Mr. Andy Obiora Onwunalu & Anor V. Dr. Emmanuel O. Uche Anor (2009)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an appeal against the decision of the High court of Justice, Rivers State (Coram) M. U. Odili (J) (as she then was) delivered on the 20th day of December, 2001 in which she found the Defendants/ Appellants liable in negligence and awarded special and general damages against them.

The Appellants were the Defendants in the Court below and were sued by Respondents who were the Plaintiffs in that Court as per their writ of summons filed on 5th day of April, 1995 and claimed as follows:

“The Plaintiffs claim against the Defendants jointly and severally for:

The sum of N25, 000, 000.00 (Twenty Five Million Naira) being damages for injuries to the 1st Plaintiff’s person and damages to 2nd Plaintiff’s car with registration No. RV 7018 D caused the Plaintiffs (sic) when the 2nd Defendant, a servant of the 1st Defendant so negligently drove, damaged and controlled the 1st Defendant’s vehicle with registration No. RV 7452 E by obstructing the road without any warning signals around the Rumuigbo – Nkpolu junction along the East West Road within the jurisdiction of the Honourable Court and thereby caused or permitted the 2nd Plaintiff’s vehicle driven by the 1st Plaintiff to collide with it from the rear at night on the 7th day of December, 1994,”

The facts of the case as can be gathered from the records are that: On or above the 7th day of December, 1994, the 1st Respondent left his house to his private clinic situate at No. 32 Rumuomoi Street, Rumuigbo, Port Harcourt driving in a Peugeot car Reg. No. RV 7018 D belonging to his wife, 2nd Respondent. Whilst driving to the said destination, he ran into a motor lorry with Reg. No. RV 7452 E, property of the 2nd Respondent driven, managed and controlled by the 1st Respondent.

1st Respondent, alleged that the 1st Appellant negligently drove the said lorry around Rumuigbo junction obstructing the road without any warning signals or devices that caused him to collide with the rear of the 2nd Appellant lorry. The particulars of the negligence were duly itemised.

The Appellants on their part denied being negligent and pleaded that when the said lorry developed fault at the Nkpolu/Rumuigbo junction, they parked off the road and put warning signs to warn other road users of the presence of their lorry. They pleaded that it was the 1st Respondent who was negligent in the way he drove the car, leading to the collision with the lorry at the rear.

Pleadings were filed and exchanged by the parties and the trial proceeded on the Plaintiffs’ amended statement of claim dated 08/07/97 and filed on 09/07/97″, the Defendants’ statement dated and filed on 26/08/95 and the Plaintiffs’ amended reply to Defendants’ statement of defence dated 13/02/2000 and filed on 22/02/2000. The matter proceeded to hearing. On the whole the Plaintiffs now Respondents called five witnesses. The 2nd Defendant now 2nd Appellant testified for the defence. Learned Counsel on the two sides exchanged written address. Thereafter, the matter proceeded to judgment.

In a reserved judgment, delivered on the 20th December, 2001, her Lordship held:

“Therefore I have no difficulty in granting judgment in favour of the Plaintiffs. However it must be pointed out that no amount could get the 1st Plaintiff to what he was before as shown and examined in his evidence and so while the Court sympathizes with the 1st Defendant, the employer of the 2nd Defendant some aspects of the damages claimed must be paid.

I hereby order:

(1) That Defendants pay to the Plaintiffs the sum of N500, 000.00 being cost of replacement of the Peugeot 305 Saloon car with registration No, RV 7018 D.

(2) N3, 000, 000.00 for the cost of specialized medical treatment in the Netherlands.

(3) N1, 5000,000.00 as general damages.”

Dissatisfied with the decision of the lower Court, the Appellants appealed to this Court and filed a notice of appeal which initially carried two ground of appeal. With the leave of the Court, granted on the 28th April, 2005, five additional grounds of appeal were filed.

In compliance with the rules of this Court, parties duly filed and exchanged their briefs of argument. The Appellants in their brief of argument dated 9th day of June, 2005 and filed on 10/06/05 but deemed filed a served on 05/06/06, learned Counsel distilled five issues for determination as follows:

“(i) Whether the Court below was right in finding for the Respondents in public nuisance.

