MUSBAWU ABDULLAHI & ANOR v. ESTHER MAMZA
(2013)LCN/6098(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2013
CA/J/87/2011
RATIO
“While it is true that in dealing with the pleadings of the parties the court has a duty to consider all the paragraphs of the pleadings of a party as a whole yet where there is a classical or undoubted case of admission inherent in one or two paragraphs of pleadings of a defendant the court of trial will be perfectly entitled and would be justified in holding that admission or acknowledgment of the facts pleaded by that defendant as acceptance of the pleaded case and evidence of the plaintiff. This is based on the principle of law particularly law of evidence which clearly stipulates that facts admitted needs no further proof or evidence from the plaintiff. Such a fact as admitted means there is no issue joined on fact admitted and the court is not disentitled from acting on such admission.” Per IGE, J.C.A.
“Judicial admissions are conclusive. That is to say where a party agreed to a fact in issue, it is no longer necessary to prove that fact. In effect after an admission no further dispute on the fact admitted should be entertained by the court. This is the strongest proof of the fact in issue.” Per IGE, J.C.A.
“…the law is settled that there must be before the court the cost of the damaged vehicle or estimated value before the accident and the probable amount of the damaged car or vehicle to enable the court of trial properly to assess the damages that is commensurate to the level of negligence caused. See the case of S.W. UBANI – UKOMA VS. G.E. NICOL (1962) 1 ALL N.L.R. 105 AT 106.” Per IGE, J.C.A.
JUSTICES:
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. MUSBAWU ABDULLAHI
2. DANGOTE INDUSTRIES LIMITED – Appellant(s)
AND
ESTHER MAMZA – Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Borno State of Nigeria the Respondent as the Plaintiff who described herself as a House-wife and a Civil Servant resident in Maiduguri claimed against the Appellants as defendants in paragraph 13 of her AMENDED STATEMENT OF CLAIM as follows:-
“13 wherefore the Plaintiff claims against the defendants jointly and severally the following reliefs:-
1. An order that the 1st Defendant was reckless and negligent in his driving of the vehicles with registration No XT 688 MUS on the 26th day of November 2005.
2. An Order that the Defendants, jointly and severally replace the plaintiffs vehicle with registration No. AA 915 ASU, same being a complete write off and irreparable, having been destroyed and damaged as a result of the accident caused by the 1st Defendant’s reckless and dangerous driving.
3. Special Damages in the sum of N62,000.00 being money paid for the treatment of the injuries Plaintiff suffered as a result of the accident which was caused by the reckless and negligent driving of the 1st Defendant.
4. The sum of N1,000,000.00 being General Damages.”
Both in her pleading and evidence at the trial she stated that the 1st Defendant while driving the vehicle registration No. XT 688 MUS owned by the 2nd Defendant the employer of the 1st Defendant recklessly and negligently ran into her car registration No. AA 9I5 ASU along Jos Road Maiduguri causing extensive damage to her car and injury to her which led to her having to be admitted into the Teaching Hospital of the University of Maiduguri where she spent N62,000.00 for her treatment. According to her the truck of the 2nd Defendant driven by the 1st Defendant hit her car and that the car was a complete write off. The Respondent called five (5) witnesses while the Appellants called a witness at the trial.
In a considered Judgment delivered by the Borno Chief Judge Hon. Justice Kashim Tamnah he found in favour of the Respondent thus:-
“In the result therefore this issue too is resolved in favour of the Plaintiff and on the whole, the plaintiff has proved her case against the defendants and established her entitlement to the reliefs sought as resolved above. I accordingly declared/order that:-
1. The 1st defendant drove the 2nd defendant’s vehicle negligently on the 26th day of November, 2005 and hit the Plaintiff’s car.
2. The defendants jointly and generally pay the Plaintiff the sum of N962,500.00 cost of repairing the Plaintiff’s damaged car.
3. The defendants jointly and severally pay the Plaintiff the sum of N62,000.00 cost of the treatment of the injuries the Plaintiff sustained as a result of the 1st defendant’s negligent conduct.
4. The defendants pays the plaintiff N1,000,000.00 general damages so ordered.”
Aggrieved by the above decision of the learned trial Judge the Defendants now Appellants filed Notice of Appeal containing nine (9) grounds against the Judgment. The Appellant and the Respondent exchanged Brief of Argument.
The Appellants Brief of Argument was filed on 23rd day of June, 2011 but dated 17th day of June, 2011 while the Respondent’s Brief of Argument dated 30th day of January, 2012 was filed on 17th day of February, 2012. The Respondent’s Brief was deemed properly filed by this court on 24th day of May, 2012.The appeal was heard on 21st day of January, 2013, when the learned counsel to the parties adopted the Briefs of argument.
The Appellants in their aforesaid Brief of Argument formulated three issues for determination of this Appeal. The issues are framed as follows:-
“1. Whether on the facts pleaded and the available evidence before the court, the learned Chief Judge was correct in his findings that the Plaintiff discharged the burden of proving negligence against the 1st Appellant.
2. Whether on the facts pleaded and the evidence led, the learned Chief Judge was correct when he awarded the sum of N962,500.00 in favour of the Respondent as compensation for the cost of repairs of her vehicle.
3. Whether the sum of N1,000,000.00 awarded by the learned Chief Judge was not excessive and not based on any principles of law.”
On the other side of the divide the Respondent adopted the three issues raised for determination of the appeal herein.
I am of the settled view that the three issues distilled from the nine grounds of appeal filed aptly depict the real issues for the determination of this appeal.
ISSUE ONE
This issue revolves around the correctness or otherwise of the finding of the learned Chief Judge to the effect that the Respondent established before him that the 1st Defendant was guilty of negligence.
Now what is negligence?
Negligence has been defined in numerous authorities or cases to mean the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally want only or willfully disregardful of others rights. The term denotes culpable carelessness. See BLACK’S LAW DICTIONARY EIGHT EDITION PAGE 1061. In the case of RABIU HAMSA VS. PETER KURE (2010) 10 NWLR (PART 1203) 630 AT 646 D – F MUHAMMAD JSC said:-
“As far back as 1857, Lord Alderson B defined negligence to be the omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. See Blyth vs Birmingham Waterworks Company (1856) 11 Exhibit 781 at 784. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all where any of the situations happens, then liability will accrue against the defendant. Before the accrual of liability, however, the basic requirement of the law is that the defendant must owe a duty of care to the Plaintiff. Where there is no such notional duty to exercise, negligence will have no legs to stand and any claim premised thereon will fail”
See Also: 1. G.K.F.I. (Nig) Ltd Vs NITEL PLC (2009) 15 NWLR (Part 1164) 344 at 369 A – E per Mukhtar J.S.C. (now CJN).
2. DIAMOND BANK LIMITED VS. PARTNERSHIP INVESTMENT CO. LTD & ANOR (2009) 18 NWLR (PART 1172) 67 AT 89 E -F PER OGBUAGU, JSC.
The learned counsel to the Appellants P. A. Bello Esq., tied issue one to ground 1, 2, 3, 4 and 9 of the Grounds of Appeal. He referred this court to paragraph 7 of the Amended statement of claim wherein the Respondent pleaded that the 1st Defendant was negligent in the way and manner he drove the 2nd Defendant’s truck which hit the Plaintiff’s car with the particulars of negligence. The Appellant stated that since the Respondent pleaded negligence with particulars, she gave herself the burden to prove the negligence as particularized in her pleading as according to him parties are bound by the pleadings and must proof any assertion made by calling of credible evidence. He relied on the following cases viz:-
1. FLASH ODDS LTD VS AKALUGA (2001) FWLR (PT 76) 709 AT 727.
2. NEKA VS A.C.B. 2004) 1 SCNJ 193 AT 205
3. GARBA VS YAKASSI (367) 492 AT 498.
4. FABENRO VS AROBADI (2006) ALL FWLR (PART 310) 1575 AT 1596.
The Appellant wanted the court to know from the outset that the Respondent did not plead the DOCTRINE OF RES IPSA LOQUITUR either in substance or as alternative plea in her statement of claim. That the doctrine would be available to a plaintiff who cannot give account of how the accident happened and how to attribute the negligence to a defendant except the accident could not have occurred without the negligence of the defendant. He relied on pages 727 -729 of FLASH ODDS LTD VS AKALUGA Supra. That the learned Chief Judge found the 1st Appellant liable of negligence because the plaintiff had led unchallenged evidence to prove her claim. Appellant however contended that before a plaintiff could succeed in proving negligence he must plead and lead evidence to show that:-
(A) The defendant owes a duty of care to the Plaintiff.
(B) The defendant has acted in such a way as to break that duty of care. and
(C) The conduct of the Defendant was careless relying on the cases of OLISER LTD. VS. L.A. IBEANU & CO. (2008) ALL FWLR (PART 428) 272 AT 285 and ABUBAKAR VS JOSEPH (2008) ALL FWLR (PART 432) 1065 AT 1093.
