MRS. ESTHER IGHRERINIOVO VS UKUSEMUYA
In the Supreme Court of Nigeria
Thursday, April 11, 2013
Case Number: SC. 11/2004
WALTER SAMUEL NKANU ONNOGHEN, JUSTICE SUPREME COURT
JOHN AFOLABI FABIYI, JUSTICE SUPREME COURT
NWALI SYLVESTER NGWUTA, JUSTICE SUPREME COURT
OLUKAYODE ARIWOOLA, JUSTICE SUPREME COURT
MUSA DATTIJO MUHAMMAD, JUSTICE SUPREME COURT
MRS. ESTHER IGHRERINIOVO
S.C.C. NIGERIAN LIMITED
“It is the law that unchallenged evidence which is credible stands and should be accepted and acted upon by the court.”
MUSA DATTIJO MUHAMMAD, JSC. (Delivering the Judgment by the Court):
I had a preview of the lead judgment of my learned brother Fabiyi, JSC, and agree entirely with his reasoning and conclusion that while the appeal succeeds in part the cross appeal being completely lacking in merit fails. I need emphasize in my own concurring words why the two appeals are so determined, i rely on the facts of the case that brought about the two appeals as narrated in the lead judgment. I shall restate these facts only to facilitate a better understanding of the relevant facts vis-a-vis the law on the issues the two appeals raise.
The main appeal questions the lower court’s interference with the damages awarded by the trial court. The latter had found the defendants, the appellants at the former but the respondents/cross appellants in this court, liable in negligence and awarded the plaintiff, the Appellant/Cross respondent herein, the sum of N15,500,000.00k general damages. The lower court’s reduction of this sum to N12,000,000.00k (two million) constitutes the complaint in the main appeal.
It is argued in the main appeal that a proper appraisal of the facts and circumstances of the case at hand reveals the lower court’s error in its interference with the award of damages made by the learned trial judge. Learned appellant counsel insists that the interference by the lower court is without basis in Law.
Not surprisingly, learned Respondent/Cross appellant counsel submits otherwise. He contends that the awarded sum is rather high and not based on the facts at hand in the case.
In the resolution of the lone issue the appeal raises, the question to answer is when does an appellate court interfere with a trial court’s award of damages against a defendant in a proven case of negligence? It is now trite that an appellate court does not ordinarily alter or interfere with an award of damages made by the lower court except where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle. The award of damages is at the discretion of the trial court. An appellate court will not interfere with an award of damages by a trial court only because it is inclined to make a different award. In order to justify interference with the trial court’s award of damages, the appellate invariably must be satisfied that:-
(a)The trial court had 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 or
(d)Injustice could occur if the appeal court does not interfere.
See A.S.E. SA v. Ekwenem (2009) 13 NWLR (Pt 1158) 410 SC, Adogu v. Federation (1996) 6 NWLR (Pt 456) 508 and The Shell Petroleum Development Company of Nigeria Ltd v. Chief G.B.A. Teibo VII and 4 Others NSCQLR volume 22 (2005) 69.
In the case at hand learned appellant counsel is right in his submission that the sum awarded the respondent by the lower court, is rather low. The lower court is right to have adjudged the award made by the trial court excessive.
The court, by the award it made in place of the trial court’s excessive award, however failed to maintain the “golden mean/’ its award is rather low. I abide by the award made in the lead judgment as being most appropriate in the circumstances of the case at hand.
The cross appeal questions the evaluation of evidence by the trial court and its decision therefrom that the respondent’s negligence informs appellant injuries and thus the former’s liability. It is often a difficult task to have the concurrent findings of facts by the lower courts and all the more so where the trial court’s findings which the lower court affirmed involves the credibility of the witnesses that testified before the trial court. In the case at hand evidence of the cross-appellant’s liability is overwhelming leaving no room whatsoever for interference by an appellate court. The Cross appeal for that reason fails.
For the foregoing and more so the fuller and more succinct reasons marshaled in the lead judgment, I allow the appeal in part and dismiss the totally meritorious cross-appeal. I abide by the consequential orders decreed in the lead judgment including those on costs.
Chief V.E. Otomiewo with O.Unangue for the Appellant/Cross-Respondent.
L. A. O. Nylander for the Respondents/Cross Appellants.