to be reached and as was rightly found by the learned trial Judge was that DW2 was negligent. He also relied on paragraph 4 of the witness statement on oath of DW2. He also refer to the response of DW2 to question under cross examination contained in page 174, paragraph 4 page 175, 1st paragraph of the Record of Appeal. He argued that in order to show how devastating the accident was, DW2 stated that he was unconscious and dying and that the reason why DW2 drove without due regard to other road users especially the Respondent is crystal clear from the last statement he made during cross examination thus:
”On the day of the accident I was rushing to go and pick my Boss.”
The above response by the Respondent lend credence to the pleading of the Respondent in lines 14-20 of paragraph 12 of the amended statement of claim. On the need for driver to be cautious on nature of the road and the speed at which they drive, he relies on the dictum of Wali JSC in the case of ALPHONSUS IBEANU & ANOR V. PETER A. OGBEIDE & ANOR. (1998) LPELR 1387. In the light of the foregoing, he queried whether DW2 can be said to have exercised due diligence? He answered in the negative.
On the issue of whether DW2 exercised reasonable care having regard to the way and manner he drove on 22/8/2010, he referred to the finding of the learned trial Judge contained on page 196, line 9-26 of the Record of Appeal.
Further, he contended that the content of Exhibit D1 tendered by the Appellant corroborates the Respondent’s evidence that he was negotiating with a motorbike rider who was carefully packed off the road. He submitted that from the evidence before this Court, the Appellant’s testimony as to the fact that the motorbike rider he was negotiating with was completely packed off the road is not only credible and cogent, it is consistent with the fact and circumstances of the case, reasonable and believable. He argued that the Appellant did not lead any direct evidence to contradict the Respondent’s assertion. The evidence of the Respondent therefore is not only uncontroverted but direct cogent and credible. He relied on the following cases: PURIFICATION TECHNIQUE (NIG) LTD. V. JUBRIL (2013) 9 WRN I; ARAB CONSTRUCTION LTD. V. ISAAC (2013) 5 WRN 57.
On issue two which deals on the content of Exhibit D1, tendered by the Appellant, whether the Court was right in holding that the document supported the case of the Respondent, the learned counsel to the Respondent submitted that Exhibit D1 completely knocked off the bottom of the sham defence of the Appellant.
He contended that the crux of the Appellant’s defence is that the Respondent and the motorbike rider he was negotiating with were jointly negligent, careless, reckless and that the Respondent was ignorant of road signs and failed to observe proper lookout. He referred to paragraphs 4(4), 4(7) and 12(c) of the amended statement of defence by the Appellant. To buttress this he referred to the finding contained in Exhibit D1 thus:
”Investigation carried out so far revealed that the driver of the Toyota Hilux with Registration XL 183 AKD, one Dennis Egurare ?M? lost control of his vehicle when he was trying to avoid the motorcycle with Registration No. DT. 775 P that was crossing into Osubi Town from the express way, and in the process the Toyota Hilux driver hit the motorcycle and another motorcycle with Registration No. DT.7955 EPE with its rider and the intended passenger.
As a result of the accident, the driver of the Toyota Hilux, the two motorcyclist and the intended passenger sustained injuries, and the Toyota Hilux was badly damaged.”
He submitted that Exhibit D1 tendered by the Appellant does not support the case of the Appellant. He relied on lines 2 and 3 of Exhibit D1. He argued that Exhibit D1 is not out only at variance with the sham defence of the Appellant, it totally destroy the defence and supported the Respondent?s case. He contended that the Appellant must bear the full weight of Exhibit D1 tendered by him. He cited in aid the case of NAGOGO V. CPC (2013) 46 WRN 29 at page 70 lines 15-20. On the duty of the Court not to ignore vital evidence he relied on the case of NEPA V. OSOSANYA (2004) 12 WRN. 1 at pages 21-22 line 45. He further submitted that a party who tendered a document must either swim or sink with its content. He relied on the case of ATTORNEY GENERAL ENUGU STATE V. AVOP PLC. (1995) 6 NWLR (Pt. 399) pages 120 – 121.
Further he contended that paragraph 4 of Exhibit D1 tendered referred to a rough sketch measurement. The rough sketch map was not tendered by the Appellant, also the statement of available witnesses allegedly taken by the police referred to in paragraph 4 of the report were not tendered. The failure to produce and tender the aforementioned must be construed against the Appellant as deliberate withholding of evidence. He urged the Court to invoke S. 167(d) of the Evidence Act 2011 against the Appellant. That is to say that if the sketch map and statements are produced it would be against the Appellant.
He relied on the case of EKAIDEM V. STATE (2012) ALL FWLR (Pt. 631) 15876 at page 1612 Paragraphs G-H. He argued that since the Appellant introduced Exhibit D1, he cannot fault the Respondent for failure to call the witnesses and tender the sketch map. (See paragraphs 12(d), (e) and (f) of the amended statement of Defence. The burden is on the Appellant to produce the alleged sketch map.
