Innocent Okafor & Anor V. Johnson Okitiakpe (1973)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C
The present respondent was the plaintiff in an action which arose from a traffic accident which occurred on the 4th March, 1964. He instituted the action in the High Court, Ughelli (Mid-West State) against one Innocent Okafor and the Monier Construction Company (Nigeria) Limited, who were the employers of the said Innocent Okafor. According to the evidence in the case, on the day of the accident Innocence Okafor, the 1st defendant, was driving a Volkswagen car No. EP 6099 belonging to the Monier Construction Company (Nigeria) Limited and in which the plaintiff had been given a lift.
It was alleged by the plaintiff, now respondent, that the said Innocent Okafor, now 1st appellant, drove the said car negligently; that as a result of his negligence the car became involved in a road accident in the course of which the plaintiff suffered extensive injuries and that the Monier Construction Company (Nigeria) Limited, the 2nd appellants, were, as employers of the 1st appellant, liable as well in damages to the plaintiff.The parties duly filed their pleadings and paragraph 4 of the plaintiff’s statement of claim avers that the 1st defendant was employed as a driver by the 2nd defendants and paragraph 5 of the statement of claim avers as follows:-
“5. On 4th March, 1964, plaintiff was a passenger in a Volkswagen Motor Car No. EP 6099 owned by the 2nd defendant and driven by the 1st defendant in the course of his duty for the 2nd defendant and was driving from Ughelli town towards Warri direction.”
so the Statement of Claim also alleged that the said car at the material time owned by the 2nd defendants was being driven by the 1st defendant in the course of his duty. The statement of claim further describes the injuries sustained by the plaintiff and gives in some details the particulars of the negligence on which the action was being founded. The Statement of Defence filed by both defendants admits some of the averments in the statement of claim but denies paragraphs 5 and 6 and furthermore avers as follows:-
“5. In further answer to paragraph 5 of the Statement of Claim the 1st defendant denies that the plaintiff was a passenger in the 2nd defendant’s car EP 6099.
- In further answer to paragraph 5 of the Statement of Claim the 2nd defendants state that EP 6099 was apparently a private car and the 1st defendant was under strict instruction not to carry passengers.”
The Statement of Defence finally denies liability on the part of the 2nd defendants and indeed denies the injuries claimed by the plaintiff to have been sustained by him.
The action went to trial and the plaintiff called witnesses to show that he got a lift in the Volkswagen car No. EP 6099 belonging to the 2nd defendants; that the road accident occurred and that as a result of injuries he received he was treated in a hospital and the nature and the extent of those injuries in respect of which he claimed damages. One of the witnesses called by the plaintiff was Chief Miller Kpohrarho who testified, inter alia, as follows:-
“It is the petrol station close to the bridge. Whilst there, plaintiff came; he asked for a lift. Mr. John said plaintiff should wait and that one of their cars will soon come along and he would tell the driver to give him a lift. Soon after a Volkswagen car came along and Mr. John stopped him. He told the driver to give him a lift to Warri. The plaintiff entered the car and they drove away. Later that evening I heard that there was a motor accident between one of my lorries and the same Volkswagen car in which the plaintiff travelled. I went to the hospital to see the plaintiff that day. I found him unconscious. He was covered with a blanket.”
At the close of the plaintiff’s case, the defence called a witness, Dr. Benjamin Oni-Okpako who testified only as to the nature of the injuries which he saw on the plaintiff when he examined him after the accident and gave it in his evidence that although the plaintiff would thereafter walk with a marked limp, he did not think that the injuries which the plaintiff had sustained could “shorten his life span”. The defence thereafter closed its case and learned counsel for the defence adressed the court first. In this regard, the judge’s notes read as follows:-
“AKPEDEYE ADDRESSES :We do not deny that there was an accident and that the plaintiff was injured in the accident. We do not deny that the vehicle of the 2nd defendant caused the accident. We do not deny that the 1st defendant was the driver of the vehicle and at the time of the accident he was in the Company of the 2nd defendant. What we dispute is the particulars of claim.”
Learned counsel for the defence then addressed the court at some length on the measure of damages. After this, learned counsel for the plaintiff addressed the court. In the course of a reserved judgment, the learned trial Judge held both defendants liable and awarded the plaintiff damages with costs.
This appeal is from that judgment and before us it was argued that the learned trial Judge erred in holding the 2nd defendants as well liable to the plaintiff and also in his assessment or measure of damages awarded to the plaintiff.
The learned trial Judge in his judgment did not deal with the question whether or not the 2nd defendants were liable and his judgment pre-supposed that they were. Indeed, at the beginning of the judgment he observed thus :-
“The defendants have admitted liability and the sole question I have to decide is the quantum of damages.”
