ALHAJI KABIRU ABUBAKAR & ANOR V JOHN JOSEPH & ANOR
(2008) LCN/3494(SC)
In the Supreme Court of Nigeria
Friday, June 6, 2008
Case Number: SC. 10/2002
RATIO
PLEADINGS: THE SIMILARITIES BETWEEN PLEADINGS AND EVIDENCE
”A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings,should never be admitted. It makes no difference, that the other side did not object to the evidence or that the judge did not reject it. It is of course the duty of counsel to object to inadmissible evidence and the duty of the court anyway to refuse to admit inadmissible evidence, but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it come to give judgment to treat the inadmissible evidence as if it had never been admitted.” Per OGUNTADE, JSC
PLEADINGS: THE COMPULSORY CONTENTS OF PLEADINGS
”Facts are important in every case before the court as they are the fountain head of the law. If there is any case in which facts are of great importance it is the case of negligence. In a case of negligence the facts which gave rise to the negligence must be comprehensively and delicately pleaded. The facts must be pleaded in minute details almost to the letters of the alphabet. Nothing should be left unpleaded. The Statement of Claim should give a very clear picture of what was the cause of the accident and the action and conduct of the drivers in the accident.” Per TOBI, J.S.C.
PLEADINGS: BINDINGNESS OF PLEADINGS
”It is elementary law that parties are bound by their pleadings and whatever evidence adduced in the course of a trial that is not in conformity with the pleading becomes a non-issue and must be ignored by a trial judge. In other words evidence must be within pleadings, and not outside.” Per MUKHTAR, J.S.C
APPEAL – APPELLATE COURTS ATTITUDE TO INCOMPETENT GROUNDS OF APPEAL
”It need be borne in mind that where no objection is raised by a Respondent, the court, can suo motu, draw the attention of an appellant’s learned counsel to an incompetent ground of appeal.” Per OGBUAGU, J.S.C.
COURT – DUTY OF COURT: WHAT THE TRAIL COURT IS SUPPOSED TO DO WHEN DEALING WITH A MATTER
”It is our law that a trial Judge is bound to consider equally in his assessment and evaluation, the evidence of both the plaintiff and the defendant. And that is the role he plays like an umpire of a game.” Per TOBI, JSC.
EVIDENCE: WHAT THE COURT SHOULD DO WITH INADMISSIBLE EVIDENCE
”Where inadmissible evidence has been admitted, it is the duty of the Court, not to act upon it. It is immaterial that its admission was as a result of consent of the opposite party or that party’s default in failing to take an objection at the proper time. An Appellate Court, has the power to reject such evidence and decide the case, on legal evidence.” Per OGBUAGU, J.S.C.
JUSTICES:
GEORGE ADESOLA OGUNTADE, (Lead Judgment) JUSTICE, SUPREME COURT
SYLVESTER UMARU ONU, JUSTICE, SUPREME COURT
NIKI TOB1, JUSTICE, SUPREME COURT
MARIAM MUKHTAR, JUSTICE, SUPREME COURT
FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT
IKECHl FRANCIS OGBUAGU JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
1.ALHAJI KABIRU ABUBAKAR
2.DAHIRU ADAMU .
AND
RESPONDENTS
1. JOHN JOSEPH
2. IMPRESIT BAKOLORI PLC
A. OGUNTADE, JSC
Delivering the Judgment of the Court.
: The 1st appellant in this appeal commenced his suit at the Minna High Court of Niger State claiming against the respondents special and general damages the breakdown of which is as stated hereunder:
“(a) Cost of replacing the plaintiff s now completely cannibalized
vehicle – N1,500.000.00
(b) Loss of use of vehicle from date of accident to date of filing this
suit – N1,008,000.00
(c) Cost of hiring another vehicle to convey goods from point of
accident – N15,000.00
(d) 9 months payment of watchmen guarding Plaintiffs vehicle at
N75.00 per day each – N40.000.00
Total Special Damages – N2,563,500.00
(e) General Damages – N7,500.000.00
(f) Interest on the judgment sum at 28% from 9/12/91 to date of judgment
(g) Interest on the unpaid judgment sum at the Court rate of 10% (0.40rr7) from the date of judgment until the judgment debt is fully and finally paid.
(h) Such further or other order (s) as the court may deem fit and just to make in the circumstances of this case.”
