COSCHARIS GROUP (NIG) LTD & ANOR v. ORUGBO (2021)

COSCHARIS GROUP (NIG) LTD & ANOR v. ORUGBO

(2021)LCN/14963(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, January 04, 2021

CA/PH/501/2015

RATIO

EVIDENCE: ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF THE LOWER COURT

I am of the respectful view that those findings and holdings are based on the evidence available to that Court and they are therefore not perverse. They should be upheld and not interfered with. See the case of Bamgboye v. Olarewaju (1991) 5 SC 104. An appellate Court should not interfere with a finding of a lower or trial Court that is based on proper evaluation of the evidence of the parties. See Fasikun v. Oluronke II (1991) 1 SC 16; Adomba v. Odiese (1990) 1 SC 219. PER ISAIAH OLUFEMI AKEJU, J.C.A.

DAMAGES: CIRCUMSTANCES GENERAL DAMAGES MAY BE AWARDED

It is pertinent to state in this case that, general damages may be awarded to assuage the loss that flows naturally from the act of the defendant and does not need to be especially pleaded as it arises from inference of law and does not need to be proved by evidence, it is only required to be generally averred. They are such damages that are presumed to be the direct and probable consequence of the act complained of and are incapable of exact calculation. See Yalaju – Amaye V. A.R.E.C. Ltd (1990) 6 SC. 157. PER ISAIAH OLUFEMI AKEJU, J.C.A.

ACTION: ATTITUDE OF THE COURT TO ACADEMIC ISSUES

On the Cross appeal, I have considered the issues raised thereon and it is my considered view that having found no merit in the appeal as a result of which same has been discussed. It will amount to double speaking or blowing hot and cold by this Court to allow the Cross appeal which in my view now amounts to a mere academic exercise which Courts do not embark upon in its adjudicatory functions. See Global Transport Oceanico SA v. Free Enterprises Nig. Ltd (2001) 2 SC 154. PER ISAIAH OLUFEMI AKEJU, J.C.A.

Before Our Lordships:

Isaiah Olufemi Akeju Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Between

1. COSCHARIS GROUP NIGERIA LIMITED 2. THE PORTHARCOURT BRANCH MANAGER, COSCHARIS GROUP NIGERIA LIMITED MR. UCHEKANU APPELANT(S)

And

MRS. HELEN ORUGBO (For And On Behalf Of The Defendants Of Late Joseph Orugbo) RESPONDENT(S)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Rivers State delivered on 28th day of July, 2015 in Suit No. PHC/216/2011 which suit the Respondent commenced against the Appellants through the Writ of Summons for the Reliefs stated in the Statement of claim as follows:
1. The sum of N61,560,000 (Sixty-one million, five hundred and sixty thousand naira) representing the total value of the dependency of the Claimant and her children inclusive of the aged mother and two (2) siblings on the deceased late Joseph Orugbo.
2. The sum of N50,000.00 (Fifty million naira) as general damages for the unquantifiable emotional pain, anguish, loss of care and affection and psychological trauma suffered as result of the negligent death of her husband caused by the 2nd Defendant and as a result of the inhuman disposition of the 2nd Defendant and towards her.

The amendment to the Statement of claim does not affect the reliefs sought by the Claimant. The Appellants who were defendants filed their Statement of defence wherein they denied the claim of the Claimant.

The Respondent in this appeal who was the Claimant at the lower Court was the wife of one late Joseph Orugbo who was engaged by the appellants to plaster the interior of the gatehouse at the Port Harcourt branch of the appellants but was electrocuted in the course of carrying out the work, he was taken to the hospital where he was pronounced dead. The matter was reported to the Police and investigation showed that the late Joseph Orugbo died of electrocution. It was agreed at the meeting between the appellants and the deceased’s family that an amount of money be given to the deceased’s family for burial of the deceased Joseph Orugbo which the appellants paid.

The Respondent testified for herself as CW1 at the trial of the Suit and tendered documents; another witness, Goodluck Ossai testified as CW2. The Appellants in defence of the action called Mr. Uche Kanu, the 2nd appellant who testified as the DW1 and also tendered exhibits; At the close of testimony and the written address by the Counsel to the parties the lower Court entered judgment for the Claimant in the sum of N6,000,000 as compensation against the defendants holding that the Appellants were in breach of the duty of care they owed to the deceased.

