Chief J. A. Adenugba & Anor. V. Woli Elijah Okelola (2007)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the judgment of A.A. Sanda, J. of the Oyo State High Court holden in Ibadan which judgment was delivered on the 22nd day of April, 2004 in suit No. 1/12/2001. At the court below, the Appellants were the Defendants and the Respondent the Plaintiff who claimed against the Defendants both in the writ and statement of claim [paragraph 24] as follows:-

“Whereof the Plaintiff claims against the Defendants jointly and severally the sum of Five Million Naira [N5m] only being General and Special Damages when on the 21st day of July, 2000, at OJOO JUNCTION, IBADAN, a motor vehicle Bedford Lorry Truck with Registration Number AE 120 BDJ owned by the first Defendant under the management and control of the second defendant as the driver upon being negligently and recklessly driven by the second Defendant while in the employ of the first Defendant emerged from the IWO ROAD side of the expressway Ibadan, lost control mechanically and finally collided with and crashed into Plaintiff’s motor vehicle, Toyota Litace Bus with Registration Number XA 298 BKN (Osun) which is presently a write-off.

PARTICULARS OF SPECIAL DAMAGES:-

1. Estimated current Market Value of Plaintiff’s motor vehicle N500,000.00 (Five hundred thousand naira) only
2. Loss of use of the motor vehicle and attendant loss of daily net profit of N2,000.00 (Two thousand naira) as from the 21st day of July, 2000 till the time of filing this suit 4th day of, January, 2001 less Sundays =N2,000 x 144 = N288,000.00 (Two hundred and eighty-eight thousand naira) only
3. Loss of use of the motor vehicle and attendant loss of daily Net profit of N2,000.00 (Two thousand naira) as from the 5th day of July, 2001 till the determination of this suit.
4. Interest of 21% on the total value of Special damages as from the 21st day of January 2001 till judgment is delivered.
5. Interest of 10% on the quantum of judgment awarded till its liquidation.

GENERAL DAMAGES = Two Million naira (N2m) only”

Pleadings were filed and exchanged. A summary of the facts giving birth to this appeal is that on 21st July, 2000, at about 2.30 pm, along the Sango-Ojoo road, Ibadan, the 2nd Appellant who at the material time was driving a Bedford Lorry With Registration Number AE 120 BDJ (Oyo) being in the employ of the first Appellant, hit from the rear the vehicle of the Respondent, a Litace Toyota Bus with Registration number XA 298 BKN (Osun) which at that lime was driven by PW2. This impact pushed the Respondent’s vehicle to hit another vehicle in front as there was traffic hold up. Whereas the Respondent says the vehicle was a write-off and beyond repairs, the appellant says the damage was minor and that the car could have been repaired. The 2nd Appellant attributed the cause of the accident to mechanical defect being inevitable accident arising from brake failure of his vehicle.

After taking evidence and the addresses of both counsel, the learned trial judge entered judgment for the Plaintiff/Respondent thus:-

“(1) Judgment for the Plaintiff against the 1st and 2nd Defendants jointly and severally for a sum of N450,000.00 being the value of the Plaintiffs damaged vehicle.

(2) Judgment for the Plaintiff against the 1st and 2nd Defendants jointly and severally for a sum of N2,000.00 each for working days i.e. Monday – Saturday for Six months from the 21st day of July, 2000 to 21st day of January, 2001.

(3) Judgment for the Plaintiff against the 1st and 2nd Defendants jointly and severally for interest to be calculated at the rate of 10% per annum from today the 22nd day of April, 2004 until the whole debt is finally liquidated.

(4) The claim of the Plaintiff for a sum of N2m (Two Million Naira) as general damages is hereby dismissed for being a double compensation after the award of loss of use”.

Being dissatisfied with the stance of the learned trial judge, the Appellant, on 26th April, 2004 filed notice of Appeal containing four grounds of appeal praying the court to allow this appeal and dismiss the claim of the Plaintiff. S.A. Onadele Esq, of counsel, decoded three issues on behalf of the Appellant for the determination of this appeal. The issues are:-

(1) Whether upon a proper evaluation of the evidence before the court and an appropriate finding thereon, the learned trial judge could not have held that there was no sufficient proof that the Respondent’s vehicle which is the subject matter of the action was damaged “beyond repairs” or was a “write-off’ to justify the award of the value thereof.

