Akinyemi Dare & Anor. V. Caleb Fagbamila (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A,

On a dark night of 6th January, 2001 at about 8.00pm, on the Aisegba – Ekiti road in Ekiti State, Akinyemi Dare, a salesman with the Nigerian Bottling Company, was involved in a collision with the vehicle of Caleb Fagbamila, a businessman and sawmiller. Dare was driving the 2nd Appellant’s truck which was carrying crates of Cocacola, while Fagbamila was in his own car with his wife, daughter and PW2, even as the vehicle, a Peugeot 504 saloon car, was driven by one Lamidi Seidu. As a result of the impact, the Respondent’s vehicle went off the road into the bush and was damaged. The 1st Appellant raced off without rendering any assistance to the occupants of the Peugeot 504 Saloon car. Owing to the two crates of Coca-cola which fell onto the road during the course of the accident, the Respondent was able to trace the truck to the 1st Appellant’s employer’s office, i.e. the Coca cola Depot at Ado-Ekiti The Respondent met the Depot Manager and reported the accident involving the 2nd Appellant’s vehicle to him and they proceeded that night to the scene to inspect the damage to the Respondent’s car. The Police arrested the 1st Appellant a few days later at the instance of the Respondent. In the meantime, the Peugeot 504, which had remained at the scene of the accident at the insistence and on the instruction of the Depot Manager of the 2nd Appellant, was consumed by fire on the afternoon of the 8th January, 2001. The driver of the 2nd Appellant was subsequently charged to Court and convicted, while the Respondent filed a civil action before the High Court of Justice, Ado-Ekiti, Ekiti State seeking special damages for the losses he sustained as a result of the accident. At the close of trial, the learned trial Judge, Akeju, J., on the 6th July, 2001 found in part in favour of the Respondent and awarded him special damages to the tune of N750,000.00. Dissatisfied with this decision, the Appellants filed an Appeal to this Court wherein they prayed the Court to set aside the decision of the lower Court.

At the hearing of the Appeal on the 28th October, 2008, Mr. Akindele, learned Counsel for the Appellants, adopted the Appellants’ Brief dated 24th and filed on 25th April, 2008. He urged the Court to allow the Appeal and set aside the Judgment of the trial Court. Mr. Adediji, learned Counsel for the Respondent, in the same vein, adopted the Respondent’s Brief dated 9th June, 2008 and filed on the same day. He urged the Court to affirm the decision of the lower Court and to dismiss the Appeal.

The Notice of Appeal comprised of six grounds. From these Grounds, the Appellants distilled four issues for the determination of the Court thus:

1. Whether from the state of the pleadings and evidence on record, the Plaintiff/Respondent proved a case of dangerous driving or motor traffic offence of negligence and recklessness against the first Appellant as provided for by Section 6(1) of the Federal Highways Act, Cap 135, Laws of the Federation, 1990 as a result of the accident of 6/1/2001.
2. Whether or not the Respondent’s action in Tort of negligence and/or damages caused by fire to the Respondent’s said Peugeot 504 car at the resultant position of the vehicle on 8/1/2001 as a result of the accident on 6/1/2001 was properly constituted having regard to the circumstances of this case and applicable principles of law.
3. Whether given the circumstances of this case, the Respondent was entitled to the payment of N750,000.00 (Seven Hundred and Fifty Thousand Naira) as value of his Peugeot 504 Saloon No. ONDO AE242ADKand whether there were (are) circumstances which would justify the Court of Appeal in dismissing the award of N750,000.00 damages awarded by the trial Court.
4. Whether from the evidence on record the trial Court properly appraised and evaluated the evidence adduced before the trial Court embarked on making findings of fact that cannot be supported by facts or evidence adduced and accorded with the relevant and applicable principles of law and whether there are good reasons or circumstances that would make the Court of Appeal to intervene by making fresh findings in replacement.

