Impresit Bakolori Plc & Anor V. Elder Emmanuel F. Ikpeme Anor (2009)
LawGlobal-Hub Lead Judgment Report
KUMAL BAYANA AKAAHS, J.C.A.
On 7/5/2000, the respondents as plaintiffs took out a writ of summons in the High Court of Cross River State, Calabar Judicial Division in Suit No. C/23S/2000 claiming against the Defendants now Appellants jointly and severally a total sum of Five Million Naira (N5, 000, 000.00) as special and general damages arising from the incidence of 2nd April, 2000 caused by the 1st Defendant for which the 2nd Defendant is vicariously liable.
In the Amended Statement of Claim dated 10th November, 2004 but filed on 11/11/04 in which Leadway Assurance was joined as the 3rd Defendants, the plaintiffs claimed against the defendants jointly and severally special and general damages In paragraphs 26, 27 and 28 as follows:
“26. Special Damages incurred by the Plaintiffs are:
(a) Cost of treatment of 2nd Plaintiff N7, 953.50. Prescription notes and receipts for the purchase of drugs are hereby pleaded and will be relied upon at the trial.
(b) Cost of hiring of vehicle at the rate of N1, 500.00 (One Thousand, Five Hundred Naira) per day from 3rd April, 2000 till judgment in this case and therefore after Interest on the judgment at the rate of 10% per annum.
(c) Cost of replacement of dilapidated vehicle abandoned at the Police Station by the Defendants N1 Million (One Million Naira).
- The Plaintiff also claim General Damages for the shock, embarrassment, hardship and Inconveniences caused to the 1st Plaintiff and members of the family.
- The Plaintiffs have suffered damages arising form (sic) the incidence of 2nd April, 2000 caused by the 1st Defendant for which the 2nd defendant is vicariously liable.
WHEREFORE, the Plaintiffs claim against the Defendants jointly and severally, the Special Damages above and General Damages in the total sum of N5 Million (Five Million Naira)”.
The facts of the case may be briefly stated as follows:
On Sunday, 2nd April, 2000, one Luccini Geordano, an Italian expatriate working for Impresit Bakoiori Plc drove the company’s vehicle, a Toyota Hilux with Registration No. XC 517 ABC and collided with the 2nd Plaintiff who was driving his father’s vehicle a Peugeot Saloon Car with Reg. No. AE 747 CAL along Anansa (MCC) Road by Nsemo Street, Calabar and damaged the latter’s vehicle from behind.
The matter was reported to the police who visited the scene of the accident and drew a sketch map. The damaged vehicle was towed to the Police Station at the instance of the Defendants who admitted liability. The Plaintiffs prepared an estimate of N642, 100.00 (Six Hundred and Forty-Two Thousand, One Hundred Naira for the repairs of the damaged vehicle but Leadway Assurance Co. Ltd., the Insurers of vehicle No. XC 517 ABC offered the sum of N67, 300.00 (Sixty- Seven Thousand, Three Hundred Naira) only for the repairs, of the vehicle but the plaintiffs rejected it and Instituted the action in the High Court claiming the sum of N5 Million of special and general damages for vicarious liability against the defendants.
Judgment was delivered on 29/6/2007. The learned trial Judge held that the plaintiffs did not prove their claim for special damages which was N642, 100.00 for spare parts but found that the plaintiffs specially proved the claim on hire services of N635,000.00 and awarded them N500, 000.00 special damages and another N500, 000 as general damages with interest of 10% per annum from 3/4/2000 till judgment. Being dissatisfied with the judgment, the defendants filed their Notice of Appeal on 2/8/2007 containing six grounds of appeal and in the Appellants’ Brief only one issue was formulated as follows:-
“Whether, taking into consideration the facts and circumstances of the case, the state of the pleadings and the evidence before him, the learned trial Judge’s award of ‘special and general damages and a pre-dated judgment Interest is proper In law?