It is the contention of the Respondent that the pleading and evidence of the Appellant are in total variance with Exhibit D1. The pleading and evidence of the Appellant referred to one motorcyclist whereas Exhibit D1 referred to two motor bikes. He submitted that documentary evidence is a hanger to assess oral testimony. He relied on the case of ODUNLAMI V. NIGERIA NAVY. (2013) 43 WRN. 1 page 47 lines 20-30. He referred to the finding of the learned trial Judge on this point i.e. pages 193 line 15, 195 lines 14-15 and lines 18-20.
In view of the foregoing, he submitted that the learned trial Judge took precious judicial time to sturdy and critically evaluate Exhibit D1 and that the Appellant has not placed any material fact before the Court to warrant disturbing the findings of the Court below on Exhibit D1. He urged the Court to resolve this issue against the Appellant.
On issue No. 3, which is on whether the lower Court was right in holding that the defence of inevitable accident did not avail the Appellant, he submitted that giving the pleading and evidence in this case, the learned trial Judge was right in finding that the defence of inevitable accident does not avail the Appellant. He contended that from the facts of this case, it is obvious that giving the manner DW2 drove on 22/8/2010 it was foreseeable and or reasonably foreseeable that accident could occur. He relied on the case of C.C. CONSTRUCTION COMPANY LTD. & ANOR. V. SAMUEL TUNDE OKHAI (2003) LPELR 821.
He submitted that it is a duty on the Appellant to show that DW2 was not negligent. He referred to the case of KUTI & ANOR V. TUGBOBO (1967 – 1968) 5 NSCC 321. The Appellant having not challenged in any way the nature of Osubi road as pleaded and established in evidence by the Respondent, the Court is bound to accept and act on the evidence in this regard. From the Respondent evidence that the road runs through a built up area with houses on both sides, with heavy vehicular movement at a slow space.
The spot of the incident was at a junction close to the Army check point, DW2 admitted under cross-examination that as a driver when approaching a junction he should slow down or reduce speed, DW2 stated on oath that ‘he was rushing to carry his Boss’.
The combination of the above fact lead to one irresistible conclusion i.e. that the defence of inevitable accident or an alleged intervention of a third party fell flat on its face. He cited the case of THOMPSON & ANOR V. ADEFOPE (1969) 6 NSCC 301. He submitted that it is not enough for the Appellant to plead inevitable accident, the plea must be substantiated with credible evidence. He urge the Court to resolve the issue in favour of the Respondent.
I have carefully read and considered the submission of respective counsel on the three issues herein before reproduced. The bone of contention in the three issues centers on;
(1) Whether or not the DW2 the Applicant was negligent.
(2) Whether DW2 exercised duty of care.
(3) Whether the defence of inevitable accident can avail the Appellants.
I will like to approach this by first provide meaning for the word negligence.
In Black’s Law Dictionary 8th Edition at pages 1061 negligence is generally defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation, any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others rights.
In other words and considering the foregoing definition, negligence can be said to be the omission or failure to do something which a reasonable man under similar circumstance would do or the doing of something which a reasonable and prudent man would not do. See U.T.B. (NIG) V. OZOEMENA (2007) 3 NWLR (Pt. 1012) 488; U.B.A. LTD. V. ACHORU (1990) 6 NWLR (Pt. 156) 254; DIAMOND BANK LTD. V. PARTNERSHIP INVESTMENT COMPANY LTD. & ANOR (2009) 12 SC (Pt. 11) 159 at 1731; ABUBAKAR & ANOR V. JOSEPH & ANOR (2008) 5-6 SC. (Pt.11) 146. If I may recall, the old case of DONOGHUE V. STEVENSON (1932) AC. 562 laid the foundation of the law of negligence.
Three conditions are laid down which the Plaintiff must establish for a successful claim under negligence. They are:
(a) That the Defendant owe a duty of care to the Plaintiff.
(b) The duty of care was breached.
(c) The Plaintiff suffered damages arising from the breach.
See the cases of OYIDIOBU V. OKECHUKWU (1972) 5 SC. 191; U.T.B. (NIG) V. OZOEMENA (Supra). Let me quickly add that negligence as tort may be described as a breach of a duty to take care imposed by common or statute law, resulting in damages to the complainant. See the case of THOMAS CHUKWUMA MAKWE V. CHIEF OBANUA NWUKOR (2001)10 SCM 69.
Further to this, negligence is a question of fact not law and such case must be decided in the light of its own facts. ROYAL ADE NIG. LTD & ANOR V. NATIONAL OIL AND CHEMICAL MARKETING COMPANY PLC. (2004) 4 SCM 189; UMAR V. AHUNGA (1999) ALL NLR 747.
Bearing the fact of this case in mind as herein before narrated, the question yearning for answer is whether or not DW2 who was the driver of the Appellant was negligent and owed to the Respondent the duty of care.
In civil cases the burden of proof is on the fellow who asserts so also in a case of this nature, the onus is on the person alleging negligence to lead evidence and give particulars. See the case of U.B.A. PLC V. ACHORU (1990) 9-10 SC. 115.
