CHUKWUBUZOR & SONS NIGERIA LIMITED v. AKAN DICKSON IDIONG
(2013)LCN/6565(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of December, 2013
CA/C/315/2011
RATIO
DUTY OF COURT: EVALUATION OF EVIDENCE
The evaluation of evidence is the primary function of a trial court. It is only when it fails in that duty that the Appellate Court would re-evaluate such evidence. Agbi v. Ogbeh (2006) 11 NWLR pt 990 page 65, Bashaya V. State (1998) 5 NWLR pt 550 page 351, Ojokolobo vs. Alamu (1998) 9 NWLR pt 565 page 226, Sha V. Kwan (2000) 5 SC page 198. Per UZO I. NDUKWE-ANYANWU, J.C.A.
MEASURE OF DAMAGES IN AN ACTION FOR NEGLIGENCE
The measure of damages in an action for negligence is founded on the principle of restitutio in integrum which means that a successful plaintiff in an action in negligence must be made by the court to recover such sums as will restore him, so far as can be done by monetary compensation, to the same position he was before he suffered the loss subject to the rule that he will not be compensated for remote damages: Julius Berger (Nig) Ltd Vs. Ede (2003) 8 NWLR pt 823 page 526. Per UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES:
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
CHUKWUBUZOR & SONS NIG LIMITED – Appellant(s)
AND
AKAN DICKSON IDIONG – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 13th December, 2010. The Respondent as plaintiff sued the Appellant as defendant and claimed the following.
i. A DECLARATION that the defendant’s Tanker driver with Registration No XA 806 KNE was negligent when it damaged the claimant’s two buses with Registration Nos AA 185 ANA and AX 208 BKS.
ii. A DECLARATION that the defendants have breached the terms of the memorandum of settlement dated the 11th day of April, 2009.
iii. AN ORDER directing the defendants to repair forthwith the claimant’s two buses damaged by the defendants Tanker and bringing into effect the terms contained in the memorandum of settlement.
iv. To pay the sum of Six Million and Sixty Thousand Naira (N6, 060,000.00) only representing lost of income for 202 days at the rate of N30, 000.00 per day, the buses have been parked at the workshop at the instance of the defendants as special damages.
v. The sum of Thirty Thousand Naira daily from the date this suit is filed in this Honourable Court till the date judgment will delivered and thereafter till the date the defendants will satisfy the judgment orders.
vi. A declaration that the defendants owed the claimant a duty of care and they breached same which led to the damage of the claimant two buses.
vii. The defendants to also pay the sum of Six Hundred and Fifty Thousand Naira representing cost of this litigation.
viii. A declaration that the Tanker driver was negligent when it damaged the claimant’s two buses.
ix. The sum of 10M Naira general damages.
x. 15% interest per annum from 10th day of April, 2009 till judgment is delivered and 20% post judgment interest.
After a full trial, the learned trial Judge delivered his considered judgment and held thus:
i. I declare that the tanker driver was negligent when his tanker damaged the claimant’s two buses.
ii. I award the sum of five hundred thousand naira as general damages in favour of the claimant. The defendant is to pay same to the claimant.
iii. The last prayer asking for 15% interest per annum from the 10th April, 2009 till judgment is delivered and 20% post judgment interest is refused.
Being dissatisfied, the Defendant/Appellant filed his notice of appeal with two grounds. This notice was held to be incompetent. By an order of this court, granted on 26th February, 2013, the Appellant filed a fresh notice of appeal in this court. The appellant filed his Appellant’s brief on 2nd April, 2013. In it the Appellant articulated only one issue for determination as follows:
Whether the learned trial Judge properly considered the evidence on the record relating to the fact that the vehicles were repaired prior to hearing and determination of the suit. If the answer is correct, was the award of general damages appropriate, and if it is, was it reasonable and in consonance with the evidence on the printed records.
Also filed is an Appellant’s reply brief on 14th August, 2013. The Respondent filed a notice of Preliminary Objection on 9th May, 2013. The grounds of this Preliminary Objection are as follows:
1. The Notice of Appeal that ought to have been filed at the Registry of the Court below was filed in the Registry of this Honourable Court on 27th February, 2013.
2. The Grounds of Appeal in the said Notice of Appeal are not grounds of law but of mixed law and facts which requires the leave of this Honourable Court before bringing the Appeal.
The Respondent argued this Preliminary objection in the body of his respondent’s brief filed on 9th May, 2013. The Respondent articulated his own two issues for determination, which are as follows:
1. Whether the learned trial judge has the discretionary powers to asses and award general damages in a case where negligence is proved? This issue is distilled from ground one in the Notice of appeal filed on 27th February, 2013.
