A. G. Leventis Nig. Plc V Chief Christian Akpu (2007)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Enugu Division (hereinafter called “the court below”) delivered on 3rd July, 2001 allowing in part, the decision of the trial High Court, Onitsha in Onitsha Judicial Division presided over by Nwankwo, J., delivered on the 18th May, 1998 in favour of the plaintiff/respondent.Dissatisfied with the said decision, the appellant has further appealed to this court on four (4) Grounds of Appeal. Without their particulars, they read as follows:GROUND ONE”The learned Justices of the Court of Appeal erred in law in failing to consider or adjudicate upon a Ground of Appeal and issue for determination raised by the defendant/appellant, viz that the plaintiff/respondent failed to plead particulars of negligence and that consequent upon this failure, any evidence of negligence went to no issue”.

GROUND TWO

“The learned Justices of the Court of Appeal erred in law when after striking out the major piece of evidence upon which the learned trial Judge depended upon for his finding of negligence, they proceeded to re-evaluate the evidence before the court of trial without considering or evaluating any of the evidence proffered at the court of trial by the defendant/appellant”.

GROUND THREE

“The learned Justices of the Court of Appeal erred in law in proceeding to evaluate the evidence of the parties before the trial court by themselves after striking out the piece of evidence upon which the trial court based her finding of negligence on”.

GROUND FOUR

“The learned Justices of the Court of Appeal erred in law and on the facts in awarding the sum of N2.0M to the respondent as damages that will restore the respondent “monetarily to the position he would have been if the breach of contract had not occurred”, when the trial Judge disbelieved that this N2.0M actually represents what will restore the respondent monetarily to the position he was in before the alleged breach of contract”.

I note that Grounds two and three are substantially the same although differently couched. When this appeal came up for hearing on 20th March, 2007, the appellant and his counsel were absent although there was evidence of serving of Hearing Notice on counsel. Pursuant to Order 6 Rule 6 of the Rules of this Court, 1999, the appeal was deemed argued.

The facts of this case leading to this appeal briefly stated, are that the respondent as plaintiff, at the High Court, Onitsha, took out a Writ of Summons against the appellant, claiming as follows:

“(a)Two Million (N2,000,000.00) being the cost of replacement of the ENGINE of the plaintiff’s said 500 SEL Mercedes Benz Car destroyed by the defendant.

(b)Five Hundred Naira (500) per day from 28th January, 1993 till the date of judgment being the cost of chartering vehicle for his movement/business.

(c)One Million Naira (N1,000,000.00) being general damages for emotional distress, financial and social disability caused the plaintiff since the said 28th January, 1993”.

I note that the above claims are the same as those claimed by the respondent in Paragraph 18 of his Statement of Claim at page 8 of the Records.

The plaintiff’s/respondent’s case, is that on 19th October, 1992, he took his Mercedes Benz 500 SEL Car to the appellant’s Workshop at Onitsha “with the ordinary complaint of replacing the car’s exhaust manifold gasket” – See Paragraph 4 of the Statement of Claim. I note that in the respondent’s Brief both in the court below and in this court, he stated or described it as “for a minor repair”. A job card was opened – Exhibit E – which I note detailed other faults/repairs including “tapping noise from engine”. It is the respondent’s case that this “ordinary” job took the appellant some weeks and when the car was returned to the respondent, “it developed more faults and became worse than the ordinary problem of exhaust manifold gasket”. That he complained bitterly about the state of the car to the appellant who collected back the car. That he was later told by the appellant about other problems or faults that it had detected from the car. He was later told that the engine had been taken to Lagos from where, at the instance of the appellant, he towed away the body of the car to avoid its being vandalized. After about one year, the respondent initiated the said action in the said High Court. The respondent testified and called one (1) witness in support of his case.

On its part, the appellant’s case is that in good faith, it embarked on the repairs but on further investigation of the source of the tapping noise, the engine of the car was dismantled and it was then it was discovered that the short blocks of the engine were worn-out. It had pleaded in Paragraph 5 of its Statement of Defence, that the respondent did not bring the said car for the change of the exhaust manifold gasket, but for several faults and/or repairs twelve (12) in number (a) to (1). The appellant called two (2) witnesses in support of its defence. At the end of the trial, the learned trial Judge, found in favour of the respondent. He relied heavily on Exhibit CA 57.

Dissatisfied with the said decision, the appellant appealed to the court below, which expunged from the Records, Exhibit CA 57 and allowed the appeal in part by awarding Two Million Naira (N2.0M) for his “first head of the claim” and twenty five thousand, five hundred naira (N25,500.00) “for his 2nd head of claim”.

