ALHAJI DANJINJIN UMAN & ANOR v. MRS. C. T. OWOEYE(2002)

ALHAJI DANJINJIN UMAN & ANOR v. MRS. C. T. OWOEYE

2002)LCN/1153(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of April, 2002

 

CA/I/134/2001

 

JUSTICES

SUNDAY AKINOLA AKINTAN   Justice of The Court of Appeal of Nigeria

 

DALHATU ADAMU   Justice of The Court of Appeal of Nigeria

 

OLUFUNLOLA OYELOLA ADEKEYE   Justice of The Court of Appeal of Nigeria

 

Between

  1. ALHAJI DANJINJIN UMAN
  2. IBRAHIM MOHAMMED – Appellant(s)

 

AND

MRS. C. T. OWOEYE –  Respondent(s)

 

ADEKEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court of Justice, Ibadan Judicial Division – delivered on the 30th day of April, 1998.

Mrs. C. T. Owoeye the plaintiff before the trial court, now respondent filed an action in the High Court Ibadan Judicial Division – where she claimed reliefs as follows:-

  1. One million Naira (N1,000,000) being special and general damages suffered by the plaintiff as a result of the negligence in driving of the 2nd defendant on the 15th of February, 1994 along Ibadan – Lagos Expressway, Ibadan – when in charge of the 1st defendant’s trailer vehicle registered as PL 6136 JF.
  2. The plaintiff also claims N200.00 daily from the filing of this case until judgment is delivered for loss of use.

Parties filed and exchanged pleadings. Case proceeded to trial on the evidence of the plaintiff alone as the defendants and their counsel failed to appear in court despite service of hearing notice on them by court.

The crux of the case of the respondent was that on the 15th of February, 1994 she travelled in her Mercedes Benz 250 saloon car registered as OG 228 LE, when a trailer registered as PL 6136 JF driven by the 2nd defendant now 2nd appellant before this court hit her from the rear at an area known as Adesola. As a result of the collision she went into a state of shock,  and was later treated in a hospital for the bruises and injury she sustained. The 2nd appellant was charged and found guilty at a Magistrate Court on a two count charge of dangerous driving and lack of Insurance coverage for the trailer involved in the accident. There was no representation by the defendants/appellants at the trial court. The trial court granted all the reliefs sought by the respondent based on her evidence and that of her witness as follows:-

  1. (a) Value of car…N320,000.00, (b) Cost of medical expenses ..25,000.00 for shock and physical injuries

(c) Cost of transportation daily from 15th February, 1994 – 31st March, 1994 at N200 per day.. 9,000.00

  1. General damages…646,000.00 Vide pages 39 – 45 of the record of appeal.

The respondent made an effort to execute the judgment, when the appellants filed their application, praying the court for setting aside of the judgment of the trial court, on the ground of improper service of the hearing notice on them. The lower court dismissed this application. Being aggrieved by the decision of the lower court, the appellant filed their notice and grounds of appeal. There were three grounds of appeal. Parties settled records and exchanged briefs in accordance with the rules of this court. The appellants compressed the three grounds of appeal into two issues for determination as follows:-

(a) Whether the award of damages made by the learned trial Judge is justified in law considering the well settled principles guiding the award of special and general damages.

(b) Whether the learned trial Judge considered the duty imposed upon a claimant to mitigate his loss in a claim for loss of use in award of damages and whether the plaintiff was entitled to damages for loss of use in the circumstance.

The respondent distilled only one single issue for determination which reads:-

Whether the learned trial Judge was not right in making the award of damages against the appellants based on the applicable principles of law guiding award of damages.

Item (a) of the appellants two issues for determination is similar and on all fours with the single issue for determination from the respondent. The argument put forward by the appellants in resolving the issue in their first leg will obviously cover their second leg.

Undoubtedly the second leg is submerged in the first leg. In the circumstances this court interprets the issue for determination in this appeal as:-

Whether the award of damages made by the learned trial Judge is justified in law considering the well-settled principles of law guiding the award of special and general damages.

