Abdullahi Hussaini & Anor V. Eberechukwu Ogbuokiri (2003)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
This is an appeal against the judgment of Akaahs, J (as he then was), of the Kaduna State High Court of Justice sitting at Kaduna and delivered on 16/1/96. The respondent was the plaintiff at the trial court and had instituted his action against the appellants who were the defendants and claimed against them jointly and severally in paragraph 13 of the statement of claim as follows:
“(a) The sum of five hundred Naira daily from 24th July, 1992 (being daily loss of use to the plaintiff) until the determination of this suit and/or until the defendants pay the Judgment debt.
(b) The sum of N600,000.00 (Six hundred thousand Naira) only being the market value of the plaintiffs vehicle less the scrap value as compensation or damages for the plaintiffs vehicle which is a total wreck.”
The parties duly filed and exchanged pleadings before the case went to trial in the course of which the plaintiff testified and called 4 witnesses who testified in support of his claims while 2 witnesses gave evidence for the defendants in their defence to the action. At the conclusion of the hearing, the learned trial Judge in his judgment delivered on 16/1/96, found in favour of the plaintiff and awarded a total sum of N393,500.00 as damages against the defendants.
The defendants who were aggrieved by that judgment then decided to appeal against it by their notice of appeal containing 5 grounds of appeal. Briefs of arguments comprising appellants’ brief of argument, respondent’s brief of argument and appellants’ reply brief of argument were duly filed and served before the appeal was heard on 31/10/2002. In the appellant’s brief of argument, the following 2 issues were formulated from the 5 grounds of appeal filed by the appellant for the determination of the appeal. The issues are:
“1. Whether the trial Judge properly directed himself on the facts, law and necessary conclusions arising therefrom in arriving at the award of N393,500.00 as general and specific damages in favour of the respondent?.
- Whether the award of N393,500.00 is correct?.”
In the respondent’s brief of argument also, 2 issues were identified for the determination of the appeal as follows:
“(a) Whether ground 1, 4 and 5 of the grounds of appeal are competent grounds of appeal?.
(b) Whether the award of damages in the sum of N393,500.00 in favour of the respondent was legally right in view of the appellant’s admission of negligence?.”
The respondent, apart from filing a respondent’s brief of argument had also filed a notice of preliminary objection challenging the competence of 3 of the appellants’ 5 grounds of appeal. The grounds of appeal attacked by the preliminary objection are grounds 1, 4 and 5 which read:
“1. The learned trial Judge erred in law and misdirected himself when he awarded the sum of N393,500.00 as damages.
Particulars
(i) Based on the learned trial Judge’s reasoning and on the facts finding of the sum of N600,000.00 as the market value of the vehicle was erroneous.
(ii) There was no evidence upon which the trial Judge could apply a depreciation value of 40% within one year of the accident.
(iii) There was conflicting evidence as to the scrap value of the vehicle.
(iv) The learned trial Judge relied heavily on the evidence of PW5 which he had expunged.
- The learned trial Judge erred in law when having been aware of the respondent’s disposal of the vehicle before the opening of the appellants’ defence, the learned trial Judge did not invoke the presumption in section 149(d) of the Evidence Act against the respondent.
- The award of N393,500.00 as damages against the appellants is excessive.”
It is relevant to observe at this stage that by two motions on notice dated 2/11/2000 and 5/2/2001, the appellants through their learned counsel made two attempts in this court to amend the 3 grounds of appeal, which are the subject of the preliminary objection before the hearing of the appeal but these attempts had failed.
I shall now deal with the objection to the appellants’ grounds of appeal earlier quoted in this Judgment starting with ground one. The basis of the respondent’s objection to ground one is that the ground is incompetent for being contrary to Order 3 rule 2 (2) of the Court of Appeal Rules for alleging error in law and misdirection in the same ground. That the ground to be valid must allege either ‘error in law’ or ‘misdirection in law’ but not both. Relying on the case of Ugo v. Gbatse (1995) 6 NWLR (Pt.401) 314 at 326 – 327, the respondent urged this court to strike out the ground.
It was contended for the appellants however that the case of Ugo v. Gbatse (supra) relied upon by the respondent is distinguishable from the present case as the ground complained of in that case had alleged error in law and error on the facts. That such ground of appeal had been held to be competent in the case of Tavershima M. Hambe & Ors. v. Agber Hueze & Ors. (200 1) 4 NWLR (pt.703) 372.
