JULIUS BERGER NIGERIA. LTD. & ANOR v. O. O. EDE
In The Court of Appeal of Nigeria
On Thursday, the 17th day of October, 2002
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
- JULIUS BERGER NIG. LTD.
2. MR. AWE Appellant(s)
- O. EDE Respondent(s)
ADEREMI, J.C.A. (Delivering the Leading Judgment): The respondent, who was the plaintiff in the court below, claimed against the appellants, who were the defendants in the court below, the sum of N100,000.00(One hundred thousand Naira) as special and general damages occasioned by the negligence of the defendants (now appellants) when, on the 30th of June, 1979, they piled up and left unlighted and unprotected heaps of soil across 2 (two) out of the 3 (three) lanes of the major lanes on the Isolo/Apapa Express Way in Lagos and thereby caused the plaintiff/respondent who was driving his saloon car No. LAC6080A to collide with one of the said heaps of soil whereby he (plaintiff/respondent) suffered severe injuries, loss, agony and inconvenience. The final pleadings filed and exchanged between the parties, with the leave of court, are the further amended statement of claim, amended statement of defence. The case proceeded to trial at the end of which, in a reserved judgment delivered on the 4th of December, 1987, the court found for the plaintiff/respondent and awarded him N30,910.00 (Thirty thousand nine hundred and ten Naira) as special and general damages.
Dissatisfied with the said judgment, the defendants appealed to this court upon three grounds. The issues distilled for determination as set out in their brief of argument are:
1. Whether upon a proper appraisal of the evidence on behalf of both parties to this action, the findings of fact, to wit, that:
(a) there was a gallant saloon car with Registration No. LAC 6080A can be sustained?.
(b) if the answer to (a) is affirmative, whether the plaintiff was the owner of the car?.
(c) whether there was a heap of soil five feet high that submerged the said car.
(d) whether there was, indeed, an accident, in the circumstances pleaded by the plaintiff?.
(e) assuming that all the answers to (a) to (d), supra, are in the affirmative, who was negligent?
(f) whether in the absence of admissible evidence as to ownership, possession of a car that the plaintiff admits is not registered in his name raises a presumption of ownership in that possessor so as to shift evidential burden on a defendant or disputing that ownership?
(g) whether the plaintiff discharged the burden of proving his items of special damages and whether in that absence the learned trial Judge could substitute his own estimate?
(h) whether the award on general damages was not excessive given yardstick of our judiciary coupled with the testimony of PW5, Dr. Godwin C. known on behalf of the plaintiff.
The plaintiff/respondent, however, contended through his brief of argument, that issues 1(a) to (h) identified by the appellants in their brief for determination. —are not relevant to this appeal as well as, — according to them, they are not related —to the grounds of appeal formulated by them — (appellants).
He, however, raised four issues for determination, and as couched in his brief of argument, they are as follows:-
(1) whether the plaintiff/respondent proved his case and as such was entitled to judgment?.
(2) whether the learned trial Judge misdirected himself in any way as to the standard of proof?.
(3) whether the learned trial Judge correctly directed himself in any way as to the onus of proof having regard to the pleadings and evidence led before the court?.
(4) whether the learned Judge made a correct approach to the evidence tendered by both parties to the case?.
I hasten to say that the issues identified for determination by the two parties are verbose and more than the grounds of appeal raised. This undoubtedly violates the well established principles of law which say that issues formulated should not be more than the grounds of appeal see Oyekan & Ors. V. Akinrinwa (1996) 7 NWLR (Pt.459) 128. After a careful reading of the two sets of issues raised by the parties and relating same to their final pleadings, the evidence adduced and the judgment of the court below, it is my view that the issues that arise for determination in this appeal are:-
(1) whether the plaintiff/respondent established his ownership of the vehicle No LAC 6080A as at 30th June, 1979, the time material to this case?.
(2) whether the plaintiff/respondent established that the defendants/appellants owed him a duty of care and that they breached that duty of care?.
(3) whether the plaintiff/respondent proved the special damages strictly as required by the law?.
I now pause to examine the case of the plaintiff/respondent as gleaned from his pleadings and the defence of the defendants/appellants as put up in their joint pleadings. The facts not in dispute between the parties, as gleaned from their pleadings, are that the 1st defendant/appellant is a limited liability company carrying on the business of construction of roads, bridges, buildings and other construction projects at all times material to this case: and that the 2nd defendant/appellant was an employee and/or agent of the 1st defendant/appellant at the time material to this case.
