A.G. Leventis Nigeria Plc. V. Chief Christian Akpu (2001)
LawGlobal-Hub Lead Judgment Report
D. MUHAMMAD, J.C.A.
This is an appeal against the judgment of Hon. Justice B.A. Nwankwo of the Anambra State High Court sitting at Onitsha and dated 18th September, 1998. The judgment was in favour of the respondent before us who at the lower court was the plaintiff and against the present appellant being the defendant. Hereinafter, the parties will be referred to simply as appellant and respondent respectively.
The facts of the case upon which the appeal is built are as briefly and immediately stated.
The appellant’s claim against the defendant at the lower court were for the following reliefs:
(a) Two million naira (N2,000.000.00k) being the cost of replacement of the plaintiff’s said 500 SEL Mercedes Benz car destroyed by the defendant.
(b) Five hundred naira (N500) per day from 28th January 1993 till the date of judgment being cost of chartering vehicle for (his) the plaintiff’s movement/business and (c) One million naira (N1,000.000.00k) being general damages for emotional distress, financial and social disabilities.
Pleadings, having been ordered, were filed and exchanged. It was respondent’s case, gathered from the pleadings, that his Mercedes Benz car with registration No. LA 2138 MM, Engine No. 117-96112-002849 and Chasis No. 126-036-12-002795 was first taken to the appellant’s Onitsha office with an ordinary request for the replacement of the car’s manifold gasket for which a job card was created. This was on 19th October 1992. It took the appellant weeks to carry out the replacement and when the car was eventually returned, its state had worsened beyond the ordinary problem of exhaust manifold gasket.
On respondent’s complaint to the appellant about the deteriorating condition of the former’s vehicle, the latter dispatched one of its mechanics who recovered the vehicle. It was respondent’s further case that the appellant made more diagnosis on the vehicle and recommended the overhauling of the cylinder head. This was on 28/1/93 vide job card No. 135196. The state of the car worsened after this second repairs further degenerating into subsequent uncalled for series of endless repairs.
Resultantly, because of appellant’s incompetence and recklessness, the vehicle’s engine was totally damaged. The vehicle, respondent’s case it was also(sic), was dumped in appellant’s Onitsha office until 18th September, 1996 when respondent removed it to forestall further damage. On removal, the vehicle was without its complete engine, automatic gear box, starter-motor and air condition compressor with the hoses. Two waybills dated 18th September 1996 and 20/9/96 respectively conveyed the fact of this removal. The waybills were issued by the appellant to the respondent. They were relied upon at trial by the latter. The Onitsha workshop manager of the appellant and the respondent were signatories to the said waybills. Respondent who had to charter an alternative vehicle at a daily cost of N500 pleaded and sought to rely on all or any document establishing appellant’s negligence and incompetence as predicating the damage he suffered therefrom.
By paragraph 5 of its statement of defence, the appellant admitted that respondent’s vehicle was first taken to its premises on 17th October, 1992 but not for the simple re-placement of the car’s exhaust manifold gasket. Details of the repairs authorised to be conducted were as contained on job card No. 127886 which appellant pleaded and promised to rely upon at trial.
It was appellant’s case, therefore, that all repairs of respondent’s vehicle were conducted deligently and with all the professional skill and competence required and considered necessary for same.
It is pertinent to state that because of its non-production by the appellant a subsequent job card sought to be relied upon by the respondent was not admitted in evidence at trial. The relevant job car card was dated 28/1/93 with No. 135196.
At the end of trial, the trial court found for the respondent and entered judgment in the following terms:-
“(1) The defendant’s company shall pay to the plaintiff the sum of N1.5m being the cost of replacement of the plaintiff’s 500 SEL Mecedez Benz car engine damaged by the defendant’s company.
(2) The defendant’s company shall also pay to the plaintiff the sum of N25,500.00k (sic being special damages for the chartering of alternative vehicle by the plaintiff for his business and personal movements for 51 days at N500 per day until his car was back on road and,
(3) The defendant’s company will also pay to the plaintiff the sum of N650,000 being general damages for breach of contract.”
The court also adjudged respondent as being entitled to cost assessed at N1,000 against the appellant.
The appellant being dissatisfied with the lower court’s decision has come to us with the instant appeal on six grounds including omnibus ground. Six issues were drawn from these grounds of appeal and presented in appellant’s brief for the determination of the appeal. The issues are:-
“(1) Whether the learned trial Judge was right to admit exhibit ‘CA57’ in evidence.
(2) Whether the learned trial Judge was correct when he held that the document of contract was not Exh. ‘E’ but repair order No. 135196
(3) 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 suffices as particulars of negligence
(4) Whether there was any basis for the award of N1,500,000.00 (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 engines.
(5) Whether there was correct basis for the award of N550,000,00 (Five hundred and Fifty thousand naira) to the respondent as general damages.
(6) Whether on the preponderance of evidence, the respondent had discharged the onus of establishing negligence on the part of the appellant.”