The Respondent adopted the issues as formulated by the Appellants and paraphrased an additional issue which essentially is the same as issue number four formulated by the Appellants. Even so, upon a dispassionate consideration of the Grounds of Appeal filed, I consider the following issues, which are a hybrid of the issues formulated by the parties, appropriate for the just determination of the Appeal:

1. Whether a case of negligent driving which led to the accident of 6th January, 2001 was established by credible evidence against the 1st Appellant.
2. Whether the Appellants were entitled to the defence in the principle of volenti non fit injuria in respect of the subsequent fire which gutted the vehicle of the Respondent on the 8th January, 2001.
3. If the answers to the above two issues are in the affirmative, whether the award of N750,000.00 as special damages to the Respondent is justified and borne out by the evidence before the trial Court.
4. Whether from the evidence on record, the trial Court properly appraised and evaluated the evidence adduced in arriving at its decision.

Taking on issue one, which is whether a case of negligent driving which led to the accident of 6th January, 2001 was established by credible evidence against the 1st Appellant, the Appellants submit that the Respondent failed to prove the essential ingredients of dangerous driving against the 1st Appellant as provided under Section 6 (1) of the Federal Highways Act, to wit: recklessness, negligence, the speed at which the driver drove his vehicle, the condition and use of the highway, the amount of traffic expected to be on the highway, the time of the day and the condition of the road at the time of the accident. The Appellants argue that the manner of driving by the 1st Appellant which constituted recklessness and negligence was not described by the Respondent. They contend that the Respondent only proved the fact of an accident but failed to prove how the accident occurred. The Appellants argue that this is important to show that the Appellants owe a duty of care and acted in breach of the duty. He cited Ngilari V Mothercat Ltd (1999) 12 SCNJ 101 at 105 – 107; & Otaru & Sons Ltd V Idris (1999) 4 SCNJ 156 at 159. They therefore submit that the Respondent failed to discharge the burden on him to plead and prove dangerous driving, negligence and recklessness against the Appellants.

The Appellants further submit that the Respondent failed to establish negligence against the Appellants. They submit that the negligence to be proved was in two categories, namely criminal negligence and the tort of negligence. In order to prove negligence, the Appellants submit that the Respondent needs to prove the duty of care owed by the Appellants to the Respondent, that the Appellants acted in breach of that duty and that the conduct of the Appellants was careless as a result of which the Respondent suffered damages. Hanseatic International Ltd V Usang (2002) 13 NWLR (pt. 784) 378 at 407; Universal Trust Bank of Nigeria V Ozoemena (2007) 1 SCNJ 318 at 326; and (2007) 13 NWLR (Pt. 1022) 448 are referred to. The Appellants submit that the Respondent must plead all the particulars of the negligence alleged and the duty of care owed by the Appellant, as well as the acts constituting the breach. In respect of criminal negligence, the Appellants contend that the Respondent ought to but failed to plead and prove the following: the manner of driving of the 1st Appellant, the nature and condition of the road at the time of the accident, the speed of the 1st Appellant, the amount of traffic or people actually using or normally expected to use the road, the time of day and the condition of the weather. The Appellants submit that having failed to plead and prove all these, the Respondent cannot succeed on the allegation of dangerous driving. Moses v State (2006) 11 NWLR (Pt. 992) 458 is relied upon.

Additionally, the Appellants submit that the failure to call one Lamidi Seidu, the driver of the Respondent’s vehicle on the night of the accident, to testify raises a presumption that the evidence of the driver would be unfavourable to the case of the Respondent. They therefore invoked Section 149(d) of the Evidence Act. Finally under this issue, the Appellants contend that dangerous driving is a criminal offence and therefore all the ingredients of the offence must be proved beyond reasonable doubt. They submit that this was not done and cite the cases of Ologe V Ukaeje (1998) 12 NWLR (pt. 576) 23 and Remawe V NACB CFC Ltd (2007) 2 NWLR (Pt. 1017) 155 in support.

