MR PAUL OWOLABI OGUNSAKIN V. EDU LOCAL GOVERNMENT AREA, KWARA STATE & ORS.
(2011)LCN/4972(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of December, 2011
CA/IL/44/2011
RATIO
ADMISSIBILTY OF DOCUMENTS: PRINCIPLE GOVERNING THE ADMISSIBILITY OF A DOCUMENT IN A CIVIL CASE
The general rule governing admissibility of a document in a civil case is that the document must be relevant to the case and duly pleaded by the party seeking to rely on it. On being satisfied with the above and the fact that the document is of legally admissible quality, tendered by a competent person the trial court can then admit same in evidence, See the case of Ali vs Ugwu (an unreported decision of this Court Yola Division) Appeal No CA/J/224/2009, delivered on 24/3/2011 pages 32-33, thereof; Abubakar vs Chucks (2008) All FWLR (Pt 408) 207, held 1 – 3; Oba R.A.A. Oyediran of Igbonla vs H.H, Oba Alebiosu II & Ors (1992) 7 SCNJ 187; Nwakado vs. Ohajuruka (2010) All FWLR (Pt.511) 849, held 7. PER ITA .G. MBABA J.C.A
ADMISSIBLITY OF DOCUMENTS: WHETHER THE TRIAL COURT CAN IGNORE OR REFUSE TO PLACE VALUE ON AN EXHIBIT THAT WAS WRONGLY ADMITTED, AT THE POINT OF GIVING JUDGMENT
It must also be appreciated that, by law, where a judge admits a document as exhibit, he cannot later turn round to reject it as being inadmissible, unless, of course, the original decision to admit it was null and void. See the case of Egbesie vs. Elele (2001) 8 NWLR (Pt.716) 582, ratio 1, Kano vs. Galeon (an unreported decision of this Court Yola Division) Appeal No. CA/J/309/2009, delivered on 11/4/2011 (pages 15 – 16), where it was also held: “Moreover, where a document has been admitted, without any objection, no party can be heard to urge the Court to reject it or to refrain from using it in determining the case, as he is stopped to do so. Even where a document is inadmissible, but the parties had consented to the admissibility of the document, none of the parties will be allowed thereafter, to resile from the agreement and later raise objection to its admissibility. See the case of Ibori vs. Agbi (2004) 6 NWLR (Pt.868) 78.” (Per Mbaba, JCA) It is, however, the law that the trial court will have to ignore or refuse to place value on an exhibit that was wrongly admitted, at the point of giving judgment. PER ITA .G. MBABA J.C.A
SPECIAL DAMAGES: WHETHER SPECIAL DAMAGES MUST BE PROVED STRICTLY
By law, special damages must be proved strictly. That also means, the claimant must establish the existence of the sum pleaded, in its context, and he must also ear it. Award of special damages does not depend on the number if witnesses, but on probative value of the evidence. Odinaka & Anor. vs. Moghalu (1992) 4 SCNJ 43; Warner & Warner Int. Associates (Nig.) Ltd. vs. F.H.A. (1993) 7 SCNJ; Arison Trading & Engineering Co. Ltd. vs. Military Gov. of Ogun Staet (2009) All FWLR (Pt.496) 1819. PER ITA .G. MBABA J.C.A
INTERFERENCE WITH THE AWARD OF DAMAGES OF A TRIAL COURT: INSTANCES WHERE AN APPELLATE COURT WILL DISTURB THE AWARD OF DAMAGES MADE BY A TRIAL COURT
An appellate court will not disturb the award of damages of a trial court unless it is convinced that the trial court acted on a wrong principle of law or the amount awarded is so high or low that there was an entirely erroneous estimate of damages”‘ See the cases of Okudo vs IGP (1999) 1 NWLR (Pt.535) 335; Gbadebo Shittu Olowoake vs Yekini Lawal (2000) 11 NWLR (Pt.677) 127 @ 151; Ifeanyi Chukwu Osundu Co. Ltd. vs. Akhigbe (1999) 1 NWLR (Pt.625) 1. It is strange that the Appellant did not take steps to effect repairs of the injured part(s) of the vehicle, which would have even placed before the trial Court, the estimated cost to effect the said repairs. See the case of OHADUGBA VS. GARBA (2000) FWLR (PT.16) 272; ADEMUGBA 292. See also the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS. EKWENEM (supra), where the Supreme Court held:- “An Appellate Court will not interfere with an award of damages by a trial court simply because it is inclined to award a different amount in order to justify reversing the decision of a trial court on the question of damages, it will generally be necessary that the Appellate Court be convinced either that: (a) The court acted upon wrong principle of law or under a mistake of law. (b) The award is arbitrary, or perverse. (c) There has been element of wrong exercise of discretion in the award. (d) Injustice would result if the Appeal Court does not interfere. (e) The amount awarded by the court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of the damage. PER ITA .G. MBABA J.C.A
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
MR PAUL OWOLABI OGUNSAKIN Appellant(s)
AND
1. EDU LOCAL GOVERNMENT AREA, KWARA STATE
2. ALHA’I IBRAHIM LIMAN IDRIS
3. HON. ABUBAKAR EGICINTSO SAYIDI Respondent(s)
ITA .G. MBABA J.C.A, (Delivering the Leading Judgment): The Appellant was the Claimant at the lower Court in the suit No. KW/179/2008 presided over by I.A. YUSUF J., of Kwara State High Court. The judgment of the Lower Court, delivered on 6/10/10, was actually in favour of the Appellant, whereof he was awarded the sum of one hundred and Fifty thousand Naira N150,000.00 as aggravated and exemplary damages to be paid by the 3rd Defendant, who was held liable for the damages caused to the Appellant’s vehicle, as a result of the accident involving the Appellant’s vehicle (truck) and the vehicle driven by the 3rd Defendant/Respondent), which vehicle the Appellant claimed belonged to the 1st Defendant/Respondent.