The suit was founded on the negligence of the 1st respondent, the driver of the 2nd respondent. It was pleaded, that on 9/12/91, the 1st respondent negligently drove Fiat trailer registration No. LA 3906 belonging to the 2nd respondent and caused same to collide with the 1st appellant’s Fiat T3 trailer, registration No. LA 6086 MA.
The respondents filed their Further Amended Statement of Defence. They denied the negligence ascribed by the 1st Appellant to the 1st respondent. They averred that the accident was caused by 1st appellant’s driver who was alleged to have negligently driven his vehicle in the course of overtaking another vehicle and in the process collided with the 2nd respondent’s vehicle. The respondents raised a counter-claim of four million, two thousand, three hundred and fourteen Naira, (N4,002,34.00) being general and special damages) jointly against 1st appellant and his driver the 2nd appellant. It is relevant to say here that it was the counter-claim by the respondents that brought in the 2nd appellant as a party to the dispute.
The case was heard by Evuti J. At the trial, the plaintiff/appellant called three witnesses in support of their case. The defendants/respondents also called three witnesses. On 19-10-95, the trial judge in his judgment concluded as follows:
“(1) I give judgment in favour of the 1st plaintiff as follows: the sum of N500,000.00 for damages caused to his vehicle, a fiat T3 Trailer.
(2) The sum of N6,500.00 being refund for the payment made for hiring a vehicle to convey the goods from the scene of accident to Kaduna.
(3) Another sum of N40,000.00 for payments made to the 2 watchmen who looked after the vehicle at the scene of accident for a period of 9 months.
In addition to the above I award to the plaintiff against the defendants, the sum of Nl.000.00 as general damages plus 10% interest p.a. thereon the total sum until the whole amount is fully paid with effect from today.”
The respondents were dissatisfied with the judgment of the trial court. They appealed against it before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). On 16-07-07, the court below set aside the judgment given by the trial court in favour of the plaintiffs/appellants. Their case was dismissed. The plaintiffs have come before this Court on appeal against the judgment of the court below. They raised five grounds of appeal. The respondents, who won before the court below, have raised a cross-appeal on two grounds of appeal. In the appellant’s brief filed by the plaintiffs counsel, the issues for determination in the appeal were identified as the following:
“(1) Was the Court of Appeal right in finding that the trial Judge made a finding on issues that were not pleaded but did not make findings as to acts of negligence pleaded by the parties?
(2) Whether the Court of Appeal was right in dismissing plaintiffs’ claims in toto.
(3) Was the Court of Appeal right in remitting back to the High Court for determination the amount of damages counter-claimed by the defendants when there was no prior finding that the defen-dants had, on the evidence adduced, proved negligence against the plaintiffs?”
The respondents adopted the appellants’ 1st issue and in addition formulated an additional issue. The additional issue reads:
“2. Whether in the absence of any finding of negligence against the respondents the appellants are entitled to damages arising from the same acts or omissions constituting the negligence complained of?”
The respondents/cross-appellants raised a preliminary objection against the plaintiffs/appellants’ 5th ground of appeal and their issue No. 3 formulated upon it. It is appropriate that I first consider the notice of preliminary objection. The contention of the respondents/cross-appellants is that the matter complained of by the plaintiffs/appellants in their 5th ground of appeal did not arise from the judgment of the court below being appealed against. Respondents’ counsel submitted that a ground of appeal and issue formulated thereupon must arise from the judgment appealed against. He referred to Republic Bank Ltd. v. C.B.N. [1998] 13 NWLR (Pt.581) 300 at 327 and Saraki v. Kotoye [1992] 9 NWLR (Pt.254) 156 at 164 and Madueke v. Madueke [2000] 3 NWLR (Pt. 655) 3 at 135. Counsel relied on a passage from the judgment of the court in Saraki v. Kotoye (supra) where the court said:
“It is well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal must relate to the decision and should constitute a challenge to the ratio of the decision. See Egbe v. Alhaji [1990] NWLR (Pt.128) 566 at 590. Grounds of appeal are not formulated in nubibus they must be infirma terra, namely arise from the judgment. However meritorious the ground of appeal based on point of critical constitutional importance or general public interest, it must be connected with controversy between parties.”
The plaintiffs/appellants did not file a reply brief. I am left to approach the matter without the advantage of an input from the plaintiffs/appellants. The 5th ground of appeal raised by the appellant at pages 202-203 of the record reads:
“(5) The Court below erred in law when it remitted the damages of Defendants back to the High Court to be determined de novo when there was no prior finding by it that the Defendants had established negligence on the part of the Plaintiffs and proved their counter-claim for damages.