(2) Whether [assuming that the vehicle was a “write-off’] having regard to the pleadings and evidence before the court the respondent as required by law sufficiently pleaded or proved the sum of N450,000.00 awarded as the value of the damaged vehicle.

(3) Whether on the facts and in all the circumstances of the case, the lower court was right in awarding N2,000.00 per day for 6 days in the week for 6 months as loss of use.

It was however the view of Chief Olawuwo Siyanbola who settled the Respondent’s brief that this appeal can be resolved on one issue only which he couched as follows:-

“whether from the pleadings and evidence the Respondent proved his case on the one hand and whether the learned trial judge properly assessed and awarded special damages in favour of the Respondent against the Appellant on the other hand”.

It is my view however that it will serve the interest of justice better to resolve this appeal on the Issues formulated by the Appellants’ counsel, moreso as the sole issue of the Respondent is subsumed in the Appellants’ three issues.

It was the contention of the learned counsel for the Appellant on the first issue that since it was in dispute the state of the vehicle of the Respondent after the accident, the learned trial judge ought to have resolved this issue based on the evidence before him but that he failed to do so. That merely looking at exhibits B1 & B2, the photograph of the damaged vehicle does not show it to be a write-off. Rather that it supports the Appellants’ position of a slight damage. Furthermore, that Exhibit C -was wrongly admitted and that no weight should have been attached to it since the maker was never called to testify and be cross examined. He cited and relied on the cases of Shell Development Company v. Otoko (1990) 6 NWLR (pt 159) p. 693 at 713 D and Omega Bank (Nig) Plc v. O.B.C Ltd. (2005) All FWLR (pt 249) 1964 at 1994. Learned counsel further submitted that although the Vehicle Inspection Officer (V.I.O) was invited by the Police to inspect the damaged vehicle, his report was never tendered in evidence. Relying on Section 149(d) of the Evidence Act, he urged this court to hold that had the report been tendered, it would have been unfavourable to the Respondents. He also referred to the case of Nigeria Dynamic Ltd v. Dumbai (2002) FWLR (pt 105) 823.

Learned Appellants’ counsel finally submitted on this issue that the learned trial judge failed to evaluate the evidence adduced before him and made no findings on the conflicting case of the parties. That with the divergence in the pleadings and evidence of both parties, the learned trial judge made no attempt to evaluate or even make a finding before making his award. Learned counsel then urged us to do what the lower court ought to but failed to do i.e. evaluating the evidence of both parties and relied on these cases: NBN & anor v. Uche Chyke Holdings Ltd. (2004) All FWLR (pt 204) p. 155, Sagav v. Sajere (2000) 2 SCNQR, 345, Imah v. Okogbe (1993) 9 NWLR (pt 316) 159, Basil v. Fajebe (2001) FWLR (pt 51) 1914.

Learned counsel urged us to resolve this issue in favour of the Appellants.

The learned counsel for the Respondent was however of the view that the learned trial judge properly held in view of the oral and documentary evidence before the court that the Respondent’s vehicle was damaged beyond repairs and it was indeed a write-off. That Exhibits B, B1, B2 & C tendered by the Respondent and the oral evidence proffered justified the learned trial judge’s findings in this respect. That Exhibit C was properly admitted being a certified true copy of a public document from a person who did not make it. He referred to Agagu v. Dawodu (1990) 7 NWLR pt. 160 56. He further submitted that the Respondent did not withhold the V.I.O’s report and in any case, nothing stopped the Appellants from tendering same. That based on the state of the pleadings and evidence, it was the Appellants who failed to discharge the onus of proof which had shifted to the Appellants based on the said pleadings. He referred to the case of Daudu v. NNPC & ors (1998) 1 SCNJ 95 and urged us to resolve the issue against the Appellants.

From the evidence adduced before the learned trial judge, both parties agree that there was an accident involving the vehicle of the Appellants and that of the Respondent. In fact the Appellants have stated in their evidence that their vehicle hit that of the Respondent due to mechanical fault in the brake system of their vehicle. There is no appeal against the holding of the learned trial judge on the fact that the Appellants were negligent in handling their vehicle on the road on the fateful date. What however is disputed is the extent of damage to the vehicle. Whereas the Appellants testified that the effect of the accident did not make the vehicle a write-off, the Respondent insists that the vehicle is a write-off. The complaint of the Appellant in this issue is that the learned trial judge did not evaluate the evidence and make findings on this issue before coming to the conclusion that the vehicle was a write-off.