Aggrieved by the said decision, the appellant has further appealed to this court. There is no Cross-Appeal by the respondent.

The appellant has formulated three (3) issues for determination, namely:

“1.Whether the Court of Appeal adjudicated upon the issue for determination complaining about the Respdts (sic) failure to plead particulars of negligence and if not, whether this Honourable Court should effectively determine this case by pronouncing upon the failure to plead particulars of negligence by the respondent and its effect

2.Whether the Court of Appeal ought to have re-evaluated the evidence before the trial court and whether in re-evaluation, any weight ought to have been given to the evidence in rebuttal of negligence lead (sic) (meaning led) by the appellant’s witnesses

3.Whether in the absence of a Cross-Appeal, the Court of Appeal ought to have increased the award of damages reflecting the value of the engine of the respondent’s car from N1.5M to N2.0M

On his part, the respondent has formulated also three (3) issues for determination, namely –

“3.01 Whether the omission, if any, by the court below to pronounce on the issue of pleading the particulars of negligence occasions a miscarriage of justice so as to warrant the reversal of the lower court’s decision.

3.02 Whether there was any counter evidence to warrant the Court of Appeal disturbance of the trial court’s finding that the appellant was negligent (sic)”.

Whether the Court of Appeal is justified in its decision that the evidence of P.W.1 and P.W.2 were uncontroverted, and if so, whether the upward review of the value of the respondent’s car is justified in law”.

In my respectful view, the issues of the parties are substantially the same although differently worded/couched. I will therefore, deal with them in that regard.

Issue 1 of the Appellant and

Issue 3.01 of the Respondent

I note that in the Notice and Grounds of Appeal filed by the appellant in the court below, in Ground Three (3) thereof, the appellant complained about the respondent’s failure to plead the particulars of negligence, thus:

“The learned trial Judge erred in Law and on the facts when he held that the plaintiff was not bound to plead particulars of negligence”.

Issue 3 for determination in the appellant’s Brief in that court at page 129 of the Records, reads as follows:

“Whether the learned trial Judge was correct when he held that the plaintiff/respondent was not bound to plead particulars of negligence and that merely indicating what your case is all about suffice as particulars of negligence”

Issue 3 of the respondent at page 149 of the Records for determination in the court below, read as follows:

“Whether the facts and various acts of omission and commission as contained in the plaintiff’s Statement of Claim particularly Paragraphs 5, 7, 8, 9, 13, 15 and 17 constitute particulars of negligence on the part of the defendant”.

I note that Paragraph 15 of the respondent’s Statement of Claim at page 7 of the Records, read thus:

“The plaintiff will at hearing adduce evidence to prove that ordinarily the change of Exhaust Gasket has nothing to do with the stiffness of the engine is due to the defendant’s recklessness, gross negligence and incompetence”.

I am aware that most of the decided authorities on this issue, relate to Road or Motor Accident or Electric Wiring cases. However, it is firmly established that a party who alleges negligence should not only plead the act or acts of negligence, but should also give specific particulars. See the case of Aku Nmecha Transport Services (Nig.) Ltd. & Anor. v. Atoloye (1993) 6 NWLR (Pt. 298) 233 at 248 C.A. Again settled, is that where there is failure to furnish further and better particulars, no evidence will be led on the facts of which further particulars, is required. See the case of Chief Allen C. Nwachukwu & Anor. v. Chief Emeka Eneogwo & 2 Ors. (1999) 4 NWLR (Pt. 600) 529 at 635 C.A.

As rightly submitted in the appellant’s Brief, it is not only in cases in which the allegation of negligence is based on Tort, that particulars are required as appears to be the decision of the learned trial Judge at pages 105 and 106 of the Records. See the case of Seismograph Services (Nig.) Ltd. v. Mark (1993) 7 NWLR (Pt. 304) 203 at …… – per Uwaifo, JCA., (as he then was) also cited and relied on in the said Brief. As a matter of fact, in Bullen & Leake Precedents of Pleadings 11th Edition, page 533, also reproduced in the Brief, the following appear, inter alia:

“It is not enough for the plaintiff in his Statement of Claim to allege merely that the defendant acted negligently and thereby caused him damages, he must also set out facts which show that the alleged negligence was a breach of duty, which the defendant owed to the plaintiff. The Statement of Claim “ought to state the facts upon which the supposed duty is founded and the duty to the plaintiff with the breach of which the defendant is charged” per Willes J. in Gautret v. Egeraon (1867) L.R. 2 C P 31. Then should follow an allegation of the precise breach of that duty of which the plaintiff complains; in what respect the defendant was negligent: and lastly the details of the damage sustained.”

