DAVID TAYLOR & ANOR. V. EDWIN OGHENEOVO
(2011)LCN/4653(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of June, 2011
CA/B/102/2006
RATIO
SPECIAL DAMAGES: WHETHER THE PLAINTIFF MUST SPECIFICAL PROVE EACH OF THE ITEMS OF THE SPECIAL DAMAGES HE CLAIMS TO THE SATISFACTION OF THE TRIAL COURT
In order to succeed in claim of special damages, the plaintiff must specifically plead each of the items of the special damages he claims and must also strictly prove each of the said items to the satisfaction of the trial court, as the court is not entitled to make its own estimate of same. Strict proof of damages infact means that the evidence adduced on their proof, must show particularity in accordance with the pleadings and the claim must also be based upon precise calculation so as to enable the defendant access to the fact which makes such calculation. See FBN Plc vs. Associated Motors Co Ltd (1998) 10 NWLR (Pt 569) 227; Okoronkwo vs. Chukwe (1992) 1 NWLR (Pt 216) 175; Ngilari vs. Motorcat Ltd (1999) 13 NWLR (Pt 636) 626; It is trite law that each item of special damages claimed must be specifically proved and such proof must also be characterized by testimony that ties each item with the proof proffered. See Joseph vs. Abubakar (2002) 2 NWLR (Pt 759) 185; A.G. Levities Ltd vs. Akpa (2002) 1 NWLR (Pt 747) 182. PER AMIRU SANUSI, J.C.A.
AWARD OF SPECIAL DAMAGES: WHETHER THE AWARD OF SPECIAL DAMAGES IS BASED ON THE DISCRETION OF THE TRIAL JUDGE
It must be stressed here, that an award of special damages unlike an award of general damages, is not based on the discretion of the trial judge, but on credible and reliable evidence adduced before the trial court which strictly proved the plaintiffs entitlement. See Garba vs. Kur (2003) 11 NWLR (Pt 831) 280. PER AMIRU SANUSI, J.C.A.
SPECIAL DAMAGES: CIRCUMSTANCES UNDER SPECIAL DAMAGES WILL BE AWARDED
It is a settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence and without such proof, no special damages can be awarded. See Garba vs. Kur (supra); Osuji vs. Isiocha (1989) 3 NWLR (Pt 111) 623; Alhaji Otara & Sons Ltd vs. Idris (1999) 6 NWLR (Pt 606) 330. PER AMIRU SANUSI, J.C.A.
GENERAL DAMAGES: WHETHER A TRIAL COURT HAS DISCRETIONARY POWER TO AWARD GENERAL DAMAGES
General damages which is the subject matter of this issue are damages which the law implies or presumes to have accrued from the wrong complained of, or as the immediate, direct and proximate result of, or the necessary result of the wrong complained of. A trial court has discretionary power to award general damages and when exercising such discretionary powers, it has the duty to calculate what sum of money will be reasonably awarded in the circumstances of the case. See Garba vs. Kur (supra), Mobil Oil Nig Ltd vs. Akinfosile (1969) NWLR 217. Bekhgun Group vs. Esalee Food Products (Nig) Ltd (1985) 3 NWLR (Pt 11) 112, A.G. of Oyo State vs. Fairlakes Hotel Ltd (No. 2) (1989) 5 NWLR (Pt 121) 355; Bello Vs. A.G. Oyo State (1986) 5 NWLR (Pt 45) 828. Moreover, in awarding general damages, the court would simply be guided by the opinion and judgment of a reasonable man. It is trite law, that general damages which are losses which flow naturally from the defendant. Its quantum therefore need not be pleaded or proved as it is generally presumed by law. See ljebu-Ode Local Government vs. Adeleji Belogun & Co. Ltd. (1991) 1 NWLR (Pt 166) 136. This principle of law therefore renders as fallacious and untenable, the argument of the learned appellant’s counsel that the trial court in awarding the general damages must be restricted to the pleadings of it by the plaintiff/respondent in his Statement of Claim. PER AMIRU SANUSI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. DAVID TAYLOR
2. Q-BOAT LIMITED Appellant(s)
AND
EDWIN OGHENEOVO Respondent(s)
AMIRU SANUSI, J.C.A.(Delivering the Leading Judgment): The plaintiff, now respondent took a Writ of Summons at the Edo State High Court of Justice (the lower court) against the defendants, now appellants. The plaintiff (respondent) was a motorcyclist engaged in commercial transport with his motorcycle as well as a motorcycle mechanic. On 14/2/96, he took a passenger on his motorcycle and going along Effurun Road. At a point, he dropped his passenger on the pedestal walkway and not on the main road. While standing near his motorcycle far from the tarred portion of the road, a vehicle driven by the first defendant/appellant, an expatriate drove off the main road and hit the plaintiff on the spot where he was standing. As a result of that, plaintiff’s left leg was broken and he also sustained some injuries all over his body. The motorcycle also got completely destroyed.