PARTICULARS
(a) The Court below held that:
‘It is also significant that the learned trial judge did not discuss the question of damages raised by the appellants. It is now trite law, that trial Court should discuss the issue of damages in case they are found to be wrong on the question of lia-bility. An appeal court may at times under and by virtue of S.16 of the Court of Appeal deal with the question of liability and the issue of damages, but in this case, the issue of credibility of the witnesses is important, that is why I shall remit the claims for the appellants back to the High Court and there to be tried de novo by another judge.’
(b) The trial High Court had found the 1st Defendant negligent and therefore dismissed the counter-claim thus:
‘On the other hand I find the 1st Defendant negligent. His action gave rise to the present suit being filed against him and his employer. Consequently, all heads of claims filed by the Defendants are each dismissed as lacking basis.’
(c) No where in its judgment did the Court of Appeal make a finding that negligence was proved against the Plaintiffs.”
I reproduced earlier the 3rd issue for determination in the appeal raised by the plaintiffs/appellants. A combined reading of the 5th ground of appeal and issue 3 formulated thereon conveys that the court below had in its judgment come to the conclusion that the defendants/respondents had established a case of negligence against the plaintiffs/appellants on the counter-claim raised; and that the case was being remitted to the court below only for an assessment of damages. But this was not the case. The court below in the last paragraph of its judgment at page 195 of the record had only said:
“Accordingly in the end, I allow this appeal, set aside in toto the decision of the trial court and in its place, I order that the Respondents’ claims be and are hereby dismissed. I order also that the claims of the appellants as contained in the counterclaim be remitted back to the High Court of Niger State and there to be decided de novo by another judge.”
(underlining mine)
It is apparent from the extract of the judgment of the court below reproduced above that what was remitted to the trial court for trial do novo was “the claims of the appellants as contained in the counter-claim” not just the damages claimed. The claims of the defendants/respondents included a determination of the question whether or not the plaintiffs/appellants were liable in negligence as asserted by the defendants/respondents in their counter claim. The result is that the 5th ground of appeal and the 3rd issue for determination by the plaintiffs/appellants could not have arisen from the judgment of the court below. Both are accordingly struck out.
Issues 1 and 2 raised by the plaintiffs/appellants will be taken together. The court below allowed the appeal brought to it by the defendants/respondents mainly on the ground that the plaintiffs/appellants’ evidence at the hearing was not in conformity with their pleadings as to the nature of the negligence upon which their claims were hinged. In his statement of claim, the 1st plaintiff appellant pleaded in paragraph 3 thus:
“The said trailer No. LA 3906 BF was so negligently driven, managed and controlled by the 1st defendant that he caused or permitted the same to violently hit the said vehicle No. LA 6086 MA”
Particulars of Negligence
(i) the said vehicle No. LA 3906 BF was driven at a speed which was excessive in the circumstance:
(ii) 1st defendant failed to keep any or any proper look-out on (sic) to have any or any sufficient regard for other traffic and in the process hitting the said LA 6086 MA.
(iii) 1st defendant failed to keep any or any proper control of the vehicle No. LA 3906 BF driven by him and failed to swerve or in any other way so to manage or control his vehicle as to avoid hitting plaintiff’s vehicle.
(iv) The weather (condition) was bright and the road (a Federal Highway) straight.
(v) The plaintiff will in the alternative rely on the doctrine of Res Ipsa noquitur.”
(Underlining mine)
Now at the hearing, P.W.3 who was the driver of vehicle No. LA 6086 MA at the time the collision occurred testified thus:
“On the 9/12/91, I was driving my vehicle loaded with plates to Kaduna from Lagos. On my way at Maikujeri after Kagara, I was driving when the 1st defendant’s vehicle was coming down a slope, left his lane and came into mine. I thought he could not go back to his lane and I was parking my vehicle. He ran into my vehicle and his vehicle went further and fell down. My vehicle did not fall down but the head got condemned.”
(Underlining mine)
It is to be observed here that whereas the main plank of the negligence alleged against the defendants/respondents in 1st plaintiffs/appellant’s Statement of claim was excessive speeding and failure to keep a proper look-out, the evidence of P.W.3, who was the only witness called to show how the accident happened, was to the effect that the defendants/respondents’ vehicle veered off its lane of the road to collide with the plaintiffs/appellant’s vehicle. So what were the findings of the trial court as to the cause of the accident? At page 60 of the record of proceedings, the trial court in its judgment said:
“The evidence of P.W.2 and P.W.3 alleged negligence on the part of the 1st defendant. This is further corroborated by the sketch map of the scene of the accident. The points of impact to which the 1st defendant was part of the making never favoured him. From the point of impact to where his vehicle finally fell down is 160 ft.