The Respondents’ counsel on the other hand formulated the following two issues for determination namely-
Whether on the evidence before the trial court, the Plaintiffs (Respondents) had proved that the 1st defendant (Mr. Luccini Geordano) was at fault when he collided from behind vehicle No. XC 517 ABC belonging to the Appellants with vehicle No. AE 747 CAL belonging to the plaintiffs and thereby made out a case of negligence in tort.
ii) WHETHER upon the withdrawal of paragraphs 26 (a) and (c) of the Amended Statement of Claim, the Plaintiffs (Respondents) -made out a case for the award of special and general damages under paragraphs-26 (b), 27 and 28 of the Amended Statement of Claim.
In arguing the appeal, learned counsel for the appellants referred to the Amended Statement of Claim wherein the Plaintiffs abandoned the claims in paragraph 26 (a) and (c) and contended that that aspect of the claim should have been struck out and not dismissed. He further argued that the learned trial Judge having found that the oral testimony of PW1was in conflict with the documentary evidence was not entitled to pick and choose between N635, 000.00 shown in Exhibit II and the oral evidence of PW1 and should have rejected the two and dismissed the claim. He argued by citing AJIDE v KELANI (1985) 3 NWLR (Pt. 12) 248 that evidence of a witness who wants the court to believe- him and ascribe probative value to his testimony must in all respect be consistent and the disparity between the documentary evidence of N635, 000.00 and the oral testimony of N500, 000.00 that is N135, 000.00 is too wide for the learned trial Judge to treat as inconsequential. It Is learned counsel’s submission that a witness as the 1st respondent who contradicted himself unaided at every opportunity is not worthy to be accorded any credibility and placed reliance on AYANWALE v ATANDA (1988) ALL NLR (Reprint) 24 at 38; (1988) 1 NWLR (Pt. 68) 22. He said that the evidence adduced by 1st respondent attained the level of Insipid and Impotent exaggeration and the respondents deliberately refused to mitigate their damage because they believed In benefiting from their misfortune and the grant made by the learned trial Judge’ appears to be in agreement with the exaggerated wishes of the respondents but not in accord with the law. The respondents therefore were not entitled to the award of special damages. Learned counsel cited the case of AKWA RUBBER ESTATE LIMITED v IJU INDUSTRIES LIMITED (2001) FWLR (Pt. 71) 1760 at 1777 In support of his submission. He maintained that the evidence adduced by the 1st respondent attained the level of Insipid and Impotent exaggeration and urged this Court not to accredit any value to It as decided by the Supreme Court In C & C CONSTRUCTION COMPANY LIMITED v OKHAI (2004) FWLR (pt. 190) 1433. It was argued that an assessment of Exhs. 3, 4 and 15 together with the reports of the Police and Vehicle Inspection Officers contained In Exhs. 6, 7 and 16 will show that the accident was a minor one, hence directed the parties to remove their respective vehicles but the respondents abandoned their own in the Police Station and Instead of repairing the vehicle, PW1 resorted to spending N1, 500.00 everyday on car hire. It is the submission by learned counsel that the claim is remote and it is based on what the law expects the respondents to have mitigated and not abandon their car at the Police Station in the hope of getting a new car and making claim for car hire services for each day the car was parked at the Police Station. What the law enjoins the respondents to do was to bring themselves to the position where they could continue with their dally activities. Reliance was placed on UBA PLC v BTL IND. LTD. (2006) 19 NWLR (pt. 1013) 67.