On respondent’s part, five issues have been formulated. These are:
1) Whether the learned trial Judge erred in the admission of Exh. ‘CA57’ and in the evaluation of the evidence before him.
(2) Which of the two job cards; namely job card No. 127886 of 19/10/92 or job card No. 135196 of 28/1/93 formed the basis of the parties contract in respect of the plaintiff’s Mercedes Benz car No. LA 2138 MM.
(3) 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.
(4) 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 circumstance 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 the appellate court.
(5) Whether the award of N650,000.00 (Six hundred and fifty thousand naira) as general damages is not justified in the circumstance of this case.”
In arguing the first issue in the appeal, learned appellant’s counsel submitted that Exh. ‘CA57’ was wrongly admitted. Counsel submitted that there were at least three reasons why the document should have been rejected. Firstly, the document being a photocopy, foundation should have been laid by the respondent before same was admitted through D.W.1.
It was counsel’s view that such foundation had not been laid. The admission of the document offended S.96 of the Evidence Act and by virtue of S.97 of the Act wrong.
Secondly, respondent did not plead and seek reliance on the document so admitted. Learned counsel accordingly argued that evidence led in proof of unpleaded facts go to no issue and must on appeal be expunged. Paragraph 17 of the respondent’s statement of claim referred to by the lower court was insufficient to justify the admission of such vital piece of evidence.
Lastly, by law, appellant ought to have been served with notice to produce the document before respondent was allowed to tender and have the exhibit admitted. Such notice had not been given.
Reliance by a court on such an improperly admitted document thereby occassioning miscarriage of justice was perverse. The use which the trial court put Exh. ‘CA57’ were all illegal and must be discountenanced. Counsel relied on the decision in Mogaji v. Odofin (1978) 4 SC 91.
Under the second issue, learned appellant’s counsel contended that the court’s finding that job card No. 135196 rather than Exh. ‘E’ was the contract document between the parties was wrong.
Respondent’s case it was that appellant’s negligence started as from 19th October, 1992 when the appellant received the vehicle with the “ordinary complaint” of replacing the car’s exhaust manifold gasket. Paragraphs 4, 5 and 15 of the respondent’s statement of claim were of this clear import. The court had made for the respondent a case different from the one the party had presented. The court’s finding had offended the content of Exh. ‘E’ which was clearly the contract document as pleaded by the respondent. The court’s findings in relation to the contract document at pp 104 and 107 were contradictory and necessarily perverse. Such finding must be set aside and in its place Exh. ‘E’ be treated by this court as the paramount contract document. Learned counsel cited as authority to the legal principle he so enunciated the case of George & Ors v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71.
Furthermore, assuming without necessarily conceding that job card No. 135196 was the relevant contract document same having been admitted by the parties, it was unnecessary for the very document to be proved. That appellant, therefore, had not tendered this job card it sought to rely on could not have been an issue at the lower court. The court’s findings at p.107 castigating the failure of appellant to tender the job card and making an inference from such failure by virtue of section 149 of the Evidence Act was, accordingly, manifestly wrong.
Appellant’s third issue related to the trial court’s findings at pp 105 and p.106. The court, learned counsel submitted, held that it was not necessary for the respondent to plead particulars of negligence and that it sufficed to simply indicate what case the respondent was seeking to make. Learned counsel referred to Bullen and Leathes precedents on pleadings (11th Edition) at p. 533 to show the fallacy of the lower court’s position. Where negligence was alleged, it was necessary to set out the facts which constitute the duty the breach of which was being made an issue. It was further necessary to set out the details of the damages suffered. Counsel also cited this court’s decision in Adeoshun v.Adisa (1986) 5 NWLR (Pt.40) 225 at 236. Failure of the respondent to plead the necessary particulars made proof by evidence of such particulars impossible. A decision on such evidence which because of absence of pleadings thereon went to no issue has to be set aside.
The appellant’s 4th issue for the determination of the appeal complained about the N1,500,000.00k special damages granted to the respondent on the basis of the court’s findings at pp. 112 and 113 of the record. Learned counsel contended that inspite of the court’s disbelief in the evidence led by the respondent in proof of this category of damages, the court proceeded to arbitrarily fix the cost of the car’s engine at N1.5 Million. The court’s assessment had no legal basis. Special damages must be strictly proved and there was no room for the Judge’s individual assessment of costs. Learned counsel urged that in view of the decisions in Dumez Nigeria Ltd. v. Patrick Nwaka Ogboli (1972) 1 All NLR (Pt.l) 241 and Otaru & Sons Ltd. v. Idris & anor (1999) 4 S C (Pt.2) 87, the lower court’s arbitrary assessment cannot be sustained.
