WO2 OBAFEMI ABIODUN ANTHONY v. BAKO GIWA & ANOR (2011)

WO2 OBAFEMI ABIODUN ANTHONY v. BAKO GIWA & ANOR

(2011)LCN/4674(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of July, 2011

CA/J/409/2007

RATIO

SPECIAL DAMAGES: WHETHER A CLAIM FOR SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND STRICTLY PROVED

The law is well settled that a claim for special damages must be specifically pleaded and strictly proved. On the nature of special and general damages the Supreme Court in Xtoudos Services Nig. Ltd, Vs Taisei (W.A.) Ltd. (2006) 6 SC 200 at 215 per Ogbuagu, JSC stated thus: ”Special damages are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and therefore they must be claimed specially and proved strictly, while general damages are such as the law will presume to be the direct natural or probable consequence of the act complained of. PER KUDIRAT M.O. KEKERE-EKUN, JCA

ASSESSMENT FOR DAMAGES: WHETHER A TRIAL JUDGE CANNOT MAKE HIS OWN INDIVIDUAL ASSESSMENT OF SPECIAL DAMAGES

INTERPRETATION OF STATUTE: PROVISION OF SECTIONS 136 AND 137 OF THE EVIDENCE ACT AS TO ON WHOM RESTS THE BURDEN OF PROOF IN A CIVIL CASE

sections 136 and 137 of the Evidence Act provide as follows: 136. “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 137. (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no other evidence were given on either side, regard being had to any presumption that may arise on the Pleadings.” PER KUDIRAT M.O. KEKERE-EKUN, JCA

SPECIAL DAMAGES: WHETHER A CLAIMANT MUST GIVE COGENT AND CONVINCING EVIDENCE TO BE ENTITLED TO SPECIAL DAMAGES

Special damages cannot be proved by default of pleading. The claimant must give cogent and convincing evidence to be entitled to the relief. PER KUDIRAT M.O. KEKERE-EKUN, JCA

JUSTICES

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

WO2 OBAFEMI ABIODUN ANTHONY Appellant(s)