Also on the issue of special damages, learned counsel for the appellants submitted that -if the learned trial Judge had followed the principle laid down by the Supreme Court In DUMEZ (NIG) LTD. v OGBOLI (1972) 3 sc .196 where It Is stated that unlike general damages, a trial Judge cannot make his own Individual assessment but must act strictly on the evidence before he accepts as establishing the amount to be awarded, he would not have awarded the sum of N500,000.00 as special damages and another sum of N500,000.0 as general damages in the circumstances of the case. Having found that the estimate of repairs amounting to N642, 100.00 cannot support the damage the cumulative award of N1, 000, 000.00 cannot be a fair assessment of the damage and there was no evidence upon which the learned trial Judge acted in making the assessment- of N1M to the respondents particularly when His Lordship rejected Exhibit 5 on the ground that the damage does not support Exh. 5. Although the learned trial judge can make his own assessment of general damages, he must still, while making that Individual assessment, consider what he feels would, in the opinion of a reasonable man, be adequate loss or inconvenience which follows naturally from the act of the defendant and not whimsically as was done in the Instant case and relied on UTB (NIG) LTD. v AJAGBULE (2006) 2 NWLR (Pt. 965) 447. Learned counsel further contended that while the award of N500, 000.00 as special damages was too high and not based strictly on the evidence before the learned trial Judge, the award of N500, 000.00 general damages and a pre-dated judgment Interest of 10% was done whimsically and amounted to double compensation. The pre-dated judgment interest was not claimed and so was an unsolicited gift which should be set aside – ETIM EKPENYONG v INYANG EFEIONG NYONG (1975) 2 SC 71; EAGLE SUPER PACK (NIG) LTD. v ACB PLC (2006) 19 NWLR (Pt. 1013) 20; IMNL v NWACHUKWU (2004)13 NWLR (pt. 891) 543 and SPDC (NIG) LTD. v KATAD (NIG) LTD (2006) 1 NWLR (Pt. 960) 197. Learned counsel argued that pre-dated judgment interest can only be claimed and granted by the court where it is contemplated by agreement between the parties, or under a mercantile custom, or under a principle of equity such as a breach of a fiduciary relationship. Reliance was placed on TEXACO OVERSEAS PETROLEUM UNLIMITED v PEDMAR LTD. (2002) FWLR (pt. 126) 885. Learned counsel urged this court to allow the appeal and reverse the decision of the learned trial Judge; moreso since negligence was not proved to entitle the respondents to even general damages.
In response, learned counsel for the respondents stated the requirements needed to prove negligence as follows:-
(a) That the Defendant owes the Plaintiff a duty of care
(b) That the Defendant is in breach of that duty; and
(c ) Damage has resulted in consequence of the Defendant’s breach.
He then referred to paragraphs 7 and 8 of the Amended Statement of Claim dated 10th November, 2004 and the evidence of the 2nd Plaintiff and submitted that the testimony of the 2nd Plaintiff who testified and was cross-examined before he traveled to the USA for further studies and whose testimony was admitted as Exh. 14 standing as the only eye witness evidence was sufficient to prove that the 1st defendant carelessly and recklessly slammed onto the vehicle of the 1st plaintiff from behind in broad day-light effectively proved negligence by the 1st defendant and the learned trial Judge was right in finding the defendants to be negligent and referred to following cases in support: AUDU v AHMED (1990) 5 NWLR (Pt. 150) 287; KALLA v JARMAKANI TRANSPORT (1961) ALL NLR 747; BANKOLE v U.A.C. LTD. 15 NLR 41 KODILINYE v FOLARIN (1989) 3 NWLR (Pt. 107) 1; NWABUOKU v OTTIH (1961) 2 SCNLR 232; OSHINJIRIN v ELIAS (1970) 1 ALL NLR (Pt. 1) 153; BOHSALI v ALLIED COMMERCIAL EXPORTERS (1961) 2 SCNLR 322. He argued that the evidence of DW1 and DW 2 was hearsay evidence and therefore Inadmissible and by signing Exh. 7 (the sketch” map) 1st defendant is deemed to have admitted the facts contained therein and the presumption that he was negligent for hitting the plaintiff’s car from behind In broad daylight. Since the 1st defendant was an employee and the Incident occurred when he visited Calabar for execution of a water project handled by the 2nd defendant company, the appellants are therefore vicariously liable for the negligent conduct of the 1st defendant. See UNION BANK OF NIGERIA PLC v AJAGU (1990) NWLR (Pt. 126) 328. Learned counsel then submitted that upon making a case of negligence against the Appellants” it was proper for the trial Judge to award damages to remedy the wrongs based -on the maxim ubi jus ibi remedium. He argued that the evaluation and ascription of probative value to the evidence adduced by the