Sequel to that the plaintiff/respondent instituted the suit at the lower court and claimed the under mentioned damages:-
SPECIAL DAMAGES
1. Pains suffering and inconveniences N100,000.00
b). Loss of amenities of life and job opportunity N500,000.00
c). Permanent disfigurement N200,000.00
d). Loss of Expectation of life N100,000.00
e). Cost of Vehicle charter to place of traditional treatment N180,000.00
f) Charges for traditional treatment N80,000.00
g) Purchase price of destroyed motor cycle N40,000.00
Loss of Earnings from 15/7/195 to 30/9/96 at
N7,000 daily for transport and technicians business N546,000.00
B- General Damages N3,254,000 .00
Total N5,000,000.00
Pleadings were ordered, filed and exchanged by parties before hearing commenced. At the hearing of the suit before the lower court, the plaintiff now respondent called two witnesses to prove his case. For the defence, the first defendant/appellant testified while one witness was also called to testify for the 2nd defendant/appellant. In the end, the trial court found in favour of the plaintiff and awarded lump the sum of N846,000.00 as special damages and N3,000.000 as general damages to him. Aggrieved by the decision of the lower court, the defendants now appealed to this court but on the awards of damages alone.
Parties to this appeal as usual filed and exchanged their briefs of argument. The appellants in their joint brief of argument distilled two issues for the determination of the appeal from the seven grounds of appeal contained in the Notice and Ground of Appeal they jointly filed. The two issues for determination proposed by the appellants read thus: – (1) Whether the Respondent proved strictly the special damages of N846,000.00 awarded by the trial judge (Ground vi)
(2) Whether the learned trial judge was guided by established principles in the award of general damages when she took into consideration irrelevant principles, matters not pleaded, and unproven facts in arriving at the N3 Million general damages awarded (Grounds (IV) and (VII). The respondent also formulated two issues for determination in his brief, which are as below:-
(a) Whether the special Damages of N846,000.00 not rightly awarded by the trial court? (Ground VI).
(b) Was the learned trial judge not justified in awarding the sum of three million Naira as General Damages against the Appellants? (Grounds IV, V and VII).
The two sets of issues raised by the parties to this appeal are more or less the same though differently couched. I will however approach this appeal upon being guided by the first issue raised in the appellant’s brief of argument, and the 2nd issue raised in respondent’s brief as they are elaborate, more elegantly framed and straight to the point in issue, and while doing so, I will consider them seriatim.
Issue No. 1 in the Appellant’s Brief.
On this issue, the appellant submitted that very scanty evidence was adduced in proof of the special damages which is even deficient and that the learned trial judge failed to evaluate same but merely stated in her judgment that the heads of damages claimed against the defendants were established and simply proceeded to make a lump sum award of N846,000.00 on the various items of special damages claimed, without examining whether such items were actually proved by the plaintiff/respondent individually and distinctly and also without assessment of evidence on each of the items claimed. He argued that the approach adopted by the learned trial judge in that regard was wrong in law and ought to be set aside.