Appellant submitted that contrary to the pleadings of the Respondent that the 1st Appellant drove the truck at a “very high speed”‘ Respondent counsel took the position that the accident occurred as a result of over speeding that led to loss of control of the vehicle by 1st Appellant. That this is contrary to the pleading of the Defendant. That the words “high speed” as pleaded by the Respondent is not necessarily the same as “excessive speed”. He cited the case of Abubakar v. Joseph supra at page 1101 ED. The appellant states that the Respondent did not plead excessive speed in her Amended Statement of Claim and did not lead any evidence in that behalf. That what appellant said was:-
“large vehicle like these are always on high speed……”
On page 43 line 21 of the record. That the evidence of Respondent was that she focused on her front and was not looking back when she was supposed to look and take care of her front The learned Counsel to the Appellant therefore submitted that whatever evidence there was on issue of speed is grossly speculative and not credible. He placed reliance on ABUBAKAR VS JOSEPH Supra p.1108 per Ogbuagu JSC. To learned counsel to the Appellant the learned Chief Judge was silent on the issue as according to him he did not make any findings accepting the evidence of the Plaintiff that 1st Appellant drove on a very high speed which resulted into accident. That all the learned trial Chief Judge did was to rely on a presumption of law as the only basis of finding the 1st Appellant guilty for negligence. That the learned trial Judge relied on the evidence on the Plaintiff (PW4) to hold that there was enough proof that the 1st Appellant was liable in negligence because the Plaintiff led unchallenged evidence that the 1st Defendant came from behind and hit Plaintiff’s car. That the learned trial Judge relied on the case of AUDU VS AHMED (1990) 5 NWLR (PR 150) 287 AT 298 per Ogundare JCA, later JSC to make his findings. The learned counsel to the Appellant is of the view that the case was irrelevant to the situation in this case and that it is contrary to the decision in the said case. That Respondent failed to lead evidence to show that the accident in the subject matter on this appeal occurred at the day time. The learned counsel to the Appellant also contended that another case relied upon by the learned trial chief Judge is the case of ALPHOUSU IBEANU & ANOR VS PETER A. AGBEIDE on page 81 lines 22 – 26 of the Record of Appeal. He submitted that before that case could apply there must be evidence of:-
A. The weather condition on the day of the accident and
B. The state of the Road.
That in this case there was no such evidence before the court. This according to Appellant’s counsel made the case of Ibeanu & Anor Vs Peter Agbeide inapplicable. He urged the court to have a careful examination of the evidence of the plaintiff and to find that there was no credible evidence before the lower court to support the particular supplied by the Respondent. He submitted that the Respondent would not have succeeded in case of negligence since in this case she failed to plead and prove that the 1st Appellant left his lane and cross over to the Respondent’s lane and hit her stationary car. Appellant’s learned counsel accused the lower court of having tried to fill lacuna in the Respondent’s case by making use of Appellant’s pleadings on page 80 line 13 – 30 to hold that the Appellants pleaded case in paragraph a 9(b) of the Amended Statement of Defence was an admission in that the Appellants pleaded that in order to avoid completely running over the plaintiff the 1st Defendant had to swerve to the left to climb the road divider. The learned Appellant counsel then submitted that what the learned Chief Judge:
“…………..did in this instant case was a great disservice to the use of pleadings by a trial court”
That what the learned Chief Judge ought to have done was to have read all the paragraphs contained in the Amended Statement of Defence so as to appreciate the defence’s case. He relied on the cases of AGBALLAH VS CHIME (2008) ALL FWLR (PT 444) 1480 at 1524 TO 1525 H-A and the case of EKE VS OKWARANYIN (2001) FWLR PART 51) 1974 AT 1994 C.
It was his submission that if it was true that the respondent was driving in the inner lane while the 1st Appellant was arriving on the service lane as found by the trial court it will be impossible to make impart on the part of Respondent’s car as shown in Exhibit DF1 and DF2 the pictures of the car involved in the accident. That the Respondent testified that the point of impact was on her side because:
“She had already started turning………………”
Appellant counsel is of the view that if this court examines Exhibits DF1 and DF2:-
“The point of impact on the vehicle was the driver’s side. Appellants submitted that a driver who was driving on a service lane could not have made such an impact and vehicle making a U-turn on the inner lane except and until there was clear evidence that such a driver left the service lane to hit respondent’s car where she was making a U-turn.”
That that being the case the Respondent had no answer or explanation on how the 1st Appellant drove his vehicle on that day to hit her where she was waiting to make a U-turn.
That there was no such pleading by Respondent and there was no such evidence. He relied on the case of:
1. OLISEVU LTD VS L. A. IBEANU & CO. NIG. LTD (2008) ALL F.W.L.R (PART 428) 272
2. ABUBAKAR VS JOSEPH (2008) ALL F.W.L.R.  (PART 432) 1065 AT 1093 and
3. NIGER MILLS CO. PLC V AGUBE (2008) ALL F.W.L.R (PART 427) 86 AT 113.
The learned Counsel to the Appellant submitted that the learned Chief Judge failed to rely on the strength of Respondent case but rather relied on the weakness of the Appellants’ case. That notwithstanding that the Respondent did not plead and led evidence of negligence of the 1st Appellant and duty the Appellants owed to Respondent the learned trial Judge found in favour of the Respondent that the 1st Appellant was negligent. The Appellant relied on the following authorities viz.
1. FLASH FIXED ODDS LTD VS AKATUGBA (2001) F.W.L.R. (PART.76) 709 AT 727.
2. ANTS VS ATOLOYE (1993) NWLR (298) (SIC) 233 AT 246.
3. OSADEBAY VS IKEJIOFOR (2001) FWLR (PT.62) 1915 AT 1983.
4. IMT LTD VS GULF BANK (NIG) PLC (2008) ALL FWLR (PT 402) 1092 AT 1110.
5. AWAOGBO VS EZE (1995) 1 NWLR (372) SIC 393
6. UBA PLC VS ALIMS (NIG) LTD 2008 ALL FWLR (PART 435) 1738 AT 1758.
The learned Counsel to the Appellant submitted this is an occasion to exercise power of this court to interfere with the findings of the learned Chief Judge and find that the Respondent has failed to prove negligence against the Appellants and to set aside the findings of the learned Chief Judge. He also urge this court to dismiss the Respondent’s action
In his own submissions and reply on issue one N.A. Dammo Esq. for the Respondent started off by stating that the Appellants contention that the Respondent did not prove negligence against the 1st Appellant is erroneous and a misconception of the law.
He quoted part of the findings of the learned Chief Judge to the effect that there was no evidence from the Appellants to suggest any failure on the Plaintiff’s part, to prove her case even by means of evidence that was neither challenged nor contradicted showing that the 1st Defendant negligently drove his vehicle and hit her vehicle resulting in injuries and damages to the Respondent and her car. Respondent is of the view that there was enough of credible evidence before the trial court to establish negligence against the 1st Appellant. Respondent defined negligence to mean a blameworthy conduct that misses legal standard expected of a reasonable person in protecting the individual against foreseeable risk or harmful acts to other members of the society. He relied on the cases of:-
1. SPDC VS. OTELEMABA MAYON & ORS (2001) FWLR (PART 47) 1030 AT 1051 and
2. JULIUS BERGER (NIG) PLC VS. ONUGUI (2001) FWLR (PART 64) 305 AT 317.
He agreed that in accident matters the party who alleges negligence must provide the particulars and prove same relying on the cases of Joseph & Anor vs Alhaji Abubakar & Anor (2002) FWLR (Pt 91) 1525 at 1539 and Flash Odds Ltd Vs Akatugbo (2001) FWLR (part 76) 709. That negligence is a question of fact not law and each case must according to the learned Counsel to the Respondent be decided upon its own particular facts. He placed reliance on the following cases:-
1. OSIGWE VS. UNIPETROL & ANOR (2005) ALL FWLR (PART 267) 1525 AT 1542 – 1543.
2. GBOLADE VS OLADEJO (1994) 8 NWLR (PART 362) 281 AT 283
The learned counsel to the Respondent referred to pages 3 and 4 of the Record to submit that the Respondent pleaded negligence and submitted particulars. That Respondent led evidence to prove the facts pleaded. That the Respondent led evidence of the fact that both of them were driving in the same direction and that it was while Respondent was at a function to make a U-turn, the 1st Appellant hit her from behind showing that the 1st Appellant had a clear view of her. The learned Counsel to the Respondent stated that the Respondent also testified that the 1st Appellant was speeding and lost control of the vehicle and that 1st Appellant hit her car due to his speed. The learned Counsel to Respondent also stated that the 1st Appellant admitted his reckless and negligent driving before the Chief Magistrate Court Maiduguri which led to his conviction. That the Appellants never challenged, contradicted or controverted the evidence by cross examination or by contrary evidence. He submitted that the law is settled that where a vehicle hit another from behind during day time the presumption is that the driver who hits another from behind would be liable for negligent and reckless driving. He relied on the cases of:-
1. GBOLADE VS OLADEJO SUPRA AT 292.
2. AUDU VS AHMED (1990) 5 NWLR (PART 150) 87 AT 298 AND.
3. UMAR VS AHUNGWA (1997) 1 NWLR (PT. 482) 662 AT 611.
He submitted that the circumstances of the pleadings and the unchallenged evidence adduced by the Respondent justified the findings of the learned trial Chief Judge.
Dammo Esq., for the Respondent further submitted that a defendant who did not call evidence in support of his pleadings to challenge the Plaintiff’s evidence is deemed to have accepted and admitted the facts pleaded by Plaintiff. He placed reliance on the cases of:-
1. BIJOU (NIG) LTD. VS. OSIDAROHWO (1992) 6 NWLR (PART 209) 643 AT 649 – 615
2. BURAIMOH VS. ESA (1990) 2 NWLR (PT 113) P.406 AT 414 AND 415.
3. OBO VS COMMISSIONER OF EDUCATION BENDEL STATE (1993) 2 NWLR (PART 273) 46 AT 61.
4. ADEJUMO VS AYANTEGBE (1989) 5 NWLR (PT.110) 417.
Respondent further stated that the only witness called by the Appellants was the photographer whose evidence related only to photographs of Respondent’s damaged vehicle he took. The Respondent also dwelt and relied on paragraph 9(b) of the joint statement of Defence of the Appellants as constituting an admission and sufficient proof that the 1st Appellant was speeding while driving his vehicle. He urged the court to dismiss the appeal on this issue.