The case of the plaintiff/respondent is that at the time material to this case, he was a legal practitioner and the owner of vehicle No. LAC 6080A, the letter of transfer of ownership of which was executed in his favour on 1st June, 1979. The defendants/appellants, he further averred, as at 30th June, 1979, along Isolo/ Apapa Express Road in the course of the construction they were carrying on there, piled up and left several unlighted, unguarded and unprotected heaps of soil. At about 10.30 p.m. on the said 30th June, 1979, in the course of skilful and careful driving of his said vehicle No. LAC 6080A along his own proper side of Isolo/ Apapa Express Road, suddenly he ran into and/or collided with some of the heaps of soil about 5 feet or 1.5 metres high negligently piled up there.
The collision resulted in the damage to his said vehicle beyond repairs.
The plaintiff/respondent also claimed that as a result of the said collision he also suffered serious bodily injuries and was hospitalised at the Lagos University Teaching Hospital, Lagos and some various clinics of traditional masseurs at Benin-City and Lagos.
Consequent upon the damage to his aforesaid vehicle and the injuries he personally sustained, he claimed damages.
The defendants/appellants denied that the ownership of the said vehicle was that of the plaintiff/respondent at the time material to this case; contending that the document of transfer of ownership pleaded by the plaintiff/respondent was executed after the institution of this case. While denying that they were negligent averred that the escavation required for the laying of the crash barrier was not up to one feet deep and certainly not more than two feet wide and could not have resulted in a 5 feet heap of sand; that pre-cautionary measures were taken to avoid danger to users of the road. It was their further contention that when they resumed work on 2nd July, 1979 they did not see evidence of any accident adding that the precautionary steps taken by them were still intact.
The above, in a nutshell, is the resume of the case presented by each of the parties. As I have earlier said, the learned trial Judge found for the plaintiff/respondent. On the issue of the ownership of the said vehicle, the learned trial Judge held:
“The plaintiff through exhibits J and JI has established that the vehicle was bought at Phoenix Motors Limited on 13th December, 1976 in the name of F.E. Okunbor that a letter was written to the Licensing Authority for change of ownership and a receipt was issued these were exhibits J and JI respectively. The presumption of ownership of this vehicle by the plaintiff had been aptly borne out by the testimonies of the 1st and 6th plaintiff witnesses. The defendants did not bring any evidence to the contrary the fact that F.E. Okunbor was not called as a witness notwithstanding. For in a case of negligence, once ownership of the motor vehicle involved has been established, the presumption albeit rebuttable, is that the vehicle was being driven at the material time either by the owner himself or by his servant or agent …therefore hold that the plaintiff is the owner of the said vehicle Registration No. LAC 6080A.”
On this issue, the appellants have argued in their brief that the said vehicle, by the evidence before the court, was registered in the name of F.E. Okunbor, the wife of the plaintiff/respondent who by marriage later became Mrs F.E. Ede. There was no legal proof that the ownership of the said vehicle was transferred to the plaintiff/respondent before the accident. Exhibits J and JI therefore have no legal efficacy; indeed exhibit J was not in existence when he (plaintiff/respondent) gave evidence in the case in 1982. The plaintiff/respondent on the other hand has argued in his brief that the authenticity of exhibits J and JI are not in doubt. Ex JI he further argued, was a certified true copy of the original and was rightly admitted in evidence; reliance was placed on the case of Onuigbo v. Nwekeson (1993) 3 NWLR (Pt.283) 533.
I shall start the consideration of this issue by examining the law relating to the ownership of a vehicle. Where there is a registration of a motor vehicle in the Register, kept at the Motor Licensing Office, in the name of a person it is, prima facie, evidence of ownership by that person. It is however, a rebuttable evidence. This accord with common sense, because the owner, without any further information, if an action in negligence arising from the driving of that vehicle was brought against him, is prima facie liable because the court will be entitled, in law, to draw the inference that the vehicle was been driven by the owner or his agent or servant see (1) Kuti v. Balogun(1956) SCNLR 143, (1978) 1 SC 53 or (1978) 1 LRN 353 (2) Ogunmuyiwa v. Solanke (1956) 1. F.S.C. 53 and Okeowo v. Sanyaolu (1986) 2 NWLR (Pt.23) 471. A fortiori, where there is an authentic document identifying the names of the owner and the contents of that document remain uncontradicted, there is that irresistible presumption that the named person is the legal owner of the vehicle and he can properly bring an action in court against whoever has negligently caused damage to it or to the person of the owner in the course of driving that vehicle; by the action or inaction of that person see (1) Odebunmi v. Abdullahi (1997) 2 NWLR (Pt.489) 526 and (2) Onuigbo v. Nwekeson & Ors. (1993) 3 NWLR (Pt.283) 533. Then, what is the evidence of ownership of the vehicle led by the plaintiff/respondent? The 1st P/W called by the plaintiff/respondent, one Ebigbeyi said:
“I know the plaintiff when he came to buy a Gallant Car. The plaintiff advised that the car should be in- voiced in the plaintiff’s wife’s name and that was done. A receipt was issued in the name of the plaintiff’s wife.”