On page 60 of the record of appeal, the learned trial judge has this to say concerning the issue of damage to the Respondent’s vehicle:-

“The next issue to discuss is whether there is any damage caused by the act of the Defendant? Dw1 testified thus under cross examination:

“I got down from my vehicle to ascertain what happened, I identify Exhibit B1, it was my vehicle, that is at the back of the plaintiff’s vehicle, that the front of the plaintiff’s vehicle was damaged, so also damaged is the windscreen in Exhibit B1, that [see Exhibit B2, that there is a big lorry in front of the plaintiff’s car apart from the plaintiff’s vehicle”.

The above statements, of Dw1 under cross-examination established that the acts of the Defendant caused damage to the Plaintiffs vehicle”.

Thereafter, the learned’ trial judge went on to say in the next paragraph as follows:-

“The next issue to determine is the quantum of damages resulting to the Plaintiff from the acts of the Defendants….”

Apart from the above quotation from the judgment appealed against, there is no other mention of damage or extent of damage to the Respondent’s vehicle before the learned trial judge entered judgment for the Respondent. Can it be said that the learned trial judge properly evaluated the evidence and made findings on the extent of damage to the Respondent’s vehicle? The answer, with due respect, is in the negative.

In Basil v. Fajebe (2001) 11 NWLR (pt 725) 592 AT 608, Ayoola, JSC stated clearly what evaluation of evidence involves. He said:-

“Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it. That any decision arrived at without a proper or adequate evaluation of the evidence cannot stand is now a truism. Evaluating evidence does not stop with assessing the credibility of witnesses, although that, in appropriate cases, is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make”.

As to what an Appellate court should do in the circumstance, the learned justice of the Supreme Court in Fajebe’s case (supra) at p. 609 states:-

“When the Appellate court comes to the conclusion that the trial judge did not properly avert to the evidence or give necessary consequence to the evidence given, the appellate court will itself perform that exercise. To do so is not a usurpation of the province of the trial judge. To fail to do so is an abdication of responsibility”.

See also Imah v. Okogbe (1993) 9 NWLR (pt 316) 159 SC, Sagay v. Sajere (2000) 2 SCNQR, 345 Sc.

I need to say at this stage that a court’s decision must be anchored on the evidence adduced before- it and on reason. On no account should it be based on the intuition of the judge or conjecture or what the judge conceives to be a fair conclusion.

There is no doubt the fact that the evaluation of evidence by a trial court is of utmost importance in the adjudication process. It is not possible to have findings of fact by a judge without first evaluating the evidence before him. See NBN & anor v. Uche Chyke Holdings Ltd (2004) All FWLR (pt 204) 155.

Since the learned trial judge in the instant case failed in this all important duty, this court would in the circumstance, perform that exercise. The statement of claim in this matter starts from page 4 of the record of appeal up to page 8. While the statement of defence is on pages 11-12 of the record. The relevant paragraphs of the statement of claim are paragraphs 9 and 10. I hereby set forth the two paragraphs.

“9. the plaintiff states that at the Ojoo junction at about 2.30pm, the first defendant’s motor vehicle mentioned above driven by and under the control and management of the second defendant emerged from the Iwo road side of the Expressway, Ibadan lost control and finally collided and crashed into the plaintiff’s motor vehicle mentioned above.

10. The Plaintiff states that as a result of this collision, the plaintiff’s motor vehicle was damaged beyond repairs and it had since been a write off and in custody of the Motor Traffic Division of the Nigeria Police Force, Moniya, Ibadan since the 21st day of July 2000”.

Also, the relevant averments in the statement of defence are in paragraphs 8 and 10 and are as follows:-

“8. The defendants refer to paragraph 10 of the statement of claim and aver that the extent of damage to the said vehicle with Registration Number XA 298 BKN (Osun) was only as to minor parts of the body not necessitating a write-off.

10. The defendants refer to paragraphs 14-16 of the statement of claim and will contend at the trial of this action that if the plaintiff was the owner of the said vehicle with Registration Number XA 298 BKN (Osun State) (which is denied) the extent of damage or the loss suffered which are yet to be proved has been grossly exaggerated as they bear no true relationship to the extent of the said accident”.

