VIVA MENTHOL & ORS v. MRS.MOJISOLA GARBA & ANOR (2019)

VIVA MENTHOL & ORS v. MRS.MOJISOLA GARBA & ANOR

(2019)LCN/13143(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of April, 2019

CA/L/1095/2016

RATIO

NEGLIGENCE: DEFINITION

The tort of negligence was defined by Bryan A. Garner, the learned Editor in Chief of Black’s Law Dictionary, Eight Edition at pages 1061-1062, to mean, inter alia:

“1. 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 conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. The term denotes culpable carelessness. ——

2. A tort grounded in this failure, usu. expressed in terms of the following elements: duty, breach of duty, causation, and damages.”

The same term was judicially defined by Lord Alderson, B., in Blyth v. Birmingham Waterworks Company (1856) 11 Exch. 781 @ 784, which was adopted by his Lordship, I. T. Muhammad, J.S.C., (as he then was: now Ag. CJN) in Rabiu Hamza v. Peter Kure (2010) LPELR- 1351 (SC) @ pg. 14, paras: E-H, to mean:

“The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man, would not do.”…………………….PER TOM SHAIBU YAKUBU, J.C.A.

DAMAGES: THE PURPOSE OF AWARDING DAMAGES

The purpose of awarding damages is to recompense the Victim of an act for the loss, injury or damages suffered by him. It is trite that a Court must give sufficient reason for its award of general damages to a party. See the case of Osun State Government v. Dalami (Nig.) Ltd & Anor. (2003) 1 NWLR pt. 818, Pg. 72 at Pg. 100.PER TOM SHAIBU YAKUBU, J.C.A.

DAMAGES: GENERAL DAMAGES: THESE ARE GRANTED AT THE DISCRETION OF THE COURT

It is trite that the award of general damages is at the discretion of the Court an there are no laid down rules for the determination of the quantum of damages to be awarded. The Court is however enjoined to exercise this discretion judicially and judiciously. See the case of Ediagbonya v. Dumez Mg. Ltd 1986 3 NWLR Pt 31, 753, where it was held that the two factors to be considered in assessing damage in personal injury cases are the financial loss resulting from the injury and the pain and suffering and Loss of pleasures of life.PER TOM SHAIBU YAKUBU, J.C.A.

DAMAGES: HOW IS IT CALCULATED

The Court in assessing such damages in general principle, will award the injured party such a sum of money as will put him in the position as he would have been in, if he had not sustained the injuries. See the case of Lanivi v. Abidogun (1971) NMLR pg 26. See also Mohammed Shuaibu vs. Aji Maiduguri (1971) NMLR pg 204.PER TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. VIVA MENTHOL

(LEKKI FREE TRADE ZONE ENTERPRISES)

2. MR. BALOGUN HAMMED

3. AIICO INSURANCE PLC – Appellant(s)

AND

1. MRS.MOJISOLA GARBA

2. MR. GANIYU ABOLORE AKIBU – Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appeal is sequel to the decision of the Lagos State High Court of Justice, holden at Lagos, rendered on 4th July, 2016. The respondents were the Claimants in that Court. They were involved in motor vehicles’ accident, which occurred on 5th June, 2010, along the Lekki – Epe Expressway, Lagos. The 2nd appellant who was the driver of a motor vehicle, a Foton Pick Up Truck, belonging to the 1st appellant had left his lane and crashed into the other lane upon which the respondents were traveling in a Kia Picanto saloon car that was being driven by the 2nd respondent. As a result of the accident which was ghastly, the respondents suffered some incapacitating injuries.

The respondents, in consequence of the accident aforementioned, filed an action at the Court below and claimed against the appellants who were the defendants as follows:

“A. N20, 000,000 (Twenty Million Naira) as General Damages.