The complaint of the Appellant on issue of negligence is that the trial Court entered judgment in favour of the Respondent when the Respondent has not establish a case of negligence. He contended that the statement of claim is bereft of particulars of negligence, the trial Court placed too much premium on the evidence of claimant and which largely border on sentiment, and that ingredients of negligence are not provided. In resolving this complaint recourse has to be made to the pleading and evidence by the Plaintiff and the finding of the Court on negligence. In paragraphs 3 and 12 of the amended statement of claim and paragraph 3A of the amended reply to statement of defence the Respondent pleaded the following facts.
(1) PARAGRAPH 3
The claimant highlighted from the car he boarded from Orerokpe at old Osubi road junction by Osubi express road on the right side of the road. While still on the right side of the of the road, the claimant flagged a motor bike rider to take him to Osaremein Motor Park, Enerhen, Warri.
PARAGRAPH 12
”…The claimant state that there are houses on both sides of the Osubi road especially at the spot where the Defendant’s vehicle hit him. The claimant states further that there is usually heavy vehicular traffic on the road especially at the spot where the Hilux Van with Registration Number LAGOS XL 183 AKD, rammed into him from behind on August 22, 2010. The claimant also states that on August 22, 2010, there was heavy vehicular traffic on Osubi road at the spot that the Defendant’s vehicle rammed into him from behind while he was negotiating with the bike rider. A car properly driven taking into cognizance the peculiar nature of Osubi road would not have rammed into the claimant at the spot he was on August 22, 2010…”
PARAGRAPH 3A
(Amended Reply to the amended statement of Defence)
”The claimant states further that it was the speed at which the Defendant’s driver drove the Defendant’s vehicle without taking into consideration the nature of the road, slow vehicular movement on the road due to the army check point that led to the Defendant’s vehicle hitting him with a very devastating force.”
In order to establish the foregoing averments, the Respondent in paragraph 3 and 12 of his witness statement on oath which he adopted (See pages 10-16) of the record posited as follows:
”After successfully participating in the NYSC Orientation Camp in Kaduna State, I came home to Orerokpe in August 2010. On August 22, 2010, I left Orerokpe in car to Osubi for onward journey to Warri. I highlighted from the car I boarded from Orerokpe at old Osubi road junction by the Osubi express road on the right side of the road. While still on the right side of the road, I flagged down a motor bike rider to convey me to Osaremien Motor Park, Warri. As I was negotiating the fare for the journey with the motor bike rider who carefully parked his motor bike completely off the road, without any warning, a vehicle rammed into me from behind, the impact of the vehicle on me was so devastating that I immediately lost consciousness as I fell to the ground. The vehicle that rammed into me at the spot I was negotiating the bike rider on August 22, 2010 about 1.pm is a Hilux Van with Registration Number LAGOS XL 183 AKD, belonging to the Defendant and driven by Dennis Okere, the driver”.
PARAGRAPH 12
”I reiterate that on August 22, 2010 and for all times material to this suit, the Defendant’s driver drove Hilux Van with Registration Number LAGOS XL 183 AKD in course of his employment as the Defendant’s driver. The Defendant’s driver owed me a duty of care not to drive the Hilux Van in such a manner as to expose me to danger and in particular to avoid ramming into me from behind with such devastating impact especially at the spot where the Defendant’s vehicle rammed into me. There is usually heavy vehicular traffic on the Osubi road especially at the spot where the Hilux Van with Registration Number LAGOS XL 183 AKD, rammed into me on August 22, 2010. On August 22, 2010, there was heavy vehicular traffic on Osubi road at the spot that the Defendant vehicle rammed into me. A car properly driven taking into cognisance the peculiar nature of Osubi road would not have rammed into me at the spot I was on August 22, 2010. I also state that a car properly driven taking into cognizance the nature of Osubi road would not have had the devastating impact that I suffered as a result of the event of August 22, 2010. The Defendant’s driver was negligent in the way and manner he drove the Hilux Van on August 22, 2010.”
The reaction of the Appellant to this can be gleaned from paragraph 4 of the adopted written statement on oath by the driver DW2. Hear him:
(1) The accident occurred on about the 22/8/2010, whilst I was driving the Defendant’s Toyota Hilux vehicle from Okan to Warri enroate Osubi. I was coming to Warri to pick my immediate Boss for an official assignment.
(v) The accident occurred somewhere around Osubi. The motor bike rider rather than wait for me to pass, suddenly and without proper look out veered into my lane in his attempt to make a sudden and very reckless u-turn with a view to picking the claimant who flagged him down?.
(vi) As a result of the sudden nature of the motor bike rider’s action, I was compelled to spontaneously apply my brakes and this made the vehicle to summersault which resulted to the accident.”