parties is the primary duty of the court and It is not proper for the appellate court to Interfere where the trial Judge had judiciously and judicially carried out his function and in the absence of any contrary evidence, the trial judge was right to have relied on Exh. 11 as proof of special damages – SHELL PETROLEUM DEV. LTD. v TIEBO VI (2005) 3 – 4 SC 137 and to have awarded N500, 000.00 as special damages to the respondents. He urged this court not to disturb the findings of the lower court in awarding N500, 000.00 as special damages. Regarding the award of general damages, learned counsel referred to paragraph 27 of the Amended Statement of Claim and argued that the 2nd Plaintiff sustained Injuries as a result of the accident and the plaintiffs had to resort to the use of public transportation and therefore In the light of the averments in the pleadings and the totality of the facts before the court they were entitled to award of general damages and the trial Judge was right in awarding N500,000.00 as general damages which Is reasonable. Learned counsel nonetheless conceded that the award of 10% prejudgment interest was not part of the Plaintiffs’ claims and should be substituted with 10% post judgment Interest as claimed In the trial court which tallies with the principles In OKORI & ORS v JONAH & ORS. (1961) ALL NLR (Pt.1)102; INTERNATIONAL OFFSHORE CONSTRUCTION LTD. v SIN LTD. (2003) 16 NWLR (Pt. 845) 157; KANOILE PRINTERS PLC v TUKUR (1999) 2 NWLR (Pt. 589) 8; HABIB NIG BANK LTD. v OCHETE (2001) 3 NWLR (Pt. 699) 114; SHELL DEV. CO. LTD. v OTOKO (1990) 6 NWLR (Pt. 159) 693. On the issue of mitigation of damages, learned counsel submitted that the Plaintiff mitigated his loss by buying a new car in 2002 and stopped patronizing the car hire service as a result and the award was based on the 14 receipts which he tendered up to 2001. He contended that before an appellate court can properly Interfere with the amount of damages awarded by the trial court, It must be satisfied either that the judge in assessing the damages applied a wrong principle of law or that the amount awarded is either ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damage. He placed reliance on ZIKS PRESS LTD. v IKOKU 13 WACA 188 and OBERE v BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (1978) 6 – 7 SC 15. He finally urged this court to dismiss the appeal with substantial costs.
Before considering the Issue of damages, be they special or general or both, the Plaintiff must prove negligence on the part of the Defendants in causing the accident which resulted in damage suffered by the Plaintiff.
In Paragraphs 7, 8 and 9 of the “Amended “Statement of Claim the Plaintiffs averred the following facts:
“7. On 2nd April, 2000 the 2nd Plaintiff operating vehicle No. AE 747 CAL Peugeot 504 Saloon Car along Anansa Road, also known as MCC Road stopped at a point by Nsemo Street waiting for a vehicle that was coming out from Nsemo Street onto Anansa Road to pass before turning Into Nsemo Street.
- While the 2nd Plaintiff was in the vehicle which was stationary with the engine steaming waiting to turn Into Nsemo Street, the 1st Defendant who was operating a big strong’ Toyota Hilux Pick- Up on a terrible speed carelessly and negligently slammed onto the vehicle driven by the 2nd plaintiff from behind causing very serious damages to the 1st plaintiff’s car.
- The vehicle No. AE 747 CAL which was stationery at the time was forced to be thrown out from (sic) the stop it was standing to a long distance away while “the 2nd plaintiff received Injuries to his body and suffered from shock arising from dangerous, careless and negligence (sic) driving from a sudden bang and damage to the 1st Plaintiff’s car.”
The Defendants admitted that vehicles Nos. AC 747 CAL and XC 517 ABC were involved in an accident on 2/4/2000 along Anansa (MCC) Road but pleaded as follows in paragraphs 4 and 6 of the Amended Statement of Defence:
“4. In further thereto the Defendants aver that the 2nd Plaintiff was reckless and negligent in his management of the said Peugeot 504 Saloon car on the date in question which mismanagement resulted in the accident. The 2nd Plaintiff suddenly stopped the car on the busy Anansa (MCC) Road without break light, without trafficating, nor even a hand signal to show his intention to negotiate from Anansa (MCC) Road to Nsemo Street. The 504 stopped right in the lane with the 1st Defendant’s Toyota Hilux coming directly behind it thus forcing the 1st Defendant to jump on his breaks but he could not prevent hitting the 1st Plaintiff’s car as the distance between them was rather short. The alternative in the circumstance would have been for the 1st Defendant to swerve off the road, which would have been more dangerous for other road users and this 1st Defendant avoided.