B. The 1st Claimant claims against the 1st, 2nd and 3rd Defendants jointly and severally the sum of N126, 000, 000 (One Hundred and Twenty six Million Naira)

being damages for loss of income for twenty one years due to the permanent disability she suffered on her broken leg and inability to practice her profession for the next twenty one years before retirement due to the lack of care, recklessness and negligence of the 2nd defendant the driver and agent of the 1st defendant.

C. The 2nd Claimant claims against the 1st, 2nd and 3rd Defendants jointly and severally the sum of N12, 400,000 (Twelve Million Four Hundred Naira) being damages for loss of income for nineteen years due to the permanent disability he suffered on his broken leg due to the lack of care, recklessness and negligence of the 2nd defendant the driver and agent of the 1st defendant.

D. Both Claimants claim the sum of N5, 000,000 (Five Million Naira) special damages against the 1st, 2nd and 3rd Defendants jointly and severally.”

The claim was resisted by the appellants. The parties filed and exchanged their respective pleadings. Thereafter, the case proceeded to trial. The respondents testified for themselves. The appellants fielded a witness who testified for them. Both parties in the course of the witnesses’

evidence viva voce, tendered into evidence some documentary evidence. The learned counsel to the parties in compliance with the directive of the learned trial judge, filed and exchanged their respective written addresses which were subsequently adopted as their submissions on the case. In his judgment, the learned trial judge found for the respondents and awarded them the sum of N20,000,000 (Twenty Million Naira) as general damages. The appellants were distraught with that decision against them, which was why they appealed to this Court. The appeal was anchored on Eight grounds.

In order to effectively activate the prosecution of the appeal, the Appellants’ brief of argument, dated 3rd April, 2017 and filed on 4th April, 2017 was deemed as properly filed by this Court on 5th March, 2018. On their part, the Respondents’ brief of argument was dated and filed on 4th April, 2018.

Kabiru Bello, Esq., who settled the Appellants’ brief of argument, formulated three issues therein for the determination of the appeal. They are, to wit:

(i) Whether there was sufficient evidence before the trial Court to establish a case of negligence against the 2nd

Defendant/Appellant and thereby make the 1st and 3rd Defendants/Appellants vicariously liable.

(ii) Whether the Trial Court was right when it held that the failure of the Appellants to call the maker of Exhibit P and the 2nd Appellant as witnesses was fatal to their defence when the said Exhibit P was originally tendered without objection as Exhibit D by the Respondents in support of their case.

(iii) Whether, having regard to the circumstances of the case, particularly the pleadings and evidence led in support, the trial Court was right in awarding General Damages against the Appellants.

In the Respondents’ brief of argument, settled by Olusola Adeyemi, Esq., the three issues formulated by the Appellants’ learned counsel were recapitulated word for word. I am in agreement with both learned counsel herein, that the aforesaid issues are apt for the resolution of this appeal and they shall be considered and resolved together.

Appellants’ Arguments:

The contentions of the appellants’ learned counsel are that the respondents failed to establish the fact that the 2nd appellant was negligent in the way and manner he drove the Foton Pick

truck on 5th June, 2010 and that it was because of his reckless driving that he crossed the median unto the opposite lane to crash into the Kia Picanto saloon car that was being driven by the 2nd respondent. He also contended to the effect that the respondents did not plead the particulars of the alleged negligence. Reliance was placed on Abubakar v. Joseph (2008) 8 MJSC 1 @ 34; Anyah v. Concorde Hotel (2003) 2 MJSC 160 @ 172; Z.B. Koya v. United Bank for Africa (1997) 1 NWLR (pt.481) 251 @ 291. And that where the fact of negligence was not proved, the failure by the appellants to call the maker of Exhibit P which is the same as Exhibit D was not fatal to the appellants’ defence, more so since there is no dispute with respect to the fact that the contents of Exhibits D and P are the same. Reliance was placed on Nwanji v. Coastal Services (Nig) Ltd (2004) 10 MJSC 154 @ 163. He also argued to the effect that the non – calling of the 2nd appellant to testify at the trial proceedings was not fatal to the appellants’ defence, because according to him, it was for the respondents to succeed on the strength of their case and not on the weakness of the defence. He

referred to Odi v. Iyala (2004) 6 MJSC 92 and Biariko v. Ogwuile (2001) 3 MJSC 1. Furthermore, it was his contention that since there was no proof of any wrongful act of the 2nd appellant with respect to the accident in question, the award of general damages against the appellants by the learned trial judge, was in error and should be set aside. He placed reliance on Union Bank of Nigeria v. Ajabule (2011) 12 MJSC (pt. ii) 115 @ 181- 182.