In his response, the Respondent submits that there is overwhelming evidence that the 1st Appellant drove recklessly and carelessly. He refers to 1st Appellant’s conduct after the accident wherein he failed to stop, but went to his Depot, quietly parked the truck and, without making any report of the accident either to his employers or to the Police, went home. Respondent submits that the conduct of the 1st Appellant before, during and after the accident cannot be said to be that of a reasonable person in the circumstance. Respondent argues that negligence may be inferred from the conduct of the 1st Appellant immediately before and immediately after the accident. He relies on the definition of negligence in Black’s Law dictionary which defines it as the failure to exercise the standard of care that a reasonable, prudent person would have exercised in a similar situation. He submits that in road traffic cases, the slightest negligence is required to sustain a conviction. Respondent further argues that since findings of facts are within the exclusive competence of the trial Court which saw, heard and believed the witnesses, and subsequently ascribed probative value to such evidence, an appellate Court, such as this, will not interfere with those findings of facts except they are perverse and lead to a miscarriage of justice. Reliance for this was placed on Ahmed V State (1998) 9 NWLR (Pt. 566) 389; (1998) 7 SCNJ 60; Odinaka V Moghalu (1992) 4 NWLR (pt. 233) 1; Ojo V Gharoro (2006) ALL FWLR (pt. 316) 197.

The Respondent in his statement of claim alleged that the 1st Appellant caused the accident on the night in question by driving his truck with only one headlight switched on thereby giving his driver and other occupants in his vehicle, (including himself), the impression that the on-coming vehicle was a motor-cycle and not a big truck. Subsequently there was a collision when the truck the 1st Appellant was driving collided with the Respondent’s vehicle causing it to veer off the road, but not before two crates of Coca-cola fell off the truck. Evidently, the case of the Respondent is that the 1st Appellant caused the accident by the fact that he was driving his truck at 8.00pm with only one headlight on and then subsequently colliding with the Respondent’s vehicle on his own lane. That being so, the Respondent had the onus and the duty to prove that the 1st Appellant was negligent in the way and manner he drove his truck on the date in question. The general principle is that the tort of negligence arises when a legal duty owed by the Defendant to a plaintiff is breached. Therefore, to succeed in an action for negligence, the Plaintiff must prove by the preponderance of evidence or on the balance of probabilities that:

(a) The Defendant owed him a duty of care;

(b) The duty of care was breached;

(c) The Plaintiff suffered damages arising from the breach.

See the case of Agbonmagbe Bank Ltd V C.F.A.O. (1966) 1 ALLNLR 140 at 145. The most fundamental ingredient of the tort of negligence is the duty of care, which must be actionable in law and not be just a moral liability. Until a plaintiff can prove by evidence the actual breach of the legal duty of care, against a defendant, the action must fail. See Strabag Construction (Nig.) Ltd V Ogarekpe (1991) 1 NWLR (pt. 170) 733; Nigeria Airways Ltd V Abe (1988) 4 NWLR (pt. 90) 524; Benson V Otubor (1975) 3 S.C. 9. Therefore, in order to find the Defendant liable for negligence, there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part. Such evidence may be direct or inferential depending on the circumstances of each particular case.

There is no doubt that the Respondent has pleaded in paragraphs 5, 6, 7, 8, 9, 10 and 11 of the statement of claim particulars of negligence sufficient to support his claim. However, the Respondent cannot rely on his pleadings alone but on credible evidence adduced in Court in support thereof. He must also show the duty of care owed to him, its breach by the Appellants and the damage suffered in consequence of the defendant’s failure to take care. In Koya V U.B.A. (1997) 1 NWLR (pt. 481) 251 at 291, the Supreme Court had this to say:

”It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim on negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant See Machine Umudge & Another v. Shell-BP Petroleum Development Company Nigeria Ltd (1975) 9 – 11 S.C. 155 at 166-167.”

It also added:

”Accordingly, in an action on negligence, a plaintiff, to succeed, must in addition to pleading and establishing the particulars of negligence relied on, he must also state and establish the duty of care owed to him by the defendant, the facts upon which that duty is founded and the breach of that duty by the defendant.”

By establishing the particulars of negligence or the duty of care owed, it is meant that evidence must be given in support of both issues, for the plaintiff to succeed in a negligence case. It ought generally to be borne in mind that negligence is a question of fact and not law and each case must be decided on its own facts. See U.T.B. V. Ozoemena (2007) 1 SCNJ 318.