AND

1. BAKO GIWA
2. THE NIGERIAN BOTTLING CO. PLC Respondent(s)

KUDIRAT M.O. KEKERE-EKUN, JCA (Delivering the Leading Judgment): This is an appeal against the award of special and general damages made in favour of the appellant herein as plaintiff in the judgment of the High Court of Benue State, Makurdi Division delivered on 17/10/2005. The appellant, by an amended statement of claim dated 23/5/04 sought special and general damages against the respondents in respect of the amputation of his left leg as a result of a motor accident wherein he was knocked off his motorcycle by the 1st respondent in the course of the 1st respondent’s employment as a driver with the 2nd respondent. In paragraph 31 of his amended statement of claim he claimed as follows:
31. “Whereof the plaintiff is aggrieved having suffered severe special and general damages as a result of the negligence of the 1st defendant and claims against the defendants on basis of vicarious liability as follows:
A. The sum of N810, 000.00 (Eight Hundred and Ten Thousand Naira) being medical expenses incurred by the plaintiff for his six hourly injection for period of his treatment on the six hourly injection. And a further sum of N30, 800.00 being the balance of medical expenses already paid to Federal Medical Centre by the plaintiff.
B. The sum of N90, 000,00 (Ninety Thousand Naira) being costs of replacement of his destroyed LoveJet Suzuki Motorcycle.
C. The sum of N500, 000, 000.00 (Five Hundred Million Naira) compensation/general damages for the sudden and permanent loss of the plaintiff’s left leg as a result of the accident of 26/6/2002 caused by the 1st defendant and for the severe inconvenience, hardship, stress and numerous disabilities for life arising from the said accident. ”
The parties duly exchanged pleadings, called witnesses in support of their respective cases and tendered exhibits. Both learned counsel addressed the court. At the conclusion of the trial the learned trial Judge in a considered judgment found the 1st respondent liable in negligence and found the 2nd respondent vicariously liable for the negligent act of the 1st respondent. He awarded damages in favour of the appellant as follows:
Paragraph 31 (a): N6, 000.00 and N30, 800,00 respectively.
Paragraph 31 (b): N40, 000.00.
Paragraph 31 (c): N400, 000.00.
Grand Total: N476, 800,00
The appellant was dissatisfied with the award of N6,000.00 under paragraph 31 (a) and N400, 000.00 under paragraph 31 (c) of the amended statement of claim and filed a notice of appeal dated 9/11/06 containing three grounds of appeal.
In his brief of argument dated 23/1/08 and filed on 25/1/08, settled by B.U. OHENE ESQ. the appellant distilled two issues for determination thus:
1. Whether or not the appellant has proved special damages of N810, 000.00 (Eight Hundred and Ten Thousand Naira) claimed from the facts and evidence adduced before the trial court.
2. Whether or not the assessment by the trial court of the general damages of N400, 000.00 (Four Hundred Thousand Naira) as against N500, 000, 000.00 (Five Hundred Million Naira) claimed by the appellant is fair and reasonable in the peculiar circumstances of this case.
The respondents, in their brief of argument dated 25/2/08 and filed on 29/2/08, settled by Amuwa Olatunde Esq., adopted the issues formulated by the appellant. The appellant filed a reply brief dated and filed on 13/3/08 in response to the respondents’ brief, At the hearing of the appeal on 23/5/2011 B.U. Ohene Esq. and Amuwa Olatunde Esq. adopted their briefs of argument and urged their respective positions on the court. Issue 1
Learned counsel submitted that the appellant’s claim for N810, 000.00 as special damages, being the amount incurred by him for the purchase of “fortune” injection prescribed and used by him for the treatment of his left leg was proved on the balance of probabilities. He referred to the appellant’s pleading and evidence before the lower court to the effect that fortune injection was prescribed and administered to him throughout the period of his treatment, a total of 136 days at the rate of N1, 500.00 per unit. He referred to Exhibits 81 83 and an affidavit sworn to at the High court of Benue state, Makurdi in respect of some misplaced receipts. He submitted that the respondents did not seriously deny the facts pleaded by the appellant in this regard. He submitted that the averment in paragraph B of the statement of defence at page 16 of the record to the effect that the 2nd respondent was solely responsible for the appellant’s medical bills while he was on admission at the Federal Medical Centre, Makurdi, and that the appellant could not have been prescribed 6-hourly injections because the bleeding stopped within 24 hours, was not supported by any evidence. He referred to: united Bank of Nigeria Plc. v. Adon (2002) NWLR (145) 674 at 684 H. he submitted that the pleading is deemed abandoned. He relied on:  Ironbar v. Cross River basin & Rural Development Authority & Anor. (2003) FWLR (165) 375 at 389 A-C.