Under the 5th issue, it was appellant’s contention that the award of N550,000.00k general damages to the respondent proceeded on wrong principles. The award, learned counsel submitted, was made because of respondent’s inability to collect his car’s automatic gear box, alternator, kick starter and air condition compressor. This finding made at p.117 of the record related to items of special damages for which there must be specific pleadings. The lower court was thus wrong in substituting an award for special damages with one for general damages. Learned counsel referred to the Supreme Court’s decision in Badmus v.Abegunde (1999) 11 NWLR (Pt.627) 493, (1999) 7 S.C. (Pt.1) p.78 and J. African Shipping Agency v. Kala (1978) 3 S.C. 21 to support his submissions.
On the sixth issue, it was argued that on the preponderance of evidence respondent did not discharge the burden of proof required of him to prove negligence. Throughout the case of the respondent, appellant contended, there was no direct evidence of negligence on the latter’s part. On the whole, if all the admissible evidence led at trial had been properly evaluated, the evidence led in defence would had by far outweighed the evidence offered in proof of respondent’s case, and on the authority of the decision in Mogaji v.Odofin (supra) the lower court’s decision must be set aside.
Looking at the issues formulated by the respondent for the determination of the appeal, it would not be wrong to conclude that for all intent and purposes they are the same with and raise the same questions as those formulated and argued by the appellant.
In arguing the appeal, under respondent’s first issue for determination, his counsel submitted that it must be the relevance of Exh. ‘CA57’ that must be paramount in considering the document’s admissibility. Counsel further argued that by paragraph 17 of the respondent’s statement of claim, the fact that the respondent would rely on documents the like of Exh. ‘CA57’ had been pleaded.
The document was an internal memo of the appellant’s company and it was not for the lower court to enquire as to how the document was acquired once on “the face of it the document was seen to be relevant to the facts in issue.
Exh. ‘CA57’ tended to establish the negligence of the appellant and by virtue of paragraph 17 of the statement of claim same had been sufficiently pleaded. The decisions in Oshunrinde v.Akande (1996) 6 NWLR (Pt.455) 383; Jennifer Madike v. I.G.P. (1992) 3 NWLR (Pt. 227) 70 at 88; Dr. Torti v. Chris Ukpabi (1984) 1 S.C. 214 at 392 and Iheanacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 352, (1997) 1 SCNJ 117 at 125 were cited in support of argument of counsel.
It was the furtherargument of learned counsel that since the admission of the document had not caused any injustice to the appellant, the lapse should be ignored. Put differently, learned counsel submitted that the lower court’s decision would have been the same even without the wrongly admitted document. The testimonies of P.W.1 and P.W.2 had remained unchallenged let alone to be contradicted. Yet, respondent does not concede that Exh. ‘CA57’ was inadmissible simply on the basis that appellant had not been served the notice to produce. Appellant must have known that it would be required to produce the very document by virtue of paragraph 17 of respondent’s statement of claim. In any event, counsel opined that s.98 (b) of Evidence Act, had made the service of notice on the appellant for the production of the original of Exh. ‘CA57’ unnecessary.
Under the 2nd issue, respondent’s counsel argued that whether or not the finding of fact made by the trial Judge as to the document applicable to the contract was wrong hinged on the pleadings of and evidence offered in proof of same by parties. The fact that respondent’s vehicle was first taken to the appellant for repairs on October 1992 was one admitted by both parties. The added fact that the repairs authorised to be conducted on the vehicle vide job card No. 127886 Exh. ‘E’ had also ceased to be an issue. The fact that the vehicle was returned, on the complaint of the respondent to the appellant because of the unsatisfactory repairs pursuant to Exh. E was also an agreed one between the parties. Job card No. 135196 of 28/1/93 must be deemed to be the basis of the new and fresh contract of repairs of respondent’s vehicle. This 2nd job card was in possession of the appellant and in respect of which the appellant was served notice to produce. The notice was to no avail.
The findings of the lower court in the light of s.149 (d) of the Evidence Act was therefore correct. The findings being not perverse cannot be reversed on appeal. Learned counsel submitted that the lower court’s decision must persist in the light of decisions such as Re: Adewunmi & Ors (1988) 3 NWLR (Pt.83) 483; Lawai Owosho & ors v. Michael Adebowale Dada (1984) 7 S.C. 149 at 167; Woluchem v. Gudi (1981) 5 S.C. 291 at 326 and Okpiri & ors v. John & ors (1961) 1 SCNLR 174 amongst others.
In arguing the 3rd issue learned respondent’s counsel contended that by virtue of paragraphs 5, 7, 8, 9, 13, 15 and 17 of the respondent’s statement of claim sufficient particulars of negligence on appellant’s part had been furnished. These particulars were the acts of the appellant in the conduct of repairs of the respondent’s vehicle. Counsel further submitted that the evidence of P.W.1 and P.W.2 went in proof of these allegations. Counsel also argued that it was not the province of pleadings for evidence to be led at trial to be so encompassed. Indeed, counsel emphasized, Order 9 rule 4 of the Anambra State High Court Rules, made the inclusion of evidence in pleadings reprehensible. Moreover, the respondent’s claim was not such that by virtue of Order 9 rule 20 of the same rules, required specific pleadings of particulars of negligence.
