Godwin Moghalu V. Rodrick Egwungwu Ude & Anor (2000)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

Following an accident that occurred along Kaduna-Lokoja road at a point opposite Buvel Petrol filling station Zuba on the outskirts of the Abuja Capital Territory on the 1/10/94, the plaintiff who is the appellant in this appeal sued the defendants claiming the sum of N1,062,364 being special and general damages for negligence. The defendants also counter-claimed a total sum of N1,516,490 being also special and general damages in negligence for the same accident.

In order to fully comprehend the facts, it is necessary to reproduce the facts relied upon and pleaded by both parties. In his pleadings the plaintiff averred:-

2. The plaintiff is the registered owner of Mercedes-Benz saloon car with registration No. KD 5747 KN.
3. The 2nd defendant is the registered owner of vehicle No.AN 3599 GA and employer or/and master or/and principal of the 1st defendant.
4. The plaintiff further avers that on 1st of October, 1994, he was returning to Gwagwalada from Kaduna in his vehicle No.KD5747 KN in company of one Chinedu and Miss Gloria Odinya Ezeugwu.
5. The plaintiff further avers that he was driving his said vehicle carefully on his own side of the road at the Lokoja-Kaduna road.
6. The plaintiff states that on getting to Buvel filling station Zuba, the 1st defendant drove and manage vehicle with Reg. No.AN 3599 GA negligently across the Lokoja-Kaduna road hitting the plaintiffs vehicle at the door pillar on the grass verge of the left lane at about 1.10p.m. and thereby causing extensive damage to the car and injured the passengers.
7. That as a result of the accident, Chinedu Oginya died after some hours at IBB Specialist Hospital, Minna.

PARTICULARS OF NEGLIGENCE

a. Driving at an excessive speed.

b. Entering into a major road without any proper look-out from Buvel filing station, Zuba.

c. Crossing unto the wrong side of the road and thereby colliding with the plaintiff.

d. Failing to keep any or proper look out or to have any or any sufficient regard for other traffic, particularly on-coming traffic on the said road.

e. Failing to have or to keep any or any proper control of the said lorry.

f. Driving the said lorry with worn-out tyres.

g. Failing to stop or to slow down so as to manage or control the said lorry to avoid collision.

9. The plaintiff avers that, when the 1st defendant emerged suddenly from Buvel filing station Zuba, he immediately applied his brakes swerved to the grass verge of the left hand side of the road in order to avoid the collision.
10. The plaintiff states that, because of the excessive speed the 1st defendant drove his lorry into the major road, he could not control his vehicle and crossed into the left-lane and hit his car at the grass verge of the left-lane.
11. As a result of matters aforesaid, the plaintiff has suffered damages and loss.

PARTICULARS OF DAMAGES

(1) SPECIAL DAMAGES

N : K

(a) Estimated Cost of repairs. 203,150.00

(b) Towing of vehicles No.KD 5947 KN from

accident scene to Zuba police station. 150.00

(c) Medical Bill at Salisu Memorial Hospital. 1,000.00

(d) Cost of hiring of vehicle from Zuba to Minna. 800.00

(e) Cost of Card at IBB Specialist Hospital. 14.00

(f) Cost of vehicle that conveys corpse 3,000.00

(g) Mortuary attendance fees. 100.00

(h) Embalmment of corpse. 1,500.00

(i) Hand-gloves, stocking pads. 300.00

(j) Coffin 6,500.00

(k) Two vehicles hired for use within the

Town of Suleja/Abuja for funeral arrangement 2,800.00

(l) Hiring of Bus to carry corpse from

Suleja to Ogidi in Anambra State. 10,000.00

(m) Two-bottles of hot drinks for those

that accompanied corpse. 400.00

(n) Entertainment of visitors. 20,000.00

(o) Vehicles hired to call relatives at

Akwa, Enugu State & Onitsha. 2,700.00

(p) Transportation of mourners back to Suleja. 5,000.00

(q) Loss earnings on vehicle No.KD 5747 KN for 3 months. 60,000.00

(r) Loss of earnings by plaintiff from 2nd October, 1994 – 2nd

November, 1994 at an average of N1,000.00 per day. 30,000.00

(s) Treatment for plaintiff at Major Hospital. 5,000.00

(t) Cost of treatment of Gloria Ezeungwu at Major hospital. 7,400.00

(u) Traditional treatment (bone setter)

for Gloria Ezegwungwu. 2,500.00

===========

N362,364.00

===========

2. GENERAL DAMAGES

N : K

(a) Shock, pain and suffering 150,000.00

(b) Inconveniences 200,000.00

==========

700,000.00

==========

GRAND TOTAL

————-

1,062,364.00

————–

WHEREOF, the plaintiff claims from the defendant N1,062,364.00 being Special and general damages from the defendants for negligence.