He submitted that the appellant’s evidence on the said medical expenses remains unchallenged and ought to have been accepted by the court below as the true version of events. He submitted that the pleading is deemed abandoned. He relied cited the case of : Managge v. Gwamma (2004) All FWLR (222) 1417 at 1626 C – D; Strabag Construction Nig. Ltd v. Adeyefa (2001) FWLR (60) 1538 at 1554 E-F; Baba v. Civil Aviation (1991) 2 NSCC (145) at 152 lines 43 – 47. He referred to the evidence of Pw2 and Pw3 at pages 6t – 67 of the record and urged the court to resolve this issue in the appellant’s favour.
In response, learned counsel for the respondents submitted that the averment in paragraph B of the statement of defence was sufficient denial of the appellant’s averment in paragraph L2 of his amended statement of claim. He submitted that the burden is on the appellant to prove strictly by oral and documentary evidence that fortum injection was actually prescribed for him at the Federal Medical centre by Pw3. He noted that the appellant tendered Exhibit 82 as the  prescription issued by the medical doctor at the Federal Medical Centre. He further observed that PW3 the medical expert tendered Exhibit K on the appellant’s behalf. He referred to his medical opinion given in reaction to questions put to him under cross examination wherein he queried Exhibit B2 on the ground that if the said injection were prescribed for the patient, it would have been within 72 hours of the injury and not after he had been discharged. He noted that PW3 stated that Exhibit B2 dated 16/8/02 could not have been issued by the Federal Medical Centre because the appellant was discharged on 15/8/02. He submitted that the learned trial Judge believed this evidence and that his findings did not only represent the true position legally but was unassailable in the face of the evidence of pW3, an expert who treated the appellant at the Federal Medical Centre. He submitted that the claim for N810, 000.00 for the fortum injection is an item of special damage, which the claimant must prove strictly. He referred to: Beniamin obasuyi & Anor. vs Business centres Ltd. (2000) FWLR (19) 1722 at 1742; Vodo Kanal project Nig. Ltd v. Mr. rick Oladele & 2 Ors. (2004) All FWLR (239) 883 at 907.
He submitted that having regard to the oral and documentary evidence before the court and the evidence of pW3, the learned trial Judge correctly held that Exhibits 82, C1 and C2 were concocted to deceive the court in awarding special damages that were not strictly proved. He cited the case of: Nigerian bottling Co. Ltd. v. Dada (2004) All FWLR (205) 231 at 249. He urged the court to answer this issue in the negative.
In his reply brief learned counsel for the appellant maintained that the respondent’s denial in paragraph B of their statement of defence was evasive. He submitted that there was no evidence before the court that the 2nd respondent was present when the drugs were prescribed or that it could have known the dosage and length of time it was to be taken. He argued that the evidence of PW3 revealed that there is a difference between “Fortune” and “Fortwin” injections and that what PW3 rejected was the use of “Fortwin” injection at 6 hourly intervals for 136 days. He maintained that what was prescribed for the appellant was “Fortune” injection and not “Fortwin.” He submitted that the respondents’ contention that Exhibits B2, C1 and C2 were concocted amounts to a criminal allegation of fraud, which must be specifically pleaded and strictly proved beyond reasonable doubt. He submitted that the respondents failed to challenge the affidavit regarding the loss of the remaining purchase receipts for “Fortune” injection. He submitted that the claim for N810, 000.00 being the cost of Fortune injections administered for 136 days at six-hourly intervals is deemed admitted.
The law is well settled that a claim for special damages must be specifically pleaded and strictly proved. On the nature of special and general damages the Supreme Court in Xtoudos Services Nig. Ltd, Vs Taisei (W.A.) Ltd. (2006) 6 SC 200 at 215 per Ogbuagu, JSC stated thus:
”Special damages are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and therefore they must be claimed
specially and proved strictly, while general damages are such as the law will presume to be the direct natural or probable consequence of the act  complained of.”