Respondents’ Arguments:

The learned respondents’ counsel in his responses to the appellants’ contentions, submitted that the three essential ingredients, that is, that the appellant owed the respondents a duty of care; that duty was breached and that the respondents suffered damages arising from the breach, needed to prove the tort of negligence were established by the respondents. He referred to U.T.B. (Nig) v. Ozoemena (2007) 3 NWLR (pt.?) 448; Agbonmagbe Bank Ltd v. C.F.A.O. (1966) 1 SCNLR 367. He also submitted to the effect that the burden of proof on the respondents in order to succeed in a claim of negligence as in all civil matters in a Court of law, is on a balance of probabilities. He placed reliance on

Flash Fixed Odds Ltd v. Akatugba (2001) 9 NWLR (pt.1) 46. He furthermore, submitted to the effect that there is no argument that the 3rd appellant had admitted liability for the bodily injuries suffered by the respondents and paid them the sum of N100, 000 (One Hundred Thousand Naira) as indemnity and also exercised its rights of subrogation by paying the cost of salvaging the damaged and mangled Kia Picanto saloon car that was driven by the 2nd respondent on the fateful day. Therefore, according to learned respondents’ counsel, the respondents are entitled to be indemnified fully for the loss and permanent disability suffered by them as a result of the accident caused by the 2nd appellant. He referred to British India General Insurance Co Ltd v. Kalla (1965) NMLR 347 and the book titled “Insurance Law in Nigeria” authored by Professor Olusegun Yerokun, on the legal principle of subrogation. He also submitted to the effect that the particulars of negligence were pleaded by the respondents at paragraphs 7, 8, 9, 10 and 11 of the statement of claim and vide Exhibits A and N. He insisted that the respondents, having established that they both suffered fatal

bodily injuries, bone fractures and permanent incapacitation were entitled to be compensated by the award of general damages. He referred to paragraphs 14, 15, 19, 22 and 26 of the statement of claim and Exhibits A and N.

Arguing issue 2, the respondents’ learned counsel submitted that there is no cogent and reliable evidence proffered by the appellants in defence to the respondents’ claim against them. He harped on the DW 1’s evidence vis–vis Exhibit ‘O’- his written statement on oath and the fact that under cross examination, DW1 said that he did not witness the facts that he deposed to in the aforesaid Exhibit ‘O’. Hence all that the DW 1 testified about in the matter amounted to hearsay evidence by virtue of Section 38 of the Evidence Act, 2011, which rendered DW 1’s evidence as inadmissible. And with respect to the 2nd appellant who did not testify as the principal actor and tort feasor in the event respecting the accident in question, the learned respondents’ counsel submitted to the effect that the respondents failed to lay any foundation why he was not in Court to testify in this matter, in accordance with Section 39 of the Evidence

Act, 2011. He therefore urged that Section 167(d) of the Evidence Act, 2011 be invoked against the appellants. It was his submission with respect to Exhibit P, that since its maker was not called as a witness, the said document, has no probative value.

With respect to issue 3, learned respondents’ counsel’s submissions were more of a recapitulation of his submissions on issue 1. Hence I have elected not to rehash them. Nevertheless, it is sufficient to state that he insisted that the learned trial judge properly evaluated the pieces of evidence placed before him and was not in any error in entering judgment for the respondents and awarding general damages to them on account of the permanent incapacitation suffered by them because of the negligence of the 2nd appellant and for which the 1st and 3rd appellants were held vicariously liable.