- In further answer to paragraph 10 of the Statement of Claim, the Defendants maintain that there were minor damages on the two vehicles and will specifically lead evidence to show the existent (sic) of damage done to both vehicles.”
The learned trial Judge reviewed the evidence adduced and arrived at the following conclusion at page 80 of the records:
“From the totality of the evidence before this Court the 1st Defendant and the defendants owed not just the plaintiffs but all other road users’ duty of care.”
This finding cannot be faulted. The account of how the accident happened was given by 1st Plaintiff who earlier testified and was cross-examined before Ekpe J. This was on 6/11/2000. Thereafter, it went before Ilok J. on 9/1/2002 and was finally heard to conclusion by Efiong J. At the time the suit was being heard de-novo before Efiong J. the 1st Plaintiff was a student in the United States of America and so his evidence was admitted, as Exhibit ’14’ under Section 34(1) Evidence Act. Outside of this evidence, there’ was no other eye witness account of the accident. What DW1, Francis Okon Edem told the court was complete hearsay. When cross-examined he admitted he was not present at the scene of the accident and his testimony as to the negligence of the 2nd Plaintiff was based on what, the 1st defendant told him (see page 18 – 20 of the records). What the 1st defendant told him does not qualify as a dying declaration for the information to be exempted from the hearsay rule and thus become admissible even though he informed the court that the 1st defendant was dead.
From the account given by 1st Plaintiff in Exh. 14, the accident occurred around nool1 on 2/4/2000 the date the 1st Plaintiff’s vehicle was hit from behind when he (2nd Plaintiff) was about to turn into Nsemo Street from MCC Road. Exhibit ‘7’, the sketch drawing of the accident shows that the 1st Defendant who was driving vehicle No. XC 517 ABC hit vehicle No. AE 747 CAL at the rear. Exhibit ’16’ the Accident Inspection Report issued by the Chief Vehicle Inspection Officer shows the damage done to the vehicles. The Defendants admitted hitting the Plaintiff’s vehicle from behind but attributed the collision to the 2nd Plaintiff who suddenly turned to enter Nsemo Street from MCC Road without trafficating. Even though the V. I. O was not called to explain his conclusion that the accident was due to human error, the law presumes that in collision cases at day time, the driver of a vehicle which coming from the rear hits another vehicle In Its front is deemed negligent. See: AUDU v AHMED (1990) 5 NWLR (Pt. 150) 287. If such a collision had occurred at night, the driver of the vehicle in front would’ be deemed prima facie negligent if his vehicle is not properly lighted, or if stationary the usual red light or a triangular reflector is not placed on or behind it Indicating danger ahead. See: BANKOLE v U. A. C. LTD. 15 NLR 41; KALLA v JARMAKANI TRANSPORT (1961) ALL NLR 747. The learned trial Judge was right to hold that the 1st Defendant’ was liable- for the, accident and since the accident occurred in the course of his employment; the 2nd defendant will be held vicariously liable for the accident.