In so far as special damages are concerned, a trial Judge cannot make his own individual assessment but must act strictly on the evidence before him, which he accepts as establishing the amount to be awarded. See: Otaru & Sons Ltd. Vs Idris & Anor. (1999) 4 SC (Part II) 87 at 100; Dumez Nig. Ltd. Vs Patrick Nwaka Ogboli (1972) 1 ALL NLR 241; (1972) 3 SC 196 at 204 – 205.In paragraph 12 of the amended statement of claim, the appellant pleaded thus:
12. “That in the course of the plaintiff’s treatment at the Federal Medical Centre, the medical doctor in charge prescribed a periodic injection, which was administered to the plaintiff on a 6-hourly basis (being the type available). Each of the 6-hourly injections cost the plaintiff N1, 500.00 (one thousand five hundred naira). The plaintiff was administered the injection for a total of 136 days, Plaintiff will at the trial rely on some of the prescription sheets from the Federal Medical Centre, Makurdi.”
In answer to these averments, the defendants pleaded thus in paragraph g of their statement of defence:
8. “The defendants deny paragraphs 11 and 12 of the claim and shall require strict proof of same from the plaintiff at the hearing of this suit and avers that the 2nd defendant was solely responsible for the medical bills of the plaintiff at the Federal Medical Centre as the Doctor-in-charge did not prescribe hourly injection for the plaintiff as the bleeding stopped within 24 hours of admission at the Federal Medical centre, hence no 6-hourly injection was administered for a total of 136 days”
The appellant further averred in paragraph 7 of his reply to the statement of defence:
7. “In further reply to paragraph 8 of the defence the plaintiff positively avers that hourly injection called fortune injection were prescribed by the Doctor-in-charge of plaintiff’s treatment at the Federal Medical Centre Makurdi, which were purchased and administered on 6 hourly basis for 136 days for the general healing and recovery of the plaintiff. The plaintiff shall rely on the prescription sheets from the Federal Medical Centre Makurdi, the available payment receipts from the Federal Medical centre Makurdi and from Med-pearle Pharmacy and stores, Makurdi.
In the process of preparing for this case and assembling his documents shortly before the 18/10/2005 the plaintiff discovered that many of the Purchase receipts from the Federal Medical centre Makurdi and from Med-pearle pharmacy and stores Makurdi are missing and all reasonable efforts to trace the said receipts proved abortive. The plaintiff shall rely on the police extract and the affidavit of the plaintiff as to the loss of documents, both of which are hereby Pleaded.”
Learned counsel for the appellant has argued that the averment in the respondents’ statement of defence is vague and evasive and that they did not seriously deny the averments. with respect to learned counsel, I do not share that view. sections 136 and 137 0f the Evidence Act provide as follows:
136. “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137. (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no other evidence were given on either side, regard being had to any presumption that may arise on the Pleadings.”
A careful examination of paragraph 8 of the statement of defence shows that it is a clear denial of the appellant’s averment in paragraph 12 of the amended statement of claim. Even if the denial were vague or evasive, as contended by the appellant, being a claim for special damages the onus was on the appellant to prove his claim strictly. Learned counsel contended that the respondents failed to lead evidence to support their pleading that they were solely responsible for his treatment at the Federal Medical Centre. In the circumstances of this case, it is the appellant who would fail if no evidence were led on either side. He therefore had the burden of proving that he spent N810, 000.00 on injections prescribed by the Medical Centre. Special damages cannot be proved by default of pleading. The claimant must give cogent and convincing evidence to be entitled to the relief.In support of his claim, the appellant who testified as PW1 stated inter alia:
PW1: I was taken to the theatre of the Federal Medical Centre, Makurdi where my left leg was amputated and a POP bandage put in its place. I was placed on drugs and injection at the Medical centre. I took the drugs and injections, one of the drugs is called Fortune. These are the medical papers in respect of my said treatment. They are three in number.
court: Admitted as Exhibits BI to 83 in their serial dates respectively.
PW1: I have other receipts for my medical treatment but some got lost and I reported the loss to the Divisional police officer (D.P.O.) ‘B’ Division High Level Makurdi …. A police extract was given to me for the loss, which I took to the High court and swore to an affidavit for the loss. This is the said police extract.
Court (overruling objection): The documents are admitted in evidence as Exhibit C1 for the affidavit and Exhibit C2 for the police extract.
PW1: I was discharged from the hospital because the workers there were on industrial action and were not coming for work….I completed my treatment at the Air Force Medical centre, Makurdi. I was given one injection per six hours for the treatment of my amputated leg, I took the injection for 136 days. I bought each of the injection (sic) at N1, 500.00 per one. I spent N810, 000.00 on the cost of the injection. I was later discharged after completing treatment at the Air Force Medical Centre, Makurdi. I was discharged on 21/12/02.”
Under cross-examination (at page 61 of the record) he stated thus:
PW1:” I have seen Exhibit B2. It contains the prescription the medical doctor at the Federal Medical Centre made. From the prescription in Exhibit B2 the injection is 12 hourly for 3 days, etc. Apart from Exhibit B2 I have no other prescription from Federal Medical Centre tendered in this case. Exhibit B3 is dated as Exhibit B2. I bought the injection receipted in Exhibit B3 on the same day the prescription in Exhibit B2 was made. There is no other receipt for purchase of the injection that I tendered here than the one I tendered in Exhibit B2 and B3.”