(ii) Whether the Respondents successfully established negligence in the Court below against the Appellants in any form whatsoever i.e. obstruction/public nuisance.

(iii) Whether the failure by the Court below to make a specific finding on the time of the accident was as fatal to the Appellants case as to occasion a miscarriage of justice.

(iv) Whether the award of N5M (Five Million Naira) to the Respondents was good in law.

(v) Whether the judgment of the lower Court was not null and void for violation of fair hearing principle.

On the other hand, the Respondents, in a brief settled by A. C. Morka which said brief was deemed filed and served on 8th September, 2008 formulated three issues for determination to wit:

“(1) Whether there was sufficient evidence on which the learned trial Judge found the Defendants liable for negligence.

(2) Whether the learned trial Judge was right in the award of damages against the Defendants.

(3) Whether the failure of the learned trial Judge to make a specific finding on the time of the accident was as fatal to the Appellants’ case as to occasion a miscarriage.”

On the 8th of June, 2009 when the appeal came before us for hearing, learned Counsel for the Appellants, Mr. Solagbafe adopted his brief of argument as well as his Appellants reply brief on points of law and urged us to allow the appeal. He also abandoned his original grounds of appeal and placed reliance on the additional grounds of appeal. He urged us to strike out the original grounds. From the additional grounds of appeal, learned Counsel Distilled five issues for determination reproduced above. (See page 4 of the brief).

For his part, learned Counsel for the respondents also adopted his brief of argument deemed filed on the 18th day of September, 2008 and urged us to dismiss the appeal for lacking in merit.

Learned counsel for the Respondents, raised an issue pertaining to issue NO.5 contained in paragraph 2, at page 4 of the Appellants’ brie to wit:

“Whether the judgment of the lower Court was not null and void for violation of fair hearing principle.”

Learned counsel submitted that the issue is incompetent as same, accord in to the learned docs not arise from any of the grounds filed b the Appellants. Learned Counsel argued that there is no ground 9 in the additional grounds of appeal.

On the 8th of June, 2009 when the appeal came before us for hearing, learned Counsel for the Appellants, Mr. Solagbade adopted his brief of argument as well as his Appellants reply brief on points of law and urged us to allow the appeal. He also abandoned his original grounds of appeal and placed reliance on the additional grounds of appeal. He urged us to strike out the original grounds. From the additional grounds of appeal, learned Counsel distilled fives issues for determination reproduced above. (See page 4 of the brief).

For his part, learned Counsel for the respondents also adopted his brief of argument deemed filed on the 18th day of September, 2008 and urged us to dismiss the appeal for lacking in merit.

Learned Counsel for the Respondents, raised an issue pertaining to issue NO.5 contained in paragraph 2, at page 4 of the Appellants’ brief to wit:

“Whether the judgment of the lower Court was not null and void for violation of fair hearing principle.”

Learned Counsel submitted that the issue is incompetent as same, according to the learned does not arise from any of the grounds filed by the Appellants. Learned Counsel argued that there is no ground 9 in the additional grounds of appeal. without any application, the grounds are liable to be struck out because no issues were distilled from them. In law they are deemed to have been abandoned, in any event, the original grounds of appeal having been abandoned by the Appellants are struck out accordingly.

On the issues formulated by both Counsel for determination, a closer look at the said issues shows that the Appellants’ issue No. 2 distilled therein is identical with issue No. 1 as formulated by the Respondents. Issue NO.3 as formulated by the Appellants is also identical with issue NO.3 as formulated by the Respondents. Issue NO.4 pertaining to whether the award of N5 Million was good in law is quite identical with issue No. 2 as formulated by the Respondents’ counsel.

In the light of the above, I am of the considered view that whichever issues one considers as formulated by both Counsel will address the real grievance of the parties in this appeal. I am however of the view that the issues as formulated by the Respondents are more’ apt and precise as such I adopt them as the issues calling for determination in this appeal.

Learned Counsel for the Appellants indicated his intention to argue issues 1 and 2 together. According to the learned Counsel, the two issues relate to grounds 1 – 4 of the additional grounds of appeal. They dovetailed into the other and would therefore be taken together learned Counsel further contended.