In response to a question while under cross-examination, he said thus:
”I know as a driver when you are approaching a junction, you are to reduce the speed of your vehicle. Apart from reducing your speed, you also need to observe other road users on your left and right. It is correct that the accident that led to the amputation of the claimant’s leg occurred at Osubi before the Army check point. Before the accident, I had been passing the road where the accident occurred as I live within the vicinity of the road where the accident occurred. I am aware that at the army check point that there are sand bags and some structures placed by the solders to make the driver reduce the speed of their vehicle it is correct that as professional driver that when you get to an army check point, that you need to slow down and reduce your speed. It is correct that when I was driving that my Hilux vehicle somersaulted. It is correct that on that day of the incident that I ran into two motorcycles.”
The learned trial Judge after considering the totality of the foregoing came to the following findings: (See page 196 of the record of appeal).
What would a reasonable man driving in such condition of road do, taking into consideration the fact that he is approaching a junction and structures mounted by soldiers at the check point and taking into consideration the fact that the area is a built up area with heavy vehicular traffic? Taking into consideration the circumstances of the road, a reasonable driver driving in such condition ought to avoid acts and omissions which will likely injure other persons. DW2 ought to have reduced his speed. Dw2 admitted that he was driving at 80 km per hour, DW2 ought to have reduced his speed knowing fully well that he was approaching the Osubi junction and the Military check point that had sand bags and other structures mounted thereon by the soldiers. For a vehicle to have somersaulted on such road with heavy vehicular traffic, close to a busy junction and close to an army check point, clearly showed that DW2 was reckless and negligent.
DW2 ought to have reasonably foreseen that his acts and omissions was likely to injure or affect other road users. DW2 under cross examination admitted that he was rushing to go carry his Boss. DW2 owed the claimant a duty of care. DW2 was reckless and negligent on his act and failed to exercise duty of care to the claimant who suffered damages.
Putting all the foregoing together, it is my view that in general, motorist and other road users owe a duty of care to one another. See DONOGHUE V. STEVENSON (Supra); OKONKWO V. M.P.D.T. (1999) 9 NWLR (Pt. 617)1 at 5. In this case, it is not in dispute and as can be gleaned from the pleading of respective party the evidence before the trial Court as provided herein before, it is not in dispute that the accident occurred at a junction and on an express way. At the said junction there are houses and close by is a Military check point. On the road there are sand bags put in place to reduce speed of motorist and other road users. The foregoing to me point to nothing than that the said junction is a point where motorcyclists and motor vehicle pick and drop passengers. If that is so, it is my view that a careful driver would in approaching such junction be on a very low speed so as to guide against any unforeseen circumstance.
From the evidence of DW2, the Respondent and the Police report (Exhibit D1) it is clear that two motorcyclists are involved in the accident. The Appellant has not been able to convince the Court that it is the motorcyclist that the Respondent was negotiating with that suddenly crossed the road as the Appellant wanted the Court to belief. The story of the Respondent is more reliable and reasonable that he was at that right hand side of road when the vehicle driven by DW2 rammed into him and causing the sever injury which led to the eventual amputation of his leg and fracture on the arm and several bruises.
Assuming and but not conceding, that it is the motorcyclist that the Respondent waved down that crossed the road and caused the accident, if the Appellant was not on speed, and not negligent, having regard to the location of the junction and the Military check point where in sand bags are put on road the Appellant’s driver would have been able to manage the situation safety. But because he was on speed he somersaulted when he suddenly applied his brakes.
This situation again suggest that the way and manner of driving of DW2 the driver of the Appellant on the faithful day and at the said junction was without due care for other road user. The evidence of DW2 also compounded this when he said he was in hurry to go and pick his Boss. It is trite that an average road user must take reasonable care to avoid acts or omissions which he can reasonably foreseen would likely be affected by his act or omission and that he ought reasonably to have them in contemplation. See ORHUE V. NEPA (1998) 5 SCNJ. 133. It must not be forgotten that duty of care has its origin on the concept of foreseeability as decided in the old case of HEAVEN V. PENCHER (1983) 11 QBD 503 at 509 where Bret M.R. said
”Whenever one person is by circumstance placed in such a position with regard to another, that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger, injury to the person or property of the other, a duty arises to use ordinary care skill and avoid such danger.”
Back in Nigeria, See the case of SOCIETE BANCAIRE (NIGERIA) LTD. V. MARGARIDA SALUADO DE LLUCH (2004) 9-12 SCNJ (Pt.1) 143. No wonder in Islam and Christianity, it is one of the pillars of the two religion to love one’s neighbour. The divine rule of ?love your neighbour has found its way into the law. That is to say that you must not injure your neighbour. In law, the neighbour is the fellow one must take reasonable care to avoid acts or omission which one can reasonably foresee would likely injure the neighbour. Therefore in law one can say that the neighbours are persons who are so closely and directly affected by the act of another and which that other ought to have them in contemplation.