The trial Court had absolved the 1st and 2nd Respondents of any liability as well as refused the special damages claimed. This appeal is against that part of the decision of the trial court absolving 1st and 2nd respondents of liability and awarding only N150,000.00 to the Appellant as damages.
A brief facts of the case show that, on 13/8/2008, Appellant’s Mitshibishi Canter Truck, with Registration number LAGOS, XM 520 BDG, left Ado Ekiti, Ekiti State, on charter, for Jebba in Kwara State. On getting to a point around Bode – Saadu, Moro Local Government, a Honda Saloon car, with Registration Number KWLG 02 LAF driven by the 3rd Respondent and belonging to the 1st Respondent, veered off its lane and ran into the Claimant’s vehicle, causing severe damage to the vehicles and injuring the occupants, The 2nd Respondent was the Chairman of the 1st ,Respondent, at the time of the accident, but was later removed and the 3rd Respondent, who was the vice Chairman at the time of the accident, then took over as the Chairman of the 1st Respondent.
At the close of evidence, the trial Court held that the 3rd Respondent was negligent and his dangerous driving caused the accident that resulted in the damage, but that the 1st and 2nd Respondents were not vicariously liable for the action of the 3rd Respondent, based on a letter (Exhibit E) which claimed that the vehicle which the 3rd Respondent drove had been monetized to him, and the 3rd Respondent also admitted the claim.
Appellant filed his Notice and Grounds of appeal on 29/11/2010 and raised three (3) grounds of appeal, as follows:
(1) The Lower Court erred in Law when it held that 1st Respondent is not liable for damages done to the Appellant’s vehicle by the 3rd Respondent while driving the 1st Respondent’s vehicle
Particulars of Error:
(i) The 1st Respondent Local Government owns the vehicle driven by 3rd Respondent which had an accident and damaged appellant’s vehicle
(ii) The 3rd Respondent is the vice chairman of 1st Respondent
(iii) 3rd Respondent who asserted that the vehicle was monetized to him did not show that the ownership had been transferred to him
(2) The Lower Court erred when it held that the Appellant failed to prove reliefs (a) and (b) of the statement of claim as required by Law.
Particulars of Error
(i) The claimant claims (sic) the purchase price of the vehicle and tendered the purchase documents.
(ii) He led evidence as to how much the vehicle was hired per day.
(iii) Evidence of the Appellant on these issues were not challenged by the respondents
(3) The decision of the Lower Court was against the weight of evidence”.
Appellant filed additional grounds of appeal on 23/8/11 with the leave of Court granted on 24/10/11 when the said Additional Grounds of Appeal was deemed duly filed and served. He also obtained the leave of this court to raise fresh issues on appeal touching on the admissibility of Exhibit E, a letter written by the Ministry of Local Government and Chieftaincy Affairs, Kwara State to the Chief Executive of the 1st Respondent.
The Additional Grounds of Appeal are:
“(4) The Lower Court erred in Law when it admitted Exhibit E, a letter written by the Ministry of Local Government and Chieftaincy Affair of Kwara State to the Chief Executive of the 1st Respondent, into evidence and placed reliance on same.
Particulars of Error:
(i) Exhibit E is a public document which is required by law to be certified.
(ii) It was not duly certified by the ministry from which it emanated but was purportedly certified by an agent of the 1st Respondent.
(iii) The agent who certified the document did not include his name, date and signature as required by law.
(5) The lower Court erred in Law when it awarded the sum of N150,000.00 as aggravated damages to the appellant/applicant.
Particulars of Error:
(i) The said N150,000.00 was awarded based on the Courts reliance on inadmissible evidence
(ii) The sum of N150,000.00 awarded by the Court is not commensurable to the loss and damages suffered by the appellant/applicant
(ii) The Court did not consider relevant evidence before awarding the cost.
Appellant filed his brief of arguments on that 23/8/11 and raised four Issues for determination, as follows:
(1) Whether or not the 1st respondent is vicariously libel for the damages caused to the Appellant’s vehicle by the 3rd Respondent (Ground 1)
(2) Whether or not Exhibit E is admissible in Law – Ground 4 (Additional Ground)
(3) Whether or not the claimant – Appellant, based on evidence adduced, proved relief (a) and (b) of the claim – Ground2.
(4) Whether or not the award of N150,000.00 as general, aggravated and exemplary damages is sufficient and adequate in the circumstance of this case – ground 5 (Additional Grounds).
The Respondents filed their Brief of arguments on 26/9/11 and the same was deemed duly filed on 24/10/11. The Respondent adopted the issues as formulated by the Appellant, but observed that we did not grant the Appellant leave to file the additional grounds of Appeal. (He was not correct as the Additional Grounds of Appeal was deemed duly filed and served on 24/10/11, when the application for leave to file the additional grounds and to raise fresh issues was granted by this court),
However, the Respondents’ Brief elicited the filing of a Reply Brief by the Appellant on 10/1/11.
At the hearing of the Appeal on 14/11/11, Appellant prayed, orally, for leave to correct what he called an error in the naming of an exhibit under Issue Z, to read EXHIBIT E1, not Exhibit E. He adopted the Brief and urged us to allow the Appeal.
Counsel for the Respondents objected to the correction of the name of the exhibit, saying that they had joined issues already and had based their argument on the Issue on Exhibit E, not Exhibit E1; that Exhibit E was the basis on which the Appellant was granted leave to raise fresh issues, as that was the Exhibit Appellant pleaded on the motion paper and in the affidavit in support of the motion; that the correction will be prejudicial to them. (Respondents).