Resolution:

The tort of negligence was defined by Bryan A. Garner, the learned Editor in Chief of Black’s Law Dictionary, Eight Edition at pages 1061-1062, to mean, inter alia:

“1. 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 conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. The term denotes culpable carelessness. ——

2. A tort grounded in this failure, usu. expressed in terms of the following elements: duty, breach of duty, causation, and damages.”

His Lordship continued:

?”It may consist in omitting to do something which ought to be done either in a different manner or not at all. Where any of the situations happen, then liability 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 there on will fail.”

The state of the law which has remained well settled then, is that, in order to succeed in a claim of negligence, the claimant must prove three essential ingredients, namely:

i. That the defendant owed a duty of care to the claimant;

ii. That the defendant breached the duty of care which he owed the claimant and

iii. That the claimant suffered damage which resulted from the breach of care by the defendant.

?There is a plethora of authorities on this principle of the law, such that a few of them will suffice: Dr. Oladipo Kaja v. Alhaji Salawu Oke (2013) 2 S.C.N.J. 1; Chief E. A. Oshe, S.A.N. v. Okin Biscuits Ltd & Anor (2010) 3 S.C.N.J. 381; (2010) LPELR- 2798 (SC); Rabiu Hamza v. Peter Kure (2010) LPELR-1351 (SC) @ pp.19-20; (2010) 3 S.C.N.J. 554; Federal Ministry of Health & Anor v. Commet Shipping Agencies Ltd (2009) 4 S.C.N.J. 173; Alhaji Kabiru Abubakar & Anor v.

John Joseph & Anor (2008) 6 S.C.N.J. 226; Universal Trust Bank of Nigeria v. Fidelia Ozoemena (2007) 1 S.C.N.J. 318.

In the instant case, the learned trial judge, made some indisputable findings, at pages 365- 367, of the record of appeal, thus:

?From the evidence before the Honourable Court, the following facts emerged- The Claimant is a Human Resources Consultant while the 2nd Claimant is the driver of the 1st Claimant and at the time of the accident were employed by Mc Nair (Nig.) Ltd. The 1st Defendant is a Limited Liability Company engaged in production of menthol with registered place of situated at Lekki Free Trade Zone, Ibeju-Lekki. The 2nd Defendant is the driver of the Foton Pick up Truck belonging to the 1st Defendant. The 3rd Defendant is the Insurance Company that insured that issued the Foton Pick Up Truck of the 1st Defendant.

On the 5th day of June, 2010 at about 10:30am, the 1st Defendant?s Foton Pick Up Truck with registration number L.A 165 FZE driven by the 2nd Defendant was involved in a serious accident with a Kia Picanto Car belonging to Mc Nair (Nig.) Ltd., which the Claimants and three others were

travelling in along Lekki-Epe Expressway.

The 1st Defendant?s Foton Pick tip Truck driven by the 2nd Defendant left its lane, crossed over the other side of the road, somersaulted and landed on the Kia Picanto Car going on the opposite direction of the road. As a result of the accident, the 1st and 2nd Claimants were seriously injured including fractured limbs and had to be rushed to Ave Maria Hospital Ltd. where they received treatment from 5th June, 2010 to 1st December, 2010 and from 5th June, 2010 to 1st April, 2011 respectively. As a result of the fractures on their legs, they were transferred and operated upon at Jafag Specialist Hospital. Both Claimants are left with permanent damage which necessitated an iron plate to be inserted into the fractured leg to support the bones.

The accident was reported at Elemoro Division of the Nigerian Police Force and a report dated 15 June, 2010 was issued. ?The Claimant?s employer, McNair got paid for the Picanto Car which was a total wreckage by the 1st Defendant through their Insurance Company- the 3rd Defendant. 1st Defendant also paid the sum of N100,000.00 as medical fees for the Claimants.