The defendants who were dissatisfied with the decision of the lower Court initiated this appeal with the Notice of appeal filed on 8/12/2015 with four grounds of appeal.

In the appellants’ brief of argument settled by Wunda O. Orji of Counsel and filed on 21/4/15 the following issues were formulated for determination;
1. Whether the learned trial Judge was right when he awarded the sum of N6,000,000 (Six million naira) as compensation against the appellants despite the fact that the appellants had earlier paid the sum of N420,000,000.00 (Four Hundred and Twenty Thousand Naira) to the Respondent’s family as final settlement of the matter.
2. Whether the learned trial Judge was right when he held that the Respondent’s late husband did not negligently contribute to his own death.
3. Whether the terms of Exhibit G at page 23 of the records between the appellants and the Respondent made after the matter was settled is binding on the parties.

The learned Counsel who prepared the Respondent’s Brief P.O. Okposi, Esq. formulated the following issues for determination;

Whether the learned trial Judge was in error in holding that the Appellants were liable for the death of the Respondent’s late husband and that the Respondent’s late husband did not negligently contribute to his own death.
2. Whether the learned trial Judge was in error in holding that payment by the appellants of the sum of N420,000.00 to the brother of the Respondent’s late husband was not adequate and final discharge/settlement of any obligation by the appellants to the Respondent.
3. Whether the content of Exhibit G. Affidavit of Death/Release of Corpse made by the brother of the Respondent’s late husband is binding on the Respondent.

The Respondent filed a Cross appeal and in the Cross Appellants’ Brief filed on 26/1/16 the issues for determination are;
1. Whether the learned trial Judge was right in failing to evaluate and assess the unrebutted evidence of special damages in line with established principles of awarding damages particularly with regard to fatal accidents claims before awarding the sum of N6,000,000 (Six Million Naira) as compensation for damages caused to the Cross Appellant by Respondents.

Whether the quantum of damages awarded by the trial Court is not too low, arbitrary and unsupported by finding of fact made by the learned trial Judge.The Appellants/Cross Respondent raised the following issues for determination;
1. Whether from the facts and circumstances of this suit, this action was properly brought under the Tort of Fatal accident.
2. Whether from the facts and circumstances of this case, the Respondent/Cross Appellant had legally and strictly proved special damages or any damages at all to entitle her to an award of Six Million Naira as compensation against the Appellants/Respondents by the trial Court.
3. Whether this Cross appeal is proper and competent for failure to seek leave of the High Court or Court of Appeal in compliance with Section 242(1) of the 1999 Constitution.
4. If issues 1 and 3 are resolved in favour of the Cross Respondents, whether this Honourable Court has jurisdiction to entertain this Cross appeal.The Respondent/Cross Appellant filed Cross Appellants’ Reply Brief on 27/3/17.
For the consideration and determination of the appeal, the issues formulated by the appellant are adopted.

On the first issue the Learned Counsel for the Appellants contended that the lower Court erred when he awarded the sum of N6,000,000.00 against the Appellants without considering the undisputed fact that the Appellants paid N420,000 to the Respondent’s late husband’s family with the full knowledge and consent of the Respondent as final settlement of the matter part of which money was given to the Respondent who accepted it without any complaint; Mobil Producing (Nig) Ltd v Udo (2008) 36 WRN 53. It was also contended that the lower Court erred when it did not give any legal principle or reasons for the award of N6,000,000.00 as reasonable compensation awarded to the Respondent but merely said it was in consideration of the rate of inflation in the country and to assuage the pain, anguish and suffering occasioned by the death of the Respondent’s husband; Umunna v Okwuraiwe (1978) 6 (SC); Olurotimi V Ige (1993) 8 NWLR (Pt.311) 257; Kassam v. Kampala Aerated Water Co. (1965) 1 WLR 688; Nwafor v. Nduka (1972) 7 NSCC 200; UBN Ltd v Odusote Bookshops Ltd (1995) NWLR (Pt. 421) 558; Shell Dev. Co Ltd V Otoko (1991) 6 NWLR (Pt. 159) 693.