Appellant, however, admitted the error, but stated that the Respondent was not misled, because, though they named the exhibit wrongly, they however, gave sufficient particulars to show that they meant the letter written by the Ministry of Local Government and Chieftaincy Affairs to the Chief Executive of the 1st Respondent.
The Respondents finally urged us to allow them to reply, on points of Law, on the relevance of the Exhibit E1, if the Court is minded to allow the correction sought by the Appellant.
He was allowed and submitted that Exhibit E1 did not affect the quantum of damages awarded by the trial Judge, hence we should discountenance Exhibit E1.
I think the error by the Appellant in stating “Exhibit E, instead of Exhibit E1 in the processes with which he obtained leave to file Additional Grounds of Appeal in this appeal was not fatal, as the Appellant had gone further to give particulars of the very document he had in mind while bringing the application, to put the Respondent on notice as to which exhibit, in fact, he was predicating the application on. The 2nd relief he sought in the motion of 23/8/11 was;
“Leave of Court to raise fresh issues on appeal touching on the admissibility of Exhibit E, a letter written by the Ministry of Local Government and Chieftaincy Affairs, Kwara State to the Chief Executive of 1st respondent.” (Emphasis mine).
The same explanation was given by him in paragraph 3(d) of the affidavit in support of the motion. Of course, Exhibit E1 was the only exhibit that fitted into that description or particulars.
I believe the Respondents were therefore, not misled by the wrong naming of the Exhibit in the motion paper and so the oral application to correct the Exhibit E to read EXHIBIT E1 is granted, in the interest of justice.
Arguing the Issue 1 of the Appeal, Learned Counsel for the Appellant, Olu Jayeoba Esq, submitted that the 3rd Respondent was the Vice Chairman of the 1st Respondent as at the time the subject matter of this action arose and, before the trial at the lower Court, he had become the acting chairman of the 1st Respondent; that the car too was owned by the 1st Respondent, but allocated to the 3rd. Respondent as his official vehicle, and that was why the vehicle was registered KWLG 02 – LAF; that though the 1st and 2nd Respondents relied on Exhibit E (sic), that the vehicle had been transferred to the 3rd Respondent before the accident occurred, they failed to tender documents to establish that; that Exhibit E (meant to say Exhibit E1), the letter by the Ministry of Local Government and Chieftaincy Affairs, only directed the chairman to monetize the vehicles purchased from loan obtained to the officers of the local Government; the letter was written on 8/6/2008 less than two months to the date of the accident and there was no evidence of a loan purchase, nor deduction of money from the salary of the 3rd Respondent, and no evidence of transfer of ownership of the Honda car to the 3rd Respondent! Counsel referred us to section 135(1) of the Evidence Act; the case of NSEFIK Vs. MUNA (2007) 10 NWLR (Pt.1043) 502 at 514; SPDE (Nig) Plc Vs. DINO (2007) 2 NWLR (Pt.1019) 438 at 460, and urged us to hold that the Respondents had failed to prove that ownership of the vehicle had been transferred to the 3rd respondent before the accident; that the 3rd Respondent, at all material times, was (and still is) an agent of the 1st Respondent, being the vice chairman of the 1st Respondent, and the vehicle was registered as- KWLG 02 LAF.
He submitted that, where a servant commits a tort in the course of his employment, then the master is a tortfeasor as well as the servant. He retied on the case of FBN PLC VS. ONUKWUGBA (2005) 16 NWLR (Pt.950) 120 at 155 -156; OKEKE VS. PETMAG (Nig.) (2005) 4 NWLR (Pt.915) 245 at 264.
On ISSUE 2 whether Exhibit E1 was admissible in evidence, Counsel submitted that the letter was a public documents where-of only the certified true copy was admissible, as secondary evidence; that the Exhibit E1 was not certified by the officer of the issuing Ministry, who had proper custody of the letter. He submitted that the document was, purportedly, certified by the Head of Department of works and Maintenance of the 1st Respondent – an agent of the 1st Respondent, who was of the addressees, in contravention of section 111 of the Evidence Act, and the said officer also failed to write his name and date of certification on the letter.
Counsel urged us to hold that the stamping and signing of the Exhibit E1 by agent of the 1st Respondent was not, in Law, a certification of the letter emanating from the Ministry of Local Government and Chieftaincy Affairs. He relied on the case of NWABUOKU & Ors vs. ONWORDI & ORS (2006) ALL FWLR (Pt.331) 1236 at 1251 – 21; AGBALLAH VS. NNAMANI (2005) ALL FWLR (Pt, 245) 1052 at 1077.
He said that since the trial Court placed reliance on the document in error, it had a duty to expunge it at the time of writing judgment. He relied on the case of KUTI vs. ALASHE (2005) 17 NWLR (Pt. 955) 625 at 645 – 646; FASINA VS. OGUNKAYODE (2005) 12 NWLR (Pt.938) 147 at 165.
On ISSUE 3, Counsel submitted that Appellant claimed N2,260,000.00 (two Million two hundred and sixty thousand naira) as the purchase price of the damaged truck, a claim for specific damage, which, he admitted, needed strict proof; he said that Appellant gave evidence of the purchase price of the vehicle and tendered the purchase receipt, pro forma invoice and delivery note, dated 18/3/2008, as exhibits B – B3; that the trial Court was in error, when it held that production of the purchase receipt of the damaged vehicle, without more, was not enough to prove the special damages for the replacement of the car (sic), even when the evidence, as to how much the vehicle was purchased, was not challenged. He relied on the case of UTB (Nig) Vs. OZOEMENA (2007) 3 NWLR (Pt. 1022) 448 at 492, where he said the Supreme Court held that production of purchase receipt of an item damaged is sufficient proof the claim for special damages in tort.