In further submission, the learned appellants’ counsel argued that there must be proof of each item claimed as special damages as pleaded and each item must also be specifically proved. He went further to treat or mention each of the items claimed as special damages. For instance, on the claim N180,000.00 as cost of charter of vehicle to travel to place of traditional treatment at N10,000.00 per trip, he said no receipts for trip was produced or in the alternative the driver(s) of the vehicle (s) chartered was/were not called to testify. Also on charges of N80,000.00 as cost traditional treatment paid to the cooper, also no receipt was tendered and the cooper was not called to testify too. Again, on the claim of N40,000.00 as cost of his motorcycle destroyed, the appellant argued that the purchase receipt of the motorcycle was not tendered and pre-accident value of the motorcycle was not tendered and no evidence was led by the plaintiff on that claim. Similarly, on the claim of loss of earning from 15/7/96 to 30/9/96 at N7,000.00 per day totalling N546,000.00, the learned appellants counsel argued that such claim was not particularized and strictly proved as required by law. See Oseyomon vs. Ojo (1997) 7 SCNJ 365 at 388; Ohadugba vs. Garbs (2000) FWLR (Pt 16) 2721. He said the evidence led on this item is also scanty, yet the learned trial judge made a lump sum award on same without assessing or evaluating the evidence adduced in proof of the items.
On the whole, it was the submission of the learned appellants’ counsel on this issue, that special damages claimed by a plaintiff must be proved item by item and if he fails to do so, such claim must be dismissed. He added that ipsi dixit that can prove special damages must be comprehensive and credible and must also incorporate all the relevant conditions required in proof of special damages. See Unipetrol (Nig) Plc vs. Adereje (WA) Ltd. (2004) All FWLR (Pt 231) 1238 at 1290 Paragraph 17D. On the need to produce receipt in proof of special damages, he cited the case of Health Care Products (Nig) Ltd vs. Bazza (2003) FWLR (Pt 162) 1937 at 1960 Paragraph B. Also on the argument regarding loss of motorcycle or written off of same, reliance was placed on the cases of Onadegba vs. Garba (supra); Health Care Products (Nig) Ltd vs. Bazza (supra) and Otaru & Sons Ltd vs. Idris (1999) 4 SCNJ 1560 Pt 6172, where it was emphasized that pre-accident value of the vehicle must be pleaded and proved and if not, such award must be dismissed or set aside. Similarly on loss of earning claim, such item must be particularized in the pleading regarding the rate of earning and such other facts as may be necessary to enable the court calculate accurately, the actual amount the plaintiff had lost. See Oseyomon vs. Ojo (1997) 7 SCNJ 365 at 386. The learned appellants counsel finally urged me to set aside the lump sum award of special damages made by the trial court as same was not strictly proved or specifically pleaded or particularized and also to hold that the evidence adduced by the plaintiff/respondent on same was very scanty and the learned trial judge failed to evaluate the evidence which was even not led to prove the claims item by item.
Replying to the appellant’s counsel submission on this issue, the learned counsel for the respondent submitted that in dealing with award of special damages, an appellate court is simply to considered and ascertain whether such award was merely on wrong principle of law or that there was injustice in making the award. He cited the case of lhrehin vs. Nohenwed (2003) 6 NWLR (Pt 817) 615 at 647 – 648 Paragraphs G-A. He argued that the appellant failed to show that the award of special damages in this instant case violated any principle of law or that the award was excessive. The learned respondent’s counsel also submitted that although special damages are to be proved strictly, that did not mean that it should be proved beyond reasonable doubt or it did not envisage an unusual proof adding that the standard of proof required is still that of preponderance of evidence as applicable generally in civil cases. See Odulaja vs. Haddad (1973) 1 All NLR 191 at 196; Obdetin vs. Conterminal ile Rulls Ltd (1978) 1 LRN 60 at 64.
The learned respondent’s counsel then went further to also treat each of the items of special damages claimed by him vis-a-vis the evidence he adduced at the trial court. For instance on the charter of vehicle to travel for the traditional treatment, he said evidence was led on the purpose of such trips which was not denied by the defendant, hence the issue of getting a vehicle to take him there could be inferred on the entire award of N846,000.00 special damages. The learned respondent’s counsel argued that such claim was particularized and itemized and the plaintiff even led evidence on how much he used to earn daily and the trial court believed him before it made the award. He therefore submitted that there was nothing wrong with the court awarding him the claimed as special damages. See SCC (Nig) Ltd vs. Igneriniovo (2000) FWLR (Pt 189) 1133 at 1155 Paragraph G to H. On the issue of tendering of receipts, the learned counsel submitted that it is not a must for proof of special damages. See Musa vs. Christlieb Plc (2000) FWLR (Pt 19) 460 at 470; C – D; Kurubo vs. Zach-Motison (Nig) Ltd (1995) 5 NWLR (Pt 239) 102 at 120 – 121. D – A.