In arguing this issue the appellants raised certain relevant questions which are:-

(a) Whether the respondent pleaded and proved items constituting the special damages claimed?

(b) Was the grant of N646,000.00 claimed based on any reasonable deductions from the case?

(c) Did the respondent make any attempt to mitigate the loss?

(d) From the totality of the claims for damages as granted, do they not amount to double compensation for the respondent?

(e) Did the trial Judge apply the right principle in the award of damages?

In an answer to the foregoing the appellants agreed that special damages must be proved by credible evidence – as specified in the pleadings. The appellant must show element of particularity – as the loss must be measured with mathematical precision. In this case the court has to concentrate on an important aspect which is whether an unchallenged evidence given by a plaintiff which is not a strict proof of the loss will suffice to prove special damages or simply stated whether it is still necessary to prove items which constitute special damages even though the action was uncontested. It has been proved that unchallenged evidence without more can constitute sufficient proof of special damage, and even more unchallenged oral evidence given on items classified as special damages need not be proved or even when a claim for damages is supported by unchallenged evidence – the Judge can make reasonable deductions.

The appellants supported the foregoing contention by citing the cases of Kurubo v. Zach Motison Ltd. (1992) 5 NWLR (Pt. 239) at 102, Dakat. v. Dashe (1997) 12 NWLR (Pt. 531) 46, Boshali v. Allied Commercial Exporter Ltd. (1961) 2 SCNLR 322, Incar Motors v. Adegboye (1985) 2 NWLR (Pt. 8) 453.

The appellant defined a claim in special damages as being exceptional in character and denote specific items of loss – in which a court is not entitled to make its estimate. The appellants referred to the cases of Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668, Johnson v. Osaye (2001) 9 NWLR (Pt. 719) 729.

The appellant examined whether the trial Judge was right in awarding special damages based on the uncontested evidence of the respondent – whether the respondent has proved each item under the claim for special damages to entitle her to the claim. As regards the vehicle damaged in an accident the plaintiff is entitled to the pre-accident market value less the value of the scrap, plus damages for loss of earning apart from specific items of special damages proved. Exhibit D1 was a report on the present value of the car.

E-E3 show that the damaged vehicle has some parts which could still be salvaged and sold. There was no evidence on the scrap. The evidence of the market value of the vehicle as at the date of the accident immediately preceding the time of the accident. There was no evidence of depreciation: the respondent took away the scrap exhibit D1 prepared on 17/11/93 and D2 on 12/11/93 – were done before the accident page 34 lines 13 – 16 of the record. Exhibit D1 represented the market value of the vehicle as at 17th of November, 1993 not the market value of the vehicle immediately preceding the accident. If the respondent is awarded N320,000.00 as value of the car then there is no restituo in intergrum as in circumstance she had benefited from the accident. The award of N320,000.00 as value of the car should be set aside. In the award of N25,000.00 as medical expenses for the treatment of the physical injuries and shock sustained by the respondent, the learned Judge relied on the oral evidence of the respondent – without receipt in support. The court held that nonproduction of receipt was not fatal to her case as the evidence was unchallenged – which pronouncement was erroneous as special damages must be strictly proved even though unchallenged. In the case of the amount of N25, 000.00 awarded for medical expenses, there must be evidence to support that an injury was sustained like a doctor’s report. There is need to satisfy the requirement of strict proof in the assessment and award of special damages. The award of N9,000.00 at N200.00 per day as transportation cost from 15th of February, 1994 to the 31st of March, 1994 and N200.00 daily from the filing of the action until judgment is delivered for loss of use and the award of N646, 000.00 as general damages amounts to double compensation. The inconvenience of loss of use was replaced by the transportation cost awarded as the vehicle was used for private and not commercial purpose. Any award for loss of use should be adequately covered by any award in general damages. The award in general damages is that which the law will presume to be the direct, natural and probable consequence of the act complained of – and this makes the award discretionary. The award of N646, 000.00by the court was not a proper exercise of discretion in the circumstance of this case. The respondent did not take any steps to mitigate her loss – as she was going about with members of her family in a chattered taxi. She was not entitled to the N200.00 per day for loss of use.