DATED THIS………DAY OF………………1994

……….

KARINA TUNYAN, ESQ

PP: KARINA TUNYAN & CO,

COUNSEL TO PLAINTIFF

LIFE CAMP ROUNDABOUT, ABUJA.

In their joint statement of defence and counter-claim the defendants averred:-

4. The defendants emphatically deny any liability in negligence.
5. The defendants shall resist the admission of the police report and sketch map as not real determinants of the accident; and being the imagination of the IPO.
6. If in the event, the 1st defendant is found to be negligent, the defence shall also CONTRIBUTORY NEGLIGENCE PARTICULARS OF CONTRIBUTORY NEGLIGENCE.

a. The plaintiff drives at an excessive speed, and without proper look-out.

b. Failing to drive with care and attention; in broad day-light when he could have seen the defendant’s Mercedes crossing his lane to the other side.

c. The accident infact happened on the left lane meaning that had the plaintiff not been driving at an excessive speed he could have avoided the crossing 911, that had already left his lane to the other side: in which case he ought to have veered right; not left to the direction of the 911.

d. Driving without effective brakes.

e. Failing to slow down at the point where the dual carriage way empties into a single lane.

7. The defence shall specifically say that it is not liable to the plaintiff or any other person in the sum of N1,062,304.00.
8. That the contribution of N20,000.00 made by the defendants to the family of the deceased was in good faith and according to custom.
9. That, Miss. Gloria Ezengwu and the family of the deceased are suing at the High Court for claims totaling more than N3.2 million.
10. That the plaintiff is also being charged as a co-accused in the Chief Magistrate Court Gwagwalada, for dangerous driving and causing the death of the said Chinedu Odinye.

COUNTER-CLAIM

11. The defence claims in negligence against the plaintiff and shall rely on paragraphs 1-10 of their defence.
12. The first defendant shall prove that he suffered serious body injuries, shock and pain as a result of the collision of the plaintiff’s car on the defendants.
13. The defendants shall also claim damages for the cost of repair of the said 911 Mercedes in the sum of N605,740.00.
14. The defendants aver that the accident was caused-

(a) By the excessive speeding of the plaintiff.

(b) Loss of control of the said KD 5747 KN due to excessive speed.

(c) Driving without due care and attention; and without proper look-out, as Mercedes 911 vehicle usually does not speed excessively certainly not when it took off from the Buvel carriage way, on its way to Kaduna at the same filing station premises.

(d) Plaintiff’s failure to turn right to avoid the slow moving 911, that had already crossed his lane and was entering the left lane heading to Kaduna/Suleja and at about 1.00p.m. on 1/10/94.

(e) Driving without effective brakes.

(f) Failing to slow down at the point where the dual carriage way empties into a single lane.

18. The defendants therefore claim the sum of N1,516,490 (One Million Five Hundred and Sixteen thousand Four hundred and ninety Naira) as damages for negligence; and for contributory negligence.

The plaintiff also filed a reply to the statement of defence and counter claim.

At the trial before Saleh, C.J., both sides led evidence in proof of the averments contained in their respective pleadings. The parties also caused written addresses to be filed. In his judgment delivered on the 20th day of June, 1997, the learned trial Chief Judge found:-

“…from the facts of this case, I hold that the plaintiff is to my mind contributory to the accident up to 90% and the 1st defendant is only 10% liable”

He also made the following findings of facts:-

“From the evidence adduced before me, it appears that there is sufficient evidence supporting that it was raining, though light, and the lorry was from filling station.

PW3 and DW2 are eyewitnesses apart from the plaintiff and the 1st defendant. PW3 said that 1st defendant did not look out, yet he also said that there was a tall flower that blocked the 1st defendant’s view and as such he could not see the vehicle coming from Kaduna meaning that even if he looked he could not see anything.

No one said the lorry was on speed as it could not, just coming out of the filing station, that it is a notorious fact even on a straight road a lorry needs a lot of distance to gather any meaningful speed more so it was coming out of the filing station to join a major road and indeed stopped after joining and according to other witnesses crossing the road and stopping whether to repair clutch or answer police question. There is sufficient evidence that according to PW3, the car was at 60- 70 KMPH. He is a driver of eleven years.