In leading evidence in prove of his averments, the Respondent (Plaintiff) had this to say on p. 36 lines 1-5 of the record:

“Following the queue because there was traffic hold up, a car hit my vehicle at the rear, the driver of the vehicle that hit my litace is the 2nd defendant, my vehicle was damaged. I was not able to utilize the car since; it is with the police at Moniya”

Under cross examination on p. 36 lines 27-28 of the record, he said:-

“I see Exhibit B2 shown that the vehicle was damaged, the damage was done to the left hand side, left hand door, and the bonnet”. [under lining is mine]

On his part the Appellants’ stated through DW1 on page 40, the last three lines that:-

“I say that the vehicle was not a total right (sic) write-off, it can be repaired. I am not liable to the damages claimed”

Let me say from the onset that in this type of claim, all that the plaintiff is entitled to is such amount as will put him in restitutio in integrum in respect of his actual loss. The law frowns at and will not allow the plaintiff to reap any unjust enrichment. It is therefore an important assignment for the trial court to carefully decide whether the vehicle was a write off or not. Whether the vehicle was a write-off or not is a question of fact to be garnered from the evidence adduced before the court.

In the instant case, the extent of damage is graphically given by the plaintiff himself on p. 36 lines 23-25 of the record of appeal. He states that the damage ‘was done to the left hand side left hand door and the bonnet (italics mine for emphasis). Apart from this, there is no other evidence on the extent of damage. Now can it be said that the damage to the left side door and the bonnet made the vehicle a write-off? A vehicle is a write-off if it is beyond repairs. My view is that from the description of the car after the accident as stated by the plaintiff himself, it cannot, without more, by any stretch of the imagination be said to, be a write-off.

Let me emphasis here that apart from inspecting the vehicle physically to determine its post accident state, it is always desirable to seek the opinion of experts on matters of this nature. In this case, evidence of the Pw2 shows that the V.I.O inspected the vehicle on the same date the accident occurred. Sadly he was not listed to testify. His report was also not tendered in evidence. This in my opinion was a grave omission. It was the view of this court in Nigeria Dynamics Ltd v. Dumbai (2002) FWLR (pt 105) p. 823 at 834 when faced with a similar situation that:-

“The Plaintiff/Respondent pleaded that the car in question was completely damaged beyond repairs, and claimed a total sum of N128,900.00 (one hundred and twenty eight thousand, nine hundred naira) as pre-accident value of the said Plaintiff’s/Respondent’s car. To enable the court properly and correctly determine issue of damages in respect of the car, the court must know not only the pre-accident value of the car but also the exact state and value of the car after the accident, which can only be gathered from the report of the Vehicle Inspection Officer on the car, which was not tendered by the Respondent”.

The Respondent had insisted that the vehicle was not a write-off and that it could be repaired. I hold the view that there was insufficient evidence to determine the state of the vehicle after the accident. The pictures i.e. Exhibit B, B1, & B2 are not enough to show that the vehicle was a write-off.

The inclusion of part of the V.I.O’s report in Exhibit C, the Police extract, makes the report hearsay and inadmissible. The Supreme Court in Kola v. Potiskum (1988) 3 NWLR (pt 540) 1 held that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was said. In the instant case, the V.I.O. was not called to testify so as to be cross examined on the report. The report copied by the police into exhibit C and tendered by the Plaintiff is, in my opinion, hearsay and inadmissible.

From the evidence placed at the disposal of the court which I have tried to evaluate above, I hold a strong view that even if the said vehicle was a write-off, there is no sufficient evidence to so hold. I therefore hold that the Plaintiff/Respondent failed to satisfy the court that his vehicle was a write-off. I accordingly resolve this issue in favour of the Appellant.

The Learned trial judge had awarded the sum of N450,000.00 to the Respondent as the value of the damaged vehicle. The Appellant’s counsel on the second issue faulted this award and submitted that the Respondent failed to plead and prove the pre-accident market value of the vehicle less the value of the vehicle as a scrap (if any) wherein he relied on the cases of Ya’u v. Dikwa (2001) FWLR (pt 62) 1987 at 2012 C-D, Cross Lines Ltd v. Thompson (1993) 2 NWLR (pt 273) 74, Bello v. Pategi (2007) NWLR (pt 667) 21.