Again, as on the cost of the motorcycle or lack of pre-accident value, the learned respondent’s counsel argued that evidence was led to show that the motorcycle was new having been purchased in January, 1996 while the accident took place in July, 1996. He also argued that they had proved the claim of loss of earnings when he testified on how much he used to earn daily, hence the award made by the lower court was justified. He submitted that the plaintiff gave accurate figures and easy quantified claim in proof of the items claimed. He finally submitted that the award of special damages was in accord with law and facts and he finally urged us to resolve this issue in his favour.
In the instant case, the respondent as defendant at the lower court made several claims of special damages, which he succinctly itemized in his pleadings. I must emphasize here that special damages are such kind of damages, which the law will not presume to flow or to be inferred from the nature of the act or breach complained of by the plaintiff as a matter of course. They are in fact exceptional in their nature and character and can be specific items of loss suffered by the plaintiff or which the latter alleges to be the result of the defendants act or breach of duty complained of. In order to succeed in claim of special damages, the plaintiff must specifically plead each of the items of the special damages he claims and must also strictly prove each of the said items to the satisfaction of the trial court, as the court is not entitled to make its own estimate of same. Strict proof of damages infact means that the evidence adduced on their proof, must show particularity in accordance with the pleadings and the claim must also be based upon precise calculation so as to enable the defendant access to the fact which makes such calculation. See FBN Plc vs. Associated Motors Co Ltd (1998) 10 NWLR (Pt 569) 227; Okoronkwo vs. Chukwe (1992) 1 NWLR (Pt 216) 175; Ngilari vs. Motorcat Ltd (1999) 13 NWLR (Pt 636) 626; It is trite law that each item of special damages claimed must be specifically proved and such proof must also be characterized by testimony that ties each item with the proof proffered. See Joseph vs. Abubakar (2002) 2 NWLR (Pt 759) 185; A.G. Levities Ltd vs. Akpa (2002) 1 NWLR (Pt 747) 182. Also, the trial court must make specific award on each item or head of the claims. In the instant case, the lower court wrongly made a lump sum award of special damages where it held thus: –
“I also believe his claim for special damages. I found that the plaintiff has established the heads of damages claimed against the defendants jointly and severally and I hereby award him the sum of N846,000.00 special damages.”
I think it will not be out of place if I consider at this stage, each of the items of special damages claimed by the plaintiff/respondent vis-a-vis the evidence adduced by the plaintiff in proof of each of such items claimed at the lower court. The first item of special damages claimed is the cost of vehicle charter to place of traditional treatment of N180,000.00. On this item, the evidence adduced by the plaintiff in relation to this claim is his own ipsi dixit, where he stated “I chartered a vehicle at N10,000.00 per trip I visited cooper eighteen times from 22/7/1996 to 20/9/1996, I claim special damages of N180,000.00 for chartering vehicle”. Here one would have expected him to either tender receipts from the driver(s) of the vehicle he allegedly chartered to convey him to and fro the cooper’s place or in the alternative, call the driver(s) of the vehicle(s) that he engaged to take him to the traditional healer. To my mind and indeed it is settled law, that ipsi dexit (i.e. evidence of plaintiff) simpliciter led in proof of special damages must be comprehensive and credible and it must also incorporate all the relevant conditions required in proof of special damages. See Unipetrol (Nig) Plc vs. Adereje (WA) Ltd (2004) All FWLR (Pt 231) 1238 at 1290. The evidence led in proof of this item is in my view, too scanty and is short of proof of same and ought to have been rejected by the trial judge for not being a strict of proof.