The law is settled that a plaintiff or Claimant who in Civil Matter desires that a right or benefit should be declared or found in his favour against a defendant must plead adequate and direct or circumstantial facts that can sustain his case against his opponent. The same is true in an action in negligence. Relevant facts must be pleaded with succinct particulars of the negligence. The plaintiff suing in tort of negligence must establish with credible evidence all the ingredients of negligence in order to make the defendant liable. The Plaintiff must positively show that the defendant owes him a duty of care and a breach of that duty otherwise the action is bound to fail. See
RABIU HAMZA VS PETER KURE (2010) 10 NWLR PART 1203 620 AT 649 H TO 650 A – C Per MUHAMMAD JSC who said:
“In the case of Kalia v. Jarmakani Transport Ltd. (1961) All NLR 747, the tort of negligence had been considered to be a matter of fact and not of law. It must thus, be pleaded and proved on preponderance of evidence’ See also: I.I.T.A v. Amrani (1994) 3 NWLR (Pt. 332) 296, 311. The burden of proof in negligence is on the plaintiff and the onus, is as in all other civil matters which is not static, does not shift on to the defendant until the plaintiff proves defendant’s negligence. What the plaintiff must prove in this case are:
(i) That the defendant owes him a duty of care:
(ii) That there is s breach of that duty; and
(iii) An injury to the plaintiff has occurred between which and the breach of duty a casual connection must be established.”
It is also relevant to refer to the case of:
“G.K.F. INVESTMENTS LTD VS NIGERIA TELECOMMUNICATIONS PLC (2009) 15 NWLR (PART 1164) 344 AT 369 where MUKHTAR JSC now CJN had this to say:-
In the case of Anyah v. Imo Concorde Hotels Ltd. (2002) 18 NWLR (Pt. 799) page 377. the conditions that have to exist before the claim of negligence can be raised were set down. Kalgo, J.S.C. in the lead judgment had the following to say:-
“The general principle is that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and to succeed in action or negligence the plaintiff must prove by the preponderance of evidence or the balance of probabilities that:
“(a) the defendant owed him a duty of care;
(b) the duty of care was breached;
(c) the defendant suffered damages arising from the breach.”
See Agbonmagbe Bank Ltd v. C.F.A.O. (1966) 1 All N.L.R. 140 at 145 (1966) 1 SCNLR 367.
The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of duty of care against the defendant the action must fail. See Benson v. Otubor (1975) 3 SC 9: Okoli v. Nwagu (1960) SCNLR 48; (1960) 3 FSC 16, Nigeria Airways Ltd. v. Abe (1988) 4 NWLR (Pt.90) 524….”
I am fortified by the above”
One has to find out whether the Respondent complied with all the above settled principles of law in terms of pleading and evidence of negligence against the Appellants. The Respondent pleaded in her Amended Statement of Claim dated the 19th day of June in paragraphs 4 – 8 thereof thus:-
“4. The Plaintiff states that on the 26th day of November, 2005 while driving her motor vehicles a Honda accord Model, with registered No. AA915 ASU, along the Jos Road in Maiduguri, the 1st Defendant, while driving vehicle with registration No. XT 688 MUS, drove the said vehicle, which is owned by the 2nd Defendant and for whom the 1st Defendant is a servant, recklessly and negligently, she was waiting to negotiate a turning.
5. The plaintiff states that this caused extensive injury to the Plaintiff, the result of which she was admitted into the Teaching Hospital of the University Maiduguri and had to be treated for the injuries sustained and she stayed for weeks taking treatment for these injuries, which almost paralyzed her. The Plaintiffs admission card and the medical report are hereby pleaded.
6. Following the admission of the Plaintiff in the Teaching Hospital the Plaintiff expended the total sum of approximately N62,000.00 for her treatment. The receipts of payment for drugs and sundry treatment and expenditures are hereby pleaded.
7. The 1st Defendant was reckless and negligent in the way and manner he drove his truck vehicle the result of which he hit the Plaintiffs car which is now a complete write off.
PARTICULARS OF NEGLIGENCE:
1. The 1st Defendant drove the vehicle with registration No. XT 688 MUS without due care and attention to the Plaintiffs use of the same road.
2. The 1st Defendant drove the vehicles at a very high speed resulting in his hitting the Plaintiffs car while she was negotiating a turning, waiting for on-coming vehicles to give her right of way.
3. The 1st Defendant was coming from behind the Plaintiff and so had a clear view of the Plaintiff while she was waiting to get right of way to turn at the AGIP junction
8. The plaintiff states that as o result of the 1st Defendants negligent and reckless driving which led to his hitting the Plaintiffs vehicles the Plaintiffs vehicles is now damaged and a complete write off and where it is to be retained it will cost the plaintiff the total estimated sum of N962,500.00 to repair the car. The estimates for the repairs are hereby pleaded.
The Defendants now Appellants filed Amended statement of Defence dated 3rd August 2010 on 16th day of August 2010, wherein they pleaded in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 thereof as follows:-
“3. The defendants plead that it was the plaintiff who drove her vehicle in a reckless, negligent and dangerous manner that resulted into the accident on that day.
4. The Defendants Plead as follows:-
(a) That both the plaintiff and the 1st Defendant were coming from the same direction, and were moving side by side along the same road.
(b) That the 1st Defendant was on a fast lane of a double carriage way while the plaintiff was driving on a service lane towards the same direction.
(c) There was a junction in front where the plaintiff had intended to make a turn and in that circumstance, the plaintiff was left with two option:
(d) Option number (1) was for the plaintiff who was driving side by side, the 1st defendant to slow down, and allow him to pass before trafficating to the left and negotiate the U turn.
(e) Option Number (2) was for the plaintiff to move faster and over take the 1st defendant, trafficate and turn to the left in front of the 1st defendant, negotiate the U turn, and go on her way.
5. The defendants plead that option No (1) above was the proper thing for the plaintiff to do in the circumstance, while option (No. 2) was very dangerous and constituted violation of traffic regulation.
6. The defendants plead that the plaintiff voluntarily followed the 2nd option with its attendant consequences:-
(a) The plaintiff overtook from the service lane which violated traffic regulation.
(b) The plaintiff was too close to the function where she was to make the U turn and directly in front of the 1st defendant, but nevertheless took the risk.
(c) The plaintiff could not complete the U turn because she had to wait for an oncoming vehicle from the other side, white the 1st defendant was facing her in front, the consequences was therefore inevitable (commonly known as “Trailer”).
7. The 1st Defendant was driving a heavy vehicle made up of a tractor and a trailer. The tractor on its own is 5 tons while the trailer is made up of 10 tons altogether the vehicle is 15 tons in weight.
8. The break system of the vehicle is air system which takes about 30 seconds for the automatic gear to move from gear 10 back to gear 1 before the vehicle can come to a halt when the break is applied. The implication of this is that the vehicle cannot stop instantly when the break is applied.
9. The 1st defendant pleads further that:-
(a) Due to the sudden overtaking and attempt at making a U turn in front of the 1st defendant, he diligently applied break and tried not to run over the plaintiff’ which would have sent her out of this world for ever.
(b) To be able to avoid completely running over the plaintiff the 1st defendant had to swerve his vehicle to the left to climb the road divider.
(c) The result of these was that the Plaintiffs vehicle was hit from the driver’s side by the 1st defendant’s vehicle.
10. The Defendants plead that contrary to paragraph 7 of the Statement of Claim:-
(a) The 1st defendant paid due care and attention to the Plaintiff, otherwise the Plaintiff would have been dead by now.
(b) The 1st defendant was not speeding as alleged by the plaintiff and that if the 1st defendant was speeding he would not have been able to control the vehicle the way he did on that day, and he would have overran the plaintiffs’ vehicle completely crushing the plaintiff along with it.
(c) The fact that the plaintiff vehicle was hit by the driver’s side shows that the Plaintiff was negotiating the u turn right in front of the 1st defendant which was very wrong.”
The Respondent called five (5) witnesses in order to sustain the case posted by her. In her evidence on page 42 of the Record she stated:-
“I know the first Musbawu Abdullahi. I know the 2nd defendant too. The 1st defendant is the driver that ran into me driving the vehicle of the 2nd Defendant on the 26/11/05 I was driving my car along Jos Road Maiduguri on 26/1/05. As I was approaching a U-turn. On reaching the turn I stopped for an oncoming vehicle. While waiting I felt another vehicle ran to me and drove me off the road. I do not know what happened next when I regained my consciousness I realized it was the 1st Defendant driver of the 2nd Defendant that ran into me. I regained consciousness at the University of Maiduguri Teaching Hospital the following day. I was on admission from 26/11/05 to 9/1/06. I was treated for multiple injuries including fractures. I paid for treatments. I paid the sum of N62,000.00 for the purchase of drugs etc. My car is severally (sic) damaged and a write-off. After my discharge, my husband took me to see the vehicle at the Bulumkutu Police station before it was taken to the Chief Magistrate Court at Wulari. I took a Mechanic and a Panel Beater for the possibility of repairs. They said it will cost me N962,500.00 and  eventually advised me that it is not possible to repair and that it is a complete write off….
The 1st Defendant was driving carelessly and recklessly because I was in front of him and he should have seen and avoided me.”
The entire cross examinations of the Respondent by P.A. Bello Esq., for the Appellant runs thus:-
“I cannot identify the vehicle driven by the 1st defendant as I was focusing in my front. How could I look at the back when I was supposed to look and take care of my front? I was not driving on the same lane with the 1st defendant. I was driving in the inner lane by my left. He was driving on the lane on my right. He ran into me and everything was smashed. I was lucky to have survived. I can identify my vehicle. I was already turning for a U-turn so, yes he could hit me on my driver’s side. I now look at these pictures. They are all the same vehicle taken on different sides.