The Claimants went back to work in the year 2011 after their treatment which was paid for by their Employer and their family members. The treatment is a continuous one and for life. The board of Directors of McNair rebranded with another company and some of their staff were retained while the Claimants were laid off.”

Flowing from the far reaching findings above, the learned trial judge upon a consideration of the respondents’ claim and the appellants’ defence, found at pages 370-372 of the record of appeal, inter alia:

?The Defendants have stated that it is not in doubt nor in dispute that the 2nd Defendant owed the Claimants a duty of care or that the Claimants sustained injuries as a result of the accident but their argument is whether the 2nd Defendant was in breach of that duty of care. The Counsel to the Defendants argued that in the absence of direct testimony as to the cause of the accident, recourse should be made to the accident report dated 15th June, 2010, that is Exhibit ?P? before the Court.

I have reviewed the accident report and the last paragraph thereof states that ?investigation

revealed that the accident was as a result of a moving truck by the side of the vehicles with Reg. no. LA 165 FZE which pushed him into somersaulting and not as a result of reckless driving?. It is clear and there is no dispute to the fact that the 1st Defendant?s Foton Pick Up Truck driven by the 2nd Defendant, an employee, left his own lane, somersaulted to the other side of the road, crossing the median and landed on the Picanto Car the Claimants were riding as the driver and one of the passengers respectively, crushed it beyond repairs and got the Claimants seriously injured.

I am without any doubt that the 2nd Defendant owed the Claimants a duty of care when they travelled along the Lekki-Epe Expressway on the 5th of June, 2010 and that the said duty of care was breached by the 2nd Defendant and the Claimants suffered injuries. A look at the Claimants? pleadings and exhibits tendered all point to the fact that the Claimants suffered serious injuries (damages) to their bodies as a result of the accident. It is trite that the Claimants have discharged the burden placed on them to prove that there was negligence on the side of

the 2nd Defendant who left his side of the road, crossed over to the other side and landed on the car the Claimants were inside. The 2nd Defendant breached the duty of care he owed other road users and the excuse that a truck pushed him off his way cannot stand notwithstanding that the 1st and 2nd Claimants did not see what caused the truck driven by the 2nd Defendant to summersault from the opposite side of the road to their side of the road. I hold that it does not free the 2nd Defendant of the duty owed the Claimants in particular and other road users in general. I hold that the Claimants have proved the ingredients of negligence on the part of the 2nd Defendant.

Furthermore, the 2nd Defendant who drove the Foton Pick Up Truck of the 1st Defendant and who was a driver employed by the 1st Defendant was never called as a witness to testify as to what really happened on that fateful day. The fact that he did not come to Court to defend this action is fatal to the weight this Honourable Court can attach to Exhibit ?P? which is the Police Report. Also the maker of Exhibit ?P? was also not called as a witness. Both the Defendant and

the maker of Exhibit ?P? did not put themselves forward to be heard by the Court and to be cross examined by the Claimants. The probative value to be attached to Exhibit ?P? calls for questioning and much cannot, be attached to it especially when the maker of Exhibit did not witness the accident and the story of a truck pushing the 2nd Defendant off the road remains first a story and an ordinary excuse by the 2nd Defendant. The statement of any witness including that of the 2nd Defendant was also not placed before the Court. What exactly the Investigating Police Officer did to arrive at Exhibit ?P? remained a ?mystery? to this Honourable Court as the Investigating Police Officer was not called to testify in this case.”

I have considered the contention of the learned appellants’ counsel to the effect that there was no evidence proffered by the respondents which put the liability of the accident of 5th June, 2010, on the 2nd appellant and that the respondents failed to state the particulars of the alleged negligence of the 2nd appellant. Upon my perusal of paragraphs 7, 8, 9, 10, 11 and 12 of the

respondents’ statement of claim, it is as clear as crystal to me that the particulars of the 2nd appellant’s negligence which culminated in the ghastly accident in question, were copiously averred. The pieces of evidence proffered by the respondents which were in tandem with the averments in their pleadings, were not controverted under cross-examination by the appellants’ counsel at the trial. The appellants did not ask any question suggesting that the 2nd respondent either caused the accident or that he even contributed to its occurrence.