(the underlining his)

This statement I note, relates to road accident cases. So also the case of Adeoshun v. Adisa (1986) 5 NWLR (Pt. 40) 255 at 236-237 C.A. – per Maidaa, JCA., also cited and relied on in the appellant’s Brief.

The appellant has therefore, submitted that the justice of this case demands that the respondent’s case be dismissed for failure to plead the particulars of negligence. With respect, I do not quite agree. This is because, the complaint in this issue is not the failure of the respondent to supply the particulars of negligence, but because of the failure of the court below to pronounce on it. So, I am obliged to deal with this specific complaint.

Now, it is firmly settled that it is the duty of all lower courts to consider all issues placed before it except in the clearest cases. In the case of Owodunni v. Registered Trustees of Celestial Church of Christ & 3 Ors. (2006) 6 S.C. (Pt. II) 60; (2000) 6 SCNJ (299 at 426-427, this court – per Ogundare, JSC., (of blessed memory) stated that this court has frowned, in a number of cases, at the failure of lower courts, to decide all issues placed before them. That unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it. His Lordship referred to the cases of Odunayo v. The State (1972) 8-9 S.C. (Reprint) 173; (1972) 8-9 S.C. 290 at 296 – per Sowemimo, JSC., (as he then was and of blessed memory) and Ifeanyi-Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 3 S.C. 42; (2000) 5 NWLR 322 at 351 which is also reported in (2000) 3 SCNJ 18.

The learned counsel for the respondent, has admirably conceded in Paragraph 4.02 of their Brief, of this fact or settled principle. He even cited/referred to the case of Alhaji Olowolagba (not Olowolegba) &Ors. v. Bakare & Ors. (1998) 3 S.C. 41; (1998) 3 NWLR (Pt. 543) 528 at 534; (1998) 3 SCNJ 75. But he describes it as “the general rule”. I note that the appellant or his learned counsel, has not stated in their Brief, or in oral submission, what prejudice or embarrassment, that the appellant has suffered or what miscarriage of justice the omission has occasioned to it. As rightly submitted in the respondent’s Brief citing and relying on the case of Ejelikwu v. The State (1993) 7 NWLR (Pt. 307) 554 at 583 (it is also reported in (1993) 9 SCNJ 152) – per Karibi-Whyte, JSC., for a condition to nullify a judicial proceeding, it must be a substantial provision, which affects the jurisdiction or competence of the court, or a procedural defect in a miscarriage of justice.

I also ask, does the omission to supply the particulars of negligence and or the failure of the court below to pronounce on the issue as I have hereinabove stated, affect the jurisdiction or competence of the court below or is there any procedural defect in the proceedings which had resulted in any miscarriage of justice Certainly, I think not.

I am not going into what a miscarriage of justice means. But you can read the definition in Black’s Law Chambers Dictionary 7th Edition page 1013 and the cases of Total (Nig.) Ltd. & Anor. v. Wilfred Nweke & Anor. (1978) 5 S.C. 1 at 14; (1978) 5 S.C. (Reprint) 1; Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505 at 516-517 cited and relied on in the respondent’s Brief and Aidoko v. Sule Anyegwu (2003) FWLR (Pt. 49) 1439 at 1446.

My answer to the respective issue of the parties, is that although I agree with the complaint of the appellant that the court below failed or neglected to pronounce on the failure of the respondent to plead the particulars of negligence, I also agree with the respondent, that this failure did not occasion any miscarriage of justice that will warrant the dismissal of the suit on this ground.

Issue 2 of the appellant and Issue 3.02 of the respondent

It is contended at Paragraph 4.01 in the appellant’s Brief that the court below erred in law in proceeding to re-evaluate the evidence before it from the printed record. That the court below, after expunging Exhibit CA 57 stated severally that the said exhibit, was the basis of the decision by the trial court.

Now, it is settled that an appeal is in the nature of re-hearing in respect of all issues raised in respect of the case. See the case of Sabrue Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 4 S.C. (Pt. II) 67; (2002) 4 SCNJ 370 at 382. In doing so, it is also settled that the duty of an appellate court, is to inquire into ways the trial court tried and settled the dispute and not to re-open and re-try cases. See the cases of Oroke v. Ede (1964) NNLR 119-120; Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484 at 492 cited and relied on in the respondent’s Brief. This is why it is also settled that what an appellate court has to decide, is whether the decision of the trial court was/is right and not the reasons for the decision. Thus, if a judgment of a trial court is correct, it will not be liable to reversal, merely because it was anchored on a wrong reason. See the cases of Ukejianya v. Uchendu (1950) 13 WACA 45 at 46; Ayeni & Ors. v. Williams Sowemimo (1982) 5 S.C. (Reprint) 29; (1982) 5 S.C. 6 at 73 – 74; Odukari v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 350 and recently, Jikantoro & 6 Ors. v. Dantoro & 6 Ors. (2004) 5 S.C. (Pt. II) 1; (2004) 5 SCNJ. 152 at 178 just to mention but a few.