Now it is apparent that the Appellants are mixed up concerning the main feature of this case, which is a civil suit claiming special damages for an allegation of negligent driving leading to the damage of property. Clearly, it is as a result of this misconception of the nature of the suit that they have contended that the Respondent failed to prove the essential ingredients of dangerous driving against the 1st Appellant as provided under Section 6 (1) of the Federal Highways Act. In a claim such as the one made in the Plaintiff’s statement of claim, all that the Plaintiff is required to establish to entitle him to Judgment is the particulars of negligence alleged, and to state and establish the duty of care owed to him by the defendant, the facts upon which that duty is founded and the breach of that duty by the defendant. The criminal aspect of the case was, from the evidence adduced, taken care of when the 1st Appellant was charged to Court, and is not of the least interest in a civil matter such as the one filed before the High Court, which has led to this Appeal. This explains why the record of proceedings showing the subsequent conviction of the 1st Appellant, which was sought to be tendered before the trial Court, was promptly and rightly too, rejected as being irrelevant to these proceedings.

The learned trial Judge stated correctly the position of the law in respect of a claim of negligence. At page 105 of the transcribed record of the lower Court, he stated thus:

“Generally it is the plaintiff who owes the duty to adduce evidence from which negligence is to be inferred or deduced. This is because negligence is a matter of fact. What amounts to negligence is the omission or failure to do what a reasonable man ought to do under the circumstances, or the carrying out of an act which a reasonable man would not do in the circumstances. The plaintiff is expected to prove that the defendant owes him a duty of care which he failed to perform.”

After evaluating the evidence adduced by the parties before the Court, the learned trial Judge found as a fact that negligence on the part of the 1st Appellant could be inferred from his conduct immediately before and immediately after the accident occurred. The facts before the Court disclosed that on the night of 6th January, 2001, the Respondent (PW1), in company of his wife, daughter and the PW2, were in his car driven by one Lamidi Seidu when the 1st Appellant, driving a truck laden with crates of Coca cola belonging to the 2nd Appellant, ran into them. The PW1 and PW2 had seen the truck approaching from the opposite direction with only one headlight. From their vantage point, they had thought it was a motorcycle until they heard a loud noise when the truck hit them. Their car careened off the road while the 1st Appellant did not even bother to stop. He was ultimately traced to the Coca cola Depot only because of the two crates of Coca cola bottles which fell off the truck on impact with the Respondent’s car. The 1st Appellant was finally arrested by the Police three days later on the 9th January, 2001.

In the face of these overwhelming and damning pieces of evidence by the Plaintiff, the Appellants, as Defendants, merely offered a denial, claiming that the 1st Appellant did not stop his truck after the accident because he thought he had been hit by robbers. The 1st Appellant testified and called the Transport Manager of the 2nd Appellant, who did not witness the accident, to also testify in his defence. However, the 1st Appellant’s actions after the accident did not bear out the genuineness of his story. For, after making his getaway from scene of accident, he neither made a report of the incident to the Police nor did he report it to the Depot Manager of the 2nd Appellant in Ado-Ekiti, in spite of the fact that he parked his truck that night at the Depot. He simply sneaked off home and didn’t mention it to anyone. It was only after he was arrested on 9th January, 2001, that he came up with the story of armed robbers. This story certainly smacks of an afterthought. Therefore, it is no wonder that the learned trial Judge jettisoned same with a wave of his hand and rightly so too. Hear Akeju, J. at page 106 of the record of the Court:

”He hid the fact of that accident until Police arrested him at the instance of the Plaintiff. It is obvious that what the 1st Defendant did was not in tune with the conduct of a reasonable man in the circumstances.

I have the opportunity of observing the demeanour of the 1st Defendant and I find him to be a witness who economized the truth, while I find the evidence of the Plaintiff and his witnesses on the accident to be consistent and reliable. I hold the strong view that the accident of 6fh January, 2001 were (sic) caused by the 1st Defendant’s act of negligence and recklessness.”

I have no reason to interfere with these findings of fact by the learned trial Judge as it was arrived at after a proper appraisal of the evidence before the Court and is completely borne out by the evidence.

I will comment very briefly on the issue raised by the Appellants that the failure to call one Lamidi Seidu, the driver of the Respondent’s vehicle to testify, raises a presumption that the evidence of the driver would be unfavourable to the case of the Respondent. The Appellants invoked Section 149(d) of the Evidence Act. This provision provides that:

“Evidence which could be produced and is not produced would, if produced, be unfavourable to the person who withholds it”.