Also, Appellant said he had pleaded that the vehicle was being used for commercial purposes and made average of N50,000.00, per day; that there was evidence that the truck was chartered for N50,000.00 on the day of the accident and these evidence were not controvert/or challenged. He relied on the case of ARABAMBI VS ADVANCE BEVERAGES IND. LTD.(2005) 19 NWLR (Pt.959) 1 at 33, 36 – 37.
Counsel submitted that the trial judge misconstrued the use of pleading when he held that the evidence of Pw5 was controverted in the defendants, statement of defence, when, in actual fact no evidence was led on those paragraphs by the respondents; that it is trite law that the burden of proof is on the preponderance of evidence, in civil cases – S.C.C. (Nig) LTD VS. ELEMANDU (2005) 7 NWLR (Pt.923) 28 at 63.
He urged us to hold that the Appellant had proved reliefs (a) and (b) as contained in paragraph 24 of the Amended Statement of Claim.
On Issue 4 -whether or not the award of N150,000.00 as general, aggravated and exemplary damages was sufficient and adequate in the circumstances of the case – Counsel conceded that such award is at the discretion of the court, but added that the discretion has to be exercised judiciously and judicially, as the justice of the case demands; that in this case the trial court acted under a misapprehension of facts, to award a paltry sum of N150,000.00 as general damages, when it is in evidence that the vehicle was chartered for N50,000.00 on the day of the accident; that the trial Court failed to take into consideration the fact that general damages are to take care of loss of future pecuniary and non pecuniary loss, and also to restore the claimant back to the position he was, before the occurrence of the subject matter; that the decision of the trial court in awarding N150,000.00 is perverse, and we should review it upward. He relied on the case of M&B ELECT. CO. LTD. VS. G.C.R.S. (2005) 6 NWLR (Pt..922) 471 at 490
He urged us to resolve all the Issues in his favour.
The Respondents’ Counsel, MANZUMA ISSA Esq, in their reply, first of all, urged us to strike out the name of the 2nd Respondent, since Appellant had admitted that the 2nd Respondent ceased to hold office as chairman of the 1st Respondent, before the conclusion of the matter at the trial Court. Appellant had no reply to this.
It is true that the Appellant on page 2, paragraph 1.02 and 1.03 of his Brief had stated as Follows:
“As at the time of the accident, the 2nd Respondent was the chairman of the 1st Respondent, while the 3rd Respondent who drove the vehicle, was the vice chairman, Before the completion of the case, 2nd respondent was removed from office and the 3rd Respondent became the Acting chairman”
With such admission, one wonders why the Appellant decided to join the 2nd Respondent as a party in this Appeal, especially after the trial Court had held him not liable to Appellants’ claim, and Appellant himself has also admitted that, even “The 3rd Respondent at all material times, was …. an agent of the 1st respondent” that where a servant commits a tort in the cause (sic) of his employment, then the master is a tortfeasor as well as the servant’ ‘(See page 7 Paragraphs 4.13 and 4.15 of the Appellants’ brief).
Through out the argument of the Appellant nothing was said about the wrong committed by the 2nd Respondent, to justify his being joined as a party, after the Appellant had graciously informed us that he (2nd Respondent) even lost the office he occupied in the 1st Respondent (which must have warranted his being made a party, though, wrongly, in my opinion, in the suit). To continue to make him a party in the Appeal was therefore unfair and unnecessary, as he was neither a necessary nor desirable party to the suit. See GREEN vs GREEN (1987) 7 SCNJ 212. Even if the 2nd Respondent were linked sufficiently to the act, authorities are replete that an agent or servant of a disclosed or known principal cannot be sued or held liable, personally’ for his acts’ See Bayero vs. Mainasara & Sons Ltd (2006) 8 NWLR (Pt.982) 391; Iwachkwu vs. Nwisu (1994) 7 NWLR (Pt.379); Yusuf vs. Kupper International NV (1996) 5 NWLR (Pt.446) 17.
I think it is only proper, at this stage, to strike out the name of the 2nd Respondent from this appeal, and dismiss the appeal agent him I so hold.
On the liability of the 1st Respondent, counsel for the Respondents had submitted that Appellant had failed to establish the ownership of the Honda car by the 1st Respondent; that Appellant appeared to rely solely on the fact that the 3rd Respondent was Vice chairman of 1st Respondent and the vehicle bore registration No. KWLG-02-LAF at the time of the accident, as per paragraph 6 of the statement of claim; that the Respondents had denied that claim in paragraphs 2, 11, and 12 of their Amended Joint Statement of defence (Page 94 of the Record), showing that the ownership of the vehicle resided in the 3rd Respondent, since the vehicle was monetized to him; that Exhibit E1 was tendered to prove this.
Counsel urged us to hold that Exhibit El was sufficient proof that the car had been monetized to the 3rd Respondent before the accident. He submitted that section 135(1) of the Evidence Act and the case of Nsefik vs. Muna (supra) and SPDC vs. Dino (Supra) are not applicable to this case.
Moreover, Counsel submitted that the Appellant had not proved that the 3rd Respondent had the accident in the course of the 1st Respondent’s business; that 1st Respondent could not use public money to maintain 3rd Respondent’s vehicle and could not be liable for 3rd Respondent’s act; that through out the case (pleadings) Appellant made no allegation against the 1st and 2nd Respondents, to make them liable in the case.
On Issue 2 -Counsel maintained that the Exhibit E1 was admissible.
On Issue 3-whether Appellant had proved the special damage, counsel submitted that the Appellant’s heads of damages were mere guess work, as they were not supported by factual authenticity. He referred us to paragraphs 18, 19, 20, 21 and 22 of the Amended Statement of Claim (pages 59 – 62 of the Record), where the Appellant stated how he sourced money to buy the vehicle, and generated income to liquidate the debt
Also, that in paragraph 15 to 21 of his statement on oath, Appellant narrated how the bank had been mounting pressure on him to pay the debt, and that interest on the loan continued to accumulate; that he made N50,000.00 daily from the use of the vehicle, and under cross-exam, he said he made N50,000.00 daily from the use of the vehicle and about N1.5 million per month.