PW3, Dr. Peter Msuega Inundugh, was subpoenaed to testify on behalf of the appellant. He testified that he was the one who attended to PW1 when he was rushed to the emergency unit of the Federal Medical Centre, Makurdi on 26/6/02. He stated that he had a below the knee amputation the following day, 27/6/02. He tendered the medical report, which he prepared in respect of the treatment. It was admitted in evidence as Exhibit K. He testified thus at pages 65-66 of the record:
PW3:”Several injections and drips were administered on plaintiff He was given pain killers as well, as he was in pain. We gave him two units of blood, as he had lost much blood. We also gave him very strong antibiotics to take care of infection. We also gave him vitamins to build him up, He also had therapy treatment. The prescription in Exhibit B2 was administered on him. Fortwin’s medical name is pentagocyin. It is a strong antibiotic. There is also another strong antibiotic called Fortune. That is all.” Cross-Examined by Mr. Olatunde: Plaintiff was alert when I saw him at the Federal Medical Centre on 26/06/2002 apart from the crushed injury in the leg, he had some few abrasions on the body which were quite insignificant. I administered the injection called fortwin on him. I cannot remember the duration I managed him on the fortwin injection. Exhibit B2 is the prescription from us. The prescription in Exhibit B2 is questionable because it ought to have been given at a critical period which was not the case as it came after the critical moment of plaintiff’s injury;
Secondly it has two prescription numbers contrary to the one prescription number we maintain, If fortwin was to be prescribed for the patient it should have been within 72 hours of the injury not when he was discharged to go home, The prescription in Exhibit B2 dated 16/08/2002 could not have been from our Medical Centre as he was discharged on 15/08/2002. All the doctors in our unit attended to plaintiff. r led the operation on his leg. Exhibit 82 is doubtful.
Exhibit G2 came from us, Exhibit G3 and G4 also came from us. The cost of the operation was N12000.00. The major operation on his leg was once, while the others were mere debriment or dressing of the injury. The wound infection was managed while plaintiff was in hospital Fortwin injection was administered twice a day on the patient and it was to last for not more than two days, We do not prescribe fortwin for more than 72 hours,”
(Emphasis mine)
Having given careful consideration to the evidence reproduced above, the learned trial Judge came to the conclusion, rightly in my view, that the appellant was only able to prove that he paid for four units of Fortwin injection at N1, 500.00 per unit. It is unfortunate that some of the receipts got missing. The court is however not permitted to speculate on documents not before it. I am of the view that the learned trial Judge was right to rely on the evidence of PW3, an expert who played a significant role in the appellant’s treatment when he testified that an antibiotic as strong as Fortwin could not be administered on a patient more than twice a day or for more than 72 hours. Learned counsel for the appellant made heavy weather of the fact that there are two types of antibiotics with similar names, namely Fortune and Foftwin, and that contrary to the evidence of PW3, the one prescribed for PW1 was Fortune and not Fortwin. With due respect to learned counsel any evidence to counter that of PW3 could only come from another expert. Not only would the expert be required to differentiate the two types of medication, he would also have to prove that it is possible that a 6-hourly dose of the antibiotic could be prescribed for a patient for 136 days. PW3 also queried the fact that Exhibit B2 had two prescription numbers, which was contrary to single number system maintained at the medical centre. Another discrepancy pointed out by PW3 was the fact that the appellant was discharged on 15/8/02 while Exhibit B2 is dated 16/8/02 and could therefore not have been from the Medical Centre. These are vital issues. The appellant failed to call any evidence in rebuttal. PW3 was subpoenaed to testify at his own request. He cannot reject the evidence because it is unfavourable to him. He did not challenge PW3’s qualifications. In the circumstances I find no reason to disturb the finding of the learned trial Judge under this head of special damages. This issue is accordingly resolved against the appellant.
Issue 2
In support of this issue, learned counsel for the appellant submitted that the respondents failed to plead any material facts in their statement of defence to counter the averments in the amended statement of claim, which set out in detail the necessary facts, particulars and circumstances in support of the claim for general damages. He submitted that evidence elicited from the appellant under cross-examination in respect of facts not pleaded goes to no issue. He referred to: Shell Petroleum Co. Ltd. v. Ifeta (2001) FWLR (1614 at 1626 F -H; Flash Fixed Odds v. Akatugba (2001) FWLR (76) 709 at 726 B – D. He submitted that the appellant’s evidence was unchallenged and ought to have been accepted by the learned trial Judge as proof of the amount claimed. He relied on: Mobil Producing ltd. v. Monokpo (No.2) (2001) FWLR (78) 1210 at 1251 F – G; Baba v. Civil Aviation (1991) 2 NSCC 145 at 161 lines 12 – 17 & 39 – 41; Strabag construction Nig. Ltd. v. Adeyefa (2001) FWLR (60) 1538 at 1554. He submitted that an award of general damages in a case such as this should be generous and not grossly low and must be such as to reasonably reflect the intensity of the appellant’s pain and suffering. He cited the following cases: C & C Construction Co. Ltd. Vs Okhai (2004) FWLR (190) 1433 at 1453 G – H. He submitted that consideration is usually given to depravation of professional capacity such as the capacity to practice his profession as a pilot technician engineer in this case as well as his normal military and other social functions and where he has been denied the ordinary amenities of life. He referred to: S.C.C. Nig, Ltd. vs Elemadu (2004) ALL FWLR (230) 1168; New Breed Organisation Ltd. v. J.E. Erhomosele (2006) 26 NSCOR 47 at 95 A – G. He maintained that the appellant proved his case on a balance of probabilities.