The plaintiff/respondent, himself testifying under examination-in-chief, said:
“The said vehicle which is a Gallant Saloon Car Registration No LAC6080A white in colour was transferred to me on 1/6/79 by my wife Mrs. F.E. Ede nee F E. Okunbor. A letter of Transfer was written to that effect and a change was effected at the City Hall, Lagos.”
Ex J was tendered as the letter to the Licensing Authority requesting for a certified true copy of the Transfer of Vehicle to the plaintiff, while the Certified True Copy of the transfer of Ownership of vehicle No. LAC 6080A to the plaintiff/respondent was tendered as exhibit J1 under cross-examination he said:
“At the time of the accident the car was not insured in my name. The car is (sic) not in the name of Miss
Ogunbo at the date of the accident exhibit J was not in existence when I testified in 1982. I testified in 1982 that the car was owned by my wife. I was using the car then the car was not sold to me by my wife I did not apply for change of ownership. Exhibit J1 was not witnessed by anybody… I now change to say that I am not in a position to say that my wife’s name is on the records as the owner of the car.”
I have had a close study of exhibit J1 it does not bear any official stamp of the Licensing Authority authenticating transfer of the vehicle to the plaintiff/respondent. It was not witnessed by anybody.
The plaintiff/respondent admitted testifying in 1982 during the aborted trial of this case that the ownership of the said vehicle resided in his wife, Mrs. F.E. Ede (nee Okunbor). P/W1 – Ebigbeyi did not mince words when he said the vehicle was invoiced in the name of Mrs. F.E. Ede. Yet the learned trial Judge found that the plaintiff/respondent established his ownership of the vehicle in accordance with laid down principles of law. More importantly is the fact that the plaintiff/respondent claimed the sum of N7,320.00 for loss of use of the vehicle from 1st July, 1979 to 30th June, 1980 at the rate of N20.00 per day, in addition to the value of the car, said to have been damaged beyond repairs, at N6,500.00. The two items are devoid of legal proof. The conclusion reached on this point will be given anon. I do realise that factual findings once made by a trial court are very hard to dislodge on appeal. But where, as in the instant case it has been shown beyond any doubt that the trial Judge has failed to draw a proper inference from uncontroversial or indisputable facts and has drawn inferences which are wrong and not supportable by the evidence before him, the Court of Appeal, must, in the interest of justice exercise its own powers of reviewing those facts and draw appropriate inferences there from see Lawal v. Dawodu & Anor. (1972) 8/9 SC 83 and Fashanu v. Adekoya (1974) 6 SC 83, (1974) 1 All NLR (Pt.1) 35. In the exercise of that power, I do not quibble in saying that the finding of the trial Judge is not supported in law. I therefore answer Issue No.1 identified by me in the negative. Flowing from what I have just said, the award made in respect of the damaged vehicle is hereby set aside as the proper owner of the said vehicle (Mrs. F.E. Ede) is not a party to this case.
I shall now proceed on to the issue of negligence. From the pleadings, it is obvious that the 1st defendant/appellant, a contractor was commissioned by a party other than the plaintiff/respondent to carry out the construction works ordinarily, one may say that the allegiance and responsibility of the 1st defendant/appellant go to that body that awarded the contract to it. But on the general law of negligence which was first coherently expounded in Donoghue v. Stevenson (1932) AC. 562 by Lord Atkin, a person or a body who has been contracted to carry out a transaction or a duty that will confer a benefit on or affect an identifiable third party owes a duty of care towards that third party in carrying out that transaction or duty, in that the third party, is a person within his direct contemplation as someone who is likely to be so closely and directly affected by his acts or omission that he can reasonably foresee that he (the third party) is likely to be injured by these omissions. This, in a nutshell, is what the concept of law on who “IS MY NEIGHBOUR” or the familiar reference by Lord Atkin to the “GOOD SAMARITAN” in the DONOGHUE case is all about. In this respect, the contractor will not only be liable to his client in contract, he could as well be liable to his client and others for the tort of negligence. I do acknowledge that, in the circumstances of this case, no fiduciary duty is owed by the contractor building or repairing the road to road users the category of which includes the plaintiff/respondent but the basis of its liability is analogous to the existing categories of special relationship which give rise to a duty of care to prevent economic loss the likes of damage to property or injury to the person brought about by act of negligent omission or commission by the contractor.