Bello – I apply to tender them for exhibits.
Dammo – No Objection.
Court – Be so marked as ID1, 2 and 3
PW4: The point of impact is on my side because I had already started turning not waiting for an oncoming vehicle. Yes I would have turned forcefully and force but for the oncoming vehicle. It was a large vehicle so whichever lane he was on there was no way that he would not have hit me. I cannot tell the time vehicle when he came close and when the accident happened I could not have as a woman driving a small car, overtake a big vehicle and trying to make a U-turn in front of it the speed of large vehicle. I know the speed from the vehicles on the road, large vehicles like these they are always on speed. Yes I have mirrors. I concentrated as road user. He has overrun me already. I did not see his vehicle because I was in the Hospital for almost two months and it was released to him. I have known the mechanic and the Electrician before I go to them for repairs. I came to know them when I bought the car in January, 2001. I did not try any other. My car was in perfect condition and I patronize them for minor repairs. I have favour before this court and I have spoken the truth. That is all”
The learned Counsel to the Appellants concentrated a lot of energy on the finding of the trial Judge that he accepted the evidence of the Respondent that the 1st Appellant hit her from behind therefore making the Appellant liable in negligence. The Appellant held on to the pieces of evidence elicited from Respondent under cross examination where the Respondent stated:-
“I was not driving on the same lane with the 1st defendant. I was driving in the inner lane, by my left he was driving on the lane on my right.”
The Appellant learned Counsel queried the acceptance of the above quoted evidence by the trial Judge to find the 1st Appellant culpable in negligence. That the mere fact that there was occurrence of an accident or driving on the wrong side of the road is no proof of negligence. The learned Counsel to the Appellants posed a question for which he proffered answer in this way:
“My Lords, if it is true at the Respondent was driving in the inner lane while the 1st Appellant was driving at the outer lane or service lane, how will the Respondent prove negligence against the 1st Appellant without pleading and proving:
(a) That the 1st Appellant left his lane and cross over to the Respondent lane and hit her stationary car?
There is no such pleadings before the trial court in line with the above authority.”
I am of the firm view that the learned trial chief Judge fully considered and reviewed the evidence of the Respondent and the addresses of learned Counsel to the parties and the trial Judge was on solid ground in holding that the 1st Appellant was negligent and reckless in his driving thereby causing the accident. The Respondent sufficiently pleaded how the accident occurred and led credible and cogent evidence to support the pleadings and the particulars of negligence as quoted in extenso herein before in this Judgment. The Respondent gave vivid evidence that she was waiting to negotiate a turning on her left side of the road but had to give way to oncoming vehicle to pass before she could turn. It was in that process she and her car were cleared off the road having been hit by the 1st appellant’s truck. Paragraphs 4 and 5 of her Amended statement of claims are explicit enough. By paragraph 7 she gave particulars of the recklessness and negligence of the 1st Appellant to the effect that if he had exercised due care and paid attention he would have seen the Respondent was waiting to negotiate a turning and it was in the process of trying to negotiate the left turning that she heard an impact against the driver’s side of the car.
There is no contradiction in her evidence that the 1st Appellant was behind her on lane next to her on the right. The fact remains that the 1st Appellant was responsible for the accident whether he was directly behind the Respondent’s car or on the lane next to the Respondent. There are significant admissions of these facts in the Appellants’ Amended Statement of Defence. The learned Counsel to the Appellant picked quarrel with reliance placed on paragraph 9 (b) of the Appellants’ Amended Statement of Defence as admission of the Pleading and evidence of the Respondent to the effect that the 1st Appellant was the cause of the accident. To learned counsel to the Appellant the learned trial Judge would not have so found if he had taken the trouble to read all the paragraphs in the Amended Statement of Defence as a whole.
While it is true that in dealing with the pleadings of the parties the court has a duty to consider all the paragraphs of the pleadings of a party as a whole yet where there is a classical or undoubted case of admission inherent in one or two paragraphs of pleadings of a defendant the court of trial will be perfectly entitled and would be justified in holding that admission or acknowledgment of the facts pleaded by that defendant as acceptance of the pleaded case and evidence of the plaintiff. This is based on the principle of law particularly law of evidence which clearly stipulates that facts admitted needs no further proof or evidence from the plaintiff. Such a fact as admitted means there is no issue joined on fact admitted and the court is not disentitled from acting on such admission.
The learned Counsel to the Appellants felt the trial Judge goofed in his findings on negligence because, according to Appellant, if the learned trial Chief Judge had cared to read the entire paragraphs contained in the Amended Statement of Defence as whole he would not have come to such erroneous conclusion. The learned counsel to the Appellant missed the point here.
It must be constantly borne in mind that where there is undoubted or positive admissions inherent in pleadings of the Defendant which to all interim and purposes is a direct acknowledgment of the plaintiff’s case or evidence by the Defendant the trial court will be perfectly entitled to act on such admissions on the pleadings against the defendant in favour of the Plaintiff.
See MR SUNDAY ADEGBITE TAIWO VS SERAH ADEGBORO & ORS (2011) 6 SCM 159 AT 175 H to 176 A-E where RHODES-VIVOUR JSC held:-
“Finally on this point. In the Court of Appeal. Learned counsel for the Bank and the Auctioneer, Mr. Lambo Akanbi (as he then was) agreed that the notice of only one day given by the Auctioneer before the auction sale of the property on 17/6/89 was contrary to the requirements of Section 19 of the Auctioneers Law. Section 75 of the Evidence Act states that:
75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have been admitted by their pleadings.
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise that by such admissions.
See Cardoso v Daniel 1986 2 NWLR Pt. 20 p.1.
Judicial admissions are conclusive. That is to say where a party agreed to a fact in issue, it is no longer necessary to prove that fact. In effect after an admission no further dispute on the fact admitted should be entertained by the court. This is the strongest proof of the fact in issue. The fact in issue is whether 7 days notice was given by the auctioneer before the auction sale was conducted on 17/6/89. Mr. Lambo Akanbi, learned counsel for the auctioneer in the Court of Appeal conceded that only one day’s notice was given by the auctioneer before the auction sale of the late Mr. M. Adegboro’s house was carried out on 17/6/89. That concession is an admission under section 75 of the Evidence Act, and is conclusive on the issue.”
Section 75 of the Evidence Act 2004 now Section 123 of the Evidence Act 2011 provides that:
“No fact needs be proved in any civil proceeding which parties to the proceeding or their agents agree to admit at the hearing or which before the hearing they agree to admit either by any writing or by any rule or pleading are deemed to have been admitted by their pleadings”
The interpretation given to section 75 now 123 of the evidence Act 2011 is that where both parties have agreed on a fact in issue, no further proof of such fact is necessary as it is no longer an issue between them see DIN VS AFRICAN NEWSPAPERS OF (NIG) LTD (1990) 21 NSCC PT 2) 313.
I have hereinbefore in this Judgment reproduced the relevant portion of the pleadings filed by both parties and I am of the firm view that an harmonious reading of the paragraphs of the Amended statement of Defence makes it clear that the Appellants especially 1st Appellant provided the clue to the cause of the fatal accident. 1st Appellant was the cause of the accident. This is made more clearer in paragraph 10 of the Amended statement of Defence which out abundance of caution I reproduce here thus:-
“10. The Defendants plead that contrary to paragraph 7 of the Statement of Claim:
(a) The 1st Defendant paid due care and attention of the plaintiff otherwise the Plaintiff would have been dead by now.
(b) The 1st defendant was not speeding as alleged by the Plaintiff and that if the 1st defendant was speeding he would not have been able to control the vehicle the way he did on that day and he would have overran, the Plaintiff’s vehicle completely crushing the Plaintiff along with it.
(c) The fact that the plaintiff vehicle was hit by the driver’s side shows that the plaintiff was negotiating the U-turn right in front of the 1st defendant which was very wrong”
These are the words of admission and acknowledgement that the 1st Appellant was negligent and he caused the accident and that he was coming from behind of the plaintiff and he saw that the Plaintiff was making a U-turn right in front of him. All these punctured disastrously the tenacious argument of appellant that the learned trial Judge was wrong in using paragraph 9 (b) of the Amended Statement of Defence to found negligence against 1st Appellant. The 1st Appellant said in that paragraph that he had to swerve his vehicle to the left to climb the road divider to avoid running over the Respondent completely. This also confirmed the evidence and pleading of the Respondent in paragraph 7 of the Amended Statement of claim that the 1st Appellant was reckless and negligent in the way and manner he drove his truck vehicle. The particulars were given in paragraph 7(2) and (3) of the Amended Statement of Claim. The Respondent pleaded and gave evidence that she was negotiating a turning waiting for oncoming vehicles to give right of way when vehicle of the Appellant who was coming from behind her crashed into her car. Although the Appellants made serious efforts to deny the obvious in their brief of argument but paragraph 4(a)(b)(c) of the Amended Statement of Defence also admitted the pleading and evidence of the Respondent that they were coming from the same direction moving side by side. The Respondent was on the service lane while the 1st Appellant was on fast la ne of a double carriage way. The 1stAppellant also pleaded there was a turning in front where the Plaintiff had intended to make a turn. These also confirmed the evidence of the Respondent that as she was approaching a U-turn she put on signals to indicate she wanted to make U-turn to the left only for the 1st Appellant to run into vehicle and drove her off the road with the level of impact from 1st Appellant. She pleaded and testified that 1st Appellant was reckless and negligent otherwise there was no reason for 1st Appellant to run into her car.