This clearly shows that he was on an excessive speed which made it not possible for which (sic) to have proper control of the vehicle resulting to the accident.
These (sic) finding, I believe worked on the mind of the trial court to find the 1st defendant guilty of dangerous driving. By the 1st defendant’s negligence, he breached the duty of care he owe (sic) other road users.”
(Underlining mine)
In the passage underlined above, the trial court made a finding that the cause of the accident was excessive speeding by the 1st defendant/respondent. This finding was in tune with the averment pleaded by the 1st plaintiff/appellant in the particulars of negligence pleaded. On the other hand, the only evidence called by the plaintiffs/appellants in proof of the negligence ascribed to the 1st defendant/respondent was that the vehicle driven by him (1st defendant/respondent) veered off his lane of the road and came to collide with 1st plaintiff/appellant’s vehicle. The result is that there was no evidence before the trial court in support of the averments pleaded by the 1st plaintiff/appellant as to how the collision occurred.
In Njoku v. Erne [1973] 5 SC. 293 at 300-302, this court observed:
“In National Investment & Properteis Ltd. v. Thompson Organisation Ltd. & Ors. [1969] NMLR 99 at page 104, we again observed as follows:-
“A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings, and evidence which is in fact contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it.
It is of course the duty of counsel to object to inadmissible evidence and the duty of the court anyway to refuse to admit inadmissible evidence, but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it come to give judgment to treat the inadmissible evidence as if it had never been admitted. Other views along the same lines were expressed in Idahosa v. Oronsaye [1959] 4 FSC166 at p. 171; Bada v. the Chairman LRD.B SC.501/65 of 23rd June 1967; Erinle v. Adelaja SC.332/1966 of 6th June 1979 and Chief Sule Jimbo & Ors. v. Aminu Sanni & Ors. SC. 373/67 of 13th March, 1970. Another recent case on the point is Ferdinand George v. The United Bank for Africa Ltd; SC. 209/1971 of 29th September, 1972 reported in [1972] 8/9/SC.264 at page 275 in which we referred with approval to our decision in Ogboda v. Adulugba SC.3/70 of 12th February, 1971 where we emphasized the same point as follows:-
‘We have pointed out numbers of time that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given (See Chief Sule Jimbo & Ors. v. Aminu Sanni & Ors. SC.373/67 dated the 13th March, 1970). Even when such evidence had been wrongly allowed, the trial court should disregard it as irrelevant to be issues properly raised by the pleadings.’”
Similarly in Shell B.P. v. Abedi [1974] 1 SC 23 at 45, this court said:
“It is now settled that in any action in the High Court, the parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of these averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue. The corollary to this principle is that judgment should not be given in favour of a party on facts which were not pleaded; it is the same with facts which are pleaded but not canvassed at the hearing.”
The Court below adopted the proper approach to the case when in its judgment at page 158 of the record, it said
“This piece of evidence was not pleaded and in view of the authorities cited above, that evidence must be expunged from the record. The respondents relied upon specific acts of negligence on the part of the 1st appellant, no evidence was given to prove those facts, the evidence that was led the 1st appellant leaving his lane went to no issue joined by the parties at the pleadings. See Obmiami Brick and Stone (Nig) Ltd v. A.C.D. (supra) (Pt.229) 260. Olarewaju v. Bamigboye (1987) 3 NWLR (Pt. 60) 353. See Also Adeosun v. Adisa (supra).