2. Whether the learned trial judge carefully and meticulously evaluated the evidence before him before coming to the conclusion he did? This issue is distilled from grounds two and three in the Notice of Appeal filed on 27th February, 2013.
Both parties failed to paginate their briefs contrary to the rules of this court.
The Respondent argued in his Preliminary Objection that the Appellant failed to file his notice and grounds of appeal in the trial court. Counsel submitted that the notice the Appellant filed in the trial court was incompetent and, therefore, struck out. The Appellant sought leave from this court. It was granted but the Appellant filed his notice and grounds of appeal in this court. See Bayero V. Manasara and Sons Ltd (2007) All FWLR pt 359 page 1285 where Ariwoola JCA held.
“there is no doubt that a Notice of Appeal is by the rule required to be filed at the Registry of the lower Court from where the appeal emanated. Failure to do so certainly renders such Notice of Appeal and all it contains incompetent to say the least“.
Counsel submitted that in law, an appeal can only be originated by a competent Notice of Appeal. An appeal is, therefore, said to be entered in this court when a competent notice and grounds of appeal are filed in the Registry of the trial court See Adetiloye vs. Aluyi (1999) 10 NWLR pt 624 page 648 where it was held thus:
“An appeal is deemed to have been brought when the notice of appeal has been filed in the Registry of the Court below“.
Counsel urged the court to hold that the Appellant filed its notice and grounds of appeal in this court thereby making the notice incompetent.
Counsel also urged the court to hold that the three grounds of appeal filed by the Appellant are incompetent. The grounds are at best of mixed law and facts and requires the leave of court. This leave, the Appellant did not obtain before filing. See Garuba V. Omokhodion (2011) 15 NWLR pt 1269 page 145.
Counsel also submitted that the Record of Appeal predated the filing of the Notice and Grounds of Appeal. The Record of Appeal in this court is the one transmitted on an incompetent notice of appeal. Also the Appellant did not obtain leave to use the same record from this court. Counsel therefore, urged the court to hold that this appeal is incompetent as per the grounds of this Preliminary Objection.
In reply, the Appellant submitted that, the court had a duty to do substantial justice rather than technical justice. Counsel argued that on the 10th April, 2013 this court by an oral application deemed the Record of Appeal and the Notice of Appeal, properly filed and served. See British-American Insurance Co Ltd vs. Edema Sillo (1993) 2 NWLR pt 277 page 570, State V. Gwonto (1983) 1 SCNLR page 142.
Counsel referred the court to the case of Adeleke V. Awodiyi (1962) 1 SCNLR page 401, Texaco (Nig) Plc vs. Francis Lukoko (1997) 6 NWLR pt 510, and what the court has to say on the issue of curable non-compliance.
“Non-compliance with the Rules of Court is generally curable if it is not tutored or intended to over reach the adverse party to score cheap victory or any victory at all. It is generally curable if the non-compliance is trivial, insignificant or merely affecting the periphery of the litigation. The court will readily use the palliative of costs to cure transient, unintentional, unorganized and unpremeditated blunders.”
Counsel submitted that non-compliance of the rules are like mere irregularities which do not nullify the proceedings as in this instance.
“It is not every failure to comply with the provisions of the rules that would nullify or render a proceedings void. Rather certain omissions or failure to do certain things required to be done by the Rules may be treated as mere irregularity which will not nullify the proceedings.”
Counsel urged the court to hold that rules of court are to aid the courts reach substantial justice:
Thus the law is that “The aim of courts is to do substantial justice between the parties and in so doing rules of court must be interpreted in such a manner as to prevent undue adherence to technicalities.”
Counsel referred the court to the ratio in B. N. v. Okojie (2004) 10 NWLR pt 882 page 488.
“Although by virtue of Order 3 rule 2 (1) of the Court of Appeal rules, a notice of Appeal should be filed in the Registry of the trial court, a notice of appeal after the records of appeal has been compiled and transmitted to the Court of Appeal and served on all the parties and the appeal had been entered, is properly filed because it would amount to duplicity of effort, resources and ultimately waste of time if such notice of Appeal is filed at the Registry of the trial court. In the instant case, the notice of Appeal filed at the Registry of the Court of Appeal was properly filed.”
Counsel, therefore, urged the court to hold that the notice of appeal and the Record of Appeal are competent before the court having been deemed properly filed and served on 16th April, 2013.