The second item of claim by the respondent relates to the charges for the traditional treatment of N80, 000.00. Like the first item claimed (supra), the respondent simply relied on his ipsi dexit where he stated while testifoing at the trial court, that he paid a charge of N80,000.00 to the cooper. The cooper was not called to testify on his alleged charge or in the alterative no hand written receipt for such payment issued by the cooper was tendered in evidence acknowledging such payment by the cooper. Production of receipt in such claim is very vital, as it would serve as strict proof of payment even without calling the recipient of such payment to testify in court. See Healthcare Products (Nigeria) Ltd vs. Baizza- (supra). Here, I am however not insinuating that the only way to prove such or similar item is by way of tendering receipt but am only saying that it is more reliable though not compulsory to do so. In the case of Musa vs. Christlieb Plc (2000) FWLR (Pt 19) 460, it was held thus:-
“Hand written receipt is not the only means of proving payment of money in our law. The oral evidence of person who witnessed the transaction is as good as any written receipt.”
But in this instant case, the fact is that no receipt was adduced and the only evidence recipient of the N80,000.00 was also not called to testify and reason was not advanced by the plaintiff for not doing either of the two options. The plaintiff merely relied on his ipsi dixit and as I said earlier such evidence (of ipsi dixit) in proof of special damages must be comprehensive credible and should incorporate all the relevant conditions required in proof of special damages. In this case, I am afraid, it fell short of strict proof. It is even more astonishing to note that in his Statement of Claim, the plaintiff averred vide Paragraph 33 of his statement of claim, that he was going to rely on receipts. Documents etc at the trial court but non of these receipts or documents were tendered in evidence in proof of any of the items of special damages he claimed.
For the third item of special damages, the plaintiff now respondent claimed the sum of N40,000.00 being the purchase price of his motorcycle destroyed during the accident. The respondent as plaintiff at the lower court testified that he bought the motorcycle new which was damaged beyond repairs at a cost N40,000.00 in January, 1996 and used it for nearly seven months before the accident. He also testified that before the accident, he was earning N2,000.00 daily before the accident as he was using it for commercial purpose. The plaintiff however failed to tender pre accident value of the motorcycle and the value of its scraps, which is very essential for claim of that nature. In this type of the claim, the law ascribes the burden on the plaintiff or claimant of such claim to prove the per-accident value of the vehicle and the value of its scrap. Without evidence adduced in proof of these it will be difficult for the court to make an accurate award on such item claimed, especially since it must have depreciated within the seven months of use before the accident. No evidence was tendered or adduced by the plaintiff to justify the claim of N40,000.00 as the cost of the motorcycle, which he said, was the cost price of the motorcycle when he newly bought it over six months before the accident. The award made on this item by the lower court is therefore speculative, unjustifiable and arbitrary and should therefore not be allowed to stand. See Healthcare Products (Nig) Ltd vs. Bazza (supra).
The next item of the claim by the plaintiff/respondent is one of loss of earning from 17/7/96 to 30/9/96 at N7,000.00 per day for transport and technical business to the tune of N546,000.00. Certainly, this is the largest item of the claim awarded by the lower court on special damages. There is no gainsaying that loss of earnings is special damage on which particulars of the claim must be given in the pleadings by the plaintiff stating the rate of earnings and any other facts as may be necessary in order to put the trial court in a proper position to calculate and assess as accurately as it can, the actual amount to grant or award. It will not suffice for the plaintiff to simply plead the amount without leading sufficient evidence to prove such item or entitlement or the amount he earns daily.
Admittedly, in this instant case the respondent had two jobs, namely, a motorcycle mechanic (in the morning) and a motorcycle commercial rider in the afternoon to evening every day. He did not however state whether it included Saturdays and Sundays but merely stated that he used to earn N7,000.00 daily for the two jobs i.e. N5,000.00 for repairs of motorcycle and N2,000.00 for commercial transport. Out of the amount he said he expended N300.00 for fuel daily less his feeding money. He also used to pay Local government levy daily too though he did not stated how much it was. The learned trial judge however still proceeded to award this item of special damages as claimed by the plaintiff/respondent herein. The trial judge did not compute or asses the amount the plaintiff was entitled to as loss of earnings but simply made the lump sum award of the N546,000.00 claimed on this head of claim. In my humble view, this award is also arbitrary, speculative and not based on any reliable evidence in proof of the item. The law is trite and settled too, that claim of income per day made by a motorcycle operator on commercial basis is a claim for special damages, which requires strict proof. A trial court should not merely rely on ipsi dixit in awarding such claim without more, as such evidence is not sufficient proof in law even if the adverse party failed or did not challenge such ipsi dixit evidence which is not or does not amount to strict proof. What is actually required in proof of loss of daily earning is clear and credible evidence iteming the alleged daily loss which is proved by real evidence which casts no doubt in the claim. In my opinion, the evidence led in this instant case in proof of this head of the claim does not satisfy the requirements of the law for strict proof at all. No credible evidence was led to actually prove the loss of earnings claimed by the respondent. As I said earlier, it had not also been shown whether the loss of earnings claimed excluded Saturdays and Sundays and public holidays during the period covered by the claim, the maintenance of the motorcycle, the fueling of the motorcycle etc.