The Rules of this court have no doubt provided adequate guide on ‘law’. Grounds of appeal should be framed in Order 3 rule 2(2), (3) and (4) respectively. In the present case, ground one had been attacked because it is contrary to Order 3 rule 2(2) which states:
“(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
The ground 1 which had earlier been quoted in this Judgment apart from alleging error in law as prescribed in rule 2(2) of Order 3 of the rules of this court, also alleged unspecified misdirection on the trial Judge which resulted in making the ground vague. In other words, is the ground complaining of a misdirection in law or a misdirection on the facts as alleged in the case of Ugo v. Gbatse (1995) 6 NWLR (Pt.40 1) 314 relied upon by the appellants to save the ground of appeal?.
The answer is not discernible from that ground of appeal as neither the particulars nor the nature of the alleged error in law had been given as required by the rule. This is because although ground one of the grounds of appeal is shown to have been supported by particulars (i) to (iv), all these particulars are merely repeating the complaint that there was no evidence to support the award of damages of N393,500.00 made by the learned trial Judge which is virtually the same as the omnibus grounds 2 filed by the appellants.
The question of whether a ground of appeal framed as an error and a misdirection is competent was recently considered in depth by the Supreme Court in the case of Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253, (2000) 2 SCNJ 180 at 191, where Ayoola, J.S.C. said:
“It must be realised and emphasised, that, ultimately, an unobjectionable ground of incompetence of a ground of appeal, in the con of the question raised in this appeal, is to be sought in its lack of preciseness specificity in, or the ambiguity of, what it complains about. In this wise, it is not a question of formal defect but of the ground not satisfying the requirement of the preciseness and specificity set by the rules of appellate procedure. Ultimately, it is for the court before which the question is raised to decide whether, viewed objectively, the ground satisfied the requirements of preciseness and clarify. A proposition widely stated that a ground alleging an error and misdirection is not incompetent is as objectionable as a proposition that every such ground is incompetent. What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is.”
See also the case of Hambe v. Hueze (2001) 4 NWLR (Pt.703) 372 at 390 where Adike, J.S.C. (as he then was), held the same opinion on the question as follows :
“In the matter under controversy, it appears to me that the fulcrum of the matter is whether an appellant, having regard to the Rules of court has reasonably formulated his grounds of appeal in substantial compliance with the said Rules of court, notwithstanding the defects or inelegance in the formulation, but so long as the adversary party, from reading the formulated grounds of appeal, is duly notified of the complaint sought to be made by the appellant.”
It is quite clear from these recent Supreme Court decisions that the guiding principles in determining whether or not a ground of appeal is incompetent, is to find out whether or not that ground of appeal had conveyed to the adversary party the real complaint of the appellant against the Judgment being appealed against. In the present case, it is not difficult at all to answer this question on ground one of the appellants’ grounds of appeal which alleged error in law and misdirection, without specifying the particulars or nature of the alleged error and misdirection as required by rule 2(2) of Order 3 of the Rules of this court. I therefore hold that ground one of the appellants’ ground of appeal is not competent for its failure to specify the error in law and the alleged misdirection committed by the learned trial Judge in making the award of N393,500.00 as damages against the appellants.
Next for determination on the respondent’s objection is whether or not ground 4 of the appellants’ grounds of appeal is competent.
The ground which I have earlier quoted in this Judgment reads:
“4. The learned trial Judge erred in law, when having been aware of the respondent’s disposal of the vehicle before the opening of the appellants’ defence, the learned trial Judge did not invoke the presumption in section 149(d) of the Evidence Act against the respondent.”
The basis of the respondent’s attack on this ground of appeal is that no passage in the judgment where the alleged misdirection or error in law was quoted in the ground. That the nature of the error in law or misdirection was not specified while the particulars of the alleged error in law or misdirection were also not given as required by Order 3 rule 2(2) of the Court of Appeal Rules and a number of cases including Nwako v. Governor, River State (1989) 2 NWLR (Pt.l04) 470. The respondent concluded that as ground 4 of the grounds of appeal does not contain any built in particulars as was the case in Nsirim v. Nsirim (1990) 3 NWLR (Pt.l38) 285 at 290, the ground should be struck out for being incompetent.
The appellants however had observed that Order 3 rule 2(2) of the Court of Appeal Rules contain no requirement that a particular passage must be quoted from the judgment. That as the particulars of ground 4 of the grounds of appeal are built in within that ground, it is not necessary to specify the particulars separately as was stated in the case of Atuyele v. Ashamu (1987) 1 NWLR (Pt.49) 267, (1987) NSCC Vol.l8 (Pt.1) 117.