Appellants’ learned counsel further submitted that the Respondent pleaded in paragraph 2 the sum of N500,000.00 being the “present estimated market value” of the vehicle and in paragraph 14 pleaded the sum of N500,000,00 as its “present market value before the accident and finally in paragraph 24 he stated the “estimated current market value of Plaintiff’s motor vehicle” to be N500,000.00. That however, when the Plaintiff testified, he gave the value of the vehicle as being the purchase price at the time of purchase on 16/8/99 as N450,000.00 and tendered Exhibit A – the purchase receipt. Learned counsel submitted that there was no evidence in respect of the “present market value before the accident” as pleaded in paragraph 14 of the statement of claim. He urged us to hold that the evidence proffered as to the purchase price as representing the value goes to no issue while there is no evidence in support of the pleading on “estimated current market value.”

The learned counsel for the Respondent however contended that the Respondent claimed the sum of N500,000,00 as the estimated current market value of the vehicle and in proof of this claim he tendered ‘Exhibit A which is the purchase receipt bearing the sum of N450,000.00. He urged that the learned trial judge was right in awarding the sum of N450,000.00 to the Respondent. That though the Respondent claimed the sum of N500,000.00 nothing stopped the learned trial judge from awarding the sum of N450,000.00. He also urged this court to take into consideration inflationary trend in the country wherein he cited the case of Ibeanu v. Ogbeide (1998) 9 SCNJ, 77, Metal Construction (WA) Ltd. v. Aboderin (1998) 6 SCNJ 161.

It would have been sufficient for me to say at this stage that since I have held by the evidence available that the vehicle of the Respondent was not a write-off at all, then the award of the sum of N450,000.00 to the Respondent as the value of the damaged vehicle was improper. And if I end it there, I would still have done my duty, but that would not mirror this court as an intermediate court. I need to express my thoughts albeit briefly on the issue at hand.

It has been held in a plethora of authorities that where a vehicle which is involved in an accident through the negligence of another is a total write-off, the Plaintiff is entitled as damages only to the pre-accident market value of the vehicle less the value of the vehicle as a scrap (if any), plus damages for loss of earnings apart from any specific items of special damage proved. See Ya’u v. Dikwa (2001) 8 NWLR (pt 714) 127, Ibeanu v. Ogbeide (supra), Armels Transport Ltd v. Martins (1970) 1 An NLR 27. It is trite that when a vehicle is lost by collision due to the sole negligence of the wrongdoing vehicle, the owner of the former vehicle is entitled to what is called restitutio in integrum, which means that he should recover such a sum as will replace him, so far as can be done by compensation in money, in the same position as if the loss has not been inflicted on him subject of course to the rule of law as to remoteness of damage. See Lagos City Council Caretaker Committee v. Unachukwu (1978) 3 SC 199 Cross Lines Ltd v. Thompson (1993) 2 NWLR (pt 273) 75.

It follows therefore that in order for the court to properly and correctly determine the issue of damages in respect of the vehicles, the court must know not only the pre-accident value of the vehicle but also the exact state and value of the vehicle after the accident. See Nigeria Dynamic Ltd v. Dumbai (2002) FWLR (pt 105) 823, Bello v. Pategi (supra).

In the instant case, the Respondent completely missed the point both in his pleadings and evidence in court. As rightly pointed out by the learned counsel for the Appellant, the Respondent in paragraph 2 of his statement of claim pleaded the “present estimated market value” to be N500,000.00. In paragraph 14 he pleaded the “present market value before the accident” to be N500,000.00 and in paragraph 24 he pleaded the “estimated current market value of Plaintiffs motor vehicle” to be N500,000.00. Well, one could take the pleading in paragraph 14 to mean the pre-accident value of the vehicle. Let me give that to him. But what was the evidence at the hearing of the case? All that can be garnered from the evidence of the Respondent is the sum of N450,000.00 being the purchase price of the vehicle on 16/8/99, clearly one year before the accident. There was no evidence to support even the “present market value before the accident” It is trite law that parties are bound by their pleadings and evidence given contrary to the pleadings go to no issue. See National Investment & Properties Co. Ltd v. Thompson Organization Ltd (1969) NMLR 99, Shell Development Coy. Ltd. v. Otoko (1990) 6 NWLR (pt 159), 693.

I need to add quickly that any pleading which there is no evidence to support goes to no issue and is deemed abandoned. In this case, the Respondent did not give evidence on the pre-accident value of his vehicle. Again he did not plead and did not give evidence on the value of his vehicle after the accident. I think the award to the Respondent by the court below of the cost of the vehicle at the same sum paid for it a year earlier was arbitrary since it did not take into consideration the issue of wear and tear. That is assuming the vehicle was a write-off. See Ohadugba v. Garba (2000) FWLR (pt 16) 2721. But as can be seen, there was no basis for the award as the Respondent neither pleaded nor proved both the pre-accident value and post accident value of the vehicle since, assuming that the vehicle was a write-off, which in this case was not, the Respondent was only entitled to the difference between the pre-accident value of the vehicle and the value of the scrap (if any). See Armel’s Transport Ltd. v. Martins (supra). I have no difficulty in resolving this issue in favour of the Appellants.