It must always be remembered that any breach of duty of care whether grave or venial, which causes a loss constitutes negligence. And since negligence is a question of fact not of law, to succeed in an action for negligence, the plaintiff must show that the defendant owes him a duty of care and that he has suffered damages in consequence of the defendant’s breach of that duty of care towards him see (1) Kalla v. Jarmakani Transport Ltd. (1961) All NLR 747 (2) Agbonmagbe Bank Ltd. v. C.F.A.O. Ltd. (1967) NMLR 173 and (3) Ololo v. (Nig.) Agip Oil Co. Ltd. (2001) 13 NWLR (Pt.729) 88. What is the evidence led in support of the case of the plaintiff? The 1st P/W – Ogwu said and I quote:
“While going back home around 10 p.m. the plaintiff, driving in front of me, and around Ilasamaja Bus Stop along the Express Way, the plaintiff ran into a heap of sand which was heaped in the centre of the road. The plaintiff was driving a Gallant Car and he ran into this heap of sand …. The vehicle was sub-merged inside the heap of sand and that is why it was impossible to drag him out through the front door. There was no light no protection to warn motorists of that danger and it was right in the centre of the road. … We were driving slowly in the centre of the lane” Under cross-examination, he said:
“I have passed through this road before that day. It was the first time I saw the heap of sand on that road.”
Testifying, the plaintiff/respondent said:-
“On 30/6/79, after closing from my Chambers at 21, Moor Road, Yaba I went home through Herbert Macaulay Road, Anthony Village into Isolo-Apapa Expressway. The 2nd plaintiff witness who had an audience with me followed me in his car behind. I was driving very carefully and diligently along the middle lane of the 3 major lanes. It was drizzling that day and the road was not lighted… I had a bang and my vehicle ran into a heap of sand piled up by the 1st defendant. The said heap of sand was about 1.5 metres high. … The said heap of sand was spread on two lanes out of the 3 lanes. It was unlighted, unprotected and unguarded……The accident happened at about 10.30 p.m.”
When cross-examined, he said:-
“I was in front and Ugwu was driving behind me; the heap of sand was about 5 feet. The sand was spread across two major lanes. I was driving carefully and diligently; it was drizzling. I did not see the heap of sand until I collided with it”
The 8th P/W Sgt Asubanwa attached to the Festac Police Station as at the time of the accident said under-examination-in- chief:-
“On 30/6/79, I was on duty with Cpl. Gabriel Olakunmi. A case of serious motor accident was reported around 11.15 p.m … I went to the scene with the Corporal. I saw blood gushing out of his body and a vehicle with Registration No. LAC 6080A white Gallant on a heap of sand piled on the Oshodi-Apapa Express Road. I took the rough sketch. The heap of the sand was piled in the middle of the Express Road.
The only witness called by the defendants/appellants was one Jeremiah Igwealer, the 1st defendant’s supervisor who supervised the construction of crash barrier along Oshodi/ Apapa Express way said:
“I worked on 30/6/77 on the site… The excavation is about 20 by 16 cm. It is not correct to say that the heap of soil was about 5 feet high and spread over two lanes of the road… There was no other soil around the escavation area ; We do not always leave the heap of soil on the road… On 1/7/79, there was no news of anything strange. I went away to work at Warri and came back 3 months later before I heard anything. I got to know about the accident in April, 1978. I went to Warri in 1978.”
Under cross-examination he said:-
“We put the road signs because the blanding were still fresh.”
The learned trial Judge, on the issue of negligence held:
“It follows from the above that the defendant could have avoided the collision by the exercise of reasonable care in this instant by providing warning lights around the heap of sand. This, the defendant did not do and I hold them liable.”
I cannot but agree with the learned trial Judge on the finding on negligence. P/W1 said both the plaintiff/respondent were driving their respective vehicles on that day slowly and diligently, that the heap of sand was at the centre of the road; there was no light and no protection to warn motorist of the danger. He was not cross-examined on those vital points. In the same vein, the plaintiff/respondent had told the court that he was driving his vehicle carefully and diligently on that day, that the road was not lighted on that day; that the said heap of sand was spread on two lanes out of the three lanes; it was unlighted, unprotected and unguarded even the 8th P/W – Sgt. Asubanwa said, in his testimony, that the heap of sand was piled in the middle of the Express Road. Neither the plaintiff/respondent nor 8th P/W was shaken on their vital testimonies. Evidence on how the accident occurred is very clear from the testimonies of the plaintiff and his aforementioned two witnesses; it points clearly to the negligence of the 1st defendant. And since that evidence remains unchallenged or uncontradicted the learned trial Judge was right in accepting it and acting on it. His findings which I have set out supra cannot be faulted. Issue No.2, as I have identified it, is thus answered in the affirmative.
