Dr. Oladipo Kaja Vs Alhaji Salawu Oke (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, JSC

This is an appeal against the judgment of the Lagos Division of the Court of Appeal, hereinafter referred to as the court below, allowing in part the appeal against the decision of the Lagos State High Court. The judgment being appealed against was delivered on 25th June 2002. The facts of the case which brought about the appeal are brief and hereunder stated. PAGE| 2 By his writ of summons and the accompanying statement of claim filed on 29th July, 1992, the appellant as plaintiff claimed the sum of N2 million naira against the respondent then being the defendant. The sum is damages for the injuries the appellant sustained on 23rd October 1990 arising from respondents negligence. The appellant asserts that his legs were trapped in the lift in respondents Hospital as he was being evacuated from the theatre after surgery to the ward on a lower floor. Appellant avers that he sustained severe fracture in his limbs as a result of the accident. In denying appellants claim, the respondent avers particularly in paragraph 5 of his amended statement of defence and counter-claim thus:- ‘5 The defendant denies liability for negligence because the accident of 23rd day of October 1990 was an inevitable accident or an Act of God which occurred notwithstanding the exercise of all reasonable care and skill on the part of the defendant who was unable to avoid the said accident due to circumstances beyond his control ‘ Respondents counter-claim of N9,000.00 is bill for the medical services rendered to the appellant by the respondent. At the end of trial the trial court in its 19th October 1999 decision found for the appellant and awarded him N2 million. Dissatisfied with the decision, the respondent appealed to the Court below, which in allowing the appeal in part, reduced the damages awarded the appellant by the trial court from N2 million naira to N250,000.00. Appellants Notice of Appeal dated and filed on 2nd August 2000 contains four grounds. In keeping with the rules of court, parties have filed and exchanged their briefs of arguments. These were adopted and relied upon as their arguments at the hearing of the appeal. PAGE| 3 The two issues distilled from the four grounds of appeal in the appellants briefs as having arisen for the determination of the appeal are as follows :- ‘(a) Whether the lower court was right in basing its award on only compensation for pain and suffering and (b) If the answer to issue number 1 is in the affirmative, whether the sum of N250,000.00 awarded was appropriate in the circumstances. ‘ The respondent also formulated two issues in his brief. The issues are:- ‘(1) Whether the court below was right in setting aside the award of damages for medical expenses, loss of earning capacity and loss of opportunity made by the trial court for want of evidence; (2) Whether having regard to the pleadings and evidence in this case, the court below was right in awarding the sum of N250,000.00 as damages for pain and suffering in favour of the appellant. ‘ It is pertinent to recall that at the hearing of the appeal, following the withdrawal of the preliminary objection as to the competence of the appeal earlier filed by the respondent and argued in the respondents brief by counsel, same was accordingly struck out by this Court. Under their two issues, learned appellants counsel concedes that the court below has in its judgment clearly demonstrated an understanding of the principles applicable in awarding damages in personal injury cases. He however contends that the court has erred in its application of the principles in the instant case. The age of the appellant the court is emphatic upon as not having been proved, learned counsel submits, is never the overriding factor the court decides it is. Granted age of the appellant has not been established, a fact that the PAGE| 4 appellant does not concede, loss of future earning, pain and suffering as well as loss of amenities of life, it is submitted, are equally relevant if not more important in the determination of the damages the negligent act of the respondent has occasioned. Learned counsel relies on the decisions of this Court in L.C.C. V Ogunbiyi (1969) 1NSCC at page 283 and Ediagbonya V Dumez Nig Ltd (1986) 3 NWLR (part 31) 753 to insist that a claimants failure to plead and prove his age does not prevent a court from assessing the claimants stage in life in relation to the injury he seeks reparation for. Furthermore, all the criteria courts apply to arrive at the correct damages to award in cases of negligence have been disregarded by the court below. Had the court applied its decision in Strabag Construction Nigeria Ltd V Ogarekpe (1991) 1 NWLR (part 170) 733, learned appellant counsel argues, it would have avoided the errors it fell into against which the appellant now complains. The lower court, learned counsel further submits, failed to show either the wrong principle of law which the trial court invoked in its award or that the award is excessive to justify its interference with the damages awarded the appellant. This, more than any other lapse, renders the courts judgment liable to be set-aside. Relying on Onaga V Micho (1961) 2 SCNLR 105; Ozigbu Eng Co. Ltd V Lwuamai (2009) 16 NWLR (part 1166) 44 at 70 and 71; U.B.A V Achoru (1990) 6 NWLR (part 156) 254; Obere V Eku Baptist Hospital (1978) 6 -7 SC 15 and C and C Construction Company Ltd & Anor V Okhai (2003) 18 NWLR (part 851) 79, learned appellants counsel prays that the two issues be resolved in their favour and the appeal allowed. In arguing the appeal, learned respondents counsel contends that learned appellants counsel has misconceived the judgment of the court below. The judgment, learned counsel submits, does not limit damages recoverable by the appellant from the respondent to those which arise from the pain and suffering of the claimant consequent upon the personal