It must be stressed here, that an award of special damages unlike an award of general damages, is not based on the discretion of the trial judge, but on credible and reliable evidence adduced before the trial court which strictly proved the plaintiffs entitlement. See Garba vs. Kur (2003) 11 NWLR (Pt 831) 280. I am mindful of the fact that where various items are claimed under special damages, the plaintiff is entitled to be awarded any of those items which he can prove with sufficient evidence, even if he is not able to prove other or all the items claimed. See Badmus vs. Abegunde (2001) 3 WRN 40. However, in the case at hand none of the items claimed as special damages had been strictly proved as would enable or justify the trial court to make a lump sum award of the entire claim made by the plaintiff on special damages. It is a settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence and without such proof, no special damages can be awarded. See Garba vs. Kur (supra); Osuji vs. Isiocha (1989) 3 NWLR (Pt 111) 623; Alhaji Otara & Sons Ltd vs. Idris (1999) 6 NWLR (Pt 606) 330. The lump sum award on special damages made by the learned trial judge cannot therefore stand. It ought to be set aside and I accordingly do same. As a corollary therefore, the first issue is resolved in favour of the present appellant.
Issue 2 in the Respondent’s Brief of Argument
This second issue for determination relates more or less has to do with the award of N3 Million to the plaintiff as general damages by the trial court. It is submitted by the appellant’s counsel that the law does not allow an award of general damages outside the heads of claims in which the trial court made a lump sum award. The learned appellant’s counsel further submits that general damages that the respondent would be entitled to, must be within the heads of claims that he has himself set out as adumbrated in the fore paragraphs of this judgment i.e. N3,254.00 as general damages to the plaintiff/respondent by the lower court, could not stand as it is outside the four heads of claim made in Paragraph 32(a) to (d) of the statement of claim. See Innocent Okafor & Anor Vs. John Okibakpe (1973) 1 NWLR 317; SCC Nigeria Limited vs. Igueriniovo (2004) FWLR (Pt 18890) 1133 at 1153. He further submitted rightly too, that the law frowns at double compensation, See Uman vs. Owoeye (2003) FWLR (Pt 152) 38 at 54. The learned appellant’s counsel opined that the award of N3 Million as general damages is excessive and urged this court to interfere with such award because according to him, the trial judge acted under mistake of law and also acted in disregard of principles guiding award of general damages or acted under misapprehension of facts or has taken into account irrelevant matters and disregarded relevant matters. See Union Bank vs. Odusote (supra).
In yet another submission, the learned appellants’ counsel argued that the respondent simply claimed N900,000.00 as general damages while the trial judge awarded N3 Million to the plaintiff as general damages which according to the learned counsel, was excessive and should be set aside.
Replying on this issue, the learned counsel for the respondent submitted that since the appellants’ counsel conceded that the trial court could make a lump sum award of general damages, and then the lower court was right in awarding N3 Million as general damages to the plaintiff/respondent. He argued that general damages need not be pleaded or proved as law generally recognizes that they flow from the negligence complained of. See UBN Ltd vs. Odusote Bookstores Ltd (supra). In personal injuries, the learned counsel argued that trial court should only consider the compensational out look and not the name. The learned counsel went ahead to argue that the trial court considered all relevant facts before making the award of N3 Million as general damages. These include, the injuries suffered by the respondent and the state of physical condition he was turned to after the accident caused by the 1st defendant/appellant etc.