On the strength of the above authorities, I have no doubt that the evidence given by the respondent’s only eyewitness to the accident that the cause of the accident was that the 1st appellant left his lane and collided with the 2nd respondent was not pleaded and ought to be expunged. And in the absence of such an evidence there was nothing on the record to support the respondent’s claims of negligence against the appellants. There is no doubt that there was an accident or collusion between the vehicles of the parties along the highway, but mere occurrence of an accident is not sufficient proof of negligence, and establish by credible evidence, the acts of negligence against the appellants. The learned trial judge was in error to have made a case for the respondents different from the one contained in their pleadings. I must therefore resolve this issue in favour of the appellants, that is, from the nature of the pleadings and the evidence the respondents did not establish a case of negligence against the appellants”
The plaintiffs/appellants counsel at page 9 of his brief argued thus:
“Even assuming without conceding, that trial Court failed to make any findings to acts of negligence, since the appeal before the lower Court was by way of rehearing based on the evidence in the Record of Proceedings and because the complaint before the lower Court was not based on credibility of the witnesses, the Court of Appeal in exercise of its power under section 16 of the Court of Appeal Act could have proceeded to make findings of fact based on the evidence adduced. Bunyan v. Akingboye (2001) Fed. WLR (Pt.41) 1977 at 1996 B-G. See also the Court of Appeal decision (which we urge the Court to approve) in: Buckley Ltd. v. Akura (1986)5 NWLR (Pt.44) 752 at 760 G-H”
I think, with respect to learned counsel, that he did not sufficiently appreciate the limits of the power of rehearing granted to the Court of Appeal under section 16 of the Court of Appeal Act. That power does not extend to enable the court reconstruct a party’s case or to redesign the evidence called by parties to make sure that evidence called agrees with the averments pleaded by the parties. The fundamental lacunae with the plaintiff/appellants case was that the facts pleaded by them were not in accord with the evidence led at the trial as to the cause of the accident. Section 16 of the Court of Appeal Act was therefore irrelevant in the circumstances. Again, it was argued that the court below should have looked at the sketch of the scene of accident tendered as exhibit ‘C’ and to have drawn the inference of negligence on 1st defendant’s/respondent’s part from the resultant positions of the two vehicles. But with respect, such an approach would not cure the fact that the plaintiffs/appellants’ evidence as to how the accident occurred was not in line with their pleadings.
The 2nd issue for determination is whether or not the Court below was correct to have dismissed the plaintiff/appellants’ suit in toto following the finding that the evidence called by them was not in accord with the pleadings. This does not seem to me a reasonable issue for determination in this appeal. The plaintiffs/appellants’ claim for damages which was in negligence postulated that the trial Court would find a case in negligence established against the defendants/respondents. But as it turned out, the case in negligence was not made out arising from the fact that the evidence called by the plaintiffs/appellants was contrary to the pleadings filed. Since a case of negligence was not established, the inevitable consequence was a dismissal of plaintiffs/appellants’ case. It is therefore unreasonable to raise an issue querying the correctness of the dismissal of plaintiffs/appellants’ suit.
In the final conclusion, this appeal must be dismissed as unmeritorious. I affirm the judgment of the Court below and award N50,000.00 costs against the plaintiffs/appellants in favour of the defendants/respondents
S.U. ONU, JSC: Having had the privilege to read before now the judgment of my learned brother Oguntade, JSC just delivered, I am in entire agreement therewith that the appeal must be dismissed as unmeritorious. I too affirm the judgment of the court below and award N50, 000 costs against the plaintiffs/appellants.
NIKI TOBI, JSC: This is a case of negligence with its usual apportionment of blame by one party to the other. The blames are between the plaintiff and the defendant. None of the parties usually accepts fault. The plaintiff will say that the defendant was at fault. The reverse situation is also canvassed and that makes the dispute. There are however, certain cases where the defendant accepts some blame but says that the plaintiff contributed to the accident. That deals with the law of contributory negligence. That is not the case here. What is the case here?
It was on 9th December, 1991. An accident occurred between two vehicles. They are trailer bearing Registration No. LA.6086 MA and Fiat TS Trailer bearing Registration No.LA 3906 BF. It is the case of the appellants that the Fiat TS No. LA 3906 BF trailer was driven by 1st respondent at an excessive speed and failed to keep any proper look out or have any efficient regard for other traffic and in the process hit trailer No.LA 6086 MA. It is the case of the respondents that the accident was not as a result of the fault of the 1st respondent but as a result of the fault of the 2nd appellant, who at the tune of the accident, left his lane to collide with the trailer No.LA 3906 BF driven by the 1st respondent. They claimed that the 2nd appellant was attempting to overtake a third vehicle while ascending a hill, and in the process collided with the 2nd respondent’s vehicle.
The appellants filed an action in the High Court. They claimed special and general damages. The respondents counter-claimed for special damages. The learned trial Judge gave judgment to the appellants in the following terms:
“(1) I give judgment in favour of the 1st Plaintiff as follows, the sum of N500,000.00 for damages caused to his vehicle a fiat TS Trailer.
(2) The sum of N6,500.00 being refund for the payment made for hiring a vehicle to convey the goods from the scene of accident to Kaduna.