?Therefore, I have no difficulty at all in agreeing with the learned trial judge when he found, rightly in my opinion, that it was the way and manner that the 2nd appellant drove and controlled the Futon Pick up truck on the fateful day that led to the occurrence of the accident. He owed the respondents, a duty of care, which was breached by him. The 2nd appellant did not deem it necessary and expedient to offer any explanation as to why he had to leave his lane and crossed to the 2nd respondent’s lane which resulted in the ghastly accident. Of course, there is no law that says the 2nd appellant as a party in the action,

must testify in the proceedings. However, in the peculiar circumstances of the case where his own personal action in the manner he operated and controlled the motor vehicle that he drove on the fateful day and which caused the accident in question, it would have been prudent if he had testified and narrated to the trial Court, his own side of the story. This he felt was unnecessary. The learned trial judge was left with the respondents’ side of the story regarding the occurrence of the accident. He found their testimonies credible and believed them. I have no power to interfere and tamper with his findings of facts which were borne out by the pieces of evidence proffered by the respondents.

In Oshe v. Okin Biscuits Ltd (supra), the appellant was driving his Accura Honda Saloon car along Ajasse Ipo-Offa Road, in Kwara State, and on getting to Ijagbo which was along the same road, a tipper lorry driven by the 2nd Respondent therein, that was coming from the opposite direction from Offa, suddenly crossed from his own lane to the Appellant’s lane. The 2nd respondent was attempting to enter into the premises of the 1st Respondent’s company and consequently

collided with the Appellant’s car, which resulted to damages of the two vehicles whilst the Appellant himself sustained some injuries. The latter sued the respondents and claimed damages for negligence. The trial judge at the end of the trial, found for the appellant and awarded him damages against the respondents. On appeal to this Court, by the respondents, the judgment of the trial judge was overturned. The claimant/Appellant then appealed to the Supreme Court. The evidence of the 2nd Respondent, under cross examination, who had testified as the DW 2 at the trial Court was rehashed thus:

“I was to turn into Okin Biscuits Factory that day when the accident occurred, I did not see the Acurra Legend Car when I started to turn from my lane to the lane of the car (i.e. the other side). The car was coming from the opposite direction when the accident happened. I did not see the car before the accident….. I stayed in the middle of the road for about minutes for other vehicles to pass while trafficking.”

In view of the testimony recounted above, it was held, per His Lordship, Mahmud Mohammed, JSC., (as he then was) that:

“From this evidence of DW2 the 2nd Respondent, which was considered and accepted by the trial Court, the cause of the accident is quite clear. It was the failure of DW2, the 2nd Respondent to have seen and observed that among the vehicles he allegedly stopped in the middle of the road for about 5 minutes to allow to pass before turning into the factory was also PW1 the Appellant’s vehicle as found by the learned trial judge. In other words, the resolution of the question as to who really was responsible for causing the collision between the two vehicles of PW1 the Appellant and DW2 the 2nd Respondent rested principally on the question of the credibility of the respective evidence put in place before the trial Court by the parties. This is an area which by law, the Court below is not expected to venture into if the decision of this Court in many cases including Adebayo Bashorun v. Johnson Olorunfemi (1989) 1 S.C.N.J. 23 at 31 is taken into account.”

In the end, the appeal was allowed and the judgment of this Court was overturned, whilst that of the trial High Court, was restored in the appellant’s favour. In the instant case, since there was no other

version of the event of 5th June, 2010 which precipitated the accident, apart from the respondents’ version, the learned trial judge who had the opportunity of seeing, hearing and watching the demeanor of the respondents who testified before him was eminently more qualified than I, to form his opinion on their pieces of evidence before believing them. That is why the appellate Courts are loathe to interfere with findings of facts by trial Courts, more so where such findings are borne out of the pieces of evidence proffered and placed before the trial Courts. Woluchem v. Gudi (1981) 5 S.C. 291; Ezeonwu v. Onyechi (1996) 3 NWLR (pt. 438) 499; Stephen Haruna v. Attorney General of Federation (2012) LPELR-7821 (SC).