In arguing these two issues (1 and 2), learned Counsel began by submitting that the law is trite that parties are bound by their pleadings and the issues joined therein. The Court, he further submitted must be on its guard so that it will not deviate from the case made by each party in the pleadings, otherwise it will unwittingly be making for the parties an entirely new case. He relied on the cases of Oji v Adejobi & Ors (1975) 2 SC p. 57; Akpupuna & Ors v Obi Nzeku II & Ors (1983) 7 SC 1; Lipede v Sonekan (1995) 1 NWLR (Pt. 374) 668. Consequently, parties are bound by the issues raised in their pleadings. He cited and relied on the case of Adimoru v Ajufor & Ors (1982) 3 NWLR Wt. 80) P. 1.

Learned Counsel contended that it is in the light of the above legal propositions that, the respondents’ case and issues Nos.1 and 2 would be discussed. In order to appreciate the gravemen of the Appellants’ complaint against the judgment of the Court below, it is necessary to know what the Respondents’ case is all about. In order to appreciate the Respondents’ case, learned Counsel set out in full, paragraphs 5, 6 and 7 of the amended statement of claim together with their particulars and contended that from the tenor of the said paragraphs (5, 6 and 7) of the amended statement of claim, one thing is apparent; the Respondent’s claim is based in the tort of negligence. According to the pleadings, learned Counsel went on, the alleged obstruction of the public highway by the vehicle of the 2nd Defendant and the resultant nuisance thereof, were occasioned, by the negligent manner the 2nd Defendant drove, managed and controlled the vehicle along the East-West Road on that fateful day.

Learned Counsel copiously reproduced the evidence of PW1 both in chief and Cross-examination, evidence of PW2, PW3 both in chief and cross examination and the evidence of PW4 who investigated the accident wherein he testified thus:

“I investigated this matter. One of my findings is that 1st Plaintiff was at fault. This is based on accident law to the effect that whichever vehicle hit the other from behind is at fault.

There are exceptions.

1. The vehicle at the front may have stopped abruptly.
2. There ‘must be a triangular reflector to indicate

‘If all these are not observed, it means that the vehicle behind has no case to answer. After investigation, I make a recommendation; I recommended that the 1st Plaintiff be charged to Court. The DTO did not recommend that 1st Plaintiff be charged to Court.’” See page 38 of the records.

Learned Counsel contended that the above, is the evidence in support of negligence, nuisance and obstruction pleaded in paragraphs 5, 6 and 7 of the amended statement of claim. Then learned Counsel posed this question; what is the Appellants’ reaction to the plea of negligence, obstruction and public nuisance alleged against them by the Respondents? For accurate answers, as learned Counsel put it, he referred to paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the statement of defence which he reproduced copiously. Also reproduced copiously is the evidence of DW1 both in-chief and under cross-examination, wherein DW1 under cross-examination said inter-alia thus:

“The front of the Plaintiffs’ vehicle was damaged. After the accident I did not see the 1st Plaintiff there again… My vehicle engine had a strange noise that is why i parked and cleared from the road to check it out. My engine did not knock. I cleared the vehicle completely out of the road. No part of the vehicle was on the road at all. I placed the road signs since I was (sic) parked. I put the signs at the back of the vehicle and the front of the vehicle. It was at the side of the road that I kept the road signs. The 1st Plaintiff’s vehicle hit the first signs, scattered them before it hit my vehicle. 1st Plaintiff hit me out side the road. He left the main road where he is supposed to drive and came outside to hit me. The road was clear or empty as people and vehicles were passing. I remember that Police came there and made a sketch. I signed the sketch. The sketch showed the resultant position of the vehicles after the accident. I was carrying crates of mineral drinks inside my vehicle. I sent the conductor to go and make a report at the police station. I do not know if my conductor made any statement to the Police.”

Learned Counsel then submitted that in view of the foregoing circumstances and the evidence X-rayed above, the findings and conclusions reached by the learned trial Judge could not be supported by the evidence as adumbrated above. The findings and the conclusions of the trial High Court were not borne out of the evidence. Neither PW1, PW2, PW3 nor PW4 witnessed the accident. None of them could describe how the accident happened. We were urged to resolve these issues in favour of the Appellants.