(3) Another sum of N40,000.00 for payments made to the 2 watchmen who looked after the vehicle at the scene of accident for a period of 9 months.
In addition to the above I award to the plaintiffs against the defendants, the sum of Nl,000,000.00 as general damages. Plus 10% interest p.a. there (sic) on the total sum until the whole amount is fully paid with effect from today.”
On appeal, the Court of Appeal reversed the judgment of the High court. The court blamed the learned trial Judge for not discussing “the issue of damages in case they are found to be wrong on the question of liability.” In the concluding paragraph of the judgment, the Court of Appeal said:
“Accordingly in the end, I allow this appeal, set aside intoto the decision of the trial court and in its place, I order that the respondents’ claims be and are hereby dismissed. I order also that the claims of the appellants as contained in the counter-claim be remitted back to the High Court of Niger State and there to be decided de novo by another judge.”
The appellants have appealed to the Supreme Court. Briefs were filed and exchanged. They formulated three issues for determination:
“(1) Was the Court of Appeal right in holding that the trial judge made a finding on issues that were not pleaded but did not make findings as to acts of negligence pleaded by the parties?
(2) Whether the Court of Appeal was right in dismissing plaintiffs’ claims in toto.
(3) Was the Court of Appeal right in remitting back to the High Court for determination the amount of damages counter-claimed by the Defendants when there was no prior finding that the Defendants had on the evidence adduced, proved negligence against the plaintiffs.”
The respondents formulated two issues for determination:
“(1) Was the Court of Appeal right in holding that the trial Judge made a finding on issues that were not pleaded but did not make findings of negligence pleaded by the parties.
(2) Whether in the absence of any finding of negligence against the respondents the appellants are entitled to damages arising from the same acts or omissions constituting the negligence complained of?”
Learned counsel for the appellants, Ibrahim Isiyaku, Esq, relying on the evidence of PW.3 and the findings of the learned trial Judge, submitted that the Court of Appeal was wrong to have held that the trial court did not make any specific finding as to acts of negligence as pleaded by the parties but made a finding on issues that were not pleaded. Even assuming, without conceding that the trial court failed to make any further findings of acts of negligence, learned counsel argued that since the appeal before the court was by way of rehearing based on the evidence in the Record of Proceedings and because the complaint before the court was not based on credibility of the witnesses, the Court of Appeal, in the exercise of its powers vide section 16 of the Court of Appeal Act, could have proceeded to make findings of fact based on the evidence adduced. He cited Bunyan v. Akingboye (2001) FWLR (Pt.41) 1977. Buckley Ltd v. Akura (1986) 5 NWLR (Pt.44) 752. Criticising the evidence of DW.1 and commending the evidence of PW.3 to the court, learned counsel submitted that the Court of Appeal could very well have considered the evidence in the Record and made a finding of negligence against DW.1.
On issue No.2 learned counsel called in aid the evidence of PW.1 and the findings of the trial Judge and submitted that the award of N1 million out of a total of N7.5million damages is not out of tune with the nature of the damages suffered by the appellants.
On issue No.3, learned counsel submitted that as the Court of Appeal did not make any finding as to the negligence of the appellants or that the respondents had proved that the 2nd appellant caused the accident by attempting to overtake another vehicle as pleaded by the respondents, the Court of Appeal was wrong to revert the counter-claim back to the High Court for a trial de novo, counsel argued. He urged the court to allow the appeal.
Learned counsel for the respondents, Yakubu Maikyau, Esq, raised a preliminary objection on ground 5. He submitted that the ground does not emanate from the judgment of the Court of Appeal. He cited Republic Bank Limited v CBN (1998) 13 NWLR (Pt.581) 306; Saraki v Kotoye (1992) 9 NWLR (Pt.254) 156; Madueke v Madueke (2000) 5 NWLR (Pt.655) 3; Confidence Insurance Ltd v Trustees of S.O.C.E. (1999) 2 NWLR (Pt.591) 373 and Egbe v Alhaji (1990) NWLR (Pt. 128) 546.
Taking issue No.l, learned counsel cited some paragraphs of the Amended Statement of Claim, the evidence of PW.3, DW.3 and submitted that the Court of Appeal was right in holding that the trial Judge made a finding on issues that were not pleaded. He relied on Adeoshun v Adisa (1986) 5 NWLR (Pt.40) 255.
Learned counsel pointed out that the appellants did not state or describe what the 1st respondent was doing or the particular manner of driving adopted by him which amounted to a breach of the duty of care on his part to the appellants