On the issue whether the three grounds are of mixed law and facts, the Respondent’s counsel submitted that this is not true. The learned counsel to the Appellant has failed to show the court that the grounds are of mixed law and facts: This is what Nnaemaka JSC had to say in Nwadike V. Ibekwe (1987) 4 NWLR pt 67 page 718.
“When then is a ground of appeal that of law? I shall deal with 5 particular classes although by its nature, the categories of errors in law are not closed.”
Counsel submits that the three grounds of appeal are not of mixed law and facts. Moreover leave was not applicable in this instance as the appeal is as of right as provided in S. 241 (1) (A) of the 1999 Constitution which provides as follows:
“Final decision is any civil or criminal proceeding before the Federal High Court or a High Court sitting at first instance.”
Counsel, therefore, urged the Court to dismiss this Preliminary Objection and hear the appeal on its merit.
A notice of appeal is usually filed in the court which delivered the judgment appealed against. An appeal is deemed to be initiated when a competent notice had been filed in the Registry of the court below. Idris V. Audu (2005) 1 NWLR pt 908 page 612.
It is the notice of appeal that gives the Appellate Court the necessary vires to hear an appeal. See Shell Int’l Petroleum B. V. v. FBIR (2004) 3 NWLR pt 859 page 46, SBN Ltd V. MPIE (2004) 6 NWLR pt 868 page 146, Abiola vs. Olawoye (2006) 13 NWLR pt 996 page 1. See Order 6 Rule 2 (1) of the Court of Appeal Rules 2011 which provides:
(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
However there are exceptions to the general rule. See CBN V. Okojie (2004) 10 NWLR pt 882 page 488, where the Supreme Court held as follows:
“A notice of appeal should be filed in the Registry of the trial court, a notice of appeal filed at the Registry of the Court of Appeal after the record of appeal has been compiled and transmitted to the Court of Appeal and served on all the parties, and the appeal has been entered, is properly filed because it would amount to duplicity of effort, resources and ultimately a waste of time if such notice of appeal is filed at the Registry of the trial court. Bayero Vs. Mainasara & Sons Ltd (2006) 8 NWLR pt 982 page 391.”
From the foregoing it would be taken that after the court granted the Appellant leave to appeal against the judgment of the High Court of Cross River State, it is proper before this court. It is no longer important where the notice was filed. It has been filed in this court and has been deemed properly filed and served.
I, therefore, hold that the notice and grounds of appeal and the Record of Appeal already filed are deemed properly filed and served.
The Respondent counsel had argued that the three grounds of appeal filed together with the notice of appeal are of mixed law and facts. This means that the appellant ought to seek leave to appeal. This leave must be obtained before those grounds of mixed law and facts can be filed.
However, by virtue of S. 241 (1) of the 1999 Constitution, which provides thus:
“An appeal lies from the decisions of the Federal High Court or a State High Court to the Court of Appeal as of right in the following cases
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a State High Court sitting at first instance; and
(b) Where the ground of appeal involves questions of law alone” See Welle V. Bogunfoko (2007) 6 NWLR Pt 1029 page 123, First Fuels Ltd Vs. NNPC (2007) 2 NWLR PT 1018 Page 276, Maduabuchukwu Vs. Maduabuchukwu (2006) 10 NWLR Pt 989 page 475.
The Appellant appeal is competent as he had appealed as of right. His judgment was a final judgment of the trial court. I, therefore, hold also that this appeal is competent.
I also hold that the preliminary objection of the Respondent failed for the reasons given above.
I will therefore, use the lone issue articulated by the Appellant to determine this appeal.
The Appellant’s counsel stated that the case of the Respondent in the court below was for negligence and for special and general damages. The learned trial Judge rightly refused to award special damages to the Respondent.
Counsel submitted that the trial Judge rejected Exhibit 4a-4d because it did not have the plate numbers of the claimant’s vehicles. The trial Judge, therefore, held that:
“There is nothing in the receipts for the vehicles indicating that the panel beating and painting were done in respect of the damaged buses. The bus numbers are not reflected therein at all.”
The Respondent had admitted in evidence that the two vehicles involved in the accident were packed at a mechanic workshop. Appellant’s counsel argued that litigation was not in contemplation when the spare parts were purchased.