In response to this issue, learned counsel for the respondents submitted that the sum of N400, 000.00 as general damages was reasonable in the circumstances of this case. He submitted that the vital consideration in an award of general damages is the assessment of the learned trial Judge based on the oral and documentary evidence before the court and the peculiar circumstances of the case. He referred to the elaborate evaluation of the evidence of PW1, PW2 and PW3 at page 83 of the record and submitted that the learned trial Judge took into consideration the appellant’s age of 52 years, the fact that he was still employed at the Nigerian Air Force Base, Makurdi and the fact that there is no threat to his expectation of life. He referred to: UBA Ltd. & Anor. Vs Ngozi Achoru (1990) 6 NWLR (156) 254 at 280 – 281.
He submitted that the learned trial Judge compared the circumstances of this case to other similar cases, such as: Hansanic International Ltd. vs Martin Usang (2003) FWLR (149) 1563, where the respondent suffered total blindness in one eye and was awarded N500, 000.00. He submitted that an appellate court would not interfere with the findings and verdict of a trial court on quantum of damages unless the trial court acted upon some wrong principle of law or that the amount awarded was so extremely high or so very low as to make it, in the opinion of an appellate court an entirely erroneous estimate of the damage to which the plaintiff is entitled, See: Onaga Vs Micho & Co. (1961) ALL NLR 101 at 105 – 1 – 6; (1961) 2 SCNLR 101; Zik’s Press Ltd. Vs Ikoku (1951) 13 WACA 188 at 189; Idahosa Vs Oransanya (1959) SCNLR 407. He urged the court to resolve this issue against the appellant.
In reply, learned counsel for the appellant submitted that the respondents failed to join issues with the appellant on his pleadings on the material facts and circumstances that constitute the claim for general damages, thereby admitting the claim, He submitted that the respondents failed to lead any oral evidence in proof of their defence. In the award of general damages, he submitted that the court was bound to consider not merely the amputation of the appellant’s left leg but also the immediate, temporary and permanent consequences of the amputation for the appellant as a soldier, a specially trained pilot technician engineer as well as the permanent social and human deprivations he now suffers as a result of the amputation. He urged the court to resolve this issue in the appellant’s favour.
As observed earlier in this judgment, general damages are such as the law will presume to be the direct natural or probable consequence of the act complained of. See: Xtoudos Services Nig. Ltd v. Taisei (W.A.) Ltd. (supra). In personal injury cases a claim for pain and suffering is a recognised head of award that sounds in general damages.
see: c & c construction co. Ltd. vs okhai (2004) FWLR (190) 1433 at 1453 E – F. It was held in that case that although no principle could be laid down upon which damages for pain and suffering could be awarded in terms of the quantum, the court must consider what the compensation should be going by the evidence that gives an insight into the intensity of the pain and suffering. It was held that an award in such circumstances is usually generous, although it must not be excessively high or grossly low. It must however be such as reasonably tends to reflect the intensity of the pain and suffering. Acknowledging these principles, the learned trial Judge held thus at pages 82 – 84 of the record:
”on assessment of damages here, I agree with Mr Olatunde for the defendants in his impressive submission that the age of the plaintiff, his preoccupation, loss of future earnings and amenities of life considered against the backdrop of range of award in similar cases should be the guide for award of general damages in this case. Nigerian cases, not English cases would be the yardstick for assessing the measure of damages in this case….
Broadly speaking, bodily pain and suffering; nature of the disability or disfigurement; the length of time plaintiff spent in hospital receiving treatment; loss of amenities of life; the status, age and expedation of life of plaintiff, and the loss of earning capacity of plaintiff are matters to be considered in the award of general damages under this head of claim see Heanseatic International Ltd. Vs Usang (supra) at pages 1590 to 1591. In respect of pain and suffering, PW3 testified uncontroverted that plaintiff was conscious when he was admitted for treatment of his crushed left leg and was in pain at the material time; on disability it is not in dispute that plaintiff lost his left leg below the knee from amputation and now walks on crutches; regarding the time he spent in hospital it is undisputed that he spent at least two months in hospital undergoing medical treatment for the said injury; on loss of amenities of life, it cannot be doubted that plaintiff is handicapped from taking leisure walk and engaging in sports from the said incapacitation, but I do not agree that plaintiff lost his sexual potency from the amputation of his left leg, as the PW3, the medical witness, testified that the amputation would not affect his sexual efficiency; on anxiety and loss of expectation I do not have medical evidence of it here to ascertain it; suffice it to say that at the age of 52 years given by plaintiff in this case as at 27/05/2005, when the testified in this suit, it does not appear there is peril to the balance of his life expectancy arising from the said amputation; and relating to loss of earning capacity, the evidence given by plaintiff is clear that he is gainfully employed by the Nigeria Air Force inspite of the amputation of his left leg and has on that basis lost no earnings from the incident.