Counsel referred us to Exhibit B3 – letter of offer for credit facility dated 31/1/2008 by which he said the Appellant was granted over draft facility of 1.5 million naira byAmoye-Micro Finance Bank Nig. Ltd.; the loan had 180 days maturity effective 1/2/2008 to 31/7/2008 and was for sale of live cows; that the accident occurred on 13/8/2008; that if the Appellant was generating N50,000.00 a day, as he claimed, he would have generated the sum of seven million three hundred thousand naira (N7,300,000.00) within the six (6) months the vehicle was in use, before the accident and the Appellant would have settled the bank loan before the accident. Thus, by Edition B3, the case of the Appellant is at variance with his pleadings. He relied on the case of EGBHAREVBA VS. OSAGIE (2009) 12 SC (Pt.111) 123 at 159, where the Supreme Court held:
“It is trite law that where there is oral as well as documentary evidence, the latter be used as a hanger from which to assess the oral evidence, this is because documentary evidence is said to be more reliable than oral evidence and it is used to test the credibility of oral evidence.”
Counsel submitted that the appellant’s oral evidence as to the purpose for the loan and the duration of the loan was unreliable, fake and most hopelessly discredited by Exhibit B3. Moreover, counsel submitted that the Appellant never pleaded that the vehicle was damaged beyond repairs; that the Appellant merely abandoned the vehicle and presented bogus claims before the lower Court.
Counsel submitted that award of damages by a trial Court is discretionary. However, to enable the Court arrive at a just decision in this case, he referred us to page 180 of the Record – where the Court opted to visit the locus in quo, to inspect the accidented vehicles to assist it arriving at a just decision in the matter; that at page 22L of the Record the Court, upon the inspection of the accidented vehicles’ and the spot of the of the accident, in company of counsel, said:-
“the court inspected the two vehicles at the Bode Sa’adu Police Divisional Headquarters. The Claimant’s vehicle was damaged in that front and the 3rd Defendant’s vehicle was damaged up to the middle.”
Counsel said that with the above, the trial court was well guided in exercising his discretion in awarding N150,000.00 damages to the claimant, especially as the Appellant never stated the extent of damage caused to his vehicle as a result of the accident. He relied on the case of Ohadugba vs, Garba (2000) FWLR (Pt.16) 272 @ 273, where he said this court held that, where a chattel is destroyed by the wrongful act of defendant, the measure of damages is the value of the chattel at the time of destruction; that where the chattel was only damaged, the measure of damage is the cost of repairs or the difference between the market value of the vehicle before the accident and the value after.
In this case Appellant did not call expert evidence to give the pre-accident value of the vehicle, nor the value after the accident’ Counsel added that the trial judge on pages 212 and 295 of the record, explained the rationable for refusing the Appellant’s relief and that the Appellant has not shown why we should disturb that findings of the trial court.
Counsel added that the Respondent had contested the claim of the Appellant about the cost of the truck and the alleged earning of N50,000.00 per day; that they were inflated; that the trial court had also held that there was no evidence of loss of earnings’ especially as the Appellant failed to take the truck out for repairs, relying on the case of Ademugba vs. Okelola (2008) All FWLR (Pt.398) 292 @ 298; Obasuyi vs. Business Ventures HD (2008) FWLR (Pt.10) 1722 @ 1731.
On issue 4, whether the award of N150,000.00 was sufficient and adequate Counsel for the Respondents answered in the affirmative and submitted that the Respondents did not file a cross-appeal against the judgment to seek the review of the damage awarded and so it was not open to the Appellant to call for the review of the said sum, in view of the evidence before the court, and the physical inspection of the accidented vehicles by the trial court.
Counsel also relied on the evidence of DW2, a motor mechanic who told the court that they “the 3 man team visited Bode Sa’adu on 15/8/2008 and went to the police station where the 2 vehicles were parked and assessed the level of damage done to both vehicles and found that while the 3rd defendant’s vehicle was damaged beyond repairs, the claimant’s vehicle was damaged only by the left side at the head, and could be repaired with minimum cost” (pages 123 – 124 of the record).
Counsel submitted that the above evidence was never challenged under cross examination and the trial Judge believed it; that the court took into consideration all relevant factors in exercising its discretion in the award of the N150,000.00. He relied on the case of Anambra State Environmental Sanitation Authority & Anor vs. Ekwenem (2009) 6 -7 SC (Pt.11) 5 @ 28 – 29 or (2009) All FWLR (Pt.491) 838, where Supreme Court said:
“An Appellate Court will not interfere with an award of damages by a trial court simply because it is inclined to award a different amount in order to justify reversing the decision of a trial court on the question of damages, it will generally be necessary that the Appellate Court be convinced either that:
(a) The court acted upon wrong principle of law or under a mistake of law.
(b) The award is arbitrary, or perverse.
(c) There has been element of wrong exercise of discretion in the award.
(d) Injustice would result if the Appeal Court does not interfere.
(e) The amount awarded by the court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of the damage.”
He urged us to dismiss the appeal.
Issue 1 and 2
I think it will be proper to consider the two issues together, the issue of admissibility of Exhibit E1 fist, before determining whether or not the 1st Respondent was vicariously liable for the damages caused to the Appellant’s vehicle by the 3rd Respondent’s act. I shall therefore consider the 1st and 2nd issues by the Appellant together, but in reverse order.