Counsel submitted further that the learned trial Judge was in error when it awarded general damages in favour of the Respondent on mere speculations. The trial Judge neither visited the locus in quo nor saw the buses to determine the extent of damages and to ascertain whether the buses were indeed repaired or not. Counsel referred the court to the case of Shugaba V. Federal Ministry of Internal Affairs (1981) NCL page 439. The Court held as follows:
“For an award of general damages to be ordered, the court must found upon evidence placed before it by the applicant deserving of such award. The court must be provided with the evidence of violation of rights of Applicants not wallow in speculation for an order of an award of damages ought to be judicious and judicial”
Counsel submitted that the learned trial Judge had already made up his mind to award general damages against the weight of evidence. The trial Judge held thus:
“The third prayer asking that the defendants forthwith repair the two buses is refused for the reason that the general damages that would be awarded by this court would take care of the repairs.”
Counsel argued that the trial Judge misdirected himself when he failed to take into consideration the total cost of repairs of N48,300.00. The learned counsel to the Appellant argued further that, had the learned trial Judge had an open mind, he would have considered Exhibits 4a-4d. See the case of Okpokpo Vs. Uko (1997) 11 NWLR pt 527 page 94 where the court held:
“a judgment of a court of law must dispassionately and fully deal with the relevant facts of the case and the law on the issue involved, it must consider the issue raised properly.”
Counsel finally urged the court to resolve this issue in favour of the Appellant and allow this appeal.
In reply, learned counsel to the Respondent submitted that the learned trial Judge had the jurisdiction to entertain suits relating to the tort of negligence and by that had the jurisdiction to validly exercise its discretion to award general damages. Counsel argued that in all cases of judicial discretion, it must be exercised judicially and judiciously. See Ehinlawo V. Oke (2008) All FWLR pt 442 page 1507.
The learned trial Judge in his conclusion refused to award any amount for the repairs of the vehicles as the general damages awarded would take care of that.
Counsel argued that the appellate court cannot disturb the exercise of judicial discretion when it was exercised judiciously and judicially. See Ehinlawo Vs. Oke (supra) Daura Vs. Danhauwa (2011) All FWLR pt 558 page 991.
The only ground upon which an appellate court can disturb an exercise of discretion by the trial Judge is only when such an exercise of discretion has occasioned a miscarriage of justice. See Global Scene Ltd Vs. The Registrar of Trade Marks (2011) All FWLR pt 558 page 877.
Counsel submitted that the learned trial Judge was not speculative. Rather, the trial Judge based his award of damages on his findings. The Appellant had admitted being negligent vide Exhibit 2 on pages 17 & 18 of Record of Appeal.
Counsel submitted that the evaluation of evidence is the primary function and duty of the trial court. See Asika V. Atuanya (2008) All FWLR pt 433 page 1293. Counsel stated that the learned trial Judge carefully and meticulously evaluated the evidence, after which he came to a conclusion thus:
“his special claims fail in that he has not strictly proved them as required by law“.
Counsel submitted that the Appellant’s counsel admitted that the learned trial Judge evaluated the evidence well when the Appellant stated in his brief.
“the learned trial Judge rightly refused to award special damages to the Respondent upon their not being strictly proved before the Court.”
Counsel urged the court to hold that the general damages awarded by the learned trial Judge was not speculative but based on hard facts. Counsel, therefore, urged the court to resolve this issue in favour of the Respondent and dismiss this appeal.
In civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claims on the preponderance of evidence and balance of probabilities. See Iman Vs. Sherrif (2005) 4 NWLR pt 914 page 80, Elias V. Omo-Bare (1982) 5 SC page 25, Agbi V. Ogbeh (2006) 11 NWLR pt 990 page 65; where it was held that:
“The burden of proof of negligence falls upon the plaintiff who alleges negligence. It is the duty of a person who asserts to prove it. Negligence is a question of fact not law. It is the duty of the plaintiff to prove same or the claim fails. UTB (Nig) Vs. Ozoemena (2007) 3 NWLR pt 1022 page 488, Alhaji Otaru & Sons Ltd V. Idris (1999) 6 NWLR pt 606 page 330”
A party is only entitled to judgment if a trial Judge believes and accepts the evidence of the party that supports his case. Where the court rejects the evidence of the defendant, it does not necessarily entitle the plaintiff to Judgment. See Bello Vs. Aruwa (1999) 8 NWLR pt 615 page 454.
The parties on appeal in this court did not make an issue of the fact that special damages was not awarded to the Respondent. The court rightly held that special damages must be specifically pleaded and strictly proved. See Abdullahi Vs. Raji (1998) 1 NWLR pt 534 page 481, Nse Vs. Unakalamba (1998) 2 NWLR pt 537 page 308.