Close examination of ground 4 of the appellants’ grounds of appeal now under consideration, clearly reveals that it does not contain any built in particulars of error in law as was the case in the ground of appeal in Nsirim v. Nsirim (supra) therefore, that ground does not comply with the requirement of rule 2(2) of Order 3 of the Court of Appeal Rules. Furthermore, that ground not only narrated events that alleged to have taken place or not taken place in the course of the proceedings in the case but also contains argument in plain violation of the prohibition contained in rule 2(3) of Order 3 of the Court of Appeal Rules which states:
“(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
Perhaps on a more serious basis, grounds 4 on the face of it does not avail the appellant as the question on the alleged presumption under section 149(d) of the Evidence Act was never raised by the appellant before the trial court and the learned trial Judge refused or neglected to apply it against the respondent. Thus, as no leave of the lower court or this court was sought and obtained to file it, the ground on this basis is also defective, incompetent and liable to be struck out. See Shanu v. Afribank Plc (2002) 17 NWLR (Pt.795) 185, (2002) 6 SCNJ 454 at 470 – 471 and Salami v. Mohammed (2000) 9 NWLR (Pt.673) 469, (2000) 6 SCNJ 281 at 288.
The last ground to be considered under the respondent’s objection is ground 5 of the appellant’s ground of appeal which states:
“5. The award of N393,500.00 as damages against the appellant is excessive.”
It is the respondent’s contention that this ground of appeal is vague and does not disclose any reasonable ground of appeal contrary to Order 3 rule 2(4) of the Court of Appeal Rules. That since the ground is not the omnibus ground, it is incompetent for being vague.
The appellants however had argued that the ground is not vague having clearly attacked the very root of the judgment of the lower court on the excessiveness of the amount awarded as the award of damages is liable to be reversed on appeal if the award is found to be erroneous.
Ground 5 of the appellants’ grounds of appeal is not vague at all and therefore plainly complied with Order 3 rule 2(4) of the Court of Appeal Rules. Being an attack on quantum of the amount awarded as damages as being excessive, it has clearly conveyed to the respondent the real complaint of the appellant against the judgment being appealed against. In other words the amount of damages awarded to the respondent against the appellants is being challenged in that ground on the basis that the award was too high. Thus, ground 5 of the appellants’ grounds of appeal is therefore quite competent and a valid ground of appeal.
As the result of the respondent’s objection to the appellants’ grounds 1, 4 and 5 of the grounds of appeal, grounds 1 and 4 which I have found to be incompetent are hereby struck out while ground 5 which is found to be competent remains a valid ground of appeal.
Before proceeding to consider the issues for determination in this appeal, I regard it as appropriate to state even though briefly, the facts of the case that gave rise to the appeal. The respondent is the owner of the Bedford Lorry with Registration No. KD 3431 A which he was using to convey goods for Nigerian Breweries bringing the income of N500.00 daily to the respondent. On or about 23/7/92, the respondent’s lorry was involved in a head long collision accident with a Mann Diesel Oil Tanker with Registration No. SO 2182 SA belonging to the 2nd appellant and being driven then by the 1st appellant. The accident which occurred on the lane of the respondent’s driver resulted in causing serious damage to the respondent’s Bedford Lorry which was beyond economic repairs. The respondent then sued the appellants at the trial court and claimed against them jointly and severally the sum of N600,000.00 being the market value of the respondent’s vehicle less the scrap value of the vehicle and the sum of N500.00 daily being the loss suffered from the loss of use of the vehicle from 24/7/92 until the determination of the action and settlement of the Judgment debt. As the appellants who were the defendant at the court below had admitted their liability to the claim by admitting the negligence of the 1st appellant in causing the loss suffered by the respondent, only the question of the quantum of damages that went to trial. At the end of the trial, the learned trial Judge awarded the sum of N393,500.00 as total damages to the respondent against the appellants. The appellants were not happy with the damages awarded against them, hence, this appeal.
Having regard to the consequences of the objection raised by the respondent to the appellants grounds 1, 4 and 5 of the grounds of appeal and the issues for determination as identified in the respective parties briefs of argument, it is necessary to examine these issues in order to find out if they are supported by valid grounds of appeal as required by law. This is because it is trite that issues formulated whether by the appellant or by the respondent in any appeal must of necessity arise from or relate to the grounds of appeal filed by the appellant. Therefore, where issues formulated by the appellant or the respondent do not arise from nor relate to the grounds of appeal, they are not issues in the real sense and are liable to be struck out or ignored in the determination of the appeal. See Ogunlade v. Adeleye (1992) 8 NWLR (Pt.260) 409; Ukwu v. Offorah (1992) 6 NWLR (Pt.246) 233 and Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76, (2000) 6 SCNJ 1 at 11.