General damages which is the subject matter of this issue are damages which the law implies or presumes to have accrued from the wrong complained of, or as the immediate, direct and proximate result of, or the necessary result of the wrong complained of. A trial court has discretionary power to award general damages and when exercising such discretionary powers, it has the duty to calculate what sum of money will be reasonably awarded in the circumstances of the case. See Garba vs. Kur (supra), Mobil Oil Nig Ltd vs. Akinfosile (1969) NWLR 217. Bekhgun Group vs. Esalee Food Products (Nig) Ltd (1985) 3 NWLR (Pt 11) 112, A.G. of Oyo State vs. Fairlakes Hotel Ltd (No. 2) (1989) 5 NWLR (Pt 121) 355; Bello Vs. A.G. Oyo State (1986) 5 NWLR (Pt 45) 828. Moreover, in awarding general damages, the court would simply be guided by the opinion and judgment of a reasonable man.
It is trite law, that general damages which are losses which flow naturally from the defendant. Its quantum therefore need not be pleaded or proved as it is generally presumed by law. See Ijebu-Ode Local Government vs. Adeleji Belogun & Co. Ltd. (1991) 1 NWLR (Pt 166) 136. This principle of law therefore renders as fallacious and untenable, the argument of the learned appellant’s counsel that the trial court in awarding the general damages must be restricted to the pleadings of it by the plaintiff/respondent in his Statement of Claim.
It is a settled general principle of law, that an award of general damages is a matter within the precinct of a trial court and is not normally tempered or interfered with by an appellate court except in the under mentioned conditions or circumstances’ namely:-
a) where the trial judge acted under mistake or of law
b) where he has acted in disregard of principle of law or
c) where he has acted under a misapprehension of facts; or
d) where he has taken into account irrelevant matters or failed to take account of relevant matters, or
e) where injustice would result if the appellate court does not interfere or
f) where the amount awarded is either ridiculously law or ridiculously high that it must have been a wholly erroneous estimate of the damages.
Similarly, an appeal court is also entitled to interfere with an awarded of damages made by a trial judge, where the circumstances calling for such interference are shown to the appellate court See Solanke vs. Ajibola (1969) 1 NWLR 1. Agaba vs. Otubusin (1961) 2 SCNLR 13; Zik’s Press Ltd vs. Ikoku 13 WACA 188; Okonkwo vs. Ogbogu (1996) 55 NWLR (Pt 449) 420; Odogu vs. AG Fed (1996) 6 NWLR (Pt 456) 508; Onwu vs. Nka (1996) 7 NWLR (Pt 458) 1.
In this instant case evidence abounds that the plaintiff/respondent, then a man of about 26 years of age at the time of the accident, was having two jobs that is to say, a motorcycle transporter and also a motorcycle repairer. He had his left leg broken as a result of the accident and had also suffered pains throughout the period of the time he was receiving traditional treatment up to the time the wound healed. The trial court has found rightly too, that the accident left him with permanent limping and scars all over his body. And as he testified, he had suffered greatly and is now ashamed of limping. The respondent had therefore adduced adequate evidence of personal injury, pains, discomfort and permanent scars in his body. It is trite law that in personal injury cases, once there is evidence of injury, pains and permanent incapacitation as in this instant case, the victim or plaintiff is entitled to be awarded reasonable general damages, which said award should be based on some circumstances since such injury can not be quantified in monetary terms. In making such award, the court could be swayed in considering same particular points or factors, which include the followings:-
(i) The bodily pain, that is, whether the pains will be permanent so that the plaintiff will be with it for life.
(ii) Status of the injured person, his occupation profession or calling.
(iii) Whether the injury is permanent or transient;
(iv) Loss of earnings caused by the disability;
(v) length of time spent in receiving treatment before the wound healed.
(vi) Loss of amenities for life;
(vii) Age and expectations of life.
See Shuaibu vs. Maiduguri (1967) NWLR 204 at 207; Obere vs. Board Eku of Baptist Hospital (1978) 6-7 SC 15 at 24; Agaba vs. Otobasun (1961) 2 SCNCR 13; Eseigbe vs. Agholor (1963) 9 NWLR (Pt 315) 128 at 156. As I stated supra, the respondent had suffered pains, injury, discomfort etc and has permanent deformity since he now limps, hence he is entitled to damages for the injury itself and the consequences of the injury such as the pains he suffered and should also be adequately compensated for the permanent disfiguration. The damages that he is entitled to should however be such that as a reasonable and sensible man would consider to be not only sensible and reasonable but which is also fair in all the surrounding circumstance of the case.