The learned trial Judge was right in his findings that the 1st Appellant was the cause of the accident and that 1st Appellant was negligent and reckless in his driving. There are enough pieces of evidence on record covered by the pleadings to support the findings complained of under issue one
The other aspect of the complaint of the Appellant under issue one is that the learned trial Judge held that the Respondent led unchallenged evidence that the 1st Appellant came from behind to hit her car. The trial Judge also found that in the absence of any evidence from defence to suggest any failure on the part of the Respondent and coupled with the aforesaid unchallenged evidence the plaintiff proved that the 1st defendant negligently drove his truck.
The findings of the learned trial Judge cannot be faulted. The law is settled and pursuant to Sections 135-137 of the Evidence Act 2004, that in a civil matter each side to the dispute must lead evidence in support of his pleaded case depending on the preponderance of evidence see ALHAJI ALIYU BALOGUN VS ALHAJI SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 AT 84 A where OPUTA JSC said:
“Also when pleadings have been filed the onus is on the plaintiff to prove the averments in his statement of claim and on the Defendant to prove what he averred in his statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the imaginary scaled mentioned in Odofin & Ors. vs. Mogaji & Ors. (1978) 1 L.R.N. 212 and the evidence adduced by the Defendant put on the other side of that scale and weighed together to see which side preponderates”
The Appellants only called a photographer who took the photographs of the vehicle at the premises of the Police and tendered them as Exhibits DF1 and DF2 which the Appellants’ learned tried to use in his argument to say that the pictures did not show the 1st Appellant hit the car from behind. That the point of impact was on the driver’s side. It is only logical to state that a vehicle or car making a U-turn already could not have had its back or booth on a straight line from the road the driver was turning off. The evidence of the Plaintiff was consistent with the photographs. There was evidence both on the pleadings and from the Plaintiff that they were coming from the same directions on a dual carriage way or road. The pleading of the Defendants was that the 1st Defendant would have overrun the Plaintiff if he had not swerved to climb the divider and that the Plaintiff would have been dead.
The learned trial Judge cannot be faulted in his finding on issue of negligence and reckless driving by the 1st Appellant most especially as no evidence was forthcoming from the defence which could be put on the other side of the imaginary scale. The learned trial Judge has no option but to rely on the uncontradicted and unchallenged evidence of the Plaintiff to arrive at his decision. See
(1) Kopek Construction Ltd VS. Johnson K. Ekisola (2010) 1 SCM 86 AT 123 B – C.
(2) Cameroon Airlines Vs Mike E. Otutuizu (2011) 1 SCM 70 AT 92 C – E PER RHODES VIVOURS JSC who said:-
“My Lords, it is well settled that where evidence given by a party in proceedings is not challenged by the adverse party who had the opportunity to do so, the court ought to act positively on the unchallenged evidence before it. Odulaja v Haddad (1973) 11 SC p.35 Nwabuoku v Ottih (1961) 2 SCLR p.232 decisions of this court are clear on this point. The unchallenged testimony of the respondent, not challenged by the appellant, that his briefcase containing N20,000 and some valuable items was taken away from him by South African Immigration Officials and never returned to him is affirmative evidence that respondents claim for Special damages for N20,000 is justified since the appellants act of flying the respondent to South Africa without justification was responsible for the loss”
3. Military Governor of Lagos State & Ors Vs Adebayo Adeyiga & Ors (2012) SCM 183 a 211 where Adekeye J.S.C had this to say:-
“The evaluation of evidence in the instant suit before the trial court was based on the unchallenged evidence of the plaintiffs/respondents. The position of the law where evidence is unchallenged or uncontroverted is that such evidence will be accepted as proof of a fact it seeks to establish. A trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witness. In such a situation, there is nothing to put or weigh on the imaginary scale of justice. In the circumstance the onus of proof is naturally discharged on a minimum proof.”
Issue one is hereby resolved against the Appellants.
ISSUE 2
This issue has to do with whether on the facts pleaded and the evidence led, the learned Chief Judge was correct when he awarded the sum of N962,500.00 in favour of the Respondent as Compensation for the cost of repairs of her vehicle.
P.A. Bello-Esq. for the Appellant referred this Court to paragraph 32 of the Amended Statement of Claim page 5 of the Record wherein the Respondent claimed jointly or severally against the Appellants for the replacement of Respondent’s car Reg. No. AA915 ASU same having been a complete write off and irreparable, having been destroyed and damaged as a result of the accident caused by the 1st defendants reckless and dangerous driving. According to the Appellant where as in this case which was rooted in negligence and the car involved in an accident is a complete write-off or irreparable as claimed by the Respondent what the Respondent as Plaintiff would be entitled is the pre-accident value of the vehicle less the cost of the scrap. He relied on the case of ADENUGA V. OKELOKA (2008) ALL F.W.L.R. (PT.398) 292 AT 309 and the case of YA’U VS DIKWA (2001) FWLR (PT 62) (1987) AT 1012.
He drew attention to page 83 of the record where the learned Chief Judge agreed with Appellant’s learned Counsel that a court would not readily make such an order since it was not clear whether the replacement the Respondent was asking was the price of a brand new car and whether the car involved in the accident was a new one. The Learned counsel to the Appellant is of the view that the learned trial Judge having made such a finding ought in the circumstance to have dismissed the Claim as lacking in substance but instead the learned trial Judge said he could order that the cost of repairs of the damaged car could be paid to Respondent instead of replacement. That the learned trial Judge proceeded to make the order for payment of the cost of repair of the car because the Respondent’s evidence was unchallenged. That the case of Adenugba vs Okelola supra relied on by the learned trial Judge was inapplicable. That what the Respondent pleaded was clear. That the Respondent specifically demanded for a replacement of the car on the ground of it being a complete write off, irreparable and “destroyed”. Bello Esq., submitted that the trial Judge was bound by the pleadings of the parties just as the parties are bound by their pleadings. Appellant relied on the evidence of PW1 and PW2 who testified that the car was of complete write off but that they gave the appellant estimate for panel beating and painting of the car because she asked for it. That PW3 also testified that the vehicle is condemned and could not be repaired. That inspite of the evidence of the Respondent and her witnesses the trial Judge still held that the reference made by Respondent and her witnesses in saying the car was a complete write off meant no more than saying that the car could not be conveniently repaired.
Bello Esq., for the Appellant stated that it is not the function of the Judge to substitute his own view for the evidence the parties ought to have given. The Counsel opined the learned trial Judge made out a case completely different from what the Respondent presented before the trial court. He relied on the case of Ojo V. Victino Fixed Odds Ltd (2001) FWLR (Part 398) 93 at 106.
He also submitted that a court cannot award more reliefs than what the Plaintiff asked for. That the Court has no such jurisdiction. He relied on long line of cases listed as follows:-
1. OWKEJIMINOR VS. GBAKEJI (2008) ALL FWLR (Pt.409) 405 at 447.
2. AFRICAN CONTINENTAL SEAWAYS LTD. VS. NIGERIAN DREDGING ROADS AND GENERAL WORKS LTD. (1977) 5 SC 235 AT 245 – 250.
3. UNICAL V. ESSEIN (1996) 12 SC 304 AT 326.
4. HENSON (NIG) LTD. V. PEDRO TECH. NIG. LTD. (1993) 3 NWLR (PT.283) 548
5. EMMANUEL V. DOHERTY (2008) ALL FWLR (PT.445) 1634 AT 1646.
6. IN-TIME CONNECTION LIMITED V. ICHIE (2010) ALL FWLR (PART 543) 1879 AT 1895
7. EKPENYONG V. NYONG (1975) 2 SC 71 AT 81 – 82.
8. MAKANJUOLA V. BALOGUN (1989) 3 NWLR (PT.108) 192 AT 206.
9. ODUWOLE V. DAVID WEST (2010) ALL FWLR (PART 532) 1643 AT 1671 AND
10. AFRI BANK (NIG.) LTD. V. MOSLAD ENTERPRISES LTD. (2008) ALL FWLR (PT.421) 877 AT 892.
In his own reply and submissions on issue 2, N. A. Dammo Esq., submitted that since negligence was found established against the 1st Appellant, Respondent needed to be compensated for her damaged vehicle. He quoted the portion of the Judgment where the trial Judge said she ought not to go home without being compensated because of the manner her case was crafted. That the Respondent actually pleaded in paragraph 13(2) of her Amended Statement of Claim seeking for replacement of her car and that she gave evidence that if her car was to be repaired it would cost her the sum of N962,500.00. That she tendered the estimates in that behalf and that her evidence was not challenged and neither was the evidence of her witnesses controverted by the Appellants. That a community reading of the Respondent’s pleading would show the parties joined issues on the matter of repairs of the car. He cited the cases of:-
1. ONYERO V. NWADIKE (1996) 9 NWLR (PT.471) P.231 AT 238
3. NZE OGWUILE C CHIEF & UTUO (2001) FWLR PT. 68 P.1076 AT 1095
3. CORNOELIUS OLADUNJOYE V. ENGR. BAYO AKINTERINWA & ANOR. (2000) 4 SC PT. 1 P.19 AT 29.
4. ONUKA V. OMOGUI (1992) 3 NWLR PT.230 P.393.
According to learned counsel, the holding of the learned trial Judge to the effect that the reference to the Plaintiff’s car as being a write-off or beyond repairs meant no more than that the car could be repaired was borne out of appreciation of Respondent’s pleading and evidence that the Appellants did not specifically deny averments in the statement of claim. He relied on the cases of:
UGOCHUKWU V. UNIPETROL NIG. PLC. (2002) 7 NWLR PT. 765 P.1 AT 12, 14 AND 16 AND OGBENDE V. OSULA (2004) 2 NWLR (PART 586) P.86 AT 131 – 132.