The respondent directed attention of court to the fact that the appellants refused to defend – and more particularly to proffer evidence in support of their case, there is only a requirement of minimum proof of the averment in the plaintiffs pleadings to satisfy the court. It is trite that unchallenged evidence ought to be accepted as proof of the facts it contains unless there is other evidence to effectively rebut it. There was no evidence put forward to rebut the respondent’s claim by the appellants. The evidence of the respondent as to the cause of the accident which damaged her personal car extensively, the shock and injuries suffered thereafter, the loss of use of the vehicle and the amount expended by her daily on transportation were not rebutted. It was not necessary for the trial court to look for additional evidence in proof of the award of special damages. None production of receipts to support the items of claim in special damages could not be held to be fatal to her claim as receipt has been held not to be a necessity in proving special damages. The respondent suffered loss of use and deprivation of her car – following the accident – she was incurring N200.00 per day as expenses for this purpose. The only way that the respondent could mitigate her loss was to replace the vehicle – the appellants did not give evidence that the respondent was financially viable to do so immediately after the accident. As regards the award in general damages – a party seeking same has a duty to furnish the court with sufficient materials upon which the court will base its assessment. The respondent gave evidence that her vehicle was a write-off after the accident and she could not even recover same until six months after the accident. The award of general damages was quantifiable in inconveniences upon deprivation traceable to the negligent acts of the appellant. The argument of the respondent is supported with the cases of N.A.B. Ltd. v. Shuaibu (1991) 4 NWLR (Pt. 186) 450 at 458, Dakat v. Dashe (1997) 12NWLR (Pt. 531) 46, Ogu v. Ihejirika (1991) 4 NWLR (Pt. 185) 388-393, ARTRA Ind. Ltd. v. N.B.C.I. (1997) 1 NWLR (Pt. 483) 574, Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 323, Uhunmwangho v. Uhunmwangho (1992) 2 NWLR (Pt. 226) 709, Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453.

The bone of contention in this appeal is the award of special and general damages made by the trial court in this case. What is not controverted are the facts as follows:-

(1) that the respondent’s car a Mercedes Benz was involved in an accident on the Ibadan – Lagos Expressway on 15/2/94;

(2) that the accident was attributed to the negligent driving of the 2nd defendant as driver/agent/servant of the 1st defendant;

(3) that parties are liable partly and severally in the claim of the respondent – before the court – 1st defendant vicariously;

(4) that the appellants failed to contest this claim before the trial court;

(5) that evidence adduced by the respondent before the trial court was unchallenged and uncontroverted.

From the foregoing pedestal this court shall now delve into the issue of the award of damages – special and general by the trial court.

The vital question as poser before this court is whether the trial court followed the well-settled and established principles of law guiding the award of damages in the judgment now on appeal before this court. The appellant’s outlined the aspects of the award made by the lower court to be resolved by this court. It is however trite and I find it convenient to comment on the attitude of an appellate court towards award of damages by a trial court. An appellate court is not justified in substituting a figure of its own for that awarded by the lower court merely because it would have exercised its discretion differently if it had tried the case at first instance.

There are necessary factors to be considered by an appellate court in reversing the decision of a trial court on the question of the amount of damages. The Court of Appeal in considering these factors shall invoke its powers under section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation, 1990. It will be necessary to convince the court that-

(a) the court acted on some wrong principles of law

(b) that the court acted on misapprehension of facts where it took into account irrelevant matters or failed to take into account relevant matters

(c) where injustice would result if the appellate court does not interfere or

(d) where the amount awarded is either so ridiculously high or so ridiculously low that it must have been erroneous estimate of the damages. Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124 Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1 Ebe v. Nnamani (1997) 7 NWLR (Pt. 513) 479 Harold Shodipo & Co. Ltd. v. Daily Times (Nig.) Ltd. (1972) 11 SC 69 Obere v. Board of Management, Eku Baptist Hospital (1978) 6-7 SC 15 Momodu v. University of Benin (1997) 7 NWLR (Pt. 512) 325 at 350-351.