It is indeed the law that where a party to a suit does not adduce evidence which he is supposed and has the opportunity to adduce, then it may be presumed that the evidence will be against him if adduced. However, a distinction has since been made between the failure to call a particular witness and failure to adduce particular evidence. A party is not bound to call a particular witness if he thinks he can prove his case otherwise. See Bello V Kassim (1969) NMLR 148. Uwais, JSC, (as he then was), stressed the point thus in Onwujuba V Obienu (1991) 4 NWLR (Pt. 183) 16 at 29:

”It is clear from the provisions of Section 148(d) now Section 149(d) that what is required before the presumption therein applies is failure to call evidence and not failure to call a witness. Although a witness when called provides evidence in his testimony such evidence may be adduced in other ways.”

See also Buhari V Obasanjo (2004) 2 NWLR (pt. 910) 241; Tsokwa V Union Bank of Nigeria Ltd (1996) 10 NWLR (Pt. 478) 281; Ogwuru V Cooperative Bank of Eastern Nigeria Ltd (1994) 8 NWLR (Pt. 365) 685; UBA Ltd V Ibhafidon (1994) 1 NWLR (Pt. 318) 90 at 119; Onuwaje V Ogbeide (1991) 3 NWLR (Pt. 178) 147 at 162 – 163; Mufutau Aremu V State (1991) 7 NWLR (Pt. 201) 1; Babuga V State (1996) 7 NWLR(Pt. 460) 279 at 290-291. Therefore the failure to call the driver of the Respondent’s vehicle cannot, without more, be considered injurious or fatal to the Respondent’s case when the same evidence he could have given was adduced in other ways, in particular through the eyewitness testimonies of the PW1, (the Respondent himself), and PW2. Therefore, for all the reasons afore-stated, I answer this issue in the affirmative in favour of the Respondent.

Issue two is whether the Appellants were entitled to invoke the principle of volenti non fit injuria in their defence in respect of the subsequent fire which gutted the vehicle of the Respondent on the 8th January, 2001. The Appellants submit that it was the duty of the Respondent as the owner of the vehicle to remove it from the resultant position of the accident, and if he chose to delegate this duty to the Depot Manager, then he is personally responsible for the acts of that person. Duckland V Genoux (1969) 1 ALL NLR 26 is cited in support. It is also submitted that the Appellants who were not responsible for causing the act forming the foundation of an action either in nuisance or negligence cannot be held liable for the careless act of a third party. The Appellants invoke the Latin maxim valenti non fit injuria against the Respondent in respect of his decision to leave the vehicle at the scene of the accident, at the request of the Appellants’ Depot Manager, where it subsequently got burnt. The Appellants submit that the Respondent cannot therefore maintain an action in the tort of negligence against the Appellants.

On his part, the Respondent submits that where an Appellant has not challenged the findings of fact made by the trial Court, an appellate court will not interfere. He referred to the evidence of the PW3, (at pages 58 to 59 of the record), which corroborates the evidence of the Respondent, (at page 57 of the record), that it was the 2nd Appellant’s Depot Manager who engaged his services to keep watch over the Respondent’s vehicle after the accident. Towards this, the Manager paid him N200.00 out of N300.00 charged for his services. The Respondent contends that this evidence stands unchallenged and uncontroverted. The Appellants however shielded the said Depot Manager from testifying. Flowing from this, the Respondent submits that the principle of valenti non fit injuria cannot avail the Appellants. He urged the Court to uphold the findings of the learned trial Judge on this at page 106 of the record and to resolve the issue in favour of the Respondent.

The Respondent pleaded in his statement of claim that the 2nd Defendant’s Company Manager in Ado-Ekiti engaged the services of a watchman in the locality to guard the Respondent’s vehicle at the scene of accident until the 2nd Defendant’s Transport Manager came over from Ibadan. The PW3, Michael Oluborode, is that watchman. Despite the Appellants’ vehement denials, Oluborode testified on oath that he was actually hired by the said Manager to stand guard over the Respondent’s vehicle after the accident. Towards this, the Manager paid him the sum of N200.00, with a promise to pay the balance the next day. PW3 guarded the vehicle from 6.00pm to 7.00am the next morning. However, later the next day at about 3.00pm, the Respondent came to inform him that the car was gutted by fire. PW1 had also testified earlier that, even though he had wanted to remove the vehicle from the scene of accident, it was the Depot Manager who asked him to leave it there and the Manager went ahead to hire a guard to secure the vehicle. This evidence was again amply corroborated by the PW2, a passenger in the Respondent’s vehicle who witnessed the accident. This is what he said at pages 56-57 of the record:

“The manager followed us to the scene of accident with police and the manager said he would inform the transport manager who would come to inspect our vehicle where Coca cola vehicle pushed it.