The general rule governing admissibility of a document in a civil case is that the document must be relevant to the case and duly pleaded by the party seeking to rely on it. On being satisfied with the above and the fact that the document is of legally admissible quality, tendered by a competent person the trial court can then admit same in evidence, See the case of Ali vs Ugwu (an unreported decision of this Court Yola Division) Appeal No CA/J/224/2009, delivered on 24/3/2011 pages 32-33, thereof; Abubakar vs Chucks (2008) All FWLR (Pt 408) 207, held 1 – 3; Oba R.A.A. Oyediran of Igbonla vs H.H, Oba Alebiosu II & Ors (1992) 7 SCNJ 187; Nwakado vs. Ohajuruka (2010) All FWLR (Pt.511) 849, held 7.
Exhibit E1, a letter written by the Ministry of Local Government and Chieftaincy Affairs to the Executive Chairman of 1st Respondent, was admitted in evidence by the trial court, without objection by the Appellant (pages 177 of the record) upon satisfying the above stated principles of admissibility. It is therefore strange that Appellant is now fighting the admission of the same document on appeal, alleging that it was not certified by the Ministry which issued it.
Appellant’s Counsel argued that the trial court should have rejected the document at the point of writing the judgment, for the alleged reason that it was not properly certified. The reasoning of the Appellant on the issue appears absurd!
After admitting the document, without objection, what would cause the trial judge to reject it at the point of writing judgment? Also, how would the Ministry of Local Government and Chieftaincy Affairs, be expected to certify a document (letter) that the Ministry had sent out to the 1st Respondent in June 2008, for the 1st Respondent to tender it in Court in 2010? Should the 1st Respondent take the letter back to the
Ministry to certify before bringing it to court? Should it not just produce the letter it collected from the Ministry in court?
I think the Appellant was simply confused about the rules governing certification of public document and its purport, under section 111 of the Evidence Act. Exhibit E1 did not require any certification from the Ministry of Local Government and chieftaincy Affairs, for it to be tendered because at the time of tendering same, it was no longer the property of that ministry and was not in their custody. It was the property of the 1st Respondent, to whom it was addressed, through its Executive Chairman, and the 2nd and 3rd Respondents (who were the officers of 1st Respondent) at the time of giving evidence were eminently qualified to produce and tender the letter in evidence, without any requirement of certification, except it was not tendered in its original form, in which case a secondary copy, certified by any servant of the 1st Respondent, could be tendered by any officer of the 1st Respondent authorized by the 1st Respondent.
I hold, that the trial court had rightly admitted the Exhibit E1 in evidence, as there was no opposition to its admission, and nothing to assail its admissibility.
It must also be appreciated that, by law, where a judge admits a document as exhibit, he cannot later turn round to reject it as being inadmissible, unless, of course, the original decision to admit it was null and void. See the case of Egbesie vs. Elele (2001) 8 NWLR (Pt.716) 582, ratio 1, Kano vs. Galeon (an unreported decision of this Court Yola Division) Appeal No. CA/J/309/2009, delivered on 11/4/2011 (pages 15 – 16), where it was also held:
“Moreover, where a document has been admitted, without any objection, no party can be heard to urge the Court to reject it or to refrain from using it in determining the case, as he is stopped to do so. Even where a document is inadmissible, but the parties had consented to the admissibility of the document, none of the parties will be allowed thereafter, to resile from the agreement and later raise objection to its admissibility. See the case of Ibori vs. Agbi (2004) 6 NWLR (Pt.868) 78.” (Per Mbaba, JCA) It is, however, the law that the trial court will have to ignore or refuse to place value on an exhibit that was wrongly admitted, at the point of giving judgment.
Did the Appellant establish any case against the 1st Respondent to make it vicariously liable for the act of the 3rd Respondent, who drove the vehicle and caused the accident?
The Respondents had submitted that the only pleading against the 1st Respondent, which sought to link the act of the 3rd Respondent to the 1st Respondent was paragraph 6 of his (Appellant’s) amended statement of claim, which averred that his “vehicle which had three (3) passengers,, was, on getting to Bode Sa’adu run into by an Honda Saloon Car (Baby Boy) with registration Number KWLG 02 LAF, driven by the 3rd Defendant and belonging to the 1st Defendant.”
It was the duty of the Appellant to lead credible evidence to prove that the Honda Saloon Car, in fact, belonged to the 1st Respondent, and that the 3rd Respondent, who drove it, was in the course of service of the 1st Respondent. He appeared to have solely relied on the fact that the Honda vehicle bore registration No KWLG 02 LAF, and was driven by 3rd Respondent, the Vice Chairman of the 1st Respondent, as conclusive link of the 1st Respondent to the unfortunate accident. But then, Exhibit E1 came to destabilize that believe and assumption!
Under cross examination, the DW2, who tendered Exhibit E1, said:
“I am aware that the 1st Defendant borrowed N30,000.00 to buy vehicles for its officers. The 3rd defendant’s vehicle was part of the vehicles bought with the money….I keep the files of the vehicles purchased including the one that was involved in the accident. The registration particulars of the vehicles are with HOD works. The particulars of the monetization is not in my custody, There is no circular that says the vehicle must be driven by the Local Government driven.” (page 179 of the record).
Exhibit E1 is reproduced on page 126 of the records. It reads in part. “DEDUCTION FOR CAR LOAN PURCHASED FOR POLITICAL OFFICE HOLDER IN KWARA LOCAL GOVERNMENT COUNCII:’
1. I wish to invite your attention to the loan of N30,000.00 obtained by each Local Government from the Bank for the purpose of buying vehicles for political office holders in the Local Government and to inform you that deductions for the recovery of the loan in respect of each officer that obtained the vehicle should commence unfailingly with effect from June 2008.