In the light of the above discourse, a fair and reasonable conservative award of general damages under this head of claim considered alongside the current decline in the value of money and comparable award in similar cases, some of which were cited by Mr olatunde for the defendants (supra), has to be made to atone for the permanent physical disability plaintiff suffered from amputation of his left leg below the knee. In the case of Hanseatic International Ltd vs Usang (supra), the court of Appeal awarded N500,000.00 on 20/03/2002 for loss of plaintiff’s eye. In that case plaintiff also lost his job or future earnings unlike in this case.
Therefore the award I make here shall be N400,000.00 which defendants shall pay to plaintiff under this head of claim, the grand total of the damages defendants shall pay plaintiff in this case is N476,800.00 only and that [is my] judgment in this suit.”
The appellant has urged the court to interfere with this award. In the case of: Akinkugbe Vs Ewulum Holdings Nig. Ltd & Anor (2008) 4 Sc 125 at 149, the Supreme Court Per Aderemi, JSC, stated the circumstances in which an appellate court would interfere with an award of damages made by a trial court. His Lordship held:
“The law is sacrosanct that the appellate courts are generally very much reluctant to exercise their power and attempt to re-asses the amount of damages which the trial judge had awarded. They (appellate courts) will however exercise that power when it is established that the trial judge proceeded upon a wrong principle of law or that the award was clearly an erroneous estimate since the amount is manifestly too large or even too small. See (1) His Highness Uyo I v. Rgware (1974) 6 S.C. (Reprint) 90; (1974) 1 All NLR (Pt. 1) 293 and (2) Zik’s press Ltd v. Alvan Ikoku (1951) 13 WACA 188.”The contradicted evidence before the court, accepted by the learned trial Judge, was that the appellant was a Warrant Officer in the Nigeria Air Force, which he joined in 1974 at the age of 21 years. He testified that he worked as a technician repairing aeroplanes, a job which required him to climb up into the cockpit. He stated that as a result of the amputation of his left leg below the knee, he could no longer climb into the cockpit to repair aircraft, As a military man he could no longer partake in the physical exercises related to his military duties.
He stated that although he did not lose his job as a result of the incident, he was 52 years old at the time he testified on 8/6/05 and that there is an option to retire at 55 years. He stated that as a result of his disability he could be discharged at any time. While I agree with the learned trial Judge that there was no evidence to support his contention that he had lost sexual potency as a result of his injuries, the fact that he had not lost his job at the time he testified did not mean his job was not at risk or would not be at risk in the foreseeable future.
Due to the nature of his disability, the likelihood of future gainful employment was quite slim.
In Ighosewe vs Delta steel co. Ltd.(2008) ALL FWLR (410) 741 at 764 B-D, His Lordship, Ibiyeye, JCA stated thus:
“In compensating a plaintiff for the permanent disability occasioned from an injury, the Judge is duty bound to assess the future risks which are of two kinds.
1. whether the plaintiff would be more likely to lose his present job on account of his disability.
2. Consideration should be given to whether the plaintiff would be less likely to get another job on account of his disability should he lose the present job for whatever reason.
The rationale of the foregoing principle is that the plaintiff could hardly know what his next fate would be. The defendant may have decided to retain him in its employment on the same salary out of compunction or just for a while. The truth is, still in the defendant’s employment or outside it, his future is fraught with uncertainty as a result of his disability. see Foster v. Tyne and wear County Council (1986) 1 All ER 567; strabag construction (Nig.) Ltd v. Ogarekpe (1991) 1 NWLR (pt. 170) 733.”
(Emphasis mine)I think similar reasoning ought to have guided the learned trial Judge in this case. Once the extent of disability has been established as in the instant case, the loss of ordinary facilities or enjoyment of life can be presumed so as to enable a fair compensation to be made. Such compensation or damages for pain and suffering could be generous, depending on the extent of injury and the pain and suffering that accompanied it. See: Ighosewe Vs Delta Steel Co. Ltd. (supra). If the loss of an eye attracted an award of N500, 000.00 in 2002 as noted by the learned trial Judge relying on the case of Hanseatic International Ltd. Vs Usang (2003) FWLR (149) 1563, an award of N400, 000.00 in the year 2005 for the amputation of his left leg below the knee for an active military officer who would suffer from the pain and loss for the rest of his life was rather low in my humble estimation, I am of the view that this is an appropriate case for this court to intervene and review the award. I accordingly review it upwards to N2, 000, 000.00 (Two million naira only). This issue is accordingly resolved in favour of the appellant.
In conclusion the appeal succeeds in part. The judgment of the High Court of Benue State, Makurdi Division in suit no. MHC/171/2004 delivered on 17/10/05 in respect of relief 31 (a) of the amended statement of claim awarding the sum of N6, 000.00 (Six Thousand Naira only) in favour of the appellant for the purchase of 4 units of Fortwin injection at N1, 500.00 per unit is hereby upheld. The award of N400, 000.00 as general damages in respect of relief 31 (c) is hereby set aside. The appellant is hereby awarded the sum of N2, 000, 000.00 (Two Million Naira Only) as compensation/damages for the sudden permanent loss of his left leg below the knee, against the respondents. Thus the appellant is entitled to total damages in the sum of N2, 076, 800.00 against the respondents. The appellant is also entitled to the costs of this appeal, which I assess at N50, 000.00 against the respondents.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother Kekere-Ekun, JCA. I entirely agree with him. I too would allow the appeal in part. I abide by all the consequential orders in the lead judgment of my learned brother.