It does, therefore follow that even if it were true that respondent did not supply particulars of negligence,, the omission would not be fatal to the eventual decision given by the trial court. The decision as reflected at p. 106 of the record being not perverse should be upheld, submitted, counsel relying on the case of Seismograph Services (Nig.) Ltd. v. Mark (1993) 7 NWLR (Pt.304) p. 203 at 207.
For the 4th issue in the appeal, learned respondent’s counsel submitted that the award of N1.5M (One million five hundred thousand naira) for the respondent’s car engine was not outrageous.
It was argued that since the award was based on the evidence before the court, it was beyond reproach. The respondent at paragraph 18(a) claimed the sum of two million naira from the defendant for the replacement of the car’s complete engine. Before then, the respondent had alleged in paragraph 11 that apart from the engine the vehicle’s automatic gear box, starter motor, alternator and air condition compressor with the hoses had been removed also. By virtue of Exh .’A & B’, counsel continued, evidence had been proffered establishing that all the items complained of had not infact been returned. Evidence was also given as to the cost of Mercedes Benz 500 SEL engine being between N2M and N3M. The court awarded the respondent based on this evidence the sum of N1.5M, ralher than the N2M claimed. The appellant neither contradicted the evidence led as to the cost of the engine nor provided counter-cost to the one given by the respondents. On the authority of Ojabu & Sons Ltd. v. Idris & anor (1999) 4 S C (Pt. 2) 87, Ehimare & anor v. Emhonyon (1985) NWLR (Pt. 2) 177 and Nigerian Maritime Services Ltd. v. Beko Afolabi (1978) 2 S.C. 79; the award cannot be overturned.
In respect of the 5th issue, learned respondent counsel submitted that the appellant’s complaint therein was equally without any legal basis. By virtue of paragraph 18(c) of their statement of claim, respondent had asked for N1million for emotional distress, financial and social disability caused him between 28/1/93 and 18/9/96. The request for N1 million was also to cater for the embarrassment and inconvenience suffered. The award of N650,000.00 was made pursuant to this head of claim and had nothing to do with the four missing parts of the engine. Counsel commended the use of the decision in Banco De Portugal v. Water-Low and sons Ltd. (1932) A.C. 452 at 546 to forestall interference with the lower court’s award to N650,000.00 general damages.
Respondent also argued the 6th issue formulated by the appellant for the determination of the appeal. In so doing, learned counsel adopted all the arguments proferred by the respondent in respect of the 1stto 5th issue for the 6th issue as well. Learned counsel finally submitted that respondent having discharged the burden of proof through the uncontradicted testimonies of P.W.1 and P.W.2 was entitled to the judgment of the lower court. The appellant has not shown that the decision of the lower court was perverse to justify being set aside and on the authority of the decisions in Jennifer Madike v. I.G.P. (1992) 2 NWLR (Pt. 227) 72 at 88 and Oshurinde v. Akunde (supra), the decision should be sustained.
Perhaps, it is pertinent to commence consideration of the instant appeal by stating that far too many issues had been unnecessarily formulated and relied upon by both sides to the appeal.
In truth, a single issue would have adequately provided for the germane questions raised in the appeal. From the state of pleadings of and the quantity and quality of evidence adduced by parties, are the various heads of damages by the trial court sustainable in law?
An issue so formulated could have naturally flowed from the omnibus ground of appeal which was one of the grounds contained in the notice of the instant appeal.
Proliferation of issues must invariable be frowned at and for reasons which are not far-fetched. Consideration of an appeal argued on the basis of unnecessarily proliferated issues involves an avoidable waste of the court’s and counsel’s precious time and energy.
Furthermore, clarity in the conclusions arrived at pursuant to the often repetitive issues in most cases become beclouded. Efforts must thus be geared towards the formulation of issues the success in the arguments of which would result in the reversal of the decision appealed against. This court and indeed the Supreme Court have countlessly said this much. See Araka v. Ejeugwu (1999) 2 NWLR (Pt. 589) 107 C.A. and Alhaji Otaru & sons Ltd. v. ldris (1999) 6 NWLR (Pt. 606) 330 S.C. UBN PIc v. Olori Motors Co. Ltd. (1998) 5 NWLR (Pt. 551) 652C.A. and Agbasi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630 S.C.
Be that as it may, we now need to consider whether or not Exh. ‘CA57’ had rightly been admitted by the lower court and if not what effect, if any, the wrong admission had on the decision appealed against.
We must be reminded what Exh. ‘CA57’ is, the circumstances under which the document was admitted and the effect it had on the mind of the Judge in the course of resolving the issue before the court.
Let me state outrightly that Exh. ‘CA57’ had not been specifically pleaded by the respondent. Although, by the ipse dexit of respondent’s counsel, appellant had been served with notice to produce examination of the record of appeal before us does not bear out this allegation.