Learned counsel on behalf of the appellants contends before us that the averments of liability by the plaintiff were denied in the Statement of Defence and that the counsel at the beginning of his address to the court did not absolve the judge from his duty to consider the liability at law of the 2nd defendants and that in any case the statement attributed to counsel does not admit the liability of the 2nd defendants. Learned counsel for the appellants also referred us to a number of cases in which it was held that a person who got a lift in a car on the invitation of the driver without the permission or acquiescence, express or implied, of his employer is merely a trespasser in the vehicle and the driver’s employers are not liable to him in damages if, whilst being a trespasser, he sustained injuries in virtue of a road accident or otherwise. See generally Twine v. Beans Express Ltd. (1946) 1 All ER 202.
We observe that the argument of learned counsel for the appellants clearly overlooks the facts of the case and in particular the fact that the defence in this case gave no evidence whatsoever to contradict the evidence given on behalf of the plaintiff that it was a Mr. John of the 2nd defendants’ Company that had instructed the 1st defendant, the driver, to carry the plaintiff.
Learned counsel for the appellants then contended, with respect to the evidence of the authorisation of the driver, that it was not pleaded and so if given, as indeed it was, it went to no issue and should have been disregarded by the learned trial Judge. It is correct that facts not pleaded may not be given in evidence at a trial and if for any reason at all any evidence was given of such facts the court of trial, and indeed the appeal court, must disregard such evidence. This is trite law and if authority is needed for this we refer to the observations of this court in Tomori v. Matanmi, SC.146/68 decided on the 1st July, 1970; also Conway v. George Wimpey (1951) 2 QB 266 at p.274 et seqq. We are however satisfied that in this case the fact so given in evidence was pleaded and that adequately shows that it was the Company that offered the plaintiff a lift in its car. Paragraph 5 of the statement of claim describes the plaintiff as a passenger in the Company’s car and several other passages in the statement of claim allege that at the time of the accident the driver was acting in the course of his employment. Then came the evidence about the authorisation by Mr. John which was given without any objection whatsoever from or by the defence. Thereafter came the concession by learned counsel for the defence that the 1st defendant was a driver of the vehicle concerned and was at the material time employed by the 2nd defendants. Furthermore, there was no evidence from the defence that the 1st defendant was not, as given in evidence by the plaintiff, so authorised by the Company to carry the plaintiff.
We think that on those facts, the learned trial Judge was entitled, as he did, to conclude that the liability of the 2nd defendants was adequately conceded by counsel and that all he was to examine was the question or quantum of damages to be awarded the plaintiff. Even if he was wrong in taking the statement of counsel as having that meaning or effect, we are satisfied ourselves on the view of the evidence most fair to both parties that the plaintiff did establish the fact of authorisation by the 2nd defendant to give him a lift in the 2nd defendants’ car.
With respect to the question of damages, the law as to intervention by a court of appeal with the assessment of damages is well settled. It must be demonstrated to the court of appeal that the damages awarded were manifestly too high or too low or that the awarding judge or tribunal had proceeded to the assessment on some wrong legal principles. None of these matters had been argued or shown before us but it was contended that there had been some overlapping in the awards and that the learned trial Judge, having held that the plaintiff failed to satisfy him concerning his present income, should not thereafter have awarded him general damages “for all the items of general damages”. The plaintiff claimed a total a total of 10,000 pounds made up of special damages of 123 pounds.711 and general damages of 9 pounds,876.131. He was awarded a total of 57 pounds.6.6d for special damages and in respect of the claim for general damages the learned trial Judge made the following observations :
“For all the items of general damages therefore I assess the sum of 2 pounds,250”.
The learned trial Judge did not particularise the items which he had taken into consideration out of the various items of pain and suffering, loss of amenities and/or enjoyment of life, inconvenience and discomfort, etc. It is not disputed that in appropriate cases a plaintiff is entitled to recover damages under the various sub-heads of injury but reliance was placed on the decision of the Federal Supreme Court in Agaba v. Otubusin (1961)1 All NLR 299 to attack the award made by the learned Trial Judge.
To say the least, we do not think the principle of Agaba’s case applies here. We would also observe that that decision is best confined to its own facts seeing that therein the Judge who made the awards specifically particularised the amounts awarded under the various sub-heads of injury. We see no prudence in laying down any particular figure in respect of amounts to be paid as compensation for particular types of injury.
We think that on the whole the learned trial Judge’s assessment of the damages, both general and special, in this case was unquestionable and that the award was not in the circumstances unfair and that no relevant principles have been shown to have been breached or misapplied. In the result, the appeal fails and it is dismissed. The appellants will pay the costs of the appeal fixed at N80.
SC.76/1970