DW2 said the car was at 100 kmph and that the car somersaulted before it hit the lorry. 1st defendant’s also said car somersaulted caused by applying brakes. I accept the sketch as showing the filial position of the vehicles. I found on the evidence that plaintiff saw 1st defendant coming out of the filing station. At the time the lorry was coming out 1st defendant did not have a clear view of the vehicle from Kaduna and as I held earlier could not possibly be at any speed since the objective was to cross the road after which it stopped for whatever reason be it repair of clutches or police enquiry and if there was any speed, it could not be otherwise than to cross road quickly to avoid any accident.

At the time the plaintiff saw the lorry, at that time whatever his speed he had to apply brakes and swerve as he said he did to avoid collision but while he was swerving the lorry too was moving across the road to avoid collision and whether the car somersaulted or not, it ended up reaching where the lorry was and at that time when it was raining with the speed as testified by 2 witnesses. I accept that the car somersaulted and ultimately hit the lorry.

The plaintiff did not expect to see the lorry but as submitted having left double carriage way and joining or the single carriage way becoming, single lane traffic, plaintiff owed a greater duty of care to reduce speed because of this fact and more because it was raining and approaching a filling station since he lives in the environment and cannot say he is not conversant with it. The driver of the lorry with his view blocked cannot be expected to do anything more than take extra care but whatever care he had to take he had to keep moving, see the on-coming vehicle after passing the flower that blocked his view. It is then incumbent on him to act fast to avoid collision and in my view, the only way he could avoid the collision was moving to keep the on-coming vehicle lane clear for it and which he did successfully.

The driver of the car on the other hand if he had reduced his speed because of the fact that he is leaving double carriage way and coming to single lane traffic, the fact that it was raining and as such held more braking distance, that living in the environment and being also conversant with the environment would expect a vehicle to becoming out of the filling station around that area, if in recognition of these he reduced his speed to the minimum he could by the time he arrived at the entrance of the filing station either have way by then cleared by the lorry and could pass smoothly or he could have effectively stopped to allow the lorry to finish crossing if it did not try then since the lorry driver could not stop in the middle of the road from the facts of the case, I hold that plaintiff is to my mind contributory to the accident up to 90% and 1st defendant is only 10% liable.

Plaintiff’s car surely somersaulted thereby having the damages as detailed by the V.I.O. and if plaintiff travelled at a lesser speed in the light of the surrounding circumstances enumerated earlier, the accident could be avoided in that he could either stop to allow the lorry to finish crossing the road if ever by then the car reached where the lorry was or could have passed in front of the lorry having swerved to avoid collision and by the time the lorry reached the other end of the road the car could have passed. Each owed the other a duty of care and from the facts before me; I hold that the lorry driver discharged his up to 90% and plaintiff failed up to 90%. Plaintiff therefore has to suffer his special damages even if he proved it, he caused it by his negligence. Plaintiff caused his own shock, pain and suffering and inconvenience. I will allow meager N50,000.00 damages to the plaintiff.

From the foregoing, plaintiff’s conduct and failures caused loss 2nd defendant would not have suffered. I will not allow refund of cost of towing vehicle away from Abuja, or various trips of 2nd defendant and resulting expenses in Abuja nor for shock and body pains but for repairs and loss of earnings. I will allow N100,000.00 which plaintiff is to pay defendant so that in the end plaintiff will pay defendant N50,000.00

Sgd: Hon. Justice M. D. Saleh,

Hon. Chief Judge

F.C.T. Abuja”

The plaintiff felt unhappy with the judgment and has now appealed to this court. The defendants also felt aggrieved with the award of damages and have appealed to this court. The plaintiff shall hereinafter be referred to as the appellant or cross-respondent as the case may be, while the defendants shall be referred to as the respondents or the cross-appellants as the case may be. The appellant also complained against the award of damages in the judgment I shall in this judgment deal globally with the issue of the liability for the accident and the award of damages together in both appeals.

Now, on the issue of negligence, the appellant complains that the learned trial Chief Judge was in error to have made the finding that it was the appellant’s car that came on speed, somersaulted and ultimately hit the 2nd respondent’s lorry that caused 90% of the accident. The respondents identified more or less the same issues on this aspect of. It is submitted for the appellant, that it was the eye witness account of DW1 and DW2 that the learned trial Chief Judge accepted as to how the accident occurred. It is submitted that there are material conflicts in their evidence while both of them agreed that the accident occurred when the lorry was already parked, the reasons they gave differ, one said, the lorry stopped at a police check point while the other claimed that the lorry was parked to effect certain repairs at the time of the accident The learned counsel argued further that the evidence of DW1 and DW2 should be treated with caution vide Onuagbodo v. Queen (1974) 9 SC 1 at 20.