The Coca cola Manager then engaged the service of a night watchman to keep watch over the vehicle till, the Transport Manager would come the following day… I was present when the Coca Cola Manager gave N200 to the watchman out of N300 he agreed to pay him for watching the vehicle overnight. I later met the watchman at the Police Station Ado-Ekiti.”

The principle of volenti non fit injuria has been the subject of a lot of misconceptions. This is a common defence in actions of negligence. It emphasizes the necessity for knowledge and consent. The question primarily is whether the plaintiff agreed to the breach of the duty of care by the defendant towards him or, at least, to waive his right of action arising out of such breach. The defence has both these applications. The first of which negatives the wrongfulness of the defendant’s conduct, while the second prevents the plaintiff from recovering without affecting the fact that the defendant has committed a wrong. But whatever the application, voluntas emphasizes the need for knowledge of the risk in the plaintiff. The law is that if a defendant desires to succeed on the ground that the maxim valenti non fit injuria is applicable, he must obtain a finding of fact that the plaintiff voluntarily and freely, with full knowledge of the knowledge of the risk he ran, impliedly agreed to incur it. Therefore, there must be knowledge before there can be consent. In the instant case, there is no hint of the Respondent agreeing to the breach of the duty of care owed by the Appellants towards him or, at least, to waive his right of action arising out of such breach. The simple fact that the Respondent conceded to leave the car in the care of the Appellants’ Depot Manager until a higher authority from the Company arrived to inspect the damage inflicted on the vehicle by their employee, cannot be equated to giving his consent to a breach of the duty of care owed him or the suggestion that he thereby waived his right of action arising from such a breach. Consequently, I agree with the finding of the learned trial Judge at page 106 of the record where he found thus:

”I firmly believe that it was due to the persuasion and assurance given by the depot manager of 2nd defendant that the plaintiff accepted to leave the vehicle at the spot where it eventually got burnt. ”

I therefore find that this defence does not avail the Appellants to shield them from liability for the subsequent burning of the Respondent’s vehicle at the scene of accident.

This issue is again answered in the affirmative in favour of the Respondent.

In answer to issue three which is, if the answers to the above two issues are in the affirmative, whether the award of N750,000.00 as special damages to the Respondent is justified and borne out by the evidence before the trial Court, the Appellants contend that the Respondent is not entitled to the payment of N750,000.00 awarded as the value of his Peugeot 504 Saloon. They submit that the Respondent failed to establish through evidence the correct registration number of his vehicle. Whereas in the pleadings, he gave the number as ONDO AE 242 ADK, in his oral evidence at page 51 of the record, he testified that it was AE 242 ADK. The Appellants therefore submit that evidence which is at variance with the pleadings would lead to a dismissal of the claim. In support of this they cite Nsirim V Nsirim (2002) 2SCNJ 46 at 57; and Adebayo V Ighodalo (1996) 5 SCNJ 23 ay 31. Appellants also submit that there was an unexplained discrepancy in the registration number of the vehicle which by the word “Ondo’ presupposes it was registered in Ondo State and yet it still bears the acronym ADK, denoting Ado-Ekiti in Ekiti State. They invited the Court to take judicial notice of the fact that Ekiti State was created in 1996 and therefore the vehicle number bearing “ONDO” could only have been bought at least five years, (and not one year), before the date of the accident.

Another aspect of the Appellants’ dissatisfaction is that there was no proper identification of the vehicle in that the following particulars of the vehicle were not pleaded and proved: the engine number, chassis number, type or model and year of manufacture. They contend that without this information made available to the Court, it would be impossible to arrive at the exact assessment of damages. Appellants also contend that the ownership of the vehicle by the Respondent was not established by the documentary particulars of the vehicle such as: the vehicle license, the insurance certificate, documents to show that the vehicle was registered in the name of the Respondent, and the registration book. In the absence of proof of all the above, the Appellants queried whether the Respondent can be said to be the owner of the vehicle to enable him maintain the action and entitle him to the damages awarded. Julius Berger (Nig.) Ltd V Ede (2003) 8 NWLR (Pt. 823) 526 at 528 & 544; & Odebunmi V Abdullahi (1997) 2 SCNJ 112 at 127-128 are referred to.