Damages in the sense relevant to this appeal are the pecuniary compensation or award given by process of law to a person who has suffered loss, injury whether to his person or property through the unlawful act or omission of another person. The rationale for awarding damages is to compensate the aggrieved party for the loss or injury suffered by him so as to place the party in a position in which he would have been if he had not suffered damage or injury for which he is claiming compensation. This is translated in the Latin phrase – Restitutio in intergrum.  Shell Petroleum Development Co. v. Tiebo (1996) 4 NWLR (Pt. 445) 657, Bamgbade v. Balogun (1994) 1 NWLR (Pt. 323) 718 Ifere v. Trufoods (Nig.) Ltd. (2000) 8 WRN 30 The appellants contend that the respondent failed to plead and prove items constituting special damage.  A plaintiff can only succeed in an action founded on negligence if there is proof of special damages that he claims. Where there is no satisfactory legal proof of special damages claimed, the action must fail in that respect, no matter the admission of negligence on the part of the defendant.

What is meant by proof of special damages, must be approached from the nature and attribute of special damages – which are damages which the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the plaintiff as a matter of course. They are exceptional in their character and connote specific items of loss – which the plaintiff alleges are the result of defendant’s acts or breach of duty complained of. Special damages must in the circumstance be claimed specially and strictly proved.

The court is not entitled to make its own estimate of the same. It does not mean that the law requires an extraordinary measure of evidence to establish entitlement to special damages. Strict proof of special damages means that the evidence must show particularity, and while basing his claim upon a precise calculation must give the defendant access to the facts which make such calculations possible.

Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626, Imana v. Robinson (1979) 3-4 SC 1, UBN Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558, Okoronkwo v. Chukweke (1992) 1 NWLR (Pt. 216) 175.

Special damages must be pleaded specifically with certainty and particularity. Unless unchallenged by the adverse party, special damages must be strictly proved. F. B. N. Plc. v. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) 441, F. B. N. Plc. v. Abba (1998) 10 NWLR (Pt. 569) 227, Salako v. Williams (1998) 11NWLR (Pt. 574) 505, Adeola v. Oloba (1998) 9NWLR (Pt. 545) 224.

The onus is on the plaintiff to prove special damages strictly. In order to discharge this burden the plaintiff must show by credible evidence that he is indeed entitled to the award of special damages.

The evidence adduced by the plaintiff must show the same particularity as is necessary to its pleading.

The respondent in this appeal pleaded her claims for special damages in her statement of claim. Vide paragraphs 14, 15, 16 and 19 of the statement of claim at page 5 of the record of appeal. She gave evidence in support before the trial court and called a witness. She tendered exhibits. Her entire evidence was unchallenged as the appellants did not turn up in court to contest the suit vide pages 3335 of the records. The appellants contended that though the evidence of the respondent was unchallenged – it did not meet the required standard to establish a claim in damages particularly on the items of claim of the respondent. I have revealed earlier on that the standard of proof required is not proof beyond reasonable doubt or an unusual proof. The position of the law as regards unchallenged evidence as proof of special damages has been settled by legal authorities. The law is that an unchallenged evidence without more, can constitute sufficient proof of special damages – particularly where the court found the evidence credible, accurately measured, or could easily lend itself to quantification without putting the court in unnecessary strain of searching for more acceptable figures. Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668, Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322, Odulaja v. Haddad (1973) 11 SC 357, NMSLC v. Afolabi (1978) 2 SC 79, Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393.I shall now proceed to examine the items claimed under special damages by the respondent and the award made by the trial court.

The respondent claimed a sum of N320,000.00 being the value of the car at the time of the accident. She gave evidence of this amount, tendered a write-up by an insurance company to that effect.

The write-up from the Insurance Broker exhibit D was dated 17/11/93, and the Motor Engineers report was dated 12/11/93 exhibit D1.