Therefore, a person owes a duty of care to his neighbours who would be directly affected by his act or omission. See the case of HONOUABLE JUSTICE K.O. ANYAH (RTD) V. IMO CONCORDE HOTELS LTD & 2 ORS (2003) 14 SCM. 51. Considering the foregoing, I have no hesitating in my mind that the Appellant here owed a duty of care to the complainant and that the Appellant failed to offer that standard of care expected by law hence the accident on the faithful day and the damage caused to the Respondent.
No wonder, it is always said that accidents don’t happen but they are caused. The Appellant’s driver DW2 caused the accident.
I now come to the finding of the trial Court. The principle governing the evaluation of evidence have since been settled in MOGAJI V. ODOFIN (1978) 4 SC 1 and numerous other cases. The Court is bound to put the entire evidence on the imaginary scale of justice to determine in whose favour the balance tilts. See the case of HON. ESEME EYIBOH V. MR. DAN ABIA & ORS. (2012) LPELR 20607; NKEBISI V. STATE (2010) 5 NWLR (Pt. 1188) 471; DAKAT V. DASHE (1997) 12 NWLR (Pt. 531) 46; BABA V. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388. It is trite that where evaluation of evidence is satisfactorily performed, an Appellate Court will not interfere. See WOLUCHEM V. GUDI (1981) 5 SC. 291; ABISI & ORS V. EKWEALOR & ANOR (1993) 6 NWLR (Pt.302) 643; IGAGO V. THE STATE (1999) 12 SCNJ 140 at 160.
In this appeal, I have no hesitation in my mind that the learned trial Judge properly, and satisfactorily evaluated the totality of the evidence placed before it by both parties in coming to the conclusion that the Appellant’s driver DW2 was negligent and breached the duty of care and hence responsible for the resultant accident. In the same vein, Exhibit D1, the police report tendered by the Appellant speaks volume. Rather than providing support for the Appellant, it strengthened the case of the Respondent, it consequently reveal the negligent manner in which the Appellant’s driver DW2 drove on the day in question without due care and attention to other road users and in particular the Respondent.
In the light of all the foregoing, I am left in no hesitation that the Appellant drove his vehicle negligently and without due care and attention to other road users and in particular to the Respondent. Accordingly, I resolve issues 1, 2 and 3 against the Appellant and in favour of the Respondent.
What I am now left with is issue number 4 which is:
Whether upon a proper re-evaluation of the evidence led at the trial, the learned trial Judge was right when he rejected the Appellants defence of inevitable accident and awarded the sum of N20,000,000.00 (Twenty Million Naira) against the Appellant a sum that is considered arbitrary and excessive.
This issue is born out of the complaint contained in grounds 6 and 7 under these grounds the contention of the Appellant are that the Appellant copiously pleaded inevitable accident and that the accident was cause by the negligent and recklessness of the motorbike rider and that Exhibit D1 exonerated the Appellant. The foregoing are for ground six while under ground 7 the complaint is that the Respondent failed to establish his case against the Appellant and that the N20,000,000.00 (Twenty Million Naira) was awarded principally for the amputated left leg of the Respondent hence their conclusion that the award of N20,000,000.00 (Twenty Million Naira) was unfair and unreasonable. They also contended that they expended over two Million on medical treatment of the Appellant in the hospital. Having lay down the complaint I will now, reproduce the argument in support of the issue housing those complaints.
The learned counsel representing the Appellant contended that the Respondent failed to tender legally acceptable evidence to grand his claim. He submitted that the burden of proof lies on the Respondent. He argued that grants are not made as a matter of cause and relied on the case of OKE V. MAJA (2014) 3 NWLR (Pt.1394) P. 374 at P. 398 para B-C.
He relied on the following point to buttress his argument.
(a) All medical bills from the time of the accident prior to his filing of this action in Court were borne gratuitously by the Appellant. The full cost of procurement filing and installation of artificial limb was borne by the Appellant. The Respondent wrote a letter to acknowledge and appreciate the Appellant’s kind and gratuitous gesture.
(b) No medical expert was called to lead evidence that the claimant will in future increase more or additional expenses in servicing and or replacing the artificial limb.
(C) No medical expert was called to lead evidenced on the disability and/or whether or not the Respondent will not be able to work in the future.
(d) There is no medical evidence from the Respondent to contradict the pleading and evidence of the defence to the effect that the Respondent was fit enough to work and fend for himself.
(e) The Defendant gratuitously brought the claimant back to life and spend over N6,000,000.00 (Six Million Naira) by way of medical bills and sustenance which but was not disputable by the Respondent.
Based on the foregoing, he submitted that there certainly was no evidence, receipt, medical expert evidence in support and proof of the various claims as itemised in the statement of claim. He contended that the claims are in the realm of special damages. Therefore the claim for changes ought to and should be refused and the entire case be dismissed. He added that special damages must be specifically pleaded and strictly proved otherwise the Court will discountenance same. He relied on the case of OKHAI V. C&C CONSTRUCTION CO. LTD. (1998) 3 NWLR. (Pt. 543) P. 584 at P. 600, para ‘A’. he urged the Court to hold in favour of the Appellant and allow the appeal.