What remains is the issue of damages and especially special damages. The learned trial Judge evaluated the damage caused to the two vehicles and held that looking at Exh. ‘3’ and ’15’ the damage on the Plaintiff’s car was more severe than the defendant’s car and held that the damage does not support Exh. ‘5’ being estimate of repairs supplied by the Plaintiff but produced by his mechanic TOBBY MECHANICALWORKSHOP, at the cost of N642, 100.00. In Exh. ’16’, the damages to the 504 were:
- Rear lamps, reverse lamp, rear trafficator units smashed
- Rear bumper buckled
- Boot (sic) buckled and folded in
- Rear fenders buckled
- Rear panel dented; and
- Rear doors jammed (sic)
Mr. Ajayi Ayodele Israel, testified as DW2. He is the holder of HND in Mechanical Engineering. He testified that when he was shown Exh. ‘5’, he took it to Bedwell Street where he did the costing of all the items before he approached the maker of Exh. ‘5’ with a view to negotiating the cost of repairs and when he met the owner of the workshop, he declined to engage in any discussion stating that only the owner of the vehicle could say anything about it. When he visited the Police Station he saw the vehicle and discovered that the first 6 items on Exh. ‘5’ were affected and damaged by the accident. He continued his evidence thus:
“Outside that, was cost of painting and labour, even at that the prices were high. Six years after the accident the fender of a 504 is not up to N15, 000.00. As at 2000, N30, 000.00 was enough to repair the car. ”
He said he wrote Exh. ’12’ recommending payment of N67, 300.00 to the Plaintiff (See page 77 lines 29 – 32). He put the age of the Peugeot at 18 years which could be said for N150, 000.00. In the testimony of PW1, Ekpeme E. Ikpeme on 6th November, 2000, he said his father’s car was 15years old. The car was certainly not a new car at the time it was involved in the accident but in writing Exh. ‘9’ to the Police two days after the accident, the Plaintiff was expecting his 15 year old car to be replaced with a new vehicle. The plaintiff could only be indemnified even if the car was a complete write-off and the principle is ‘Restitutio in integrum’ which means that the party to be indemnified is entitled to such sum of money as would put him in as good a position as if the goods had not been lost or damaged. See: IKE v MANGROVE ENG. (NIG) LTD (1986) 5 NWLR (pt. 41) 350; LEVENTIS MOTORS LTD v NUNIEH (1999) 13 NWLR (Pt. 634) 235.
The evidence given by DW2 on the estimated cost of repairs is more professional while Exh. ‘5’ tendered by the plaintiff is quite arbitrary and unreliable. The plaintiff showed his unreliability when he admitted under cross-examination that he was telling a lie on 1/3/2005 when he said the vehicle was damaged beyond repairs. Moreover, he did not call the mechanic who prepared Exh. 5 to testify as to how he arrived at his estimates of repairs.
The learned trial Judge was therefore right to reject Exhibit 5 outrightly. Even if the car needed the repairs stated In Exh. ‘5’ all of them cannot be attributable to the accident. DW 2 was honest to admit there was some damage done to the car; hence he recommended N67, 300.00 to be paid to the Plaintiff for the repairs. The Plaintiff was clearly on a gold digging expedition when he put up a claim for N642, 100.00 for the repairs of the car.
Be that as it may, the car was not repaired; so he cannot recover the amount as special damages.
1st Plaintiff did not suffer any shock. If there is someone who suffered shock as a result of the accident, it ought to be the 2nd Plaintiff. At the address stage however learned counsel for the plaintiffs abandoned the cost of treatment of the 2nd Plaintiff for which receipts tendered as Exhibit 10 totaled N7, 953.50. The N1 Million being cost of replacement of dilapidated vehicle was also abandoned.
Inspite of this the learned trial Judge found that the 2nd Plaintiff contradicted himself on record and rejected his evidence of being unconscious.
The suit was not prosecuted in a representative capacity so the 1st Plaintiff could not claim general damages for the ‘shock, embarrassment, hardship and inconveniences caused to him and members of the family. He could however maintain an action for the hardship and inconvenience he suffered as a result of the accident since he said he was using the 504 personally for himself before the accident (see page 24 – 25 of the records): I consider that 3 months is a reasonable time in which he should have got his car repaired instead of spending N1, 500.00 daily In hiring a car. He chose of his own volition to abandon his car in the Police Station in the hope that the car would be replaced or get such amount as would enable him buy a new one instead of repairing and or replacing the parts that were damaged as a result of the accident.
I therefore find that there is merit in the complaint against the award of both special and general damages totalling N1 Million and the pre-judgment interest of 10% which was not asked for by the Plaintiffs. The said cumulative award of N1 Million special and general damages together with the 10% pre-judgment Interest is hereby set aside. Instead an award of N135, 000.00 as general damages to the 1st Plaintiff/Respondent is made with 10% Interest from the date of judgment i.e. 29/6/07.
Each party should bear its own costs.
Other Citations: (2009)LCN/3241(CA)