2. The Local Government should also make available the evidence of such deductions to this Ministry, It is pertinent to stress also that the vehicles are personal to the beneficiaries therefore the maintenance of the vehicles are to be borne by the owners and not through the Local Government purse.
3. I am also to inform you that the vehicles purchased for other principal officers of the Local Governments i.e Directors of Personnel Management (DPM), Treasurers etc are the properties of the Local Government and not personal to them.”
The letter was written on 18/6/2008 and addressed to chairmen of Local Government in the State. It seems to embody the official policy of government on vehicles given to political office holders in the Local Government Council; that the vehicles are monetized to them.
DW2, a staff of the 1st Respondent had told the lower court that that was the case with the Honda Car, driven by the 3rd Respondent. The 3rd Respondent too, confirmed the same on pages 172 to 173 of the record, when he told the court, under cross examination:
“…I am the Chairman of the 1st Defendant. When the accident happened, I was the Vice Chairman of the 1st Defendant. I became the vice Chairman in November 2007… I was the only one inside my vehicle before the accident… The vehicle I rode was monetized for (sic) me by the 1st defendant. I am under oath and I know the implication of telling lies on oath.”
Thus, the registration Number and the status of the 3rd Respondent notwithstanding there was clear factual explanation on how the 3rd Respondent came by the vehicle he drove, and it was obvious he was on his private (Personal) business at the time of the accident. He was not driven by official driver of the 1st Respondent, I do not therefore see how the Appellant can force the 1st Respondent to accept responsibility for the act of the 3rd Respondent in the circumstances.
The 1st Respondent does not need to produce documentary evidence of allocation of the vehicle to the 3rd Respondent, or of deductions from his salary before the court can accept that the 1st Respondent had complied with the official policy of the government in Exhibit E1. The evidence by the Dw2 and of the 3rd Respondent, admitting the fact, with the obvious implication of such admission (which entailed bearing the consequences of the misadventure alone) was enough proof that the 3rd Respondent was the owner of the Honda Car at the time of the accident.
I hold that the trial judge was therefore right when he held that the 1st Respondent was not liable to the claimant as a result of the reckless driving of the 3rd Respondent. The 1st and 2nd issues are therefore resolved against the Appellant.
ISSUES 3 AND 4
Whether or not the Claimant/Appellant, based on the evidence adduced, proved reliefs (a) and (b) of the claim’ and
Whether or not the award of N150,000.00 as general, aggravated and exemplary damages is sufficient and adequate, in the circumstances of this case.
I think it is equally proper to take these two issues together, as they relate to damages.
Reliefs (a) and (b) by the Appellant were in the class of special damages, as he wanted:
a. The sum of N2,261,000.00 (Two Million, two Hundred and sixty one Thousand Naira) only being the amount needed to replace or purchase the damaged Mitsubishi canter, and
b. N50,000.00 (Fifty Thousand Nain) daily being his proceeds from the Mitsubishi canter from the date of the occurrence of the accident until judgment debt is finally liquidated.
Of course, by law, special damages must be proved strictly. That also means, the claimant must establish the existence of the sum pleaded, in its con, and he must also ear it. Award of special damages does not depend on the number if witnesses, but on probative value of the evidence. Odinaka & Anor. vs. Moghalu (1992) 4 SCNJ 43; Warner & Warner Int. Associates (Nig.) Ltd. vs. F.H.A. (1993) 7 SCNJ; Arison Trading & Engineering Co. Ltd. vs. Military Gov. of Ogun Staet (2009) All FWLR (Pt.496) 1819.Learned counsel for the Respondents had argued that, while the Appellant pleaded that the truck was damaged, he never pleaded that it was damaged beyond repairs, and the evidence never even disclosed the extent of damage to the truck; also, while the Appellant claimed he earned N50,000.00, per day from the use of the truck, amounting to 1.5 million naira per month, Exhibit B3 tendered by him, pleaded that he could not pay up a loan of N1.5 million he collected from Micro Finance Bank, to trade on live cows, but converted to buying the truck; that it Appellant was earning N50,000.00 per day, he would have long paid up the loan before the accident.
Counsel for the Respondent also submitted that it was not enough to bring the PW5 to give evidence of the hire of the truck for N50,000.00 on day of the accident, as there was no evidence about other days, even from the driver to the truck! The learned trial judge had also visited the scene of the accident and the accidented vehicle and came out with the following finding, as per evidence:
“The claimant’s vehicle was damaged in the front and the 3rd Defendant’s vehicle was damaged up to the middle” (Page 221 of the record).
Meanwhile, the evidence of the DW2-a motor mechanic who led a team of 3 to inspect the damaged vehicles had been:
“‘while the 3rd defendant’s vehicle was damaged beyond repairs, the claimant’s vehicle was damaged only by the left side at the head and could be repaired with minimum cost.” (page 123 of the Record).
Of course, the Respondents had also challenged the cost of the truck that it was grossly inflated. This, and the fact that there was no evidence of loss of earnings, was upheld by the court, when it said:
“I am of the considered view that the defendants have challenged and traversed the averments in paragraphs 18 and 19 of the amended statement of defence. The defendants having alleged that the cost of the vehicle was inflated and put the Claimant to the strictest proof of same, the later (sic) cannot claim he had satisfied the requirement of strict proof by mere production of receipts of purchase, Be that as it may, I am of the considered view, in the circumstances of this case, that the measure of damages is not the cost of claimant’s vehicle or its replacement.
In the present case, evidence led by the parties and my findings when the court inspected the vehicles on
21/07/2010 are that the claimant’s vehicle was damaged in the front by the driver’s side. It was not pleaded that the vehicle was damaged beyond repairs. I am of the view that the remedy available to the claimant is the amount it will cost to repair the damaged vehicle or the difference between market values of the vehicle before and after the accident…..(Emphasis mine) Pages 214 and 215.