I shall now proceed on the issue of damages. The trial Judge awarded the plaintiff/respondent a total sum of N10,910.000 special damages. This sum includes the sum of N3,500.00 for the damage done to the vehicle. Having held that the legal owner of the vehicle was not made a party to the suit and in the absence of power of attorney enabling the plaintiff/respondent to sue claiming damages in respect of the said vehicle, the award of N3,500.00 must be set aside. I so do. That the plaintiff/respondent sustained injuries from the said accident is clear from the evidence before the court.
Evidence of 5th P/W-Dr. Kalu on the issues of injuries and pains suffered by the plaintiff/respondent was not challenged. The medical report, exhibit C put the permanent residual disability at 20%.
In law, the measure of damages in an action for negligence is founded on the principle of Restitutio In Intergrum – which means that a successful plaintiff in an action in negligence must be made by the court to recover such a sum as will replace him, so far as can be made by compensation in money in the same position as if the loss has not been inflicted on him, subject of course, to the rule of law as to remoteness of damage. The sum of N20,000.00 (Twenty sand Naira) was, awarded as general damages to the plaintiff/respondent. It is my view that there is no basis to disturb that award. I affirm it. If the sum of N3,500.00 is discounted from the sum of N10,910.00 awarded as special damages, the plaintiff/respondent is left with the sum of N7,410.00 for this head of damages. The law remains unchanged that special damages must be pleaded in detail and strictly proved see Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt.636) 626. I have examined the evidence led very carefully and I am satisfied that the learned trial Judge was right, in law, in awarding to the plaintiff/respondent the sums of money in items 1, 2, 3, 4, 5, 6, 7 and 9. Items Nos. 1, 2 and 3 were supported with receipts.
The oral testimonies of the plaintiff/respondent on items 4, 5, 6 and 7 not having been challenged or contradicted, the learned trial Judge was right in awarding same. On item No 9 which is for N2,400.00- loss of earnings by the plaintiff/respondent is rich in value. I cannot fault it. The result is that the sum of N7,410.00 awarded for items 1,2,3,4,5,6, 7 and 9 must stand.
Before I end up this judgment, I wish to allude to a small point which manifests itself on the records. It is the issue of the joinder of the 2nd defendant/appellant as a party to the suit. On the state of the pleadings, it is mutually agreed by both parties that the 2nd defendant/appellant was, at the time material to this case, the employee and/or servant of the 1st defendant/appellant-a legal fiction. The law is sacrosanct that an employee is not personally liable for the acts he performed on behalf of his employer within the scope of his authority. Even if he is regarded as an agent whatever he does on behalf of his identifiable principal, within the scope of his authority, he cannot be held liable.
In conclusion, this appeal, subject to what I have said as to the award of N3,500.00 as cost of the damaged vehicle has no basis, is dismissed. For the avoidance of doubt, the special and general damages to which the plaintiff/respondent is entitled based on the admissible evidence is hereunder stated:
Special damages : (1) Hospital and Clinical Fees- N175,00 (2) Drugs at LUTH-61.90 (3) Drugs at Quality Drugs Store- 633.10, (4) Gold Wrist Watch – 170.00 (5) 2 French Suits- 200.00 (7) 1 Gold Ring- 170.00 (8) Loss of Earnings -N2,00.00, 7,410.00 GENERAL DAMAGES – N20,000.00. TOTAL- N27,410.00
The plaintiff/respondent is entitled to the cost of this appeal which I assess and award in his favour at N5,000.00.
OGUNTADE, J.C.A.: I read before now a copy of the lead judgment just delivered by my learned brother, Aderemi, J.C.A. I agree with his reasoning and conclusion. I would also award to the respondent N27,41O.00 as special and general damages. Subject to this, I too, dismiss the appeal with N5,000.00 in favour of the respondent.
MUHAMMAD, J.C.A.: I had a preview of the lead judgment of my learned brother, Aderemi, J.C.A. I agree with him that the appeal has no merit and I dismiss it as well in the same terms and costs as his lordship did.
- A. Yonwuren, Esq. (with him, O. T. Yonwuren, Esq.)For Appellant
- O. EdeFor Respondent