Before going into the argument of the learned counsel representing the Respondent in opposition to the argument of the Appellant, I will like to put the record straight. As I indicated before that issue number 4 is on ground 6 and 7 of the amended ground of appeal by the Appellant. The argument in respect of issue number 4 is contained in pages 19-21 of the adopted brief of argument dated May 2011 and filed on 23/5/2017 and deem as properly filed and served on 19/11/18.
A careful reading of the argument contained in the pages of the brief under reference to my understanding did not canvas any argument in respect of ground 6 dealing on inevitable accident but only on the excessiveness of the award of N20,000,000.00 (Twenty Million Naira) against the Appellant. Having failed and or neglected to advance any argument on that aspect of inevitable accident in his brief, I consider ground Six as abandoned and both ground Six and that part of the issue ‘D’ dealing on inevitable accident be and are hereby struck out. What I am now left with is the complaint against the award of N20,000,000.00 (Twenty Million Naira) as damages in favour of the Respondent.
The argument of the Respondent on this issue is that the award of N20,000,000.00 as general damages by the trial Court in favour of the Respondent is not in any way arbitrary and excessive. He submitted that the Respondent consequently claimed the sum of N25,000,000.00 (Twenty Five Million Naira) as general damages for the lost of his left leg, lost of control over his right hand, physical, psychological and emotional pains and as well as the painful state of life he has been reduced as a result of the event of August 22, 2010.
He argued that this claim does not come within the realm of special damages. He relied on paragraphs 1, 13 and 14 of his amended statement of claim where he pleaded his state before August 22, 2010. He also relied on paragraphs 1, 13 and 14 of his written statement on oath. He also added that the learned trial Judge saw the Appellant (whose left leg was amputated below his knee) as he slowly hopped in and out painfully from the witness box supported by wooden clutches on several occasions. He also saw the involuntary movement of the Appellant’s right hand in the witness box.
He argued that all these were not controverted specifically by the Appellant and neither was the Appellant cross examined on them. The Appellant also gave evidence that his right hand was broken and his left wrist was fractured and he had bruises all over his body. He referred to paragraph 4 of the amended statement claim and written statement on oath respectively.
Further, he contended that the prosthetic provided for him was no longer convenient for his use as a result of weight gain.
All these, he submitted need no medical certificate or report. All these were not denied and even the evidence that the prosthetic cost N1,500,000.00 (One Million Five Hundred Thousand Naira) as at 2010. He argued that the Respondent did not claim special damages but general damages for pain and suffering. He relied on the case of JULIUS BERGER NIG. PLC. V. NWAGWU (2007) 9 WRN 102; C.C. CONST. CO. LTD. V. OKHAI (2003) 18 NWLR (Pt. 851) page 104 at 105. He submitted further that the sum awarded as general damages by the Court below is indeed fair given the harsh state of life that the Respondent has been reduced to as well as the state of economy as at 2016 which obviously has spiraled downward presently.
On the principle guiding award of damages in cases of personal injuries he relied on the case of SAMSON EDIAGBONYA V. DUMEZ (1986) 3 NWLR (Pt. 31) 753 at 761 to 762. He submitted that the case of OKHAI V. C&C CONSTRUCTION CO. LTD. (1998) 3 NWLR (Pt. 543) 584 cited by the Appellant has been overturned by the Supreme Court. See C & C CONSTRUCTION COMPANY LTD. & ANOR V. SAMUEL TUNDE OKHAI (2003) LPELR. 821.
He submitted that the learned trial Judge clearly understood the applicable principle of law relating to the Respondent’s relief one, properly evaluated the evidence before him and applied same in making this award for general damages. He argued further that the Appellant has not placed any material before this Court to show that the award is manifestly arbitrary excessive or based on wrong principle. He contended further that the claim of the Appellant gratuitous brought the Respondent back to life and spent over N6,000,000.00 (Six Million Naira) in paragraph 1.47 page 20 of the Appellant’s brief is misleading and not borne out of the record of the Court.
He urged the Court to resolve the issue against the Appellant because the Appellant has not placed any material before the Court to warrant disturbing the judgment of the Court below. He urged the court to affirm the judgment of the court below and dismiss the Appeal with considerable cost.
I have considered the argument and submission from respective counsel on issue of damages. The complaint of the Appellant in the main is that the award of N20,000,000.00 (Twenty Million Naira) by the trial Court as general damages is manifestly arbitrary, excessive and based on wrong principle of law. Further to this, he contended that the Respondent ought to have brought his claim under special damages rather than general damages.