In respect of this issue, the court below – per M. D. Muhammad, JCA., at pages 187 and 188 (not Page 184 as erroneously stated in the appellant’s Brief), stated inter alia, as follows:

“It is true that the court had, (see pages 100 – 103 of the Record) largely based its finding of negligence on the part of the appellant on Exhibit CA 57, which has been expunged. It is still my considered view that in the light of the evidence given both by P.W.1 and P.W.2 which evidence had remained uncontradicted, the same conclusion of negligence would have been arried (sic) (meaning arrived) at without necessarily drawing from the expunged document. In particular, P.W.1, the expert that he was, had testified to the fact that appellant’s diagnosis of the faults in the respondents (sic) (respondent’s) vehicle were wrong . So were the repairs conducted.

In sum, the appellant by the uncontradicted testimony of P.W.1 and P.W.2 had been shown to have displayed, in the discharged (sic) of its obligation to the respondent a deficient skill.

The trial court’s reason for finding that appellant was negligent might therefore be wrong but not the finding self (sic) (meaning itself). The court was bound to use evidence that had remained unshaken and uncontradicted. See Oyetayo v. Mosojo (1997) 10 NWLR (Pt. 526) 627; Dimlong v. Dimlong (1998) 2 NWLR (Pt. 538) 381 CA and Ifeanyi Chukwu Osondu v. Akhigbe (1999) 7 S.C. (Pt. 1) 1; (1999) 11 NWLR (Pt. 625) 1 S.C.”

(the underlining mine)

His Lordship continued thus:

“Undoubtedly, the court had erred when it based its decision largely on a document that has been adjudged inadmissible and or of little or no probative value. This error by itself, in view of the subsisting credible evidence given by P.W.1 and P.W.2 cannot lead to a reversal of the decision appealed against. The finding has not been shown to be perverse. See Okokji (sic) (meaning) Okonji v. Njokanma (1999) 12 S.C. (Pt. II) 150; (1999) 14 NWLR (Pt. 628) 250 S.C. The finding has remained unaffected by our holding that Exhibit ‘CA57’ is inadmissible. By virtue of Section 16 of the Court of Appeal Act, the lower court’s reasons for its findings are hereby retailored to reflect our foregoing observations………”

(the underlining mine)

It is now firmly established that where the findings of a trial court are perverse or use made of a document goes beyond its evidential value particularly in respect of documentary evidence, it is the duty of the appellate court to re-consider, re-assess the evidence and apply it if the justice of the case so requires. See the cases of Adeleke v. Iyande (2001) 6 S.C. 18; (2001) 13 NWLR (Pt. 729) 1 at 20; (2001) 6 SCNJ 101; and Tsokwa Oil Marketing Co. Nig. Ltd. v. Bank of the North Ltd. (2002) 5 S.C. (Pt. II) 9; (2002) 5 SCNJ 176 at 200. This is why there is the need for a trial and an appellate court, to consider all relevant evidence before them.

This is exactly what the court below did. It gave its reasons for expunging Exhibit CA57 from its Records at pages 181 to 183. Some of them include that Exhibit CA 57 was not specifically pleaded; that it had not been made part of the Record of Appeal transmitted to the court; that from the said Record, it was clear that D.W.1 through whom it was tendered, was neither the maker nor the addressee of the very document. That the maker of the document did not testify so also the addressee and therefore, it had not been possible to cross-examine either of them; thus that there was nothing on record to indicate that the exhibit had been written by and received by the persons so alleged; that worse still, that the learned trial Judge did not reproduce the content of the document nor was the court below afforded an opportunity to physically examine the content of the exhibit. Finally, that the document never had the probative value ascribed to it by the trial court chiefly because, its maker was neither called nor its origin and destination fully ascertained. That for the first reason, the trial court should have discountenanced the document.

Fine! There seems to be no quarrel about the court below’s decision in expunging the said document or exhibit from the Records. The complaint by the appellant is that having expunged the said document, the court below ought not and should have not proceeded to re-evaluate the evidence before it. I have, with respect, rejected this contention/submission. I gave my reason for so doing.