It is further submitted that the finding that the car came with speed somersaulted and eventually crashed on the lorry is also contradictory to the earlier finding of the learned trial judge that the accident occurred when the lorry was coming out of the filing station and crossing the path of the car. Even the learned trial judge was not sure whether the car had somersaulted and hit the lorry because he held at page 66 line 11- 15 “Whether the car somersaulted or not ended up where the lorry was (parked)”. There was no evidence or explanation which led the judge to conclude that “That I accept that the car somersaulted and hit the lorry”. See Nneji v. Chukwu (1996) 12 SCNJ 390, (1996) 10 NWLR (pt.478) 265.

The learned trial Judge also held that the accident occurred because the 1st defendant’s view of the road was blocked by a tall flower so he could not see the car coming along on the main road. He also held that the appellant saw the lorry and was traveling at a reasonable speed and swerved to the other side in order to avoid the collusion. It is submitted that considering the entire evidence led especially the uncontradicted evidence of PW1 and PW2 as against the conflicting evidence of DW1 and DW2, the judge was wrong to have held that the appellant was 90% to blame for the accident.

For the respondent it is submitted that apparent conflict on the evidence of the DW1 and DW2 emanated from the translation when they both testified in Igbo and Hausa respectively. It is also submitted that whether the lorry was parked for sometime or not is not a material factor since DW1 and DW2 are one in that the car came and hit the lorry. It is also argued that the learned trial Judge found that the lorry was not speeding while coming out of the filing station and this is a finding of fact which an appellate court should not ordinarily disturb. It was also a finding of fact that the car somersaulted and hit the lorry – and that was the cause of the accident. The evidence of DW1 and DW2 on this matter was not challenged by cross examination therefore the learned trial Judge was justified in accepting the evidence. See Iriri v. Erhurhobara (1991) 2 SCNJ 1 at 8-9, (1991) 2 NWLR (Pt.173) 252; Akinola v. Oluwo (1962) 1 SCNLR 352, (1962) All NLR (Pt.2) 274 at 227.

Finally, it is submitted that on the question of negligence the learned trial Judge found the appellant to be 90% liable for the accident and this finding is based on the evidence accepted by him. Now, there is no doubt that the learned trial Chief Judge found both the appellant and the 1st respondent at fault. He found the appellant 90% to blame while he found the 1st defendant 10% to blame. Now it is settled and elementary law, that a trial court’s findings of facts may not be disturbed by an appellate court unless the finding is found to be perverse or not as a result of proper understanding or interpretation of the facts. Now, both DW1 and DW2 testified that the respondent’s lorry was parked when the appellant’s came on speed and crashed into it. The question whether the lorry was parked for sometime or not is not really material, but the fundamental issue is whether the act of somersaulting and crashing on the respondent’s lorry was pleaded or not. I have reproduced the pleadings of the respondents in this matter and it is not their case that the appellant’s car somersaulted and resulted in hitting the respondent’s lorry as testified by DW1 and DW2. I have also referred to the finding of the learned trial Judge (accident,) because his car somersaulted and crashed into the respondent’s lorry. It is clear from the respondent’s pleading that was not their case. The rules, as to the bindness of pleadings are settled. Any evidence that is not pleaded has no relevance to the proceedings. The law is well certain that parties are bound by their pleadings and any evidence led by any of the parties which is at variance with their pleadings goes to no issue and should be disregarded by the trial court. See for example George and Others v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117, (1963) 1 All NLR 71; Savannnah Ventures & Others v. W.A.B. Ltd. (1997) 10 NWLR (Pt.524) 254.

There is no dispute whatsoever that the accident took place when both vehicles were moving. See paragraph 17(d) of the statement of defence and counterclaim. The evidence of DW1and DW2 which the learned trial judge accepted was at variance with the pleadings and therefore ought not have formed the premise upon which the liability of the accident was found. As mentioned above, it is not the function of this court to disturb the findings of the lower court, but, where in the opinion of the court such findings are not supported by legitimate evidence, the court will set aside such findings. See Fatoyinbo v. Williams (1956) SCNLR 274, (1956) 1 FSC 87; Uwechi v. Onyenwe (1999) 1 SC 63, (1999) 1 NWLR (Pt.587) 339.