It was not in dispute that the exhibit was a secondary evidence of a purported original. The original was supposed to be an internal memo written by one staff at the appellant’s company Onitsha office to another at its Lagos office. From the record of appeal, it was clear that D.W.1 through whom it was tendered was neither the maker nor the addressee of the very document. The maker of the document did not testify. So also the addressee. In essence, it had not been possible to cross-examine either the maker of Exh. ‘CA57’ or the person to whom it was addressed as to the content of the document.
Most importantly, there was nothing on record to indicate that Exh. ‘CA57’ had infact been written by and received by the persons so alleged. Worst still, neither the Judge in his judgment reproduced the content of the document nor was this court afforded the opportunity to physically examine the content of the Exhibit. Exh. ‘CA57’ had not been part of the record of appeal transmitted to this court.
With the foregoing antecedents surrounding the Exhibit and its admission, it is most appropriate to refer to the case of Iphie v. Plateau Auditing Co. (1957) NRNLR 212.
In the case, the plaintiff sued for the balance of his salary as an accountant in the service of the defendant company. Plaintiff had provided evidence that his services were engaged orally which he accepted in writing. A copy of the letter of acceptance was tendered in evidence. The trial Magistrate admitted the copy inspite of the objection raised thereto that notice to produce had not been served on the defendant. The plaintiff also led evidence to show that he had been paid three times by the defendant and tendered in evidence the counterfoils of his receipt book. Admissibility of these counterfoils was objected to on the same basis as the copy of the plaintiff’s letter of employment. The magistrate admitted the two categories of document apparently on the basis that notice was not necessarily required to be served on the defendant’s company.
On appeal, it was held that foundation must necessarily be laid under S. 96 of the Evidence Act and since it has not been shown that the tendered document had infact been received by the defendant, they were wrongly received in evidence.
The same can be said of Exh. ‘CA57’ and for which singular reason, it should be adjudged inadmissible. Accordingly, it must and it is hereby ordered expunged from the records.
We must emphasize the reasons why rules of court have provided for pleadings in litigation. Pleadings allow the parties to define the case they intend to fashion out or the defence that would be raised thereto. They disallow the element of surprise.
Consequently, any defence led on unpleaded facts has always been held inadmissible. See SBN Plc v. MPIE Ltd. (1997) 3 NWLR (Pt. 492) 209 C.A. and Isern v. Catholic Bishop Warri Diocese (1997) 3 NWLR (Pt. 495) 517 S.C.
It is thus not by accident that whereas by Order 9 rule 4 of the Anambra State High Court Rules, it is not necessary to specifically plead a document, the facts on which the appellant would rely to have the document admitted must by rule 5 of the same order be positively and precisely alleged in the pleadings.
Paragraph 17 of the respondent’s statement of claim stated as follows:-
“(17) The plaintiff pleads and will at trial seek leave of court to rely on all or any documents establishing the defendant’s negligence and incompetence.”
Exh. ‘CA57’ was ostensibly tendered pursuant to the foregoing paragraph. It is manifest from the very paragraph that it was unreasonable to expect appellant by this imprecise state of pleading to know that reference was bring made to Exh. ‘CA57’. The same pleading cannot avail the respondent in ascribing relevance of the same document to the issues at stake and on trial.
The defect in the pleadings of the respondent and absence of the required evidence that the original of Exh. ‘CA57’ was infact in the possession of the appellant made the admission of the document and resort to S.149 of the Evidence Act in using the document against the appellant manifestly unjust. The document never has probative value ascribed to it by the court chiefly because its maker was neither called nor its origin and destination fully ascertained. Even for the first reason alone, the lower court should have discountenanced the document. See Okonkwo v. State (1998) 8 NWLR (Pt.561) 210.
Resolution of the first issue for the determination of this appeal does not necessarily mean the success of the appellant in the entire appeal. As submitted by respondent’s counsel, the appeal would only succeed if after expunging the exhibit and its effect the credible evidence which persists be comes incapable of sustaining he decision of the lower court. A consideration of this submission invariably leads us to the appellant’s sixth issue for the determination of the appeal drawn from the omnibus ground in the notice of appeal.
It would be appropriate, though, to firstly clear the coast by tackling the preliminary matter posed by the 2nd issue for determination in the appeal. The question has been asked under this issue as to which of the job cards involved in the transaction between the parties to the appeal created the contractual relationship breach of which provided cause of action in the suit at the lower court. Job card No. 127886 dated 19/10/92 was the first in time and had been received in evidence as Exh. ‘E’. The subsequent job card No. 135196 which was in the possession of the appellant for which appellant was served notice to produce and which notice had not been complied with, was held by the lower court to be the relevant contractual document. In the light of the pleadings before the court, this conclusion cannot be faulted. Paragraphs 4,5,6,7 of the respondent’s statement of claim, and paragraph 5 of the appellant’s statement of defence warranted the lower court’s conclusion. It was a settled issue between the parties that the two job cards existed, that one had come into being before the other and that by mutual agreement the transaction created by the former had become subsumed in the subsequent relationship as contained in the latter. Evidence abound in the print record in proof of these settled facts. It must be conceded to the respondent that it is basic rule of evidence that admitted facts needed no proof. The finding of the lower court regarding the applicable contractual document only gave effect to this principle of the law of evidence. And rule of pleadings too. In this regard, it is instructive to be reminded of S.74 of the Evidence Act, and Order 9 rule 11 of the rules of the lower court.