On the measure of damages, the Appellants submit that the Respondent must plead the particulars of his claim as well as lead credible evidence thereon. In this case, the Appellants contend that the Respondent failed to specially plead and lead evidence to establish how he arrived at the value of N750,000.00. There was no evidence as to depreciation, mileage covered and how the pre-accident value was arrived at. Ibeanu V Ogbeide (1998) SCNJ 77 at 89; (1998) 12 NWLR (Pt. 576) 1 is relied upon.

Appellants contend further that the Respondent, who has a duty to mitigate his losses, having failed to do so, was not entitled to the award of damages.

The Respondent on his part submits that strict proof in the con of special damages means no more than proof as would readily lend itself to quantification or assessment. He submits that where a Plaintiff pleads special damages with particularity and gives some evidence in proof of same, and the defendant does not challenge or contradict the evidence given, the plaintiff has discharged the onus of proof. Respondent further submits that unless the evidence given is of such a quality that no reasonable Tribunal can accept it the evidence ought to be accepted. The Respondent contends that the measure of damages awarded by the trial Judge was based on the value of the car before it was gutted by fire, and not on its value after it was gutted by fire as claimed by the Appellants. The Respondent claims that he bought the car for N850,000.00 and it was only one year old when it got burnt due to the recklessness and negligence of the Appellant. He therefore put its value at N750,000.00. He claims that this piece of evidence was similarly unchallenged and uncontroverted. He urged the Court not to interfere with the findings of fact of the trial Court on this and to again resolve issue 3 in favour of the Respondents.

For some inexplicable reason, the Appellants are obsessed with the proof of ownership of the vehicle in question. However, no sleep will be lost over this as issues were not joined in the pleadings on this. I therefore have no reason to fault the finding of the trial Court that the ownership of the car is not in contention. All the arguments in this regard are therefore discountenanced.

On the issue of damages, negligence is only actionable if actual damage is proved. There is no right of action for nominal damages in the tort of negligence. Indeed, negligence alone doe not give a cause of action; damage alone does not give a cause of action; the two must co-exist. In negligence actions, the measure of damages is that the injured party is to be placed back, so far as money can do it, in the same position as he would have been in had it not been for the defendant’s negligence.

The dominant rule of law is the principle of restitution in integrum. In negligence cases, damages are also divided into general and special damages. General damages are those damages which the law presumes to flow from the negligence of which the plaintiff has complained. These damages must be specifically averred to have been suffered and must be proved. See Ezeani V Ejidike (1964) 1 ALL NLR 402.

The assessment of damages should be based on the pleadings and evidence, and where there is no evidence to support a claim for damages, the claim should be dismissed. See W.A.E.C. V Koroye (1977) 2 S.C. 45; Dumez V Ogboli (1972) S.C. 196; Messengers V Nwachukwu (2004) 6 SCNJ 56. Unlike in contract where damages that the plaintiff can recover from the defendant, if there is a breach of contract, must be within the contemplation of the parties at the time of entering into the contract, a plaintiff in an action for damages against the defendant for the negligence of the defendant is entitled to recover as damages the loss that he has suffered from the negligent act of the defendant even where the loss is not within the contemplation of the parties. In Yau V Dikwa (2001) FWLR (Pt. 62) 1987, the Plaintiff/Respondent was awarded the sum of N47,500 as damages to cover the value of his car that was burnt by fire due to the negligence of the Defendant/Appellant. Again, in Kerewi V Odegbesan (1967) NMLR 89, the Respondent’s vehicle was damaged by the vehicle of the Appellant. The Respondent instituted an action against the Appellant and claimed damages for the value of the car, loss of earnings on the car and inconvenience that was suffered through being without the car. The Court awarded damages in favour of the Respondent to cover the pre-accident value of the car, loss of earnings on the car and the inconvenience suffered through being without a car for a time reasonably necessary to get another car to put it on the road.