For their part, learned Counsel for the respondents did not see it the way of the Appellants’ Counsel. He submitted that there was sufficient evidence on which the learned trial Judge found the Appellants liable in negligence. Learned Counsel copiously referred to the evidence of PW1, PW3 and PW4 and submitted that it was against the background of the said evidence of both parties that the learned trial Judge considered the issue of liability for negligence.

Learned Counsel submitted that the law is elementary that an appellant Court will not ordinarily interfere with findings of facts made by the trial Court which are Supported by evidence, except in circumstances such where the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or it has drawn wrong conclusions from accepted, credible evidence or has taken an erroneous view of the evidence or findings of fact which are perverse. He relied on the cases of Woluchem v. Gudi (1981) 5 SC 292 at 295 and Oluwu v Nigeria Navy (2007) All FWLR (Pt. 350) 1278 at 1309 paras B – F.

Learned Counsel further submitted that in the case in hand, the finding of liability for negligence against the Defendants/Appellants is amply supported by evidence. We were urged to resolve this issue in favour of the Respondents.

Now, my first port of call in determining these Issues is Section 136 of the Evidence Act which provides thus:

“136 The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”

Needless to say, in the case in hand, it is the Respondents who would fail if no evidence at all were given an either side. I now proceed to examine Section 137 (1) and (2) of the said Act, they are hereunder reproduced.

“137 (1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such a party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”

The Provisions of the Evidence Act reproduced (supra) are unambiguous and self-explanatory and do not need any aid for their interpretation. In a nutshell, all what the provisions are saying is that in civil cases, the burden of proof is on the party who asserts a fact to prove same. For he who asserts must prove. See Imana v Robinson (1979) 3 – 4 SC 1; Odunukwe v Administrator-General of East-Central State (1974) 1 SC p.25; Balogun Labiran (1988) 3 NWLR (pt. 80) p. 66 and Olusesi v Oyelusi (1986) 3 NWLR (Pt. 31) p.634.

Again, the burden of proof of negligence falls upon the Plaintiff who alleges negligence. This is because negligence is a question of fact, not law, and it is the duty on he who asserts to prove it. Failure to prove particulars of negligence pleaded is fatal to the Plaintiffs’ case. See Imana v Robinson (supra) p. 342 para D, para F; 356, para H.

Having stated the law and all that, it is noteworthy to observe that in the case in hand, the Respondents as Plaintiffs at the lower Court, were parties who were alleging that the Appellants were negligent in obstructing the road with out putting any warning signs as a result of which the 1st Respondent hit their stationary lorry from the rear, which said accident caused injuries to his person as well as substantial damage to the car he was driving in. Needless to say, the burden of proof is on them to prove that the Appellants were negligent.

The question to be asked at this stage is this; did the Respondent prove what they claimed in the lower court? To answer this question recourse had to be made to the evidence adduced by both parties for and against the issues at stake. However before I answer this question, let me say that it is elementary to define negligence as the omission to do something which a reasonable man guided upon consideration which regulates the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.

I am of the considered view that a charge of negligence would arise where a breach of the duty of care owed by one person to the other is alleged. The burden of proof of the breach, at the risk of repeating myself of the duty of care lies on the Plaintiffs.The Respondents, as Plaintiffs in the lower Court called five witnesses in an attempt to prove their claim. The 1st Respondent testified as PW1 and stated inter alia as follows:

“I remember the 7th December, 1974. It is days that will not beforgotten in my life. That was the day at 6.30 p.m. I left my house at the University of Port Harcourt to my clinic at 30 Psychemtic (sic) Road Rumuomasi Street. I was using the East- West Road. It is a highway. I was driving my wife’s car with Reg. No. RV 7018 D, a 305 Peugeot saloon car. I was driving in my usual way keeping to my right lane, observing all traffic regulations as I had been driving in Europe since 1972. As I was driving and keeping on the regulations, it was misty dark night when around Nkpolu/Rumuigbo junction along the East- West major road and without any warning signs and without any rear light and without stones or leaves as usually placed on the road in Nigeria to warn the drivers of a broken down vehicle parked on the road when in front of me, my car collided with a stationary lorry. Leyland RV 7452 PE. The lorry was stationary and on the right lane. I was driving a 50 km/h and it was misty and dark. It is not true that the vehicle was parked way out of the road. They are telling lies. It is not correct that they placed any warning items at the back and the front.