The appellant complained that the trial Judge failed to evaluate the evidence placed before the court. The courts have held that in the evaluation of evidence, the trial courts are guided by the following principle namely:
(a) Whether the evidence is admissible;
(b) Whether the evidence is relevant;
(c) Whether the evidence is credible;
(d) Whether the evidence is conclusive and
(e) Whether the evidence is more probable than the given by the other party.
Mogaji vs. Odofin (1978) 4 SC page 91, Akad Industries Ltd V. Olubode (2004) 4 NWLR Pt 862 Page 1.
The trial Judge evaluated the evidence placed before him. However, in cases of damages, enough material must be placed before the court to enable it reach a just decision. What in essence is the material placed before the court for use in the exercise of his discretionary powers to award general damages? The trial Judge held in his judgment, (see Order (viii) and (ix))
viii. I declare that the tanker driver was negligent when his tanker damaged the claimant’s two buses.
ix. I award the sum of five hundred thousand naira as general damages in favour of the claimant. The defendant is to pay same to the claimant.
The trial Judge did not in his judgment state how he got by these findings and what informed his decision to award N500,000.00 general damages.
The trial Judge rejected the receipts Exhibit 4a-4d tendered by the Appellant showing the cost of spare parts bought to repair the Respondent’s vehicles. In all honesty, I have combed the plaintiff/respondent’s statement of claim and cannot find how he got about the figures he is claiming for general damages. In evidence, the plaintiff/respondent did not put in evidence what is the estimated value of the repairs to be done to the two vehicles. The defendant/appellant claimed he had repaired the two vehicles and tendered Exhibit 4a-4d which the trial Judge rejected. The plaintiff/respondent was not able to prove that the two vehicles were not repaired. The respondent neither took the trial judge to the locus in quo nor tender the vehicles in evidence. He did not as an alternative, as much as show by photographs the extent of damage to the vehicles. There was no detailed evaluation of the damage to the vehicles. It is from the damage to the vehicles that the court can determine the general damages to be awarded to the respondent.
The measure of damages in an action for negligence is founded on the principle of restitutio in integrum which means that a successful plaintiff in an action in negligence must be made by the court to recover such sums as will restore him, so far as can be done by monetary compensation, to the same position he was before he suffered the loss subject to the rule that he will not be compensated for remote damages: Julius Berger (Nig) Ltd Vs. Ede (2003) 8 NWLR pt 823 page 526.
The plaintiff/respondent did not give the estimated value of the vehicle prior to the accident. There is no estimated value after the accident. There is no estimated cost of repairs, the defendant/appellant was supposed to make. The term general damages covers all loses which are not capable of exact qualifications. It includes all non-financial losses (past and future) and future financial loss. Items of general damage need not and should not be specifically pleaded, but some evidence of such damage is required Okuneye vs. Lagos City Council (1973) 2 CCHCJ page 38. Such evidence, the plaintiff/respondent has not provided for the use of the court in the exercise of its judicial discretion. Where such evidence is lacking, the court cannot manufacture it. There must be a basis for exercising this discretion in favour of the plaintiff. This I have not found.
The evaluation of evidence is the primary function of a trial court. It is only when it fails in that duty that the Appellate Court would re-evaluate such evidence. Agbi v. Ogbeh (2006) 11 NWLR pt 990 page 65, Bashaya V. State (1998) 5 NWLR pt 550 page 351, Ojokolobo vs. Alamu (1998) 9 NWLR pt 565 page 226, Sha V. Kwan (2000) 5 SC page 198.
The respondent, as plaintiff, has not placed enough evidence before the court to warrant judgment in his favour and the award of general damages to him.
This lone issue is resolved in favour of the Appellant. This appeal is meritorious and, therefore, allowed. The judgment of the trial court is set aside. The award of Five Hundred Naira N500, 000.00 general damages is also set aside. I make no orders as to costs.
CHIMA CENTUS NWEZE, J.C.A.: My Lord, Uzo I. Ndukwe-Anyanwu, JCA, obliged me with the draft of the leading judgment just delivered now. I am persuaded by the reasoning and conclusion. I abide by the consequential orders in the said leading judgment.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in advance, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA, allowing this appeal.
I am in complete agreement with the reasoning and conclusions of my learned Brother on the issues raised for determination in the Preliminary Objection and in the substantive appeal, as comprehensively resolved. I adopt these conclusions as mine, and, have nothing further to add.
I abide by the Orders made in the lead Judgment.
Appearances
F. N. Omoni holding the brief of Chief C. Okoi For Appellant
AND
M. E. Ukweni
Chief E. A. Akpoke with
E. J. Amatey and K. U. Udungeri For Respondent