?The learned appellants’ counsel contended further that the learned trial judge was in error for not placing any probative value on the DW 1’s evidence and Exhibit ‘O’. The said witness had deposed to his written statement on oath- Exhibit ‘O’. The reason why the DW 1’s evidence was taken with a pinch of salt was not far- fetched. Under cross- examination, he had admitted that he did not witness the facts that he deposed to in his written statement

on oath, that is, Exhibit ‘O’. So, what was the evidential value of the DW 1’s evidence and Exhibit ‘O’? How could the learned trial judge, have believed such a witness? His evidence resided clearly in the ream of hearsay evidence and the same was caught in the web of Section 38 of the Evidence Act, 2011, which rendered it inadmissible. The appellants also made a lot of heavy weather of Exhibit P. Now, why was the maker of Exhibit P not called as a witness by the appellants who needed him to explain how another motor vehicle had pushed the 2nd appellant’s Futon Pick Up truck off its lane, to collide with the 2nd respondent’s Kia Picanto Saloon car, on the latter’s own lane? Essentially, with the absence of the maker of Exhibit P, through whom the same Exhibit P, would have been tested by fire in the furnace of cross – examination, there was no reason for the learned trial judge to have ascribed any probative value to the said Exhibit P. Hence, the bottom line is that with the non availability of the 2nd appellant’s evidence and the worthlessness of Exhibit P, there was no contrary evidence proffered by the appellants to explain the cause of the accident in

question, apart from the respondents’ testimonies, which were cogent, credible and believable, to the effect that it was the 2nd appellant’s recklessness which caused the accident. He thereby breached the duty of care he owed other road users, such as the respondents herein.

In view of the foregoing, I have no difficulty in resolving issues 1 and 2 against the appellants.

With respect to the question of the award of general damages to the respondents, upon which issue 3, is predicated, the learned trial judge had approached and determined it at pages 374- 376 of the record of appeal, thus:

?On claim (a) which is Twenty Million Naira (N20, 000, 000) general damages, I have this to say that it is trite that general damages are such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are immediate, direct and proximate result, or such as necessary result from the injury or such as did in fact result from the wrong.

See the cases of L.M.N.Ltd V. Nnachukwu (2004) 6-7 Sc Pg 89 At 99, Julius Berger V Omogui (2001) Sc Pg. 185 at Page 193 and ACB V Okonkwo (1997) 1 NWLR Pg 194 At Pg. 197.

The question to be determined by this Court at this juncture is what is the quantum of damages to be awarded to the Claimants? The DWI under cross examination stated that the N100, 000.00 compensation paid to the Claimants is full and final indemnity for the damages suffered by the Claimants.

The Claimants have tendered medical bills incurred by them which was not disputed and gave evidence to the fact that they were laid off by their former employer based on the fact that they could no longer perform optimally as a result of fatal injuries suffered as a result of the accident. There is evidence that the Claimants? lives are no longer the same as a result of the injury sustained through the accident. The Defendants have not been able to discredit this. The 1st Claimant, a Human Resource Manager is no longer able to practice her profession which requires a lot of mobility and the Claimant, a driver also testified that he has not been able to get a driving job because he can no longer sit up to two hours without being in pain. The defendants have not challenged these evidence.

I hold that it is in the interest of justice for the Claimants to be compensated for the bodily injuries and resultant effect in general damages.