In addition and this is also settled, Section 16 of the Court of Appeal Act, gives it full jurisdiction over the whole proceedings as if the proceedings had been initiated in the Court of Appeal as the court of first instance and therefore, may re-hear the case as a whole or in part or may remit it to the trial court for the purpose of rehearing or trial de novo. I will add also, that the incontestable limit, is that such first instance jurisdiction exercised by the Court of Appeal, does not include what a trial court could not have done. See the cases of The State v. Dr. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 46, 56, 58; (1992) 2 SCNJ 1; Abbas & Ors. v. Solomon & Ors. (2001) 7 S.C. (Pt. II) 45; (2001) 7 SCNJ 546 and Attorney-General, Anambra State & 5 Ors. v. Okeke & 4 Ors. (2002) 5 S.C. (Pt. II) 583 (2002) 5 SCNJ. 318 at 333, 335, 339, 345.

It has to be borne in mind and this is also settled, that if an appellate court is of the opinion (as in the instant case reproduced by me hereinabove), that the inadmissible evidence, cannot or could not reasonably, have affected the decision, it will not interfere. But if it is of the opinion that without the inadmissible evidence, the decision must have been different, it will interfere. See the cases of Ajayi v. Fisher (1956) 1 FSC 90 at 92; (1956) SCNLR 279; R. v. Thomas (1958) 3 FSC 8; Raimu v. Alhaji Akintoye (1986) 5 S.C. 87 and recently, Chief Durosaro v. Ayorinde (2005) 3-4 S.C. 14; (2005) 3 SCNJ 8 at 16-17; (2005) 3-4 S.C. 14 citing also Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1976) 9-10 S.C. 227 at 245. There is no doubt and this also firmly established that where inadmissible evidence has been admitted, it is the duty of the court, not to act upon it. See Olukade v. Alade (1976) 1 S.C. (Reprint) 83; (1976) 2 S.C. 183 at 188-189. This is why the court below stated that the trial court should have discountenanced the said exhibit or document.

The problem or quarrel, is the holding of the court below, that the evidence of P.W.1 and P.W.2, remained uncontradicted. I respectfully, do not agree with this view. I agree with the submission in the appellant’s Brief at page 7, that by stating so, the court below, in effect, sought to eliminate the entirety of the evidence of the D.W.1 and D.W.2. The learned counsel for the appellant has submitted that the evidence of the P.W.2 (the “expert”), was merely speculative and academic and that there was no evidence from him that stated that the appellant was negligent. That the evidence of the D.W.1 at pages 44 to 46 of the Records, were all in rebuttal of negligence. I agree. This is because, this witness – D.W.1, testified that he participated in dis-mantling the engine and that they discovered that the engine was damaged because two (2) out of the eight (8) cylinders, were worn out. D.W.2, was the witness who received the car. He testified that the vehicle was releasing blue-white smoke from the exhaust and that the car had a tapping noise for which the appellant was to effect repair as necessary. He also testified that no negligence occurred.

I agree with the submission in the appellant’s Brief, that the court below, instead of saying that there was uncontroverted evidence, but in its re-evaluation, it was in effect dealing with the credibility of the witnesses. That in the circumstances, it could have ordered a re-trial. The cases of Shell B.P. v. Cole (1978) 3 S.C. (Reprint) 128; (1978) 3 S.C. 183; Okeowo v. Miglore (1979) 11 S.C. (Reprint) 87; (1979) 11 S.C. 138. and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616 have been cited and relied on for this proposition. It is settled that the function of assessment of credibility of witnesses is essentially for the trial court and not that of an appellate court. See the cases of Akpakpuna & Ors. v. Nzeka & Ors. (1983) 2 SCNLR 1 at 14 and Obodo & Anor. v. Ogba & Ors. (1987) 3 S.C. 459, 460-61, 480-482, 485; (1987) 2 NWLR (Pt. 54) 1; (1987) 3 SCNJ 82 and recently, Agbeje & Ors. v. Chief Ajibola & Ors. (2002) 1 S.C. 1; (2002) 2 NWLR (Pt. 750) 127 at 132, 134, 135; (2002) 1 SCNJ 64 and many others. The trial court, in my respectful view, adequately or substantially dealt with the evidence before it particularly at page 102 and part of page 103 of the Records and came to its conclusion at pages 117 and 118 of the Record. I will come later to its award in favour of the respondent. So, in spite of the stance of the court below in holding that the evidence of the P.W.1 and P.W.2, were uncontradicted, it is now firmly established that it is not every mistake or error in a judgment that necessarily determines an appeal in favour of an appellant or automatically results in the appeal being allowed. It is only when the error is so substantial, that it has occasioned a miscarriage of justice, that the appellate court is bound to interfere. There are too many decided authorities in this regard. See Onajobi v. Olanipekun (1985) 4 S.C. (Pt. 2) 156 at 168; Osafile & Anor. v. Odi & Anor. (No. 1) (1990) 5 S.C. (Pt. II) 1; (1990) 3 NWLR (Pt. 137) 130; (1990) 5 SCNJ 118; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at 400; Odukwe v. Mrs. Ethel N. Ogunbiyi (1998) 6 S.C. 72; (1998) 8 NWLR (Pt. …..) 338 at 351; (1998) 6 SCNJ 102 at 113 and International Bank of West Africa Ltd. v. Pavex International Co. (Nig.) Ltd. (2000) 4 S.C. (Pt. II) 196; (2000) 7 NWLR (Pt. 663) 128; (2000) 4 SCNJ 200 just to mention but a few.