The document – exhibit D made on 17/11/93 put value according to recent valuation report at N320,000.00 and the approximate second-hand value at N320,000.00 on exhibit D1 by the Motor Engineer’s report made on 12/11/93. Both documents were made in November, 1993 for the purpose of the insurance coverage of the vehicle. The accident involving the vehicle occurred in February, 1994. This discards the argument that the documents were prepared for the purpose of suit. They are both authentic documents which the learned trial court relied upon as credible evidence to prove the value of the vehicle prior to the accident. This court holds that exhibits D- D1 and the oral evidence of the respondent unchallenged and uncontroverted were enough to establish the pre-accident value of the respondent’s vehicle. The appellants revealed that the award in damages should have been the pre-accident market value of the vehicle less the value of the vehicle after the accident the scrap, where the vehicle is a total loss or write-off.

In the case of Bello v. Pategi (2000) 8 NWLR (Pt. 667) 21 it was held that:-

“The measure of damages where there is total loss of chattel, and where the vehicle is a write-off, the plaintiff will be entitled in damages only to the pre-accident market value, less the value of the vehicle after the accident (if any) plus damages for loss of use and earnings apart from any specific items of special damages proved.”

Thomas Kerewi v. Bisiriyu A. Odegbesan (1965) 1 All NLR 95 it was held that:-

“For a total loss the right measure of damages is the value of the car at the time of the accident plus such further sum as would compensate the owner for loss of earnings and the inconvenience of being without a car during the period reasonably required for procuring another car.”

In this case there was no recorded value of the vehicle after the accident as exhibit C1 the road inspection report issued by a Road Traffic Superintendent shows that the vehicle was a complete write off with no scrap value. This report can be relied upon as an expert opinion report. The trial court was therefore right in basing the special damages awarded on exhibits D and D1 and leaving the amount as N320,000.00. This court has no cause to interfere with this head of award and consider same reasonable in the prevailing circumstance of the economy and depreciating value of the naira, as an amount that would facilitate a replacement of the vehicle by the respondent. On the claim for transportation fixed at N200.00 per day between the 15th of February and 31st of March, 1994 -A sum of N9,000.00 was awarded by the trial court to the respondent. The trial court was justified to have made an award under this head going by decided authorities vide Bello v. Pategi (supra). The respondent was entitled to damages for loss of use of the vehicle for a reasonable period of repairs or replacement. The court is empowered to grant her damages for loss of use and inconvenience over the damages to be awarded for the total loss of her car being the value of the car at the time of the accident. See Kerewi v. Odegbesan (supra), Ubani Ukoma v. Nicol (1962) 1 All NLR 105. This court considers a period  of six months to be reasonable in the circumstance of this case. The lower court awarded a sum of N646,000.00 to the respondent as general damages. A claim in general damages means that which the law implies or presumes to have accrued from the wrong complained of or for the reason that they are its immediate direct and proximate result of or such as necessary results of the injury. The court will grant this where it cannot point out any measure that they are to be assessed except the opinion and judgment of a reasonable man.  Mobil Oil Nig. Ltd. v. Akinfosile (1969) 1 NMLR 217, Beecham Group Ltd. v. Esdee Food Products (Nig.) Ltd. (1985) 3 NWLR (Pt. 11) 112, A.-G., Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt. 121) 355, Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR (Pt. 736) 424.

Paragraph 19 of the statement of claim states that:-

“The plaintiff is still incurring daily expenses in moving around through public transport.”

Paragraph 16 –

“That the plaintiff avers that the accident to her car has adversely affected the effectiveness of her business.”

The court granted the amount asked for as allegation of negligence was proved so also damages were proved vide page 75 of the record.