UCHECHUKWU ONYEMENAM (JCA) I have had the advantage of reading in draft a copy of the lead judgment by my learned brother K. M. O. KEKERE-EKUN.
I am in total agreement with his reasoning and conclusion. The Supreme Court has held that in personal injury cases, once there is evidence of injury pain, discomfort and permanent scarring, even though these are not quantified in monetary terms, the plaintiff will be entitled to reasonable general damages. See Ijebu-Ode Local Govt. V. Adedeji Balogun & co (1991) 1 NWLR (Pt. 166) 136. There is no controversy to the fact that an appellate court will not normally interfere with an award of damages by a trial court, on the ground that the appellate court would have awarded a different amount if it had tried the case at first instance. Howbeit, an appellate court may alter an award of damages where it is satisfied that the damages awarded was based on an entirely erroneous estimate, or that the award is either manifestly too high or manifestly too low. See A.C.B V. Apugo (2001) 10 WRN 124. In the case at hand, considering the fact that the appellant is a military man, a Warrant Officer II in Nigeria Air Force who worked as a technician repairing aeroplanes.
Evidence before the lower court was undisputed that the appellant’s job required him to climb up and down into the cockpit. There is no doubt therefore that the amputation of his left leg below the knee is a major incapacitation for the appellant not only as a military man but also in his area of primary assignment. I stand with the reasoning in the lead judgment that the award of N400,000.00 as general damages by the trial court was manifestly too low and should not be allowed.
The Supreme Court has enjoined the courts to keep up with the times and economic trend in the country in awarding damages. The courts are to consider the prevailing decline in the purchasing power of the Naira over the past years. See Allied Bank (Nig.) Ltd. V. Akubueze (1997) 6 NWLR (Pt.509) 374. I believe this to be a good instance where this court must disturb the amount of general damages awarded by the lower court in the light of this country’s economy. For this and for the more detailed reasons adduced in the lead judgment, I also allow the appeal in part. I uphold the aspect of the judgment of the High Court of Benue state, Makurdi Division in Suit No.MHC/171/2004 delivered on 17:10:05 in respect of relief 31 (a). I set aside the award of N400, 000.00 as general damages. I also award the appellant the sum of N2,000,000.00 as compensation/damages. I abide by the order as to costs.

Appearances

B.U. OHENE ESQ.For Appellant

AND

AMUWA OLATUNDE ESQ.For Respondent