My answer to this issue therefore, is partly in the affirmative, but I hold that the court below, with respect, was wrong in holding that the evidence of the P.W.1 and P.W.2, remained uncontradicted. Incidentally, that was the submission of the learned counsel for the respondent as recorded by the court below at page 180 of the Records. Even if it dealt with the credibility of the witnesses, with respect, it was not entitled to do so because, the assessment of credibility of witnesses is that of the trial court. The effect, in my respectful view, is that the trial court, having preferred the evidence of the respondent to that of the defence/appellant through its two witnesses, that finding subsists. For the avoidance of doubt, the trial court at page 112 of the Records, stated inter alia, as follows:

“I had the opportunity of watching the demeanour of the plaintiff while he was in the witness box. He impressed me as an honest, prudent, innocent but unfortunate customer in the hands of a team of inexperienced and incompetent workmen in the employment of an otherwise reputable Automobile Engineering Company with a poorly stated Branch Office at Onitsha. I hold that the plaintiff has proved his case on preponderance of evidence and that the defendant Company’s workmen at Onitsha damaged the plaintiff’s Mercedes Benz car engine while they were working on it in a most reckless, negligent and incompetent manner, for which I hold the defendant Company vicariously liable in damages (sic) to the plaintiff. ……..”

(the underlining mine)

Issue 3 of the appellant and 3.02 of the respondent.

I have under Issue 2 of the appellant, dealt with part of Issue 3.03 of the respondent which read as follows:

“Whether the Court of Appeal is justified in its decision that the evidence of P.W.1 and P.W.2 were uncontroverted …………”

The rest of the sentence is substantially the same with Issue 3 of the appellant.

The law is firmly settled as to the attitude or powers of an appellate court in respect of an award of damages by a trial court. An appellate court ought not to upset an award of damages by a trial court merely because, if it had tried the matter, it might have awarded a different figure. An award of damages can only be upset or interfered with by an appellate court, if it is shown by the appellant, either that:

“(a)the trial court acted or proceeded upon wrong principles of law, or

(b)the amount awarded by the trial court, is manifestly and extremely high or low, or

(c)the amount, was on an entirely erroneous estimate which no reasonable tribunal, will make.

See the cases of F.R.A. Williams v. Daily Times of Nig. Ltd. (1990) 1 S.C. 23; (1990) 1 NWLR (Pt. 124) 1 at 49; (1990) 1 SCNJ 1; Ndinma v. Igbenedion (2001) 5 NWLR (Pt. 705) 140 C.A.; Nzeribe v. Dave Engineering Co. Ltd. (1990) 3 NWLR (Pt. 361) 124 at 140 and recently, The Shell Petroleum Development Co. of Nig. Ltd. & 4 Ors. v. Chief Tiebo VH (2005) 3-4 S.C. 137; (2005) 4 SCNJ 39 at 56.

In other words, in order to justify interference with any decision of a trial Judge on the amount of damages awarded, it must be convinced that the above ingredients are present. In the instant case, while the trial court in its final decision at page 118 of the Records, entered judgment in favour of the respondent in the following terms:

“(1) The defendant company shall pay to the plaintiff the sum of N1.5M being the cost of replacement of the plaintiff’s 500 SEL Mercedes Benz Car Engine damaged by the Def-Coy.

(2) `The defendant company shall also pay to the plaintiff the sum of N25,000.00 being special damages for the chartering of alternative vehicle by the plaintiff for his business and personal movements for 51 days at N500.00 per day until his car was back on the road.

(3) The defendant company will also pay the plaintiff the sum of N650,000.00 being General Damages for breach of contract”.

In paragraph 18 of the respondent’s Statement of Claim which appears at page 8 of the Records, the respondent, claimed as follows:

“(a) Two Million Naira (N2,000.000.00) being the cost or replacement of the plaintiff’s said 500 SEL Mercedes Benz car ENGINE damaged by the defendant.

(b) Five hundred naira (500) per day from 28th January, 1993 till the date of judgment being the cost of chartering vehicle for the plaintiff’s business movement between Awkuzu and Onitsha.