Now, from the state of pleadings of the parties and the available credible evidence, can we sustain the decision of the lower court of course we can and effortlessly too:
The trial court after labouriously reviewing the case and evidence of the two parties had this to say in its judgment at p. 9899 of the record.
“Court:- In dealing with this case of contract, there are some areas of common agreement and areas of conflict in the evidence of the 2 parties and their witnesses. It is common ground that:-
(1) The plaintiff took his Mercedes Benz 500 SEL registration No. LA 2138 MM, engine No.1 17-901-12-002849 and chasis No. 126-036-12-002795 to the defendant coy’s workshop at Onitsha for some repair job on 19/10/92.
(2) A job-card No. 12886 was opened dated 9/12/92.
(3) A 2nd job-card was also opened in respect of plaintiff’s same car 500 SEL, on 26/1/93 as job card No.135196 because the repair job done on 19/10/92 the plaintiff’s complaint, and the car was driven back to the defendant coy’s workshop Onitsha for further diagnosis/investigation and necessary repairs.
(4) When the car was driven back to the defendant coy on 28/1/93, the car was with the defendant
coy for quite a long period of time as the diagnosis and repairs shifted from one fault to another.
(5) The plaintiff’s engine was eventually taken away to the defendant coy Lagos head office while the plaintiff was advised to tow-away the remnant body of the vehicle to avoid vandalisation thereof. The areas of conflict include the following:-
(a) The plaintiff stated that he took his Mercedes Benz car No. LA 2138 MM to the defendant coy workshop Onitsha on 19/10/92 for minor repair job of change of exhaust manifold gasket but the defendant coy’s stated that the car was brought with multiple complaints.
The plaintiff stated that this car has no engine problem before he took same for minor repair job to the defendant coy’s workshop at Onitsha, but the defendant coy claimed that before the plaintiff brought his car to defendant coy’s workshop on 19/10/92, that the engine was worm out.
The plaintiff claimed that it was while the defendant-coy was working on the cylinder head, and particularly after regrinding the valve and upon reinstalling same, that the engine hooked, stopped and got damaged there from, as a result of the defendant coy’s negligence, incompetence and/or recklessness.”
The court continued in its consideration of the issues before it thus:
“The crucial question for determination in this case include, inter alia, the followings:-
(1) What problem or problems motivated the plaintiff to take his Mercedes Benz 500 SEL car to the defendant coy’s Onitsha workshop on 19/10/92?
(2) What kind, natur’ and quality of job was done on the plaintiff’s car on 19/10/92?
(3) Why did it become necessary to drive the plaintiff’s car back 2nd time, to the defendant coy’s on 28/1/93?
(4) How long did the plaintiff’s car stay in the defendant coy’s custody before the engine was eventually sent to defendant coy’s Lagos head office?
(5) Why did plaintiff’s car stay the length of time it did before the engine was finally dispatched to the defendant coy’s head office in Lagos?
(6) What became of the contract of 19/10/92 vis-avis the fresh and new contract of 28/1/93?
It is true that the court had, (see p. 100-103 of the record) largely based its finding of negligence on the part of the appellant on Exh. ‘CA57’, which has been expunged. It is still my considered view that in the light of the evidence given both by PW1 and PW2 which evidence had remained uncontradicted, the same conclusion of negligence would have been arrived at without necessarily drawing from the expunged document. In particular PW1, the expert had testified to the fact that appellant’s diagnosis of the faults in the respondent’s vehicle were wrong. So were the repairs conducted.
In sum, the appellant by the uncontradicted testimony of PW1 and PW2 had been shown to have displayed, in the discharge 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 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.S38) 381 CA and Ifeanyi Chukwu Osondu & Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1 SC.
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 PW1 and PW2 cannot lead to a reversal of the decision appealed against. The finding has not been shown to be perverse. See Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 2S0 Sc. The finding has remained unaffected by our holding that Exh. ‘CA57’ is inadmissible. By virtue of S.16 of the Court of Appeal Act, the lower court’s reasons for its findings are hereby retailored to reflect our foregoing observations.
Accordingly, the 2nd and 6th issues are resolved in favour of the respondent.
The outstanding issues in this appeal pertain the nature of the awards made by the trial court and whether such awards, in the light of the pleadings and evidence before the court, were lawful.