injury the appellant sustained from respondents negligent conduct. The decision of the lower court, learned respondents counsel submits, is that no evidence was led by the appellant in proof of the categories of damages to entitle him to what the trial court granted him. The appellant whose claim includes reparation for medical expenses, loss of earnings and opportunities did not lead evidence in respect of any of the categories of his claim. The trial courts award of the N2 million naira damages is entirely on the basis of respondents admission of appellants allegation that respondent is negligent in allowing appellants legs and thighs to be trapped by PAGE| 5 the lift at his hospital. In an apparent somersault, learned respondents counsel submits that the judgment of the lower court does not meet the basic tenet of adversarial practice. Indeed, learned counsel contends, even the N250,000.00 for pain and suffering the court below awarded the appellant after rightly disturbing the trial courts judgment has no legal basis. For damages to be recoverable under whatever head, the claimant must lead evidence in proof of his entitlement. Appellants claims being in the realm of special damages though having been pleaded are not strictly proved. The trial court is wrong to have granted the appellant the N2 million naira award. Decisions which do not flow from the evidence before the court, being perverse, are to be set-aside on appeal. Learned counsel relies inter alia on Danjuma V Simon Dogari (1998) 6 NWLR (part 553) 234 at 237; Nwokorobia V Nwogu (2009) 10 NWLR (part 1150) 553 at 576; Nwanji V Coastal Services (Nig) Ltd (2004) 11 NWLR (part 885) 552; Salihu V Tin Associated Minerals Ltd (1958) NRNLR 99; FBN Plc V Associated Motors Co. Ltd (1998) 10 NWLR (part 570) 441 at 464; C & C Construction Co. Ltd V Okhai (Supra) and Samson Ediagbonya V Dumez (1986) 3 NWLR (part 31 753 at 761 – 762 and urges the resolution of the issues raised against the appellant and the dismissal of the appeal. On being served the respondents brief, the appellant filed and served his reply brief. The brief is deemed filed on 7th May 2012. Paragraphs 1.01 to 1.06 of the reply brief is response to respondents preliminary objection to the competence of the appeal that has been struck out following its withdrawal by the appellants counsel. The paragraphs are hereby discountenanced. In reply on points of law, learned appellants counsel submits that the respondent is not entitled to ask for the setting aside of the sum of N250,000.00 awarded by the lower court since in practice, having neither cross-appealed nor filed a respondents notice, his is to support the judgment of the lower court. In support of these submissions, learned appellants counsel relies on Oshodi V Eyifunmi (2000) 7 SC (part 11) 145; Anyaduba V NRT Co. Ltd (1990) 1 NWLR (part 127 397 at 407 and Oladipo V Muba LGA (2010) 5 NWLR (part 1186) 166. PAGE| 6 I cannot agree more with learned appellants counsel. It is indeed the practice that a respondent who does not cross-appeal must confine himself to the appellants grounds of appeal in formulating his issues for the determination of the appeal. Such a respondent either adopts the issues formulated by the appellant or distills his own issues which must arise from or relate to the grounds filed by the appellant. See Crownstar & Co Ltd V the Vessel M. V Vali (2000) 1 NWLR (part 639) 37. It is a necessary practice, therefore, that the respondent herein who seeks a complete reversal of a crucial and fundamental finding of the judgment of the court below to do so by cross-appealing. He cannot even do so by a respondents notice! See: Abu V K Kuyambana (2001) 1 NWLR (part 695) 491; and Ajayi V Military Administrator for Ondo State (1997) 5 NWLR (part 507) 237. It is for these principles that respondents arguments and plea for the reversal of the lower courts award of N250,000.00 are hereby discountenanced. His traditional duty remains that of defending the lower courts judgment as it is. Now to the appeal. It seems to me that from his two issues, appellants cumulative complaint is whether the lower court has the right to interfere with the trial courts award of damages for which the respondent has by his own admission, been found liable. The trial courts assessment of damages is at pages 182 – 183 of the record of appeal hereunder reproduced:- ‘In this case, the plaintiff claims the sum of N2 million (Two Million naira only) being damages for negligence by the defendant for allowing the plaintiff to be trapped between the doors of the lift in the defendants hospital on 23rd October, 1990 without attention and care after an eye operation resulting in severe fracture of the plaintiff’s limbs and consequential pain and suffering…. In this case, since the defendant in the Statement of defence admitted the facts as stated in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 11 of the statement of claim which set out the facts in support of the claim for damages in this case, these facts must be taken as established. PAGE| 7 A trial court is entitled to accept and act upon such uncontradicted and unchallenged evidence establishing loss legally recoverable in such a given case; as the defendant did not join issues with the plaintiff on them….. I therefore award the plaintiff damages in the sum of N2 million Naira.’ The lower courts interference with the trial courts foregoing findings and award is at pages 183 – 184 hereunder reproduced as well. ‘With respect to the trial judge, it is difficult to understand or justify his approach to the award of N2m as damages. He reasoned that because the defendant had not joined issue on the facts relied upon by the plaintiff to establish negligence, then the court must award the sum of N2m claimed as damages. That view of the trial judge does not represent the position of the law. Notwithstanding that a defendant had not contradicted the facts in-proof of negligence, the plaintiff still had to prove by evidence his entitlement to the damages claimed. The plaintiff did not show by evidence the loss of income he suffered as a result of the injury he suffered. It was not even made clear the period of his inability to pursue his normal calling. There was no evidence as to the age of the plaintiff. There was no evidence of any residual disability or continuing effect of the injuries suffered. Although the plaintiff said he had an income of N200,000.00 per annum, he did not state the source of the income. Added to all these is the evidence from the defendant that the plaintiff had a disability of 80 – 85? Even before the injuries. All these matters the trial judge did not consider or comment upon ………… …… In this case, it was not only that the trial judge did not do any assessment of damages, the evidence by which to do so placed before him was infinitesimal. The said little evidence was not even evaluated. The award made in the circumstances would appear to be whimsical. It must be disturbed. On the evidence available the plaintiff was not entitled to any compensation other than for his pain and suffering. I think that a sum of N250,000.00 would be reasonable in the circumstances. ‘ Is the court below empowered to interfere as it has done above with the damages awarded by PAGE| 8 the trial court? If the court is empowered has the court complied with the relevant principles? I answer both questions in the affirmative. The law is well settled that an appellate court is empowered to interfere with the amount of damages awarded by the trial court where it is established that in making the award the court had proceeded on wrong principles or that the award is unjust. See: Ejowhomu V Edok-Eter Ltd (1986) 5 NWLR (part 39) 1 at 25; Overseas Construction Ltd V Creek Ent. Ltd (1986) 3 NWLR (part 13) 407 at 420; Osuji V Isiocha (1989) 3 NWLR (part 111) 623 at 636-637. In the instant case, the appellant has claimed for (i) Medical expenses, drugs, physiotherapy (ii) Pain and suffering (iii) Loss of earning capacity and loss of opportunity . Learned respondents counsel is right in his submission that while negligence is one thing, the damages recoverable therefrom is another. Again, he is on a firm terrain in his submission that for a plaintiff to recover the damages he claims he must lead evidence in proof of his entitlement. In the case at hand, the court belows examination of the evidence led at the trial court and its conclusion that appellant has not led the evidence to sustain the categories of his claim except the one for the pain and suffering arising from respondents negligent act is unassailable. Award of damages depends on the facts which sustain the plea for the award. An award in the absence of these facts is one made on the basis of incorrect principle. In Mbagwu V Udor (1965) NSCC (vol 4) 216 at 219, the appellant was found liable for negligently causing injuries to the respondent by knocking him down with his car. Judgment was given in favour of the respondent to the tune of £l,122-13s-96d. The trial judge awarded damages for travelling expenses, the plaintiff/respondent did not make and a further award for extra food and diet. Both awards were not supported by evidence before the trial judge. The issue raised then in the appeal before this Court was whether it was possible for a trial judge to award damages for an item that was not proved in evidence. In determining the appeal, this Court inter alia held at page 219 of the report thus:- ‘The learned judge further awarded £30 to the plaintiff for extra food and nourishment. This extra food and nourishment appears to consist of fresh fish; it seems that it was already part of the plaintiffs diet for according to him the doctor saw him eating fresh PAGE| 9 fish and recommended it. There is no evidence that he was required to eat any more of it than usual or how much any extra fresh fish had cost him; yet the learned judge was satisfied on the evidence of the plaintiff that he was taking special diet on the recommendation of the doctor and awarded £30; on what basis this sum was calculated does not appear, nor, as we have already pointed out, does it appear that the plaintiff took any special diet apart from fresh fish which was already part of his food. The award under this head cannot be justified….. ………In assessing what damages can be recovered by a victim of a motor accident caused by negligence it must be shown that he has suffered one or all o f these ill-effects as a result of the accident. In this case this was not shown and the learned trial judge appears to have treated Dr. Adefopes statement of possible injuries as evidence of the injuries actually suffered by the plaintiff This was a mistake of a nature to call for a reassessment of the amount awarded. We think that the items of which there is clear evidence are pain and suffering and shock. The plaintiff, an old man aged about 70 years, was as a result of the accident, in hospital for over a month and laid up in his house for a further nine months; he was knocked unconscious by the defendants car and in the hospital he had to have skin grafted from his left thigh on to his right foot; one of his right toes was amputated. It cannot be doubted that he endured a good deal of pain and suffering. In the circumstances we consider that £400 would be adequate compensation.'(underlining for emphasis). From the foregoing, the lower courts interference with the trial courts perverse assessment and award of damages is beyond reproach See:. Shadipe & Co. Ltd V Daily Times (1972) 11 SC 69 and Uwa Printers Nig. Ltd V Investment Trust Co. Ltd (1988) 5 NWLR (part 92) 110. The trial courts award of N2 million naira cannot, on the basis of the evidence led by the appellant, be sustained. The appeal resultantly lacks merit. It is accordingly dismissed. The judgment of the court below is hereby affirmed. Parties should bear their respective costs.

SC. 34/2004