Anthony M. Soetan & Anor Vs Z. Ade Ogunwo (1975)
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DAN IBEKWE, JSC
The narrow issue which this court is called upon to determine in this appeal is as to whether the learned trial Judge’s award of general damages to the plaintiff after he had already awarded special damages in his favour amounts to double compensation or not.
On 27th August, 1969, the plaintiff brought an action against the defendants jointly and severally in the High Court, Lagos, claiming the sum of £1,500 (One Thousand Five Hundred Pounds) being special and general damages suffered by the plaintiff which arose out of the negligence of the 2nd defendant who in the course of his employment with the 1st defendant was the driver of the 1st defendant’s car No. LC 1993 on 12th June, 1966 along Lagos/Ikorodu Road in consequence of which the plaintiff’s Bedford Bus No. LK 8376 was badly damaged.
The particulars of the damage were set out as follows:- “PARTICULARS OF DAMAGES Cost of repairs £855.16.7d Loss of earnings 285. -. -d General Damages 359. 3.5d £1,500. -.-d Pleadings were ordered on the 15th day of September, 1969. The plaintiff filed his Statement of Claim on 14th October, 1969 and the 1st defendant filed his defence and counterclaim on 22nd November, 1969. But the 2nd defendant filed no defence; nor did he take part at the trial.
The case was hotly contested in the court below. Four witnesses were called on either side. In a well-considered judgment Kazeem J., after carefully reviewing the evidence before him, found in favour of the plaintiff as follows:- “Accordingly, I find the 1st defendant vicariously liable for the negligence of the 2nd defendant while driving private vehicle LC 1993 which caused the accident. In view of my findings above it is unnecessary to consider the 1st defendant’s counter-claim.”
The learned trial Judge then considered specifically the evidence led by the plaintiff in support of his claim for special damages as a result of which he awarded the plaintiff special damages as follows:- (a) Cost of repairs ………. £150. -s. -d. (b) Loss of earnings……… £225. -s. -d. Finally, the learned trial Judge also awarded £125 general damages thereby bringing the total amount awarded to the plaintiff to £500.-s.-d. with 75 guineas costs. We shall later on in our judgment revert to the award of general damages as set out above because, it seems to us that that is the bone of contention in this appeal.
Dissatisfied with the decision of Kazeem J., the 1st defendant lodged an appeal to the Supreme Court on the following grounds:- PAGE| 3 “1. The verdict is against the weight of evidence. 2. The decision is wrong in law in that learned judge did not advert his mind to the principle that special damages must be strictly proved (which the plaintiff failed on the evidence to do). 3. The learned judge erred in law when he awarded general damages to the plaintiff, having already awarded special damages in his favour which offends against the principle of double compensation. 4. The learned trial Judge misdirected himself on the facts in awarding the plaintiff/respondent £150 damages for cost of repairs of his vehicle when there was no proof that any amount was spent on the repairs to the vehicle. 5. The learned trial Judge misdirected himself on the facts in using Exhibit “A” as a proof of the cost of repairs of the plaintiff/respondent’s vehicle when there was no evidence from the plaintiff to substantiate this.
6. The learned trial Judge misdirected himself on the facts when he awarded £225 as loss of profit in favour of the plaintiff/respondent when there was no evidence from which the amount of profit could be ascertained because the plaintiff/respondent’s driver only gave evidence of the amount he earns daily as between £10 and £15 without giving any evidence of expenses of fuel and other outgoings, and there was no evidence from which it could be ascertained whether it was run at a loss or profit.
7. The learned trial Judge misdirected himself on the facts in awarding general damages of £125 to the plaintiff/respondent when there was no evidence for such claim by the plaintiff/respondent before the Court. 8. The award of £125 as general damages in favour of the plaintiff/respondent in addition to the special damages already awarded him by the learned trial Judge was wrong in law in that it amounted to double compensation.” Before us Mr. A. O. Koku, learned counsel for the appellant went through the whole grounds of appeal, but it turned out in the end that grounds 3 and 8 of the grounds of appeal are the only deadly weapons in his armoury. With tenacity, learned counsel urged it upon us to hold that the facts and the circumstances of this case are such that it was not open to the learned trial Judge to award general damages to the present plaintiff/respondent after he had awarded him all the items of special damages claimed by him.
Learned counsel further submitted that the award of general damages made by the learned trial Judge amounted to double compensation. In his reply, Mr. K. Sofola, learned counsel for the respondent, put forward an attractive argument to the effect that as the learned trial Judge did not award to the plaintiff the full amount claimed as special damages, it is hard to say that he has been so fully compensated as to render the award of general damages undesirable. Mr. Sofola’s contention is, no doubt, ingenious and interesting.