From the foregoing therefore, I hold that the 1st and 2nd Claimants are entitled to general damages to be determined by the Court. The Court in assessing such damages in general principle, will award the injured

party such a sum of money as will put him in the position as he would have been in, if he had not sustained the injuries. See the case of Lanivi v. Abidogun (1971) NMLR pg 26. See also Mohammed Shuaibu vs. Aji Maiduguri (1971) NMLR pg 204. Let me state emphatically here before I come to the conclusion of this judgment that the right to an award of damages in favour of the Claimants does not depend on whether or not they are employed or unemployed. It is a right derived from the pain and injury sustained as a result of the accident caused by the 2nd Defendant.?

My Lords, on the restatement of the law and the principles, by the learned trial judge, guiding a trial Court in the award of general damages for the tort of negligence to a successful claimant, I am in accord with his Lordship, to the conclusive effect that the respondents were most deserving of the award of general damages, on the facts and circumstances of their claims. I am satisfied that the measure and quantum of general damages awarded to the respondents, was appropriately founded on the well settled principle of restitituo in integrum, that is, putting the claimants back in the

position they would have been, as far as money can do it, if not for the injuries they suffered for which they were being compensated. Oando Nigeria Plc v. Adijere West Africa Ltd (2013) 5 SCNJ 285; National Electricity Power Authority v. Alli & Anor. (1992) 10 SCNJ 34 @ 49.

The law has remained settled to the effect that, as a matter of general principle, the appellate Court should not interfere with an award of damages by trial Courts simply because if they were faced with similar situations and circumstances, they would have awarded different amounts, than that awarded by trial Courts. The appellate Courts only interfere with awards made by trial Courts, where it is clearly shown:

(a) That the trial Court acted upon wrong principle of law, or

(b) That the amount awarded by the trial Court is ridiculously 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.

Oduwole & Ors v. West (2010) 10 NWLR (pt.1203) 598; (2010) LPELR-2263 (SC); Cameroon Airlines v. Otutuizu (2011) LPELR-827 (SC).

I am satisfied that the aforementioned exceptions do not resonate with the award by the learned trial judge, of the general damages to the respondents, in the instant case. Hence, I have no reason to interfere with it. In sum, issue 3 is also resolved against the appellants.

Having resolved all the issues in this appeal against the appellants, the appeal is hereby dismissed. Consequently, the well considered judgment, rendered in re- Suit NO: LD/1447/2012, on 4th July, 2016, by O.O. Oke, J., of the Lagos State High Court of Justice, holden at Lagos, is accordingly affirmed.

The costs of the appeal is assessed at N400,000,00, in favour of the respondents, against the appellants, jointly and severally.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, TOM SHAIBU YAKUBU, JCA and I agree with the reasoning and conclusion of my brother and will only add a few words of mine.

I want to re-iterate that for an appellate Court to interfere with the award of damages, there are certain conditions that must be present. In ANIEKAN AMOS PETER v ASST. INSPT. GEN. OF POLICE ZONE 6 CALABAR (2001)

LPELR – 5346 (CA) this honourable Court held thus;

?It is settled law that the award of general damages as well as exemplary damages is a matter which is entirely at the discretion of the trial Court and this Court will not interfere with such an award unless:- (a) Where the trial Court acted under a mistake of law; or (b) where it has acted in disregard of principles; or (c) where it has acted under misapprehension of fact; or (d) where it has taken into account irrelevant matters, or (e) where injustice will result if the appeal Court does not interfere; (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damage.”

per OPENE, JCA (PP. 7-8, PARAS. F – C)

None of these exceptions are present in the instant case. Flowing from this, I also agree that the appeal is unmeritorious and it is hereby dismissed. I abide by all other consequential orders in the lead judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA afforded me the opportunity of reading before today a draft copy of the lead judgment

just delivered.

I adopt the judgment as mine with nothing further to add.

Appearances:

Kabiru Bello, Esq, with him, Babatunde Adegbite, Esq.For Appellant(s)

…For Respondent(s)

Appearances

Kabiru Bello, Esq, with him, Babatunde Adegbite, Esq.For Appellant

AND

…For Respondent

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