By way of definition damages are compensation in money. They are sum of money given to a successful plaintiff as compensation for loss or harm of any kind. See SOETAN V. OGUNWO (1975) 6 SC. 67; SHELL PETROLEUM DEVELOPMENT CO. (NIG) LTD. V. TIEBO & ORS (1996) 4 NWLR (Pt. 445) 657. At P. 680. Put in another way, it is that pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort. See UMUDJE & ANOR V. SHELL PETROLEUM DEVELOPMENT. CO. OF NIG. (1975) 9-11 SC. 155 at 162; IYERE V. BENDEL FEED & FLOUR MILL LTD. (2008) 7-12 SC. 151 at 192; ANAMBRA STATE ENVIROMENTAL SANITATION AUTHORITY & ANOR V. EKWENEM (2009) 6-7 (Pt. 11) SC. 5; AGBANELO V. UNION BANK (2000) 4 SCNJ 353; CAMEROON AIRLINES V. MR. MIKE E. OTUTUIZU (2011)1-2. SC. (Pt.111) 200.
Let me now consider the complaint of the Appellant that the claim of the Respondent ought to be under special damages and not under general damages. Going by the fact of this case where the Respondent complaint is that on the faithful day where he was standing on the right side of the road, negotiating the fare for a motorcyclist that would convey him to his next destination when the Appellants driver suddenly rammed into him and sheltered one of his leg which was amputated, sustain fracture on one of his harm and bruises all over his body, I do not agree with the notion of the Appellant having regard to the fact of this case and considering the distinction between general and special damages which the law firmly established that special damages must be pleaded with distinct particularity and strictly proved and a Court is not entitled to make an award of special damages based on conjecture or on some fluid and speculative estimate of alleged loss sustained by plaintiff, whereas and unlike an award in general damages where if the issue of liability is established a trial Judge is entitled to make his own assessment of the quantum of such general damages.
Further to this if such award of general damages is appealed against such award of general damages will only be altered or varied if they are shown to be manifestly too high or so extremely too low or that they were awarded on an entirely wrong principles of law as to make it in the judgment of the Appellate Court an entirely erroneous estimate of the damages to which the Plaintiff is entitled in so far as an award of special damages are concerned. The term general damages covers all losses which are not capable of exact quantification. It also include all none financial losses. See OSUJI V. ISIOCHA (1989) 6 SC. (Pt. 11) 158; NEKA B.B.B. MANUFACTURING CO. LTD. V. AFRICAN CONTINENTAL BANK LTD (2004) 1 SC. (Pt. 1) 32. In the light of the fact of this case, it is my humble view and conclusion that the claim of the Respondent under the heading of general damages is appropriate and permissible under the law.
I accordingly, discontinuance the argument of the Appellant on this. Having said this it is trite that Civil Matters are determined on preponderance of evidence. See HEALTH CARE PRODUCTS (NIG) LTD. V. BAZZA (2004) 3 NWLR (Pt. 861) Pg 582; GBAFE V. GBAFE (1996) 6 NWLR (Pt. 455) page 417 at 432. The Respondent is the victim of the accident. It is not in dispute that the accident occurred on the faithful day. It is also not in dispute that the Appellant’s driver drove the vehicle of the Appellant that rammed into the Respondent and which caused the damages in various degrees to the body of the Respondent.
I have in the cause of determining issues A, B & C, concluded that the trial Court properly and adequately evaluated the evidence placed before the Court before coming into the conclusion reached. My view on the trial Court conclusion on the issue that the Appellant is liable to the Respondent in damages haven negligently and without due care caused the accident is not different. I therefore adopt my finding and conclusion on evaluation of evidence by the trial court and apply same to this issue D. What is now left is the award of damages. As I said before, it is the contention of the Appellant that the award is outrageous and excessive. It is trite that claim for general damages are always made as a claim at large. That is to say that the quantum itself need not be pleaded. See DUMEZ (NIG) LTD. V. PATRICK NWAKA OGBOLI (1972) 3 SC. 196.
As I have said in this judgment before that as a general rule an Appellate Court ought not to upset the award of damages by a trial Court merely because if it hard tried the matter it would have awarded a lesser amount. But the Court may intervene where it is satisfied that the Judge in assessing the damages applied a wrong principle of law such as taking into account some irrelevant factor or leaving out of account some relevant factors or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been wholly erroneous estimate of the damages. See INTERNATIONAL MESSENGERS (NIG) LTD. V. PEGOFOR INDUSTRIES LIMITED (2005) 5 SC. (Pt. 1) 38.
In the case of UBA LTD V. ACHORU (1990) 9 – 10 SC. 115, the Appellate Court has decided that in a case for loss of amenities of life in personal injury cases like the case at hand, there is no law fixing the quantum of evidence required, but evidence of physical disability arising from the damages would be sufficient. Award of damages is an exercise of discretion. To interfere in such exercise of discretion, unless it is made under certain peculiar circumstance which include the following the Appellate Court will not interfere;
(a) When the exercise of discretion by the trial Court is perverse.
(b) Where the Court acted under wrong principle of law or
(c) Where the court acted in disregard of applicable principle or
(d) Where the Court acted in misapprehension of fact or
(e) Where the Court took into consideration irrelevant matters and disregarded relevant matters whist considering its award or
(f) When injustice will result if Appellate Court does not act or
(g) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.
See the case of SAIDU H. AHMED & 2 ORS V. CENTRAL BANK OF NIGERIA (2012) 7 SC. (Pt.11).