Nonetheless, we take the view that we are not called upon to decide that issue in the present appeal for the simple reason that the respondent in this case did not file a cross-appeal against the quantum of special damages awarded in the court below. In the circumstances, it does not now lie in his mouth to complain that the special damages awarded in his favour are inadequate. Turning now to the issue of double compensation which was raised by the learned counsel for the appellant, we think that the complaint of learned counsel is well-founded. It is said that “damages are compensation in money.”
They are a sum of money given to a successful plaintiff as compensation for loss or harm of any kind. It seems to us that once a party has been fully compensated for the loss or harm suffered by him it should not be open to the court to proceed to award him any other kind of additional damages that may look like a bonus.
In cases such as the present one, compensation is measured by the cost of repair or restoration of a party to his original position, if and so far as the original position can be restored. This rule holds good in cases which involve damage to property, inasmuch as property can generally be replaced, if destroyed, or repaired, if damaged. In the case now before us the respondent’s Bedford Bus was negligently damaged by the appellant’s car driven by his driver.
In the court below, he claimed and recovered damages for repairs and loss of earnings. It is clear from both the claim and the pleadings that the respondent suffered no other damage than the ones set out above in his claim. The question, therefore, is whether the respondent is entitled to the extra money awarded to him as general damages. The law reports are full of the guidelines which the courts should follow in quantifying the loss suffered by the plaintiff in actions of this nature. We shall simply refer to a few cases by way of illustration.
The first case is Livingstone v. Rawyards Coal Co. (1880) 5 Appeal Cases 25, at page 39; where Lord Blackburn stated the law as follows:- “Where any injury is to be compensated by damages, you should as nearly as possible get at that sum of money which will put the person who has been injured in the same position as he would have been in if he had not sustained the wrong.”
The next case is Admiralty Commissioners v. S. S. Valeria (1922) 2 A.C. 242, at 248: where the law was stated by Viscount Dunedin in his characteristic manner as follows:- “The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him.” We think that attention should also be drawn to the case of Liesboach Dredger v. Edison (1933) A.C. 449, at page 459, where the law was succinctly laid down by Lord Wright as follows:
“The substantial issue is what is the true measure of damage. It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrong-doing vessel the owners of the former vessel are entitled to what is called restitutio in integrum, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on them, subject to the rules of law as to remoteness of damage.”
We are however, conscious of the fact that in several cases of claims for personal injuries, or for damage done to property which is unique and irreplaceable, it may be impossible to restore the original position. But we are not concerned with such a problem here in view of the fact that the original position in the present case could be restored, and it was indeed restored by the award of damages for repairs and for loss of earnings which were the only losses disclosed by the pleadings.
The rule, however, is that even in such cases, where the original position could not be restored, the court must endeavour to give a fair equivalent for the loss or injury suffered. But that is another matter. We take the view that where, as in this case, the loss is in itself of a financial character, the assessment of damages is primarily a matter of arithmetic. It seems to us that in such cases, the plaintiff, subject to the rule that special damages should be strictly proved, is entitled in principle to full indemnity and no more. In other words, such plaintiff is not entitled to be doubly compensated under the guise of general damages. It has been well said that a court of law is not a donor of charities; it gives to either party only that which the justice of his case demands.
As we have already stated, we take the view that the award of general damages is improper where the quantum of loss is certain. The view which we have just expressed was also taken by this court in the case of Thomas Kerewi v. Bisiriyu Odegbeson (1967) NMLR 89 at page 91 where in delivering the judgment of the court Onyeama, JSC., as he then was, stated the law as follows:- “In the present case there is no difficulty in measuring the loss suffered by the respondent; it was either the value of the car, if it was a total loss, or loss of earning during repairs and the cost of the repairs if it was not. PAGE| 6 The respondent put his case on the footing of loss of earnings for about two months; this was accepted and damages awarded.
The further award of £100 “general” damages looks like a second compensation to respondent for the one loss and cannot be justified on any ground. It has been well said that the figure of justice carries a pair of scales and not a cornucopis.” We too are of the opinion that the learned trial Judge in the present case erred in awarding general damages to the respondent in view of the obvious nature of the claim before him.
The respondent’s claim stood upon two legs: (a) the cost of repairs, and (b) loss of earnings which were accepted, and damages were accordingly awarded in his favour. In our view, the further award of £125 general damages sounds like a second compensation for one and the same loss. The facts and the circumstances of this case are such that this particular award cannot be justified on any ground.
The award of £125 general damages by Kazeem J., in Suit No. LD/442/69 therefore cannot stand and it is hereby set aside. In every other respect the appeal fails and it is hereby dismissed. The appellant shall pay to the respondent the cost of this appeal fixed at N122.00.
Other Citation: (1975) LCN/2011(SC)