The learned Counsel contended that in the circumstances of this case the appellants did not do any wrong to warrant the award of damages when it was the deceased who on a frolic of his own got himself electrocuted accidentally when he went outside the express direction/scope of his work.

It was contended that the amount awarded against the appellants as damages was manifestly too high, excessive and arbitrary, the learned Judge having failed to take into consideration the relevant fact that the appellants had earlier paid the sum of N420,000.00 to the Respondent’s late husband’s family out of which the Respondent benefited. It was further contended that the lower Court did not consider the fact that the deceased was not a wage earner but an artisan/daily labourer who earned his income on daily basis depending on availability of work. It was contended that the award of N6,000,000 against the appellant as damages was made by the lower Court without due regard to laid down principles guiding award of damages and also awarded under mistake of law and misapplication or failure to apply relevant facts that were before the Court while the sum of N6,000,000 is excessive, arbitrary and erroneous.

The learned Counsel argued that the deceased Joseph Orugbo was also partly negligent in causing his own death by climbing the roof of the security house whereas he was to work inside the house;Esey v. Irek (1990) 7 NWLR (Pt.160) 83; Hassan v. Tade (2011)49 WRN 130; Bhojsons Plc v. Daniel Kalio (2006)19 WRN 170.

On the second issue, in the Appellants Brief, the learned Counsel for the appellants argued that the deceased Joseph Orugbo negligently contributed to his death when he did not regard the instruction of the Appellants to work in the interior of the Security house but went outside the scope of his work by climbing to the top of the house and thereby got electrocuted to death; N.B.N. Ltd v A.S.A Ltd (1996) 8 NWLR (Pt 468) 511 as well as Sections 127(1) and 7(3)(b) of the Torts Law of Rivers State Cap 131 2002 were cited by learned Counsel on the issue of contributory negligence by the late husband of the Respondent. The learned Counsel contended that the lower Court did not consider the cited law but erroneously believed the evidence of the CW2 which at best amounted to

hearsay fabricated to deceive the Court over that of the DW1 and that the appellants were negligent in causing the death of late Joseph Orugbo. On the conditions that must be satisfied in proving negligence, the learned Counsel cited the case of UTB Nigeria v. Ozoemena (2007)13 WRN 125; Agbonmagbe Bank Ltd v. CFAO LTD (1967) NMLR 173.

It was submitted by Learned Counsel that the burden of proving negligence lies on the party that alleges it who must prove by evidence the conduct or action of the Defendant as well as the circumstances of its occurrence; but the Respondent did not discharge this onus at the lower Court as the Respondent failed to prove a breach of any duty of care; Strabag Construction Nig. Ltd v. Ogarekpe (1991) NWLR (Pt 170)733.

The learned Counsel further submitted that the evidence of the CW1 and CW2 being hearsay is not admissible and unreliable being hearsay evidence; Section 38 of Evidence Act, 2011 and Att. Gen. Rivers State V Att. Gen. Akwa Ibom State (2011) 8 NWLR (Pt. 1248)31. Nwofor v. Obiefuna (2011) NWLR (Pt.1227) 205. It was contended that the appellants did not owe the Respondent’s late husband any duty of care and if they owed him any, it has been discharged.

On issue 3 the appellants’ Counsel submitted that where parties enter into an agreement they are bound by its terms; Att. Gen. Rivers State v. Att. Gen. Akwa Ibom State (2011) 29 WRN 1. It was contended that the affidavit Sworn to by the brother of the deceased and tendered as exhibit G ought to be binding on the Respondent. Fobirem v. Oladapo (2009) 52 WRN 155; Egbuwa v. Egbuna (1989)2 NWLR (Pt. 106) 773.

Before going into the issues for determination, the learned Counsel for Respondent urged Court to strike out or discountenance Ground 1 of the grounds of appeal on the basis that no issue has been raised therefrom and the ground has been abandoned; Chief (Dr.) Ugwu Nwafor Ujam v. Chief Ken Nnamani & Ors (2005) All FWLR (Pt. 252)580; Otumba Gbenga Daniel v. Federal Republic of Nigeria (2014) All FWLR (Pt. 735) 319.