Dammo Esq., for the Respondent further submitted that the failure of the Appellants to lead evidence in support of their Amended Statement of Defence deemed the Amended of the Statement of Defence as having been abandoned and an admission of the Plaintiff’s evidence. He relied on the cases of THOMAS A. OYAGBOLA V. CHIEF S.A. OKUBULE (1986) 2 C.A. PT.1 P.251 AND FABIAN ONYEJEKWU (1999) 3 SC 1. He concluded his submissions on issue 2 by stating that the remedy available to a party whose vehicle has been destroyed or damaged in an accident is, “restitution interregnum. He relied on the case of ADENUGBA V. OKELOLA (2005) ALL FWLR PT398 P.292 AT 309 to support his argument that the learned trial Judge was right in awarding N962,500.00 to enable the Respondent replace the car.
The evidence of the Respondent on page 42 of the Record of Appeal concerning replacement of her car is as follows;-
“My car is severally (sic) damaged and a write-off. After my discharge, my husband ……………………I took a Mechanic and a Panel Beater for the possibility of repairs. They said it will cost me N962,500.00 and eventually advised me that it is not possible to repair and that it is a complete write-off. They gave me assessment in writing”
These pieces of evidence were relied upon by the Judge to hold that what the Respondent and his witnesses meant was that the car could not be conveniently repaired and not that it could not be repaired.
There was no specific amount claimed for the replacement or repairs of the car on the writ and in the reliefs sought in paragraph 13(1 – 4) of the Amended Statement of claim, yet the learned trial Chief Judge awarded the sum of N962,500.00 in favour of the Respondent as sufficient to repair the damaged car’ The learned trial Judge held the car could still be repaired with that sum of money.
The Appellant resented and submitted that there was no basis for the award of N962.500.00 to repair the Respondent’s car involved in the accident since there was no claim or any relief in that respect.
It is trite law that a Court must severely limit itself to the claims or reliefs of the Plaintiff/Claimant or a counter claim as claimed on the writ of Summons and the Statement of Claim. A court cannot award more or add to the reliefs sought by the Plaintiff. See:
1. CHIEF BELONWU UGOCHUKWU V. COOPERATIVE & COMMERCE BANK (NIGERIA) LTD. (1996) 6 NWLR (PART 456) 524 AT 539 D – G PER KUTIGI JSC (later CJN Rtd).
2. ORI V. UBA (1976) 9 – 10 SC 123.
3. EKPEYONG V. NYONG (1975) 2 SC 71.
The learned trial Judge slipped outside the penumbra of the pleadings and claims of the Respondent in awarding N962,500 for repair of the Respondent’s damaged car when there was no such claim before him. The law needs no restatement that parties as well as the courts are bound by the case put forward before the court both in their Writ of Summons or Originating Summons, pleadings or affidavit. None can travel outside the said court processes. See ANIEMEKA EMEGOKWE V JAMES OKADIGBO (1973) (1) NMLR 192 AT 195 where FATAYI-WILLIAMS JSC, had this to say:-
“It is trite law, and we have restated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. The reason for this rigid rule of pleading and of evidence has been clearly stated by this court in George and Ors. Vs. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at P.77 as follows:
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues: but the cardinal point is the avoidance of surprise.”
In National Investment & Properties Co. Ltd. & Ors. (1969) N.M.L.R. 99 at page 104 we again observed as follows:-
“A plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the Judge did not reject it. It is, of course, the duty of counsel to object to inadmissible evidence and the duty of the trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”
The grant or award of N962,500.00 in favour of the Appellant by the trial Chief Judge was an adventure in denial of Justice to the Appellant as there is no relief claimed to justify or sustain the gratuitous award made to the Respondent. I also call in aid the case of AFRICAN CONTINENTIAL SEAWAYS LIMITED VS NIGERIAN DREDGING ROADS AND GENERAL WORKS LIMITED (1977) 5 SC 235 AT 248 – 249 where the apex court in the land per, AYO GABRIEL IRIKEFE, JSC, reiterated and held:-
“We should like to emphasize here again the need for all courts of trial to limit themselves severely to the issues raised by the parties in their pleadings and no more. To do otherwise, might well result in a denial of justice to one or the other of the two contesting parties See N.I.P.C. LTD & ANOR VS BANK OF WEST AFRICA 1962 -1 A.N.L.R. (PART. 4) AT P.559, KALIO & ORS VS KALIO – 1975 2 SC P.15, N.I.P.C. LTD VS THOMPSON ORGANISATION & ORS (1969) – 1 A.N.L.R.P. 138 GEORGE & ORS VS DOMINION FLOUR MILLS LTD 1963 – 1 A.N.L.R. P71 AND METEALI-PEX VS. A.G. LEVENTIS & CO. LTD. (1976) 2 SC. P.91. The above are but a few of the decisions of this court which have from time to time enshrined the view that, in our adversary system of civil proceedings the parties are to be held bound by their pleadings and that evidence given on any matter not pleaded should be ignore, as such evidence would go to no issues”
The Respondent claimed replacement of the car simpliciter without appropriating any monetary value to the claim. The trial court cannot claim to have assessed the value of replacement of the car nor could he out of his own feelings or sentiments believed that to repair the car could be better instead of replacement she asked for. Again the law is settled that there must be before the court the cost of the damaged vehicle or estimated value before the accident and the probable amount of the damaged car or vehicle to enable the court of trial properly to assess the damages that is commensurate to the level of negligence caused. See the case of S.W. UBANI – UKOMA VS. G.E. NICOL (1962) 1 ALL N.L.R. 105 AT 106.
That being the case issue 2 is resolved in favour of the Appellants.
ISSUE 3
This issue relates to whether the sum of N1,000.000.00 (N1,million) awarded by the learned Chief Judge was not excessive and contrary to principles of law in award of damages in action for negligence. Appellant referred to the finding of the learned trial Chief Judge on page 85 of the Record wherein he based the award in favour of the Respondent on the fact that she led uncontradicted evidence that she was unconscious when the 1st Appellant crashed into her car and only regained consciousness at the Hospital. The Chief Judge also dwelt on the fact that she was in the hospital till 9th January, 2006 from 26/11/2005 and treated for multiple injuries including fractures. That she proved pain and suffering deserving of compensation.
Appellant argued that this court does not form the habit of interfering with the award of damages made by the trial court except where it could be shown that the lower court based the award of damages on wrong principles of law or estimate making it too high or too low and thereby making the award manifestly unreasonable. He relied on.
1. ALHAJI KARIMU ISS V UNION BANK OF NIGERIA LTD (1993) 4 NWLR (PART 288) 502 AT 509 – 411.
2. YA’A VS DIKWA (2011) FWLR (PART 62) 1987 AT 206 (SIC).
3. OGU V. IHEJRIKA (1991) 4 NWLR (PT.185) 388 AT 395
The learned Counsel to the Appellant submitted that there is nothing in the Record of Appeal to indicate what influenced the exercise of discretion by the trial learned Judge to award N1,000,000.00 to the Respondent. He queried what in the opinion of the learned trial Judge -made it peculiar in this case to award the maximum damages claimed by the Respondent. He urged this court to observe that the trial Judge had earlier awarded N62,000.00 to Respondents as costs of medication and treatment. That the award of N1,000,000.00 was wrong. The trial court was bound to give reasons for his decision according to the Appellant. He cited the following authorities viz:
1. OLUROTIMI VS. ISE (1993) 8 NWLR (PT.311) 257
2. UMUNNA VS. OKWORAIWE (1978) 6-7 SC 1 AND
3. ADIM VS. NIGERIAN BOTTLING COMPANY (2010) 4 SCNJ 222 AT 237
Appellant argued that there was no evidence that the Respondent suffered any permanent disabilities, loss of any amenities; she was not amputated anywhere and that she did not lose her occupation as a result of the accident. That no economic factors were taken into consideration before the learned Chief Judge gave the N1,000,000.00 damages to the Respondent. That the award is not only arbitrary but too high and not within the ambit of the law. He finally urged the court to interfere with the damages awarded and reduce same in the circumstance.
In his own argument on issue 3 the learned counsel to the Respondent contended that the learned trial Judge having placed reliance on the case of Odufala Vs Haddad (1973) – LPELR SC 250 per Irikefe JSC was justified in the award of general damages he made in favour of the Respondent. That there is no fixed measure for assessment of damages except the reasonable man’s test. He relied on the cases of:
1. UAC OF NIGERIA PLC VS. MADAM KOLE (2002) FWLR (PT.113) 351 AT 362, 363
2. CHINDO WORLD WIDE LTD. V. TOTAL NIGERIA PLC (2002) FWLR (PT.115) 750 AT 775, AND
3. ALHAJI USMAN & ANOR. VS. MRS. OWOEYE (2003) FWLR (PT.152) 38 AT 51 – 52
The Respondent submitted that general damages flow from negligence complained of. He cited the cases of
(1) INYANG & ORS. V. ENGR. DR. EBONG (2002) FWLR (PT.125) 703 AT 749 – 750
(2) NIGERIAN DYNAMIC LTD. VS. AGUOCHA (2002) FWLR (PT.104) P.630 AT 662 – 663 AND
(3) SPDC VS. KATAD (NIGERIA) LTD. & ANOR (2002) ALL FWLR (PT.263) 675 AT 695.
He submitted that the Respondent proved that the negligence of the 1st Appellant led her to suffer injuries and pains physically and emotionally. That Respondent was hospitalized for about 41 days. He therefore further submitted that with evidence before the trial court the learned trial Chief Judge cannot be faulted. He urged the court to resolve issue three against me Appellants and on the whole to dismiss the appeal as lacking in merit.