Whether or not an award of damages made by a trial court would be sustained depends upon the prayers put by the beneficiary to the court and the evidence led to justify and secure the relief so
given. Thus, the practice has evolved in categorizing a supplicant’s prayer as being one for either “special” or “general” damages. There are set rules adumbrated in a plethora of judicial authorities for the grant of either categories of damages. These authorities have evolved pursuant to the various adjectival laws which specify how prayers in respect of each category of damages would be made. Where a litigant approaches a court of law praying that he has suffered a disadvantage following the act or default of another; where the litigant prays that the disadvantage so peculiarly suffered was the proximate, actual and inevitable result of the actionable wrong, any recompense given by the process of law to restore the supplicant who had been injured to the position the party would have been but for the injury, such an award is called one for “special damages.”
“General damages” on the other hand are such which the law implies or presumes to have accrued from the actionable wrong on the basis of immediacy, directness or necessity. Whereas, the later category is evolved as a result of legal presumption, the former category cannot be so presumed. See Shell Petroleum Dev. Co. v. Tiebo (1996) 4 NWLR (Pt. 445) 657; Ebe v. Nnamani (1997) 7 NWLR (Pt. 513) 479; Momodu v. University of Benin (1997) 7 NWLR (Pt.512) 325 and Nwangwa v. Ubani (1997) 10 NWLR (Pt. 526) 559 CA.
Now, the case at hand was one wherein breach of contractual duty provided the cause of action. Although, it has become the practice to categorise damages into the two classes we have alluded to supra, the undesirability of such a categorisation in the award of damages in contract cases has been emphasised by courts as well.
The courts have found the terms “special” and “general” damages in actions for breach of contract inept. Only such damages as have naturally resulted from breach of the contract are recoverable.
The case of Hadley v. Baxendale (1854) 9 EXCH. 341 has provided the guiding principle in determining what measure of damages are recoverable in breach of contract cases. There in it was held:-
“Where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either naturally according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.”
The foregoing principle has been imbibed and applied by the Supreme Court in Wilfred Omonuwa v.A. Wahabi (1976) 4 SC 37.
Where Idigbe JSC stated:-
“In the preparation of the claim for, as well as in the consideration of an award in consequence of a breach of contract, the measure of damages is the loss flowing naturally from the breach and incurred in direct consequence of the violation… Thus, the terms, “general” and “special” damages for the purpose of awards in cases of breach of contract. We have had to point out this before and we must make the point that apart from damages naturally resulting from the breach, no other form of general damages can be contemplated.”
Going by the above passage, appellant’s third issue would appear to have been misconceived. A perusal of respondent’s claims which have been reproduced earlier in this judgment does reveal only the third and the last of the lot as “general damages.”
On the part of the lower court, the 2nd and 3rd reliefs granted the respondent were christened “special” and “general” damages. These appellations, as indicated are unnecessary. In the words of Idigbe JSC in Omonuwa v. Wahabi (supra), what should have concerned both litigants and the lower court “in the preparation of the claim for, as well as in the consideration of the awards in consequence of the breach of the contract was such damages or loss flowing naturally from the breach and incurred in direct consequence of the violation.”
The categorisation of the damages claimed and or awarded into “special” or “general” was therefore inept. See also Swiess-Nigeria Wood Industries Ltd. v. Daniko Bogo (1970) ALR 423 at 430 and Gregoire Agboye v. National Motors Ltd. (1970) NCLR 266.
However, because the facts which constituted the cause of action in the instant case were grounded in tort as well, a consideration of appellant’s 3rd issue beyond what has so far been undertaken will ensue presently.
It has become trite that where special damages are claimed they must be specifically pleaded and strictly proved. In both the pleadings and the evidence in proof of same the character of the act or omission which resulted in the damage of loss recompense for which was being claimed must be alleged and led with particularity and certainty. Appellant’s counsel had said as much in their brief and one must agree with him. It must be particularly pleaded and so its value too. Failure to particularise such items in the pleadings and evidence have always been adjudged fatal to the eventual award.
See Momodu v. University of Benin (1997) 7 NWLR (Pt.513) 479; Adedeji v. Immeh (1996) 8 NWLR (Pt.465) 240 and Ijebuode LGA v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.l66) 136.
The respondent’s 1st and 2nd heads of claim clearly fall into that category of damages dubbed “special”. Appellant had asked that we interfere with this category of award because neither the pleadings of the respondent nor the evidence led in proof of same contained the particularity and certainty required by law.
Going through the totality of the pleadings and the evidence led by the respondent, we agree with the trial Judge that sufficient particulars had been provided in respect of the two heads of claim.
The appellant knew before and at the trial what particular allegations under the two heads and the certain evidence in proof of the claims at trial were. In proof of the 2nd head of claim, respondent tendered 51 receipts – Exh. ‘CA1 – CA57’ Evidencing payments for hired vehicles. The evidence was not challenged and the court rightly acted on the exhibits to arrive at the sum awarded in respect of the head of claim thereto. For the 1st head of claim, the cost of respondent’s car engine, in addition to the Ipse dexit of the respondent, PW2 had also testified on the issue. Their evidence too, remained uncontroverted. What it does mean is that the appellant did not challenge these heads of special damages either in their pleadings or by way of offering evidence in contradiction or even discrediting the respondent’s case. In law, they must be deemed to have conceded these items of special damages. See Adimora v. Ajufa (1988) 3 NWLR (Pt.80) 1 and Calabar East Co-operative Thrift and Credit Society v. Ikot (1999) 14 NWLR (Pt.638) 225 Sc. The 3rd issue must also be resolved against the appellant.