What should have been taken into consideration are the loss of use of the vehicle, particularly the inconveniences of deprivation of the use of the vehicle, shock and cost of further medical expenses, pain and suffering etc. The respondent gave evidence of her being treated in the hospital by a physiotherapist. She gave the cost of the treatment as N25,000.00. Though she did not tender any receipt for the medical treatment in the hospital- it is confirmed by legal authorities that:-

“A receipt is not a necessity in proving special damages. Thus unchallenged oral evidence when given on items classified as special damages and not supported by production of receipts is not fatal to a plaintiff’s claim.” Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46, Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322.The award for transportation claimed and that claim for loss of use do not cover the same period, the claim for loss of use was to extend till date of judgment – which I supposed strengthened the discretion of the trial court in awarding the sum of N646,000.00. It is trite that in a plaintiff’s claim for general damages the court should scrutinise the claims so as to avoid double compensation. In that by the rule of double compensation, if a plaintiff recovers in full under special damages he will not be entitled to recover under general damages.  Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530, Soetan v. Ogunwo (1975) 6 SC 67. I agree with the appellants that transportation cost and an award for loss of use should complement each other – while same should have been taken care of under general damages F. B. N. v. Igumbor (2000) 6 NWLR (Pt. 662) 637.

Strictly speaking a plaintiff is under a duty to mitigate his damages and any neglect by him in this respect is a ban to a claim. The question what is reasonable for a plaintiff to do in mitigation of his damages is however a question of fact and not of law in the circumstance of each case and the burden is on the defendant to show that the plaintiff failed to mitigate his loss.   Sowole v. Nigersol Construction (1970) NCLR 435, Onwuka v. Omogui (1992) 3 NWLR (Pt. 320) 393.

The appellants did not propose any plausible way in which the respondent could have minimised her loss in the circumstance.  However the learned trial Judge awarded a sum of N646,000.00 as general damages without giving a break down of what head of claims it was supposed to take care of. The item not already covered by special damages was loss of use and may be inconvenience of not having a vehicle of her own. There cannot be an award infinitum.

Any amount granted under this head of general damages would amount to double compensation as they have been specifically granted for loss of use and transportation. She was also granted an award to replace her vehicle. In the circumstance the award of N646,000.00 as general damages was uncalled for and this court finds jurisdiction to interfere with same. This court views the award as an entirely erroneous estimate of the award of damages and arbitrary exercise of discretion, to which this court as an appellate court is duty bound to invoke section 16 of the Court of Appeal Act to reverse. The court therefore grants the claim of the respondent as follows:-

(a) Value of car N320,000.00

(b) Medical expenses 25,000.00

(c) Loss of use/transportation and inconvenience for six months at N200 per day 12.000.00

Total = N357.000.00 This appeal succeeds in part. Judgment of the lower court – which his the over-all amount claimed and awarded – is reversed. A sum of N357,000 is awarded to the respondent. No order as to costs.

 

AKINTAN, J.C.A.: I had the advantage of reading the draft of the leading judgment prepared by my Lord, Adekeye, JCA. All the issues raised in the appeal have been fully discussed. I agree with the conclusions reached therein that since it was established that the respondent’s car was totally destroyed as a result of the accident, the principle of law applicable to the case is that as laid down by the Supreme Court in Kerewi v. Odegbesan (1965) 1 All NLR 95 and have been followed in series of other decisions. The principle, briefly put, is that the measure of damages for a total loss of a car is the value of the car at the time of the accident plus such further sum as would compensate the owner for loss of earning from its use and the inconveniences of being without a car during the period reasonably required for procuring another car. The reduction of the awards made by the lower court to meet the requirements of the above principle of law is therefore quite appropriate.

For the above reasons and the fuller reasons given in the leading judgment which I also adopt, I also agree that the appeal partially succeeds and I abide with all the consequential orders made in the leading judgment.

 

ADAMU, J.C.A.: I have had the privilege of reading the draft of the lead judgment of my learned brother Adekeye, JCA, in this appeal. I agree with the reasons given and the conclusion reached in the said judgment that the appeal should be allowed. I hereby also allow it while abiding by the consequential orders made in the said judgment. I make no order as to costs.

 

Appeal allowed in part

 

 

Appearances

  1. GbadamosiFor Appellant

 

 

AND

  1. O. O. OkeFor Respondent