The Law is also well settled, that an award of general damages can be made notwithstanding that special damages claimed in the suit was not strictly proved, provided that there is evidence (as in this instant case) showing that the party claiming it had actually suffered some damages. As posited supra, the Plaintiff/Respondent in the present case had suffered some pains and injury and had even been permanently deformed, See A.G. Oyo State vs. Fairlakes Hotels Limited (1939) 5 NWLR (Pt 121) 255. Arbrico (Nig) Limited vs. NMT Limited (2002′) 15 NWLR (Pt 789) 1, Garba vs. Kur (supra).
Now coming to the sum N3,000,000.00 (Three Million) awarded to the Plaintiff/Respondent as general damages, I am mindful of the fact that award of general damages is a matter within the precinct of a trial court. Consequently, an Appeal Court doest not normally disturb or interfere with such award except in any of the six conditions or circumstances earlier enumerated by me somewhere in this judgment. The relevant condition applicable to the instant case is the last one, namely, if the appeal court feels that such award of general damages is either ridiculously so low or ridiculously high that it must have been a wholly erroneous estimate of the damages. Upon applying the test of reasonable man and considering the surrounding circumstances of this case i.e. the bodily pains and injury suffered, the occupation and calling of the victim/Respondent, the nature and effect of the injury he suffered, loss of earnings caused by the injury, the status of the Respondent etc. I feel this, is an example of a case where an appeal court will do justice if the award is interfered with by reducing it, as to my mind it is a little on the high side. This issue is therefore hereby resolved partially in favour of the Respondent..
Before I conclude, I feel it needs to emphasized once again, that special damages claimed by the plaintiff/Respondent had not been strictly proved but the learned trial judge went ahead to make a lump sum award of the entire sum as claimed by the plaintiff. With profound respect to the learned trial judge, award of special damages is not based on the discretion of a trial judge but on evidence adduced before him strictly establishing that the plaintiff is entitled to such award. Unlike general damages, which is often said to be awarded at the discretion of the trial court, special damages are not at large. Special damages are pecuniary losses, which have crystallized in terms of cash and value before trial. See Ijebu-Ode Local Government vs. Adedeji Balogun & Co. Limited (supra). For that reason, the award on special damages ought to be set aside in its entirety and I accordingly do same.
With regard to the award of general damages made by the lower court to the tune of Three Million (N3,000,000.00), I consider it to be a little on the high side hence I reduce it to Two Million only (N2,000,000.00) as what the Respondent herein is entitled to and that is what he should be awarded as general damages.
In the result the appeal succeeds in part. The award of the sum of N846,000.00 as special damages by the lower court to the Respondent is hereby set aside in its entirety. But the general damages award of Three Million (N3,000,000.00) to the Respondent is hereby reduced to Two Million Naira (N2,000,000.00) only to be paid jointly by the two Appellants to the Respondent herein. No cost is awarded, so each of the parties should own costs.
GEORGE OLADEINDE, SHOREMI, J.C.A: I had the privilege of reading in advance the draft of the Judgment read by my learned brother AMIRU SANUSI JCA. I agree with the reasoning contained therein I have nothing to add.
I allow the appeal in part and agree to all the consequential orders made therein.
CHIOMA EGONDU NWOSU-IHEME, (Ph. D) J.C.A: I have had the advantage of reading in draft the Judgment delivered by my learned brother AMIRU SANUSI JCA.
I agree that the appeal succeeds in part. The award of the sum of N846,000.00 as special damages by the court below to the Respondent is set aside. The award of Three Million Naira (N3,000,000.00) as general damages to the Respondent is reduced to Two Million Naira (N2,000,000.00) to be paid jointly by the two Appellants to the Respondent herein. I also make no order as to costs.
Appearances
Ojo Abijogun;
Miss Edua Eghove,
Emest Ekpekurede Esq.,
Miss Fumilayo Adeyemi and
Miss Lois Wariso;For Appellant
AND
G. Odjesa;
Miss T.F. Erue;For Respondent