Appellant’s 4th and 5th issues had questioned the rationale for the awards made by the court for the replacement of respondent’s car engine that was damaged and for the general damages for the breach of the contract.
The view has already been expressed that respondent had proved his first head of claim as required by law. Respondent had shown that appellant had damaged his car engine. Respondent had particularised the cost of this engine both in his pleadings and the evidence led. It must be further pointed out that the respondent’s 1st head of claim being one for special damages and same had neither been challenged in appellant’s pleadings nor evidence, the court of trial had no option but to accept and act on the respondent’s credible and uncontroverted evidence, See Omoregbe v. Lawani (1980) 3-4 SC 108; Bello v. Eweka (1981) 1 SC 101 and Odulaja v. Haddad (1973) 11 SC 357.
What did the lower court do in the instant case? Inspite 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 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, (1961) 2 SCNLR 322 and Calabar East Coop. v. lkot (supra).The issue is accordingly resolved in favour of the appellant adverse as the consequences appear to be.
In the 5th issue for determination, the respondent is also asking for the rationale behind the award of general damages pursuant to respondent’s third head of claim. Here too the appellant’s complaint cannot be ignored.
The lower court does not seem to have appreciated the rule governing award of damages in contract, and also in tort. The rule is that the plaintiff is entitled to be placed in the same position he would have been had the contract not been breached. The award must not or even appear to be a windfall. The dicta of Oputa and Nnaemeka Agu JJSC in Stephen Okongwu v. NNPC (1989) 4 NWLR (Pt. lI5) 296 at p.319 and 309 respectively have provided the principle governing awards of damages which principle has become trite.
For Oputa JSC at p.319:-
“The general rule as to the measure of damages in contract (and also in tort) is that the measure of damages will be equivalent to and ought to reflect the sum of money which will put the party who has been injured or who has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. See Lord Blackburn in Livingstone v. Rawyards Coal Co. (1890) 5 App. Cas. 23 at p.39.”
For Nnaemeka Agu JSC at P. 309:-
“The principle of assessment of damages for breach of contract which has been applied by the courts is restitutio in intergrum – that is, that in so far as the damages are not too remote the plaintiff shall be restored as far as money can do it into the position in which he would have been if the breach and not occurred. Wertheim v. Chieoutimi Pulp Co. (1911) A.C. 301 at p. 307. The principle is not resitutio in opulation giving him a wind fall.”
Applying the foregoing principle to the facts of the instant case, after a correct award of damages in respect of the respondent’s 1st and 2nd heads of claim had been made the respondent would be restored monetarily to the position, he would have been if the breach of the contract had not occurred. He would be placed in a position to replace the damaged engine of his car. He equally would be reimbursed for the services of the alternative vehicle he had to charter because he was, resulting from appellant’s breach, unable to use his own. One is fortified in this exposition by the following cases as well: Yaskey v. City Council (1933) 1WACA 297; Pools v. Agboje (1922) 4 NLR 8 and Union Bank Ltd. v. Ogboh (1991) 1NWLR (Pt. 167) 369 at 389.
The appellant’s 4th and 5th issues 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:-
(1) When the trial Judge has acted under a mistake of law.
(2) When he has acted in disregard of principles.
(3) When he has acted under a misapprehension of facts.
(4) When he has taken into account unrelevant matters or failed to take account of relevant matters or
(5) When injustice would result if the appellate court does not interfere or
(6) When the amount is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damages. See Soleh Boneh Overseas Nig. Ltd. v. Ayodele (1989) I NWLR (Pt.99) 549 at 563; and Union Bank of Nig. Ltd. v. Odusate Bookstores Ltd. (1995) 9 NWLR (pt. 421) 558.
In the instant case, beyond the awards made by the lower court in respect of the 1st and 2nd heads of claim, the respondent would be overcompensated. It would be against the principle of “double damages” to do so. See Salawu Ogundipe v. Attorney General of Kwara State (1993) 8 NWLR (Pt. 313) 558 ; John Holt Vent. Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 and Momodu v. University of Benin (supra).
Because of one or a combination of some of the reasons articulated in judicial decisions enabling interference with awards made by trial courts, one is compelled to set aside the award made in respect of the respondent’s third head of claim. The award in respect of the 1st head is equally reviewed to read N2m in place of the N1.5m granted by the lower court. The award in respect of the 2nd head is affirmed as it is.
In sum, the appeal has succeeded in part. For the avoidance of doubt, judgment is hereby entered in favour of the respondent for the sum of N2m for his 1st head of claim and N25,500 for his 2nd head of claim.
I also award respondent the cost of this appeal put at N5,000 against the appellant.
Other Citations: (2001)LCN/1018(CA)