In the instant case, the Respondent under paragraph 33 of the statement of claim, claimed the sum of N1,000.000.00 as special damages, N750,000.00 of this sum being the value of the Plaintiff’s vehicle which the 2nd Defendant’s vehicle collided with and pushed into a bush where, eventually, due to a fire outbreak in the locality, it got burnt down. While the trial Court found the other two heads of claim of special damages not proved, it found that the Respondent had proved and was entitled to the sum of N750,000.00 claimed for his car. The respondent offered as proof of this head of claim the purchase price of the vehicle just one year before the accident, being N850,000,00. Now as afore-stated, the purpose of an award of damages in an action in negligence is to place the injured party back into the same position as he would have been in had it not been for the defendant’s negligence, so far as money can do it. That being the case, having properly pleaded and proved negligence as well as this head of claim, it is only proper that same be awarded.

The Appellants, on the other hand, in their pleadings offered no valid challenge to this claim aside from putting the Respondent to the strictest proof. It is noteworthy that they also assessed the post-accident value of the vehicle i.e. after it had been gutted by fire, at NI00,000.00. I totally endorse the findings of the learned trial Judge on the definition and scope of “strict proof” of damages. It means no more than that the evidence must show the same particularity as is necessary for its pleadings. Strict proof does not mean unusual proof or proof beyond reasonable doubt. No. What is required is that the person claiming should establish his entitlement to that category of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head. Otherwise, the general law of evidence as to proof by preponderance or weight, usual in civil cases, operates. See Kurubo V Zach-Motison (Nig) Ltd (1992) 5 NWLR (Pt. 239) 102; Osuji V Isiocha (1989) 3 NWLR (Pt. 111) 623; Odulaja V Haddad (1973) 11 S.C. 357. Based on all these, I find that the award of damages to the Respondent is both thoroughly justified and borne out by the evidence adduced in Court. I once again answer this issue in the affirmative.

Finally, issue four questions whether from the evidence on record, the trial Court properly appraised and evaluated the evidence adduced before it in arriving at its decision. The Appellants submit that it is the duty of the trial Court to properly appraise and evaluate the evidence before it in the consideration of the issues before it. They however contend the Court in this case failed to do so. Appellants therefore submit that this is a situation where this Court can rightly intervene and interfere with the evaluation of the evidence made by the lower Court. They therefore urge the Court to set aside the findings of fact made by the lower Court.

Once again, in responding to this issue, the Respondent urges this Court not to interfere with the findings of fact of the trial Court unless they are shown to be perverse. He submits that this Court will also not interfere with a trial Court’s award of damages unless the Court is shown to have acted on some wrong principles of law or the amount awarded is extremely high or low. Respondent submits that an appellate court will decline to reverse the findings of a trial Judge on damages merely because he thinks that if he had tried the case in the first instance, he would have awarded a lesser sum. The Respondent therefore urged the Court to dismiss the Appeal and affirm the findings of the trial Court which is based on the pleadings and evidence on record.

It is a correct statement of the law that the evaluation of evidence and the ascription of probative value to such evidence are the primary function of the trial court which saw, heard and assessed the witnesses. Where, however, a trial court evaluates the evidence before it and makes definite findings of fact which are fully supported by evidence and such findings are not perverse, it is not within the territory of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal ought to do is simply to find out whether there is evidence on which the trial court arrived at its findings and that there is no misapprehension of the facts. Once there is such evidence on record, the appellate court cannot interfere. Fagbenro V Arobabi (2006) 7 NWLR (Pt. 978) 172; Nnachi V Ibom (Supra); Gaji V Pave (2003) 12 MJSC 76. In view of all the above, I decline to interfere with the express findings of fact of the Court of trial which was availed the opportunity of seeing and hearing the witnesses first-hand, especially where the Petitioner has failed to show that these findings were perverse. I again answer this issue in the affirmative.

It is for all the reasons set out above that I find the Appeal devoid of all merit. That being the case, the Appeal fails on all grounds and is dismissed. I affirm the Judgment of the High Court, Ado-Ekitil Ekiti State.

The Appellants are ordered to pay the Respondent costs assessed at N30,000.00.

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Other Citations: (2009)LCN/3441(CA)