(c) One Million Naira (N1,000.000.00) being general damages for emotional distress, financial and social disability caused to the plaintiff since the 28th January, 1993.”

In supporting the enhancement of the award in respect of the ENGINE, the respondent has submitted that the court below because, according to the respondent, it is sustained by the body of evidence on record before the court. It is submitted that it is empowered to interfere with the award made by the trial court “where the circumstances calling for such interference are shown to the appellate court”. The cases of Soleh Boneh Overseas (Nig.) Ltd. v. Ayodele (1984) (sic) (it is (1989) 2 S.C. (Pt. I) 108; (1989) 1 NWLR (Pt. 99) 549 at 563 and Union Bank of Nig. Ltd. v. Odusote Bookstore Ltd. (1995) 9 NWLR (Pt. 421) 558 have been cited and relied on. It is further submitted that there is no counter-evidence on record and that the award of Two Million Naira (N2M) by the court below was right since it was pleaded and proved. The case of T. Lawal Owosho & Ors. v. Michael Adebowole Dada (1984) 7 S.C. 149 at 167 is cited and relied on. That the said award was to restore the respondent to the position he would have been if the breach had not occurred. That it was not a windfall. The case of Union Bank Nig. Ltd. v. Ogboh (1991) 1 NWLR (Pt. 167) 367 at 389 is cited and relied on.

Now, the court below at pages 189 to 194 of the Records, dealt with the said three (3) heads of claim of the respondent and the award made by the trial court. At page 192 thereof, the following appear inter alia:

“What did the lower court do in the instant case In spite of the fact that the appellant neither challenged the pleadings nor evidence in proof of respondent’s 1st head of claim, the lower court arbitrarily proceeded to award the respondent N1.5M. instead of the N2M claimed for which cogent and uncontroverted evidence had been supplied. In answer to appellant’s 4th issue for determination, it must be said that the award of N1.5M in respect of the respondent’s 1st head of claim was arbitrary and cannot be said to have had any legal basis. The court had no option than to act on the evidence that was before it by awarding a relief sustained by such body of evidence. See Boshali v. Allied Commercial Exporters Ltd. (1965) SCNLR 332 and Calabar East Co.op v. Ikot (supra). The issue is accordingly resolved in favour of the appellant adverse as the consequence appear to be”

I must confess that the underlined sentence is worrisome to me. This is because, if issue 4 is resolved in favour of the appellant that is the same appellant in this appeal, then, it could not have enhanced the said award.

That Issue 4 of the appellant reads as follows:

“Whether there was any basis for the award of N=1,500.000.00 (One million, five hundred thousand naira) after the learned trial Judge had held that he does not believe the plaintiff/respondent’s evidence on the cost of engine”

This issue is very clear and unambiguous. Surprisingly and with respect, erroneously, the court below at page 194 of the Records stated inter alia as follows:

“The appellant’s 4th and 5th issue (sic) must have been formulated with a view that at this level, we review the damages awarded to the respondent if we find the lower court’s award incorrect. The Supreme Court has provided conditions by virtue of which an appellate court will be justified in interfering with the award of damages made by the trial court. These are ……………..”

(the underlining mine)

With respect, nothing can be far from the truth in respect of my underlined statement. As rightly submitted in the appellant’s Brief, firstly, the issue was raised by the court below, suo motu. This court has in many decided cases, deprecated a court raising a matter/point suo motu, without affording the parties, the opportunity of addressing it on the matter/point as it amounts to a denial of fair hearing guaranteed in Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria now Section 36(1) of the 1999 Constitution. See the cases of Odiase v. Agho (1972) 3 S.C. (Reprint) 69; (1972) 1 ANLR (Pt. 1) 170; Alhaji Otapo v. Alhaji Sunmonu (1987) 2 NWLR (Pt. 58) 587; and recently, Mallam Mohammed v. Alhaji Mohammed (2005) All FWLR (Pt. 275) 502 at 508, 516 citing other cases therein and Mrs. Fombo v. Rivers State Housing and Property Development Authority (2005) 5 S.C. (Pt.II) 102; (2005) 5 SCNJ 213 also citing some other cases therein, just to mention but a few.

I note that at page 149 of the Records, the respondent’s Issue 4 in this regard, reads as follows:

“Whether the award of N1.5M (One Million, Five Hundred Thousand Naira) as the cost of Mercedes Benz 500 SEL Car Engine in all the circumstances of this case is such an outrageous award in the face of the unchallenged evidence of P.W.1 and P.W.2 to attract the intervention of an appellate court”.

