Armel’s Transport Ltd v. Transco (Nig) Ltd (1974)
LawGlobal-Hub Lead Judgment Report
A. G. IRIKEFE, J.S.C.
When this appeal came before us on 7th October, 1974, after hearing counsel for the parties, we made the following orders:
(i) That the award of 500 (Five hundred pounds) general damages be refused:
(ii) That 3,940 (Three thousand nine hundred and forty pounds) be substituted as loss of earnings:
(iii) That 1,325 (One thousand three hundred and twenty five pounds) be confirmed as special damages for repairs:
(iv) That otherwise the appeal be dismissed; and
(v) That costs assessed at eighty-four Naira be awarded to the respondents.
We indicated at the time that we would give our reasons for making the above orders later, and we now do so. Before the High Court of Lagos State, the plaintiffs/respondents herein indorsed their writ against the defendants/appellants in the following terms:
The Plaintiff’s claim against the Defendants is for the sum of 6,525 {Six thousand Five Hundred and Twenty Five pounds} being special and General Damages suffered by the Plaintiffs as a result of the negligent repairs of the Plaintiffs’ Lorry Registration No. PL 2135 by the Defendants.PARTICULARS OF NEGLIGENCE
On or about the 24th day of April, 1968 the Defendants accepted the Plaintiffs’ lorry Mercedes Benz Type 1618 Registration No. P L. 2135 into their (the Defendants’) workshop at Apapa for repairs to the Engine, Gear Box, differential, water pump etc.
The said repairs was not “Completed” until the 9th day of September, 1968 when the Plaintiffs paid the Defendants’ bill of 181: 1: 10d but on inspection it was discovered that the repairs was badly done and the vehicle could not be driven out of the Defendant’s workshop.
The Defendants urged the Plaintiff to leave the Lorry with them and promised that proper repairs would be done.
The Defendants informed the Plaintiff of the completion of the repairs on the 30th December, 1968 but the said repairs was badly done and the vehicle was delivered in a worse condition than it entered the Defendants workshop.
The Plaintiffs were obliged to take the vehicle to Leventis Motors Ltd. Apapa for proper repairs which was completed on the 24th day of March, 1969.
(Particulars of Damages)
SPECIAL DAMAGES:
Cost of one shortblock damaged by the Defendants and condemned by…Messrs Leventis Motors Ltd 70(pounds).
Cost of repairs done by the Leventis Motors Ltd. as a result of the bad…workmanship of the Defendants 625.
Loss of use of the vehicle from the 9th day of September, 1968 to the 24th…day of March, 1969 i.e. 28 weeks @150 nett per week …..’4,200(pounds):
General damages….’ 1 ,000:
The action duly proceeded to hearing and at the end thereof, the lower court found for the respondents. The leamed trial judge concluded his decision thus:
“That the plaintiffs spent 700(pounds) for the purchase of the shortblock is therefore incontrovertible. The 1 st p. w. testified that he paid the sum of 625(pounds) to Leventis Motors Ltd. and in this he is supported by Exhibit F and the evidence of p. w. 2. All the items in Exhibit F would be done as part of the instructions if a person asked for the over-hauling of the parts in Exhibit A. According to p. w.2 (whose evidence I accept) Exhibit A is a precis of exhibit F. The sum of 625(pounds) paid by the plaintiffs to Leventis Motors Ltd. is therefore part of the damages which flow from the negligence of the defendants. With regard to the loss of use, the plaintiff claims 18:6:8d(pounds) per day from 9th September, 1968 to 24th March, 1969. This amounts to 3,377:6:8d(pounds) The plaintiff claimed that he could have earned 20(pounds) per day from the Army during this period and he produced Exhibits E-R6 to show that his vehicle was commandeered by the Anny and he further testified that he was paid 20(pounds) per day by the Nigerian Army. This piece of evidence is not challenged in any way and since I have no reason to disbelieve it, I accept it. There will be judgment for the plaintiff as follows:
(a) 1325(pounds) Special damages.
(b) 3,777:6:8d(pounds) Special damages (Loss of use)
(c) 500 (pounds)General damages
5,502:6:8d or N11,204.63
I award the plaintiffs costs assessed at N168.”,
This appeal is against the above decision and learned counsel for the appellants, Mr. Ogunsanya, relied exclusively on the-Three additional grounds of appeal in respect of which he had earlier obtained our leave. These grounds complain:
(i) “That the learned trial judge erred in law in awarding general damages in this case when all the losses alleged to have been sustained by the plaintiffs have been fully compensated for by the award of special damages.
(ii) That the learned trial judge eited in law and in fact when he awarded the sum of 3,337 :6:8d(pounds) as loss of use only on the ipse dixit of the plaintiffs and when there is no proof by the plaintiffs of such loss as required by law.
(iii) The learned trial judge erred in law in awarding the sum of 625(pounds) as cost of repairs by Leventis Motors Limited when the evidence before him was that this amount covered other items of repairs which were not occasioned by any negligence on the part of the defendants.”
On the first ground of appeal, counsel submitted that, in as much as the claim before the court was founded in negligence arising from the contractual relationship between the parties, it was only open to that court to award such damages as flowed directly form the breach of that contract, and no more. The situation here, counsel argued, differs from that in an action for tortious liability where damages are left at large. Again, counsel stressed that in the case in hand, it is plain that all losses established on the evidence had been compensated for by the damages awarded and that the sum of 500(pounds) could be no more than an attempt at double compensation, the more so, as no reasons had been given for the award.
In support of the above contention, learned counsel relied on THOMAS VS. KEREWI 1965 (1) ALL NIGERIA LAW REPORTS p. 95 at pp. 98-99 and EZEANI VS. EJIDIKE-1964 (1) ALL NIGERIA LAW REPORT p. 402 at p. 405.
We find considerable force in learned counsel’s argument on this ground of appeal and think that Mr. Adesanya, learned counsel for the respondent, was right in informing us that he did not wish to support the lower court’s decision on this award.
We note that, when dealing with the same principle of law as that raised in this appeal in the EZEANI VS. EJIDIKE case (Supra),Brett J.S.C. in delivering the judgment of this court at page 405 of the report observed thus:
“Where, as has happened here, a plaintiff asking for damages begins by setting out specific items of damages and then agds a claim under the heading of general damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutipised both by the defendant and by the court in order to see whether he is in fact asking to receive compensation more than once for the same cause of action. An instance of this occured in ONAGA & ors MICHO & Co. 1961 ALL NIGERIA LAW REPORTS p. 324, where this court held that having awarded damages for his actual loss under various specific headings a plaintiff in an action for breach of contract could not receive any further award under the heading of general damages. The measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same.”
The award of 500(pounds) as general damages seems to us indefensible and is clearly in the nature of double compensation.
No argument of any substance was presented before us on grounds 2 and 3 and learned counsel for the appellants readily agreed, when it was pointed out to him, that there was in fact enough evidence before the learned trial judge to justify the award for loss of use of the vehicle and cost of repairs. We had, however, to alter the award for loss of use from 3,777:6:8d(pounds) as shown in the order of the lower court to 3,940(pounds) so as to harmonise it with the evidence which that court accepted, that is, loss of use as from 9th September, 1968 to 24th March, 1969 at the rate of 20(pounds). per day.
In the result, the appeal fails, and save as ordered above, it is dismissed.
Other Citation: (1974) LCN/1851(SC)