The Respondent in paragraph 13 and 14 of the amended statement of claim pleaded his standing in life before the accident and what he has been reduced to after the accident consequent upon the amputation of his leg. Also in paragraph 1, 13 and 14 of his written statement on oath he gave evidence of the pleaded facts. In my view this evidence has not in any material way being contradicted nor dislodged.
Based on this available evidence before the Court, the learned trial Judge at page 201 came to the following conclusion.
At the time of the accident, the claimant was a youth corper and had just completed his NYSC orientation programme. The claimant may not have worked or earned a living but he had a bright future ahead of him having obtained a second class upper division from a Nigeria University. But his hope has been shattered and aborted as a result of the claimant?s present disability. I belief the claimant when he said that he suffered pain and that he is still suffering pains. I believe CW1 when he said that the claimant is in physical pains and that his life has been shattered. I have watched the demeanor of CW1 and the claimant whist testifying and being cross examined by counsel to the Defendant. I have seen the pains and sincerity in the way and manner they answered questions put across to each one of them by counsel. I belief CW1 and the claimant and I assess them as witness of truth. There is evidence before me that the Defendant spent the sum of N2,000,000.00 (Two Million Naira) in treating the claimant and that the claimant sent a note of appreciation.
The injuries suffered by the claimant are such that he is unable to enjoy ordinary pleasure of life as he used to. In considering the award of damages, the Court must take into consideration (i) The financial loss resulting from the injury; (ii) The personal injury involving not only the pain and suffering but also the loss of pleasure. See the case of SAMSON EDIAGBONYA V. DUMEZ (1986) 3 NWLR (Pt. 31) 753 at 761. The Supreme Court in dealing with issue of pain and suffering stated that once the injury is grater the pain and suffering of the claimant who is aware that life expectations has been affected and reduced by the injury, the Court must put the party in the position he would have been, if the accident had not occurred. The case under consideration, the claimant is a young man with good University degree whose life expectations have been cut short. The claimant must be put in the position that he would have been if the accident which leads to his leg being amputated had not occurred. The fact that the claimant wrote Exhibit D2 thanking the Defendant for medical attention provided by the Defendant is not enough as same would not in itself amount to double compensation.
In Exhibit D2, the claimant in addition to appreciating the Defendant also prayed the Defendant to assist him in settling down. This, the Defendant failed to do. The claimant is a young man and had one of his legs amputated as a result of the negligent act of the Defendant. The claimant has been deprived of the use of his leg. The claimant from evidence before me walks painfully on clutches, find it extremely difficult to feed. The claimant is no longer sociable, cannot play football or go out with his friends or participate in youth activities. The claimant is now compelled to seek financial support as he cannot feed himself, be still feels that his life is no longer dignifying. I taken into consideration the fact and circumstances of this case and in my respective view, the sum of N20,000,000.00 (Twenty Million Naira) is adequate and appropriate as general damages for loss of the claimants left leg, physical, psychological and emotional pains suffered by the claimant’s.
In the light of the foregoing, I have no hesitation in my mind that the Court has properly evaluated the available evidence placed before it and watched the demeanor of the witnesses before making the award. In the same vein, I have not seen any defence by the Appellant that can dislodge the evidence placed before the Court by the Respondent. The exercise of the discretionary power of the Court can also not be faulted. Therefore, I feel bold to say that the trial Court has adequately and properly evaluated the evidence before it before coming into the conclusion reached. As such I do not find it justifiable to disturb the award made by the learned trial Judge.
Before concluding let me observe and commend the Appellant for being a good neighbour by promptly attending to the medical treatments of the Respondent. In the same vein, I condemn the misleading submission of the learned counsel to the Appellant in his brief of argument when he said the Appellant spent N6,000,000.00 (Six Million Naira) for medical treatment of the Respondent whereas, both in pleadings and evidence before the Court the Appellant spent over N2,000,000.00. (Two Million Naira). Could this be taking as new or addition evidence from him? Certainly not. He has no vires to do so and should desist from such forthwith.
On this note, I resolve the issue in favour of the Respondent and against the Appellant.
In all, this appeal is adjudged by me as unmeritorious and same be and is hereby dismissed.
The judgment of the Benin High Court in Suit Number HOR/53/2013 between PATRICK ONOME ONOMUABORIGHO V. HI-TECH CONSTRUCTION LTD delivered on 25th April 2016 is hereby affirmed.
Because of the good gesture of the Appellant to the Respondent I award no cost.
JIMI OLUKAYODE BADA, J.C.A.: I read in draft the Judgment just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA. I agree with him that this appeal lacks merit and it is also dismissed by me.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA.
I agree with the views expressed by my learned brother and, for the reasons given in the leading judgment, I also dismiss the appeal and affirm the judgment of the trial Court. There is no order for costs.
Appearances:
Kule EdunFor Appellant(s)
D.E. Agbaga with him, A. Akposotor and F.A. AriekpeFor Respondent(s)