This issue is also clear and unambiguous. It did not talk or refer to an enhancement of the award. It is also firmly settled that it is the duty of a court to confine or limit itself, only to the issue raised and/or canvassed by the parties before it. There are also too many decided authorities in this respect. See Onwunalu & Ors. v. Osademe (1991) ANLR 15 at 17 – per Coker, JSC., cited and relied on in the appellant’s Brief; Adeosun v. Babalola (1972) 5 S.C. (Reprint) 183; (1972) 5 S.C. 292; University of Calabar v. Dr. Essien (1996) 10 NWLR (Pt. 477) 255 at 251; (1996) 12 SCNJ 304 at 326; Madam Obulor & Anor. v. Oboro (2001) 4 S.C. (Pt. I) 77; (2001) 4 S.C. (Pt. I) 77; (2001) 8 NWLR (Pt. 714) 25 at 32; (2001) 4 SCNJ 22; and recently, Nigerian Bank for Commerce & Industry v. Intergrated Gas (Nig.) Ltd. & Anor. (2005) 1 S.C. (Pt. I) 133; (2005) 4 NWLR (Pt. 916) 617 at 644; (2005) 1 SCNJ 104; and many others. Secondly, the trial court, at pages 112 and 113 stated inter alia, as follows:

“………… The plaintiff testified that his car engine costs N2M, P.W.2 corroborated this piece of evidence that Mercedes Benz 500 SEL engine is expensive. I don’t believe that it costs up to N2M.

There is no evidence from the defendant-Coy, particularly D.W.1 as to the cost of 500 SEL Mercedes Benz car engine ………….”

(the underlining mine)

I note that this was or amounted to speculation or assumption to which it is not entitled to do. Although the learned trial Judge did not give any reason as to the basis of his unbelief as it is settled that a court must give reason or reasons, for a particular finding of fact or holding; but the respondent, as rightly submitted in the appellant’s Brief, did not appeal against this holding – i.e. there was/is no Cross-Appeal by the respondent in respect of the said holding of not believing the respondent more so, as the evidence was not controverted by the appellant’s said witness – D.W.1. I am aware and this is settled, that a court, should give adequate consideration to the evidence offered in support of a claim for special damages and that if the accepted evidence possesses such probative value as preponderates the case in favour of the person claiming, then an award would be justified. See Oshinjirin & Ors. v. Elias & Ors. (1970) 1 ANLR 153 at 156 and perhaps, the case of Boshali v. Allied Commercial Exporters Ltd. (supra), (it is also reported in (1961) ANLR 917) cited and relied on by the court below. But C/F (compare) this decision in Boshali’s case with the case of Calabar Cement Co. Ltd. v. Abiodun Daniel (1991) 4 NWLR (Pt. 188) 750 at 760 – per Katsina-Alu, JCA, (as he then was).11 In any case, the above is not the issue. What is in issue, is that the court below raised the issue of enhancement of the award of damages made under relief/claim (a) in the respondent’s claim suo motu and where there was no Cross-Appeal. I have already noted and held with respect, that there was misconception as to the interpretation by the court below, of the said Issue 4 of both parties. I have no hesitation in holding and I so hold, that the court below, in all the circumstances, was wrong in enhancing the said award from N1.5M (One Million five hundred thousand naira) to N2M (two million naira). I have no doubt in my mind, that the learned trial Judge, was not at all justified in holding that he does not believe that that type of Engine, will cost N2M. (two million naira). I have stated that he gave no reason for his unbelief, especially when he conceded that the evidence of the respondent was not controverted in respect thereof. But the respondent did not cross-appeal and enhancement of the said award was not an issue raised by any of the parties in the court below. There is no doubt in my mind, that the learned Justices of the court below, must have been peeved (this is again speculation by me), because of the apparent recklessness, incompetence and negligence of the staff of the appellant which in fact, led to the sack of its Workshop Manager. What should have been enhanced (if it was asked for on appeal), was the claim for general damages having regard to decided authorities about award for pain, agony, bitterness, embarrassment, etc. caused by breach of contract as in the instant case where the respondent gave copious evidence at pages 24 to 31 about what happened to him and his said car which remained in the appellant’s custody for some period of four (4) years!

In conclusion, from what has been adumbrated by me above, the third issue of the parties is resolved in favour of the appellant. This appeal therefore, succeeds in part. I hereby set aside the said award of N2M (two million naira) by the court below and affirm the decision of the trial court in respect of the awards in claims/reliefs Paragraph 18 of the respondent’s Statement of Claim.

Costs follow the event. I assess and award the sum of N8,000.00 (eight thousand naira) instead of N10,000.00 in favour of the respondent, payable to him by the appellant.

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SC.140/2002