I am of the view that in order to properly determine whether the award made in the sum of N1,000,000.00 (One Million Naira) in favour of the Respondent can be justified or supported one must find out whether the Respondent pleaded and prove her entitlement to the sum so awarded and whether it has anything to do with the sum of N62,000.00 awarded in favour of the Respondent which award formed part of what the Appellant accused the Judge of failing to take it into account while he was exercising his discretion to award sum of N1,000,000.00 (One million Naira).
I have earlier on in this Judgment reproduced paragraphs 4 – 10 of the Amended Statement of Claim wherein the Respondent pleaded the fact of the accident and what she considered to be the negligence of the 1st Appellant and what she suffered as a result of the accident.
I stand by my resolution of issue one that the Respondent adequately pleaded and proved that the 1st Appellant caused the accident and that the 1st Appellant was negligent.
There is no doubt that a plaintiff claiming special damages must clearly plead facts that will sustain all items of the special damages but in the case of general damages a plaintiff is only expected to make averment concerning the loss or damages suffered as a result of breach of duty or care to the plaintiff by the Defendant and to show that the monetary claim in general damages falls within the reasonable contemplation of the parties. It must be proved that the sum would be reasonable enough to assuage or compensate for the damages or loss suffered by the Plaintiff. See (1) G.K. INVESTMENTS TELECOMMUNICATIONS PLC. (2009) 15 NWLR (PART 1164) 344 AT 376 G -377 A – C.
In order to properly define the onus and standard of proof concerning the claim for General Damages and special damages a distinction ought to be made between the two types of damages.
In the case of N.N.P.C. VS KLIFCO NIGERIA LIMITED (2011) 10 NWLR (PART 1255) 209 AT 238 RHODES-VIVOUR JSC held:
“Now can what appears to be an admission apply to a claim for special damages or put in another way? Can a claim for special damages succeed because it is admitted? I do not think so. Special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specially and proved strictly.”
In the case of XTOUDOS SERVICE NIG.LTD & ANOR VS. TAISLI (WA) LTD & ANOR (2006) 10 – 11 SCM 409 AT 421 – 422, MAMOUD MOHAMMED, JSC, who delivered the lead Judgment held thus:-
“The other, general damages which when averred as having been suffered the law will presume to be natural or probable consequences of the act complained of but the quantification thereof is at the discretion of the court.”
See also the case of ENGR. SAMUEL D. YALAJU -AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONTRACTORS LTD & ORS (1990) 6 SCNJ 149 AT 172 where KARIBI-WHYTE JSC said:-
“It is well settled law that general damages is the kind of damage which the law presumes to flow from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man – See Lar Vs Sterling Astaldi Ltd (1977) 11/12 S.C. 53; Omonuwa v. Wahabi (1976) 4 S.C. 37. General damages may be awarded to assuage such a loss which flows naturally from the Defendant’s act. It need not be specifically pleaded. It arises from inference of law and need not be proved by evidence. It suffices if it is generally averred – see Incar Vs Benson (1975) 3 S.C. 117. They are presumed by the law to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of substantially exact calculation. – See Odulaja Vs Hadad (1973) 11 S.C.351.
The measure of general damages in terms of money is a matter for the Judge – See Omonuwa Vs Wahabi (supra). It is always necessary for the Judge to make his own assessment of the quantum of such damage – See Dumez Vs Ogboli (1972) 3 S.C. 196. It has been held in W.A.S.A. Vs Kalla 3 S.C. 21 that it is wrong to take into consideration in the award of general damages, matters which should be considered in the award of special damages.”
I am of the settled view that the Respondent specifically pleaded and strictly proved her claim for N62,000.00 (Sixty two thousand Naira) spent on her treatment at the University of Maiduguri Teaching Hospital for drugs and treatment. She tendered receipts to support and justify the claim for Special Damages in the sum of N62,000.00. The learned trial Chief Judge cannot be faulted in awarding N62,000.00 in favour of Respondent as special damages. This award cannot be a bar to the award of general damages.
In respect of the award of N1,000,000.00 (One million Naira) as general damages the Respondent, in addition to the adequate facts pleaded in paragraphs 4 – 10 of her Amended Statement of Claim also pleaded in paragraph 12 of the said Amended Statement of Claim thus:-
“The Plaintiff states that the Defendants have caused the Plaintiff to suffer loss of the use of the car which she uses for her day today activities and now has to engage the services of taxi and assistance from her husband to enable her go to work and return home”
The only answer given to the above pleading by Appellant is a mere denial in paragraph 11 of the Statement of defence wherein the Appellant pleaded:
“11 The defendants deny paragraphs 8 – 13 of the statement of claim and will at the trial contend that the injuries and damages sustained therein were self inflicted and cannot be attributed to the fault of the 1st Defendant”
It must be stated straight away that the Respondent was not cross examined on facts pleaded in paragraph 12 of her Amended Statement of Claim and no evidence was called by the Appellants to challenge the evidence of the Respondent on all facts pleaded by her and on the pleadings of the Appellants. By her evidence before the trial court the Respondent has made out a prima facie case which shifted the onus of proof on the Appellants to lead evidence to controvert the Respondents’ evidence. This they failed to do. They are deemed to have accepted the evidence of the Respondent on the special and general damages awarded in favour of the Respondent in the sum of N62,000.00 for medical treatment and N1,000,000.00 general damages respectively. See the case of O. ARABAMBI BEVERAGES INDUSTRIES LIMITED (2005) 19 NWLR (PART 959) 1 AT 28 E- H TO 29 A, where MUKHTAR, JSC CFR (NOW CJN) said:-
“The appellants did not adduce evidence so the aforementioned document was not produced and admitted in court. The law is clear and settled that pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. A party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings, and where there is none then the averments in the pleadings are deemed abandoned. The same principle of law goes for whatever defence a defendant seeks to rely on in the process of demolishing the case against him. The reproduced averment of the appellants/defendants have therefore not been proved, and so the trial court could not have dealt with it. See Emegokwue vs Okadigbo (1973) NMLR 192; Adimora vs Ajufo (1988) 3 NWLR (Pt.80) page 1 and Olatunfemi and Ors. Vs. Asho and Ors. (2000) 2 NWLR (Pt. 643) page 143.
I am not unmindful of the position of the law that a defendant is not bound by law to call a witness or witnesses to establish his defence where a prima facie case has not been proved by plaintiff, but that position is valid only if (I emphasize) a prima facie case has not been established by the party in whose favour judgment will be given if he fails to adduce evidence. In the instant case, the situation is not so, as the plaintiff did establish a prima facie case. See Section 137 of Evidence Act, 1990, Laws of the Federation of Nigeria, Cap 112.”
The case apply with equal force in this appeal. The principle of law is also settled that where a defendant does not call evidence at the trial the onus of proof on the Plaintiff will be discharged on minimal proof. See A-S AJIDAHUN VS MRS D.O. AJIDAHUN (2000) 4 NWLR (PART 654) 605 AT 645 per GALADIMA, JCA, now JSC who said
“Where the defendant does not call evidence at the trial onus of proof on the Plaintiff will be discharged on a minimal proof. See Anna Vs UBA PLC (1997) 4 NWLR (Part 498) 181 at 189. The evidence before the court has not been challenged or contradicted by the Appellant”
In any event and perhaps more crucial is the fact that Appellants failed to lead evidence in support of paragraph 11 of their Amended Statement of Defence and they did not call any witness to testify in support of all the paragraphs of the Amended Statement of Defence. Therefore all averments therein are deemed abandoned. See FCDA VS ALHAJI MUSA NAIBI (1990) 3 NWLR (PART 138) 270 AT 281 E-F per NNAMANI, JSC of Blessed memory who firmly held as follows:-
“I think it is necessary to refer to some well settled and now trite principles of pleadings in order to resolve this matter pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the Plaintiff is deemed to have accepted the facts adduced by the Plaintiff not withstanding his general traverse. See HURCHFUL VS BINEY (1971) 1 ALL N.L.R. 268, U.D.C.V. LADIPO (1971) ALL N.L.R. 102. J.O. IMANA VS ROBINSON (1979) 3-4 SC 1, 9 – 10”
Issue three is resolved against the Appellants.
In the final analysis issues 1 and 3 are hereby resolved in favour of the Respondent and against the Appellants.
For avoidance of doubt the Judgment of the lower Court declaring/ordering that:-
“1. The 1st defendant drove the 2nd defendant’s vehicle negligently on the 26th day of November, 2005 and hit the Plaintiffs car.
3. The defendants jointly and severally pay the Plaintiff the sum of N62,000.00 cost of the treatment of the injuries the plaintiff sustained as a result of the 1st Defendant’s negligent conduct.
4. The defendants pay the plaintiff N1,000,000.00 general damages” is hereby affirmed and upheld.
The appeal is allowed only in respect of issue 2 dealing with award of the sum of N962,500.00 as cost of repairs of the Plaintiffs damaged car. The appeal fails on all other grounds and in particular on issues 1 and 3 as aforesaid. The Respondent is entitled to costs which I assess at N50,000.00.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft the leading judgment just delivered by my learned brother, P.O. Ige, JCA. I agree with his lordship’s line of reasoning and conclusions reached therein.
To lend credence to the said leading judgment, I have the following few words to state.