It is also the law that where no issue has been identified in respect of a ground or grounds of appeal, the effect is that the ground or grounds would be deemed abandoned. Similarly, a ground of appeal on which no issue is presented is deemed abandoned. See Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364, (1987) 7 SCNJ 84; Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646 and Durugo v. The State (1992) 7 NWLR (Pt.255) 525.
In the present case, it is quite clear from the appellants’ brief of argument which formulated only 2 issues for the determination of the appeal that no issue was formulated on ground 3 of the grounds of appeal which complained of the denial of fair hearing. The ground which is deemed abandoned is accordingly hereby struck out. Also, as the result of the striking out of grounds 1 and 4 of the grounds of appeal on the objection of the respondent, the appellants’ issue No.1 earlier quoted in this judgment, which issue arose from grounds 1 and 4 now struck out, no longer has any ground of appeal to support it. Thus, issue No.1 in this appeal in the appellants’ brief which does not arise from any existing valid ground of appeal, is accordingly also hereby struck out. Consequently, the only issue remaining for determination of this appeal is the second issue in the appellants’ brief of argument which reads:
“2. Whether the award of N393,500.00 is correct.”
This appeal shall now be determined on this issue which relates to the 2 surviving grounds of appeal remaining valid in the appellants’ notice of appeal, namely, the omnibus ground 2 and ground 5 which had been held to be a competent ground of appeal.
However, before I proceed to resolve the lone issue in the appellants’ brief in the determination of this appeal, I regard it as appropriate to comment on the issues formulated in the respondent’s brief of argument which were quoted earlier in this judgment. It is quite clear that the 1st issue as framed in the respondent’s brief which reads:
“(a) Whether grounds 1, 4 and 5 of the grounds of appeal are competent grounds of appeal?”
is not an issue at all for the determination of this appeal as it does not arise from any of the grounds of appeal filed by the appellants.
The position of the law in this respect is that, issue for determination should be based on or arise from the grounds of appeal arising from the judgment of the trial court being appealed against. See Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt.262) 641 and Consortium M.C v. NEPA (1992) 6 NWLR (Pt.246) 132. Therefore, a notice of preliminary objection by a respondent to the competence of the grounds of appeal filed by an appellant, no matter how substantial the grounds of such objection could be, not being grounds of appeal duly filed to attack the judgment of a trial court, can never support any issue for determination in an appeal. Thus, the respondent’s issue 1 not being an issue in its real sense, the respondents arguments in its support in the respondent’s brief of argument are not more than mere arguments in support of the notice of preliminary objection to the competence of grounds 1, 4 and 5 of the appellants’ grounds of appeal.
In support of the single issue for determination, it was argued for the appellant that the evidence of PW1, PW2, PW5 and the contents of V.I.O’S report, exhibit 5, relied upon by the trial court was not enough to establish the pre-accident value or scrap value of the respondent’s vehicle. The case of Seismograph v. Onokpasa (1972) 1 All NLR 347 at 352, was cited in support of this submission.
That in the absence of the expert evidence of PW5 which was expunged by the trial court, there is no evidence that the respondent’s vehicle was damaged beyond economic repairs. Appellants therefore urged this court to allow the appeal on this issue.
In the respondent’s brief of argument, it was observed that there is no appeal against the findings of the trial court that the respondent’s vehicle was a total loss or the liability of the appellants to the loss suffered by the respondent as the result of the accident caused by the appellants. That the substance of this appeal is only against the quantum of damages awarded against the appellants assessed on pre-accident value and scrap value of the respondent’s vehicle. The measure of damages in such cases of total loss of vehicle is as stated in several cases one of which is Armel’s Transport Limited v. Martins (1970) 1 All NLR 27. This, according to the respondent is in line with the evidence of PW1, PW2 and PW3 on the pre-accident value and scrap value of the respondent’s vehicle. Relying on the cases of Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt.379) 576, (1995) 2 SCNJ 175 at 183 and Nzeribe v. Dave (1994) 8 NWLR (Pt.361) 124, (1994) 9 SCNJ 161 at 172, the respondent concluded that as the appellants had failed to challenge the evidence called by the respondent on the pre-accident value and scrap value of the vehicle at the trial court, that court was entitled to accept and rely on the evidence and therefore urged this court to dismiss the appeal.