It was submitted that the appellants are liable for breach of duty of care they owed to the late husband of the Respondent which led to his death. The learned Counsel stated that the pleadings of the parties show that the appellants engaged the late husband of the Respondent to do

mason work at the Appellants/security/gatehouse, the only difference is at which point the late husband of the Respondent was to work at the security/gatehouse, whichever way the deceased was a visitor to the appellants by virtue of his being engaged to work on the Security/gatehouse within the meaning of the Torts Law of Rivers State of Nigeria, 1999, Section 7(1).

The learned Counsel submitted that a Claimant in an action for Tort of negligence needs only to prove the existence of a duty to take care owed by the defendant to the Claimant as well as the failure of that duty of care and consequent damage suffered by the Claimant as a result of that breach or connected thereto; UBA Plc v. Ogundokun (2010) All FWLR (Pt.1553) pages A-B. It was contended that the Respondent led un-contradicted credible evidence that the cause of her husband’s death was the negligence of the appellant by representing to the deceased that there was no current in the high tension cable dangling on the wall of the Security/gatehouse as shown by Exhibits C1, C2, and C3; the letters which the solicitors to the Respondent wrote to the appellants, but which the appellants did

not reply to deny. It was submitted that this failure to reply to the letters raises an irrebutable presumption of admission; Zenon Petroleum & Gas Ltd v. Idrisuya (Nig) Ltd (2006) All FWLR (Pt.312) 2121; Gwan v. Etuk (1990) 5 NWLR (Pt.149)149. It was also contended that by this failure to reply to exhibit C1, C2 and C3 the appellants had admitted liability for the negligence that led to the death of the deceased and the lower Court was right to have found and held so.

On whether a case of contributory negligence has been made out against the deceased, the learned Counsel cited the case of Evans v. Bakare (1993)3 SC 77 and submitted that in considering the issue of contributory negligence the degree of lack of care varies with the circumstances, and the law does not require the victim to proceed on his way like a timorous fugitive constantly working over his shoulder for threats from others; Westwood v. Post Office (1974) A. C. I.

The learned Counsel argued that the evidence of the CW2 who worked with the deceased and witnessed all that transpired between the 2nd Appellant and the deceased up to the point of electrocution cannot be regarded as

hearsay, but rather evidence that underscores the truthfulness of his testimony and the lower Court was entitled to accept and even believe the evidence and act on it; Durosaro v. Ayorinde (2005) All FWLR (Pt.260)182.

The evidence of the DW1 as further argued by the learned Counsel, is bedeviled by absence of material evidence and inconsistencies when in one breadth he said there was no high tension cable near the gate house and at another breadth he admitted that he was aware there was high tension electric cable hanging over the house. It was submitted that a Court should not attach any probative value to the evidence of a witness who gave major inconsistent evidence; Consolidated Breweries Plc v Aisowieren (2002) FWLR (Pt. 116) 959; Ezemba v. Ibeneme (2000)10 NWLR (Pt. 674) 200. It was submitted also that where a finding of the trial Court is based on its assessment of the credibility of a witness the appellate Court will be slow to interfere with such finding. Madam Wemimo Mosaky & 2 Ors (2007) All FWLR (Pt. 359)1262.

It was further argued that the reason why the appellate Court concedes such finding to the trial Court is the advantage of its

seeing and hearing the witnesses which the appellate Court does not have so where the trial Court has not made proper use of this opportunity of hearing and seeing the witnesses the appellate Court can interfere to set aside such findings.

On his issues 2 and 3 the learned Counsel contended that the lower Court was right in holding that the sum of N420,000.00 (Four Hundred and twenty Thousand Naira) paid by the Appellants was not a final discharge of all obligations regarding the death of the Respondent’s late husband which decision was arrived at after a careful evaluation of the evidence adduced before the Court. It was submitted that the appellants who asserted that the sum of N420,000 was for final settlement of the matter have the burden of proving that allegation as it is he who asserts a fact that has the burden of proving that assertion; Section 11(1) of the Evidence Act 2011 and Nwavu v. Okoye (2008) 7-12 SC 10. According to the learned Counsel the appellants failed to discharge the burden of proving that assertion. As argued by the learned Counsel, the affidavit Exhibit G relied upon by the appellants does not show that the Respondent and

other dependants of the late husband of the Respondent gave consent to the deponent to depose thereto and the lower Court rightly decided that the affidavit has no binding force on the Respondent. On the ingredients of enforceable agreement, the learned Counsel cited Bilante International Ltd v. NDIC (2011) LPELR SC 1717/1996.