Now what is left, of this appeal relates to the award of N2,000.00 a day for six months in favour of the Respondent as loss of use or earnings. It was the contention of the learned appellant’s counsel that not only was the claim for loss of use not pleaded with particularity as the exact amount of expenses were not revealed, the evidence rendered in support is nebulous, incredible and falls short of the standard of proof required in proof of special damages.

That the period of six months awarded by the learned trial judge for loss of use was never pleaded and that the court merely arrived at six months from the address of counsel. He cited and relied on the cases of Obasuyi v. Business Ventures Ltd. (2000) FWLR (pt 10) 1722, Ohadugba v. Garba (2000) FWLR (pt 16) 2721.

Learned counsel submitted further on the issue that it is incredible that the learned trial judge awarded damages for loss of use for 6 months when there was no evidence as to why the vehicle could not be replaced for so long. Also, that the Respondent failed to mitigate his loss and should not be allowed to unjustly enrich himself. I relies on the case of Obasuyi v. Business Ventures Ltd. (supra).

The Respondent’s learned counsel opined that in the circumstance of this case, the learned trial judge correctly arrived at the award of special damages to the Respondent. That the six months period was based on the pleadings, evidence and judicial precedent wherein he cited the cases of Palm Beach Insurance Co. Ltd. v. Bruhns & anor (1997) 9 NWLR (pt 519) 80 and Onwuka & anor v. Omogui (1992) 3 NWLR (pt 230) 393.

Furthermore, that even if this court holds that the claim for special damages could not have been awarded, this court should rely on Section 16 of the Court of Appeal Act and award general damages which the trial court did not award. He cited and relied on the case of C and C Construction Cov. Ltd. & anor v. Okhai (2003) 12 SC (pt 1) 133.

It is now well settled that in a claim for special damages, the onus is on the Plaintiff to plead and prove the special damages strictly. And in order to discharge this burden, the Plaintiff must show by credible evidence that he is indeed entitled to the award of special damages. This evidence must show the same particularity as in necessary to his pleadings. This normally consists of evidence of particular losses which are exactly known or accurately measured before the trial. See Obasuyi v. Business Ventures Ltd (supra), Imana v. Robinson (1979) 3-4 SC 1, Kurubo v. Zach Motison Nig. Ltd. (1992) 5 NWLR (pt 239) 102.

Pleadings in respect of special damages are contained in paragraph 7, 15 and 24 of the statement of claim. It is necessary to reproduce them here at this stage:-

“7. The Plaintiff states that the utilization of the motor-vehicle for commercial transportation yields a daily net profit of two thousand naira (N2,000.00) only after deduction of all expenses for fuel, maintenance and owner’s remuneration from the gross earnings.

15. The Plaintiff states that as a result of this incident he had since the 21st day of July, 2000 suffered loss of use of the motor-vehicle as well as the daily net profit of two thousand naira (N2,000.00) only.
16. (2) – Loss of use of the motor-vehicle and attendant loss of daily net profit of N2,000.00 as from the 21st day of July 2000 till the time of filing this suit 4th day of January, 2001 less Sundays = N2,000 x 144=N288,000,00”.

Evidence adduced in support of the above pleadings is largely on p.36 lines 12-16 of the record of appeal.

Pw2 states:-

“I always convey 10 passengers from Ibadan to Shaki and some goods; a passenger from Shaki to Ibadan paid (sic) N250.00 which is N2,500.00.

So also we take 10 passengers from Ibadan to Shaki, when my vehicle was hit we had 10 passengers in the car. We worked 7 days of the week except Sundays. From the vehicle we buy petrol and deliver N2,000,00 to the owner of the vehicle daily”.

Under cross examination on page 37, lines 3-7 he said:-

“I spend N200,00 every day to the police and N100.00 to the touts in the market. We put engine oil, but we spend N1,500 every day on fuel. We consume 60 liters of fuel from Shaki to Ibadan. I do not know the price of liter of petrol”.