This appeal is especially against the quantum of damages of N393,500.00 awarded to the respondent for the loss of his vehicle as the result of an accident caused by the negligence of the 1st appellant who was driving the vehicle belonging to the 2nd appellant.
I think I can start perhaps by stressing that in order to justify reversing the findings of the trial Judge on the question of the amount of damages, it will generally be necessary that an appellate court such as this court should be convinced either that:
(i) the Judge acted upon some wrong principle of law; or
(ii) the award is arbitrary; or
(iii) that the amount awarded was so extremely high or so very small as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the plaintiff is entitled; and
(iv) there has been a wrong exercise of discretion in the award.
See Flint v. Lovell (1935) 1K.B. 354; Zik’s Press Ltd v. Ikoku (1951) 13 WACA 188; Idahosa v. Oronsaye (1959) SCNLR 407, (1959) 4 FSC 166; Bala v. Bankole (1986) 3 NWLR (Pt.27) 141; Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136 and Sabru Motors Ltd. v. Rajab Enterprises (Nig.) Ltd. (2002) 7 NWLR (Pt.766) 243 at 267.
In the present case, the respondent claimed the sum of N600,000.00 being the market value of his vehicle less the scrap value of the same vehicle as damages or compensation for the loss of the vehicle as the result of the accident caused by the negligence of the 1st appellant who was driving the vehicle of the 2nd appellant.
The respondent also claimed the sum of N500.00 per day for the loss of use of the vehicle from date of the accident until the settlement of the Judgment debt. The respondent as PW1 and one of his witnesses PW3 gave evidence on the market value of the vehicle before the accident. At page 93 of the record, the respondent testified as follows:
“When I instituted the action in court, the Manager of the 2nd defendant in the person of Alhaji Dan Almajiri Mohammed approached me for settlement. Before the accident, the vehicle was sound because I had repaired it and people had come to make offers to purchase it. Two people offered N600,000.00. I did not accept the offer.”
One of the two people who offered to purchase the vehicle from the respondent for N600,000.00 was PW3 who was using the vehicle and paying N700.00 daily for its hire. The witness testified at page 97 of the record as follows:
“I discussed with the plaintiff about buying off the vehicle because of the enormous amount I was spending to hire it. I wanted to buy the vehicle for N600,000.00 but the plaintiff refused to sell it at that price. At the time I offered to buy the vehicle, it had just been renovated and it was in a perfect condition.”
It is observed that no contrary evidence on the market value of the respondent’s vehicle before the accident was pleaded and led by the appellant before the trial court. Similarly, the scrap value of the vehicle as found by the trial court was not controverted by any evidence called by the appellants in the course of the hearing. The law in this regard is settled. In civil cases, while the burden of proof initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from plaintiff to the defendant and vice-versa as the case progresses. This is also referred to as the evidential burden which is indeed good law. This is because if a party calls evidence which reasonably satisfies the court that the fact sought to be proved is established, the burden will shift on his adversary against whom Judgment would be given if no more evidence were adduced. See section 137(1) and (2) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, Osawaru v. Ezeiruka (1979) 1 L.R.N. 307; (1978) 6 – 7 SC 135; Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 and Elema v. Akenzua (2000) 13 NWLR (Pt.683) 92, (2000) 6 SCNJ 266 at 238. Thus, the appellants having failed to discharge the burden of proof as required by the law, the trial court in the circumstances was left with the unchallenged evidence of PW1 and PW3 on the issue of pre-accident and scrap value of the respondent’s vehicle which in my view was rightly accepted and relied upon by trial court in the final assessment of the damages awarded. See Ordia v. Piedmont (Nig.) Ltd. (1995) 2 NWLR (Pt.379) 516, (1995) 2 SCNJ 175 at 183.
Finally, this appeal being one against the award of damages only by the trial court, there being no complaint by the appellants that the lower court acted on wrong principle of law in making the award, or that the award was made arbitrarily, or, that there had been a wrong exercise of discretion on the part of the trial court, or that the amount awarded was so extremely high or so very small as to make the award in the Judgment of this court as an appellate court, an entirely erroneous estimate of the damages to which the respondent as the plaintiff was entitled, this appeal must fail. See Union Bank of Nigeria Ltd. v. Odusote Book Store Ltd. (1995) 9 NWLR (Pt.421) 558, and Onwu v. Nka (1996) 7 NWLR (Pt.458) 1.
Accordingly, this appeal having failed the same is hereby dismissed.
There shall be N5000.00 costs to the respondent against the appellants.
Other Citations: (2003)LCN/1330(CA)