The Learned Counsel submitted that Exhibit G does not deserve any atom of probative value having been tendered by the DW1 (the 2nd appellant) who was not the maker; Onimole v. Adefolabi (2008) All FWLR (Pt 438) 324; Action Congress v. INEC (2007) All FWLR (Pt. 378)1012.

On whether the award of N6,000,000 amounted to double compensation, the learned Counsel submitted that the award would only be double compensation where general and special damages are awarded for the same subject; General Oil Ltd v. Chief S. I. Ngu(2005) All FWLR (Pt. 247)1407. For the description of Special damages and general damages the case of General Oil Ltd (Supra) was referred to and it was further submitted that a defendant who fails to cross examine the Claimant on any item of special damage will be taken to have conceded that item of Special damages; Calabar East Co-operative Thrift & Credit Society v. Ikot (1999)2 SC (Pt.11)145.

It was contended that the decision of the lower Court which was based on credible uncontradicted evidence and not perverse should not be set aside.
On the amount of N420,000.00 earlier paid to the family of the deceased by the defendants the learned trial Judge found and held at pages 280 -381 of the record of appeal that;
“I have earlier on stated the basis on which the Defendants contend that the payment of N420,000.00 to the family of the deceased was final discharge of all obligations regarding the death of the deceased.
The question is whether that sum would be enough to assuage the immeasurable pain, anguish and hardship occasioned by the negligent death of their bread winner. I do not think so. This is particularly for the fact which is not contradicted, that the deceased maintained a fairly large family comprising his wife, the claimant, his three children, aged mother and 2 siblings. To accept that the sum is a final discharge will amount to consigning them to an unreasonable concession in the face of the fast dwindling value of our currency.

In the total consideration of the liability of the Defendants in this case, the sum of N6,000,000.00 (Six Million Naira) will be a reasonable and adequate sum compensation for the damages caused to the Claimant by the Defendants”.

The trial Court had earlier made findings and holdings on the issue of whether the deceased was contributorily negligent for the cause of his own death and the other issues now raised in this appeal. I am of the respectful view that those findings and holdings are based on the evidence available to that Court and they are therefore not perverse. They should be upheld and not interfered with. See the case of Bamgboye v. Olarewaju (1991) 5 SC 104. An appellate Court should not interfere with a finding of a lower or trial Court that is based on proper evaluation of the evidence of the parties. See Fasikun v. Oluronke II (1991) 1 SC 16; Adomba v. Odiese (1990) 1 SC 219.

evidence, it is only required to be generally averred. They are such damages that are presumed to be the direct and probable consequence of the act complained of and are incapable of exact calculation. See Yalaju – Amaye V. A.R.E.C. Ltd (1990) 6 SC. 157.

Based on the above settled principle therefore, an appellate Court will not interfere with an award of damages by a trial Court except where it is shown that the Court acted upon wrong principle of law or that the amount awarded is ridiculously too high or too low, or was entirely unreasonable in the circumstances of the case. See Oluwole v. Prof. Tam David West (2010) 10 NWLR (Pt.1203) 98.

In my view, based on the foregoing, I find no basis for allowing this appeal as I resolved all the issues against the appellants and the appeal is therefore dismissed. I uphold the judgment of the lower Court.

amounts to a mere academic exercise which Courts do not embark upon in its adjudicatory functions. See Global Transport Oceanico SA v. Free Enterprises Nig. Ltd (2001) 2 SC 154. It is convenient for me to state that the Cross-appeal is of no value and same is accordingly dismissed.

At the end of it all, I uphold the Judgment of the lower Court and both the appeal and cross-appeal are unmeritorious and dismissed.
Parties are to bear their own cost of the proceedings.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the Judgment just delivered by my learned brother I. O. Akeju, JCA.

I entirely agree with the reasoning and conclusion therein. I have nothing more useful to add.
I abide by the consequential Orders in the lead Judgment.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.

Appearances:

M. OMEREJI For Appellant(s)

Appellant not in Court For Respondent(s)