I think that that impeccable findings are unassailable, in the circumstances of the case, and this court cannot disturb it.
In the case of Gbadamosi vs Dairo (2001) 11 NWLR 129 held 7, this court, relying on the Supreme Court decision in SPDC vs Tiebo VII (1996) 4 NWLR (Pt. 445) 657 stated the attitude of Appellate court to award of damages by trial court, as follows:
“In order to justify interfering with the decision of a trial court on award of damages, it is necessary for the appellate court to be convinced that
a. The court acted upon some wrong principle of law or
b. The amount awarded was so extremely high or so small as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the plaintiff is entitled.
The test should be an objective one whether the court reached the judgment at first instance on a correct principle of law and thereby reached a correct estimate of damages. However, the appellate court will decline to reverse the finding of a trial court as to amount of damages merely because it thinks that if it had tried the case in the first instance, it would have given a lesser sum’
An appellate court will not disturb the award of damages of a trial court unless it is convinced that the trial court acted on a wrong principle of law or the amount awarded is so high or low that there was an entirely erroneous estimate of damages”‘
See the cases of Okudo vs IGP (1999) 1 NWLR (Pt.535) 335; Gbadebo Shittu Olowoake vs Yekini Lawal (2000) 11 NWLR (Pt.677) 127 @ 151; Ifeanyi Chukwu Osundu Co. Ltd. vs. Akhigbe (1999) 1 NWLR (Pt.625) 1.
It is strange that the Appellant did not take steps to effect repairs of the injured part(s) of the vehicle, which would have even placed before the trial Court, the estimated cost to effect the said repairs. See the case of OHADUGBA VS. GARBA (2000) FWLR (PT.16) 272; ADEMUGBA 292. See also the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS. EKWENEM (supra), where the Supreme Court held:- “An Appellate Court will not interfere with an award of damages by a trial court simply because it is inclined to award a different amount in order to justify reversing the decision of a trial court on the question of damages, it will generally be necessary that the Appellate Court be convinced either that:
(a) The court acted upon wrong principle of law or under a mistake of law.
(b) The award is arbitrary, or perverse.
(c) There has been element of wrong exercise of discretion in the award.
(d) Injustice would result if the Appeal Court does not interfere.
(e) The amount awarded by the court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of the damage.”
Appellant may have looked at the unfortunate event of the accident as an opportunity to reap some financial gains, or trade on the situation and so expected a jackpot. No wonder his strenuous effort for 1st Respondent to join to settle his claims.
Of course, the law would not allow that, as the principle in ward of damages is based on the need to restore the previous position before the breach or injury – restitution integrum. See the case of UDOH VS. ASUQUO (2006) ALL FWLR (Pt.307) 1122 at 1143; OHADUGBA VS. GARBA (supra).
It is my humble view that the learned trial judge took into consideration all the relevant factors before he exercised his discretion in the award of the N150,000.00 to Appellant. I therefore resolve the issues 3 and 4 against the Appellant.
The Appeal is therefore lacking in merit and is accordingly dismissed as I affirm the judgment of the learned trial judge in the suit KW/179/2008 delivered on 6/10/2010.
Parties to bear their cost.
TIJJANI ABDULLAHI (PJ) J.C.A: I have had the privilege of reading in draft, the lead judgment of learned brother I.G. Mbaba JCA just delivered. I entirety agree with his reasoning and the conclusions arrived thereat’ His lordship, characteristically has exhaustively and comprehensively dealt with all the live issues that call for determination in this appeal.
It is now settled beyond peradventure that our Courts are slow in interfering with award of damages granted by trial courts. In the case of Anambra State Environmental Sanitation Authority & Anor vs Ekwenemi (2009) 6 – 7 SC (Pt.11) 5 @ 28 – 29, the apex Court held that:-
“An Appellate Court will not interfere with an award of damages by a trial court surely because it is inclined to award a different amount. In order to justify reversing the decision of a trial court on the question of damages, it will generally be necessary that the Appellate Court be convinced either that:-
a) The court acted upon wrong principle of law or under a mistake of law;
b) The award is arbitrary or perverse;
c) There has been an element of wrong exercise of discretion in the award;
d) Injustice would result if the Appeal Court does not interfere;
e) The amount awarded by the court is either ridiculously high or ridiculously low that it must have turned out to be wholly erroneous estimate of the damages.”
For this reason and the fuller ones ably marshaled out in the lead judgment of my learned brother, I too dismiss the appeal and abide by the order on cost as contained in the lead judgment.
JOSEPH SHAGBAOR IKYEGH J.C.A: My learned brother, Ita George Mbaba, J.C.A. afforded me the opportunity to read in advance the judgment prepared by his lordships with which I agree.
The respondents did not dispute the 3rd respondent’s ownership of the motor-vehicle involved in the crash with the appellant’s motor-vehicle. Their amended joint statement of defence averred that much in paragraphs 2 thereof that:
“The 1st defendant avers that although the Honda Saloon car (“Baby boy”) with registration number KWLG 02 LAF was driven by the 3rd defendant, it was fully monetized and so ownership of the said vehicle resides in 3rd defendant.”
It is trite that what is admitted on the pleadings (save in declaratory actions which is not the case here) needs no further proof – see section 75 of the Evidence Act. It was, therefore, not necessary to prove ownership of the motor-vehicle in question by documentary evidence: Exhibit E on documentary proof of ownership of the motor-vehicle was, accordingly, superfluous.
I too see no merit in the appeal and hereby dismiss it and abide by the consequential orders contained in the lucid judgment of my learned brother, Mbaba, J.C.A.
Appearances
O. Jayeoba Esq.For Appellant
AND
Manzuma Issa Esq.,
Mohammed N. Dangana Esq.,For Respondent