It was the contention of the Appellant’s counsel that the Respondent’s evidence did not include the amount spent on driver’s remuneration and maintenance. And that even the other expenses were given only under cross examination. He had urged that the evidence is far below the standard required in proof for special damages.

I need to state at this stage that the principles that in civil cases facts are proved on a preponderance of evidence and that when there is nothing on the other side of the balance, the onus of proof is discharged on a minimal of proof also apply to an issue as to damages, provided as in this case, that if special damages are claimed, they must plead with particularity and proved strictly. Where this requirement of pleading has been satisfied and the Plaintiff gives evidence in support which is unchallenged and uncontradicted, it ought to be accepted by the court. See Onwuka v. Omogui (supra), Magaji v. Odofin (178) 4 SC 91, Obembe v. Wemabod Estates Ltd, (177) 5 SC 115.

The Appellants in the instant case did not challenge the evidence of the Respondent at the lower court that he earned N5,000.00 a day and after Sundry expenses listed above, he had a balance of N2,000.00 as his take home income. It is my view that the learned trial judge was right to have acted on this uncontroverted evidence.

I accept that a claim of income per day made by the Respondent is a claim in special damages and requires strict proof. What is required in strict proof of special damages is a carefully particularized claim support by clear and reliable evidence which itemized the alleged daily loss, which should be proved by real evidence. From the pleadings and evidence set out above, I think the Respondent substantially complied with this requirement.

It is not in doubt whether the Appellants were negligent or not. The learned trial judge found them liable in negligence and they seem to have accepted it as there is no appeal against that finding. This court will not disturb that finding as there is no reason to do that. However negligent a defendant may be, the law expects the plaintiff to mitigate the loss suffered by him due to the negligence of the defendant. It is incumbent upon him to get such damages vehicle repaired at the earliest opportunity. It is unreasonable to allow a party that is a victim of negligence time almost in perpetuity to leave his damaged vehicle unrepaired and expect damages to be calculated against months rather than a few days or weeks. The Supreme Court in Obasuyi v. Business Ltd (supra) at 683 described the situation as:-

“giving a blank cheque to rake in undeserved compensation.”

See also Onwuka v. Omogui (supra)

The question now is, was the six months period awarded by the learned trial judge reasonable? The learned counsel for the Respondent gave an affirmative answer basing it on what he calls “judicial precedent”. In Palm Beach Insurance v. Bruhns (supra) relied upon by the Respondents counsel, this court held that:-

“if the period of repairs claimed was unreasonably long, the court will not award for the whole period, but for only a reasonable period as Plaintiff is usually expected to mitigate his losses.”

In Onwuka’s case, the Supreme Court awarded 6 months as period for loss of use adding that the period so awarded would meet the justice of the case. I think there is no hard and fast rule on this matter. The two authorities cited do not prescribe the exact period which loss of use should be granted. The emphasis is on reasonableness and meeting the justice of the particular case and the need for the plaintiff to mitigate his loss.

In this case, the parties were engaged in two matters between the 21st July 2000 when the accident occurred and 4th January 2001 when this matter was filed in court. First, there was this criminal matter at the Magistrates’ court and secondly, counsel for both sides were engaged in negotiations in respect of the incident. The Respondent did not do anything to mitigate his loss because he believed that his vehicle was a write-off but unfortunately there was no sufficient evidence to support that claim. His claim for general damages was dismissed by the learned trial judge having awarded him the value of the car which this court has set aside. He is only left with the award for loss of use. I think it is reasonable and the justice of this case so demands that the award of 6 months as period for loss of use should be upheld and allowed to stand. I so order.

Accordingly, I uphold the award for loss of earning awarded by the learned trial judge to the Respondent for 6 months at N2,000.00 per day excluding Sundays i.e. from 21st July, 2000 to 21st January, 2001. The third issue is therefore resolved in favour of the Respondent.

Finally, since there is no appeal against the dismissal of the claim for general damages, I shall not consider it. So the argument of the learned counsel for the Respondent on this issue is hereby discountenanced.

In sum, the holding of the learned trial judge that the Respondent’s vehicle was a write-off and the subsequent award of the sum of N450,000.00 as the cost of the vehicle are hereby set aside. I however affirm the decision on the award of loss of earning for 6 months. The appeal thus succeeds in part.

In the circumstance of the outcome of this appeal, both parties are to bear their respective costs.

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Other Citations: (2007)LCN/2471(CA)