As regards issue no. 1, it is clear as a bell that, the totality of the evidence adduced by the Respondent as plaintiff before the trial Court that, the 1st Appellant/1st Defendant drove in a negligent and reckless manner was not challenged and countermanded by the Defence/Appellants. See the cases of: (1) Magaji v. Nigeria Army (2008) 8 NWLR (Pt. 1089) p.338; (2) Monkom v. Odili (2010) All FWLR (Pt.536) p.542 and (3) Offorlette v. State (2000) 12 NWLR (Pt.681) P.415. In the case of Monkom v. Odili (supra) at p.565 paras. B – E, Omokri, JCA (of blessed memory) referred as follows to the legal principle laid down long ago by the Supreme Court on the burden of proof on a defendant on the preponderance of evidence:
ln Imana v. Robinson (1979) 3 – 4 SC 1, (1979) NSCC Vol. 12 Supreme Court held, inter alia that;
Not having given evidence either in support of her pleadings or challenge of the evidence of the plaintiff, the defendant must be assumed to have accepted the facts adduced by the plaintiff notwithstanding her general traverse as contained in paragraph 6 of the statement of defence.
Where a defendant rests his case on that of the plaintiff at the trial, the defendant has taken the enormous risk of blowing a muted trumpet. The trial court has little or no choice but to accept the unchallenged and uncontroverted evidence placed before it by the plaintiff since it was not discredited by the defendant during cross-examination: Okolie v. Marinho (2006) 15 NWLR (Pt.1002) 316 at pages 340 – 341; Otuedon v. Olughor (1997) 9 NWLR (Pt.521) 355. The effect of a party’s failure to call evidence in defence of the claim against him at the trial is that he is presumed to have accepted the evidence adduced against him by the other party. (The underlining is supplied by me for emphasis).
The law is settled that, the evaluation of evidence and ascription of probative value thereto belong to the province of the trial court that heard witnesses and observed their demeanour and an appellate court do not make a practice of interfering with the findings of facts made by the trial court. See the cases of (1) Adebayo v. A-G., Ogun State (2008) 7 NWLR (Pt.1085) P.201 and (2) Unity Bank PLC. v. Bouari (2008) 7 NWLR (Pt.1086) P.372.
It is equally settled law that, it is only in certain circumstances including a situation where the findings of facts by a trial court are demonstrated to be questionably evaluated, wrongly appraised and perverse, that an appellate court will interfere and substitute its own findings for that of the trial court. In the instant matter, I hold that the learned trial Judge did not fall within the ambit of the exception, hence, his findings in this regard cannot be interfered with by this Court.
The second issue is on the propriety of the trial Court’s award of the sum of nine hundred and sixty two thousand, five hundred naira (N962,500=) in favour of the Respondent for the repairs of her damaged automobile, when in fact the Respondent did not make such a claim. With all due respect to the learned trial Judge, he did not only descend into but more seriously, actually dwelt in the arena of the case. He made a completely different case for the parties which neither of them ever anticipated. On this point, the Supreme Court expressed its displeasure in very strong words, at courts which do not confine themselves to materials brought before them by litigants, in the case of: Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (Pt.1225) p.329 at p.340, paras. A – D per Fabiyi, JSC as follows:
Let me start by making the point that the raising of the issue of competence suo motu while writing the judgment equate with what is often referred to as cloistered justice. It is not the duty of a court to embark upon same by making enquiry into the case outside the court. A Judge is an adjudicator: not an investigator: See: Durieminiya v. C.O.P. (1961) NRNLR 70 at 74; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; (1999) 9 NWLR (Pt.620) 552.
A Judge should not raise a point suo motu without hearing from the parties. This is to avoid being accused of descending into the arena. He has no business to bridge the yawning gap in the case of a party to the proceedings. See: Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182; Salubi v. Nwariku (1997) 5 NWLR (Pt.505) 442; Olorunfemi v. Asho & 2 Ors. (1999) 1 S.C. 55; (1999) 1 NWLR (Pt.595) 1.
It is not correct for a court to give a decision on a point of which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised. See Victino Fixed Odds Ltd. v. Joseph Ojo & 2 Ord. (2010) 3 SC (Pt. 1) 1, (2010) 8 NWLR (Pt. 1197) 486, Hambe v. Heze (2001) 2 SC 26 at 39; (2001) 4 NWLR (Pt. 703) 372 at 388. (The underlining is supplied by me for emphasis)
This is an umpteenth time reminder that, the court at whatever strata is not a Father-Christmas and forbidden from doling out reliefs and awards which have not been sought by litigants. To put it in other words, the Court is devoid of jurisdiction to award to a claimant that which he/she did not claim.
Under issue no. 3, the Appellants are of the conviction that, the learned trial Judge having duly awarded special damages in the sum of Sixty Two Thousand Naira (N62,000=), ought not to have again awarded “a whooping” sum of One Million Naira (N1,000,000=) general damages to the Respondent. In essence, the Appellants have no ought and rightly so, against the awarded special damages, but the amount awarded as general damages.
General damages is the type of damages which the law presumes to naturally flow from and assuage the wrong complained of against a defendant. Therefore, general damages need not be specifically pleaded and proved. It arises from inference of law and it suffices if is generally averred. The law presumes it to be the direct and probable consequence of a defendant’s act. Unlike special damages, it is generally incapable of a substantial and exact calculation, as there is no yardstick with which to assess same. Hence, it is such as the court/Judge will award in the circumstances of a particular case, as can be presumed by the expectations of a reasonable and an ordinary man. See the case of: Lar v. Stirling Asaldi Ltd. (1977) 11 – 12 S.C. p.53. Therefore, there is no hard and fast rule for measuring the amount of general damages that can be awarded in terms of money. The Judge in essence is at liberty to make his own assessment of the quantum of such damages. See the cases of: (1) Osuji v. Isiocha (1989) 6 S.C. (Pt.11) P.158 and (2) Odumosu v. A.C.B. Ltd. (1976) 11 S.C. p.55.
The question, whether a party can be awarded damages twice for the same injury is clearly settled that, where a victim of tort has been fully compensated under one head of damages for a particular injury, it is improper to award him damages in respect of the same injury under another head. This is the rule against double compensation. See the cases of: (1) Henry Ezeani v. Abraham Njidike (1964) 1 ALL N.L.R. P.402 and (2) L.C.C.C.C. v. Unachukwu (1978) 3 S.C. p.137. Therefore, the measure of damages in an action for negligence is founded on the common law principle of “restitutio in integrum”, which means that, a plaintiff should recover such a sum as will replace him/her, so far as can be done by compensation in money, in the same position as if the loss has not been inflicted on him/her, subject to the rule of law as to remoteness of damage. Thus, a plaintiff is entitled to be awarded such sum as will fairly compensate him/her for the loss that he/she has actually sustained. See the cases of (1) Lord Citrine (Owners) v. Herridean Coast (Owners) (1961) A.C. p.545; (2) Onaga v. Micho and Co. (1961) ALL NLR p.324 and (3) Kereni v. Odegbesan (1965) 1 ALL NLR p.95.
In the case of L.C.C.C.C. v. Unachukwu (Supra) Mohammed Bello, (J.S.C. later CJN of blessed memory) held that;
Where Chattels were destroyed or damaged, the following rules have been evolved for compensating the party damnified: where goods are destroyed by the wrongful act of defendants, the measure of the damages is the value of the goods at the time of their destruction and. in a proper case, plus such further sum as would compensate the owner for the loss of use or earnings and the inconvenience of being without the goods during the period reasonably required for their replacement. In the case of damage to goods the measure of damages is the cost of their repairs or the difference between their market value at the time of their damage and their value as damaged and, in a proper case, plus loss of use or earnings during the reasonable period of repairs or replacement: See Thomas Kereni v. Bisiriyu Odegbesan (1965) 1 ALL N.L.R.95. (The underlining is supplied by me for emphasis).
As earlier on stated by me above, matters within the scope of special damages must be specifically pleaded and strictly proved by a plaintiff, while the quantum of general damages is premised on the assessment of a trial Judge. In the case of: Shodipo v. Daily Times of Nig. Ltd. (1972) ALL N.L.R. p.842, the Supreme Court held per Elias, J.S.C. that;
——–where one is claiming special damages, the circumstances are such that one is able to put one’s finger on a particular item of loss and say, “I can prove that I lost so much there, so much there, and so much there”, whereas a claim for general damages means this: “We cannot prove particular items, but we can prove beyond all possible doubt that there has been pecuniary loss.”
In the instant matter, the general damages awarded by the learned trial Judge was premised upon the pecuniary loss which has been sustained by the Respondent. This is not far-fetched from the evidence adduced by the Respondent.
Generally, an appellate court will not interfere with an award of damages by a trial court simply because, faced with a similar situation and circumstances it would have awarded a different amount. An appeal court will however interfere with an award by a trial court, where it is clearly shown:- (a) that the trial court acted upon wrong principle of law (by taking into account some irrelevant factors leaving out of account some relevant ones); or (b) that the amount awarded by the trial court is inordinately too high or too low, or (c) that the amount awarded was an entirely erroneous and unreasonable estimate having regard to the circumstances of the case. See the cases of: (1) Newbreed Organization Ltd. v. Erhomosele (2006) 5 NWLR (Pt. 974) p. 499; (2) SPDC (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) p.439 and (3) UBN PLC. v. Ajabule (2011) LPELR – 8239. From the circumstances of the instant matter, I do not think that the general damages of one million naira assessed and awarded by the learned trial Judge is out of all proportion. The assessment or quantum of the damages is not in any way either unfair to the Appellants, who have been adjudged negligent or inordinately too high in assuaging the loss suffered by the Respondent.
It is for the above and further reasons contained in the leading judgment that I also hold that this appeal fails in part on issues one (1) and three (3) and succeeds in part on issue two (2). I abide by the consequential orders made in the said leading judgment, including the order as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have read in draft a copy of the lead Judgment of my learned brother, Ige, J.C.A. I agree with it, and for the reasons which he gives, I too, would dismiss this Appeal with N50,000.00 costs in favour of the Respondent.
Appearances
P. A. Bello Esq. For Appellant
AND
N. A. Dammo Esq. For Respondent