The learned trial Judge also held it was tall flower that blocked the view of the 1st respondent that was why he did not see the appellant’s car coming out of the filling station. That finding is based on the evidence of DW2 and it is similarly not pleaded. The learned trial Judge’s finding cannot similarly be justified. The acts of negligence itemised by the respondents as per paragraph 17 of the statement of defence and counter- claim were not mentioned by DW1 and DW2 except for the speed which was said to be 140 KMPH and 100 KMPH. The learned trial Judge did not make any finding on this, rather he found the appellant to be on a reasonable speed. The learned trial Judge similarly failed to consider the evidence led by the appellant as to the cause of the accident. After the appraisal of the evidence he considered only the question of summersault which has not been pleaded and came to the conclusion that the appellant was 90% to blame. The court is bound to consider the case of each of the parties dispassionately before reaching any decision. It has to hold even balance between the parties. See Jallco Ltd. v. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (Pt.391) 534; F.B.N. Plc. v. Ejekeme (1996) 7 NWLR (Pt.462) 597; Uka v. Irolo (1996) 4 NWLR (pt.441) 218.

There is yet another confusion while at one breath the trial Judge found that the lorry was parked when the accident took place as testified by DW1 and DW2 yet he found on another breath the accident took place when the lorry was moving out of the filing station. Which later finding is more in line with the case both the appellant and respondent or their pleading. I do not also think that it is a good defence for lorry to move out of the filing station to enter the main road, when the driver’s view was blocked by tall flowers. From all the circumstances, I am of the view that learned trial judge was in grave error to have apportioned the blame for the accident the way he did. He did not consider the cases of the parties as pleaded by them he did not make specific findings on the fundamental issues of the cause of negligence as pleaded by both parties. The court has failed in its duty to make specific findings on the facts averred by the parties in their pleadings. If the lorry was stationery and properly parked either to repair the clutch of on the orders of the police, why should the learned trial hold that the driver of the lorry was 10% to blame for the accident? I had considered the issue of the reappraising the evidence and make proper findings of facts. But in view of the decision in Okuwobi v. Ishola (1973) 3 SC43 at 47-48. I would remit the case back to the High Court to hear the case denovo. See also Uzochukwu v. Eri (1997) 7 NWLR (Pt.514) 505; Owonikoko v. Arowosaiye (1997) 10 NWLR (pt.523) 61; Okonkwo v. Udo (1997) 9 NWLR (Pt.519)

As I mentioned above, both the parties are unhappy with the award of damages. Each of the parties appealed against the issue. I also said, I shall deal with the appeal and the cross-appeal in this point together.

In his judgment, the learned trial Judge did not make a proper finding on the specific items of the damages suffered by both parties. He did not give any reason as to how he arrived at the figures he awarded the parties. The award was made arbitrarily without any regard or reference to the evidence led by both parties. He failed to evaluate the evidence led. The judgment lumped together general and special damages. He failed to consider the distinction between special and general damages in cases of negligence that is the reason why I took pains to reproduce the judgment of the trial court earlier in this judgment.

The law or the measure of damages in action for negligence is settled, it is founded on the principle of restitution in intergrum that is the restoration of the claimant (if he succeeds) to his original position if and so far as the original position can be restored plus loss of use or earnings during the period or repairs or replacement, where applicable. See LC.C.C. & Anor. v. Unachukwu & Anor (1978) 3 SC 199; Seismograph Services v. Mark(1993) 7 NWLR (pt.304) 203.

In treating and assessing damages, the trial court should treat each item of the claim separately. See G.B. Ollivant v. Aghabiaka (1972) 2 SC 137. It is also necessary to bear in mind the distinction between general and special damages. Adequate consideration must be given to a claim of damages where special damages are claimed, the law requires that proof of the same must be satisfactory. See Dumex v. Ogholi (1972) 3 SC 196; Oshinjirin v. Elias (1970) 1 All NLR 153; Imana v. Robinson (1979) 3/4 SC 1.

A trial Judge cannot make his own individual and arbitrary assessment of special damages but must act strictly on the evidence accepted by him as establishing the amount to be awarded. In the instant case, there is no basis or rationale to justify the awards made to both parties. The learned trial Judge in arriving at the amounts awarded made no reference to the evidence led by both parties.

It is because of the above, that I adjudge that both the appeal and the counter-appeal should succeed on this point. An appellate court may interfere with an award of damages in a proper case where for example the proper procedure bas been formed. Where the learned trial Judge has made findings on the evidence led. As shown above, in the instant case, the learned trial Judge has failed to make an evaluation of the evidence led and has not made proper materials for this court to look into and arrive at reasonable figures. It is because of this and what I have opined on the issue of liability which has not been properly decided by the trial court, that I decline to make any assessment of damages.

In the result, both appeals succeed. I set aside the decision of the learned trial Chief judge and in its place, I remit the case back to the High Court of the Federal Capital Territory, Abuja and there to be tried by another judge. I make no orders as to cost, each party should bear its own cost.

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Other Citations: (2000)LCN/0860(CA)