It is also not correct that I ran through these warning signs. There was neither warning light land nor warning sign on the road. As a result of the accident, I sustained multiple cuts and lacerations on my scalp, right upper eyebrow, my lower jaw, tongue and shoulder and elbow, moving restriction injury. I also as a result of the accident was rendered invalid in the sense that I lost the vision of my eye. … See pages 18 – 19 of the record.”

Under cross-examination by the learned defence Counsel, PW 1 stated thus:

” … I was aware of the accident. I am not telling the Court what other persons tell (sic) me of the accident. The Police came to my house at the time I was unconscious and took my statement. I told the Police how the accident happened and what the Samaritans also told. I did not tell the Police in my statement that I did not know how the accident occurred. I made this statement that I did not know how the accident occurred. I made this statement to the Police… As I said I know about the accident until I lost conscious (sic). It was that Good Samaritan who told me that 2nd Defendant/did not put warning sign. As a result of the accident the Defendant was charged to Elimgbu Magistrate Court…. I am not at fault in respect to the accident. The Police report stated that I was at fault. The Divisional Traffic Office did not recommend that I be charged to Court. (The witness reads out the report of the Division Traffic Office (DTO) which shows that the DTO said he being the drive in charge with the Reg. No. RV 7018 D was at fault and should be charged to Court). No. sketch map was brought to me and so I did not sign any.” See pages 25 – 27 of the record.

PW2 was the 2nd Plaintiff in the suit. She was not an eye witness. In her testimony before the lower Court, she stated as follows:

“It was the taxi driver who told me that my husband ran into this parked vehicle … It was this taxi driver who took my husband to the medical centre. The taxi driver did not tell me he witnessed the accident. I did not see any other person who witnessed the accident…” See page 31 of the record.

PW3 was the taxi driver who informed PW2 of the accident involving PW1. In his evidence in-chief he testified thus:

“On the 7th December, 1994, as I was returning from Rumuokoro and getting to opposite the Secondary School, Rumuigbo, I saw a parked vehicle on one lane and it was about 7.30 p.m. getting closer to the lorry I saw under it. As the 305 vehicle was known to me I cleared my vehicle. I thought it was the 2nd Plaintiff who used to drive but on getting closer, I saw the 1st Plaintiff inside. So may people were there. So all of us joined hand (sic) to pull the 305 out in order to bring the Plaintiff out of the vehicle. As we pushed him out and got 1st Plaintiff out I asked the driver of the lorry is … “See page 33 of the record.

Under cross-examination by the defence Counsel PW3 had this to say:

“I was not at the scene at the time the accident occurred. I arrived immediately after the accident because I helped in removing Dr. Uche from under the lorry. I cannot say how the accident occurred since I did not witness the accident. By the time I arrived, other persons were present …”

As to the time of the accident, PW3 said: “I cannot say with exactitude when the accident happened ….” On he position of the two vehicles when PW3 arrived the scene of the accident, he said “At the time I arrived the scene, I saw the 305 Peugeot car inside the lorry from behind. I am a professional diver. The 305 Peugeot cars ran inside the parked vehicle.”

PW4 was the Police Officer who’ investigated the accident when the matter was reported to them. He testified as follows:

“I investigated this matter. One of my findings is that 1st Plaintiff was at fault. This is based on accident law to the effect that which ever vehicle hits the other from behind is at fault.”

In response to the evidence of the Respondents as Plaintiffs in the lower Court, the Appellants, copiously in their pleadings denied the claim of the Plaintiffs/Respondents. (See paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18. They also called evidence in support of the pleaded facts

DW1 testified in defence of the paragraphs of the statement of defence. The relevant part of his evidence in proof of those paragraphs are as herein reproduced below:

“… I remember the 7th December, 1994. On that day, I returned where I went to supply and on reaching Nkpolu by Rumuigbo about 5 pm my vehicle had a problem. I slowed down then I cleared out of the road and parked. I told my conductor to put road signs front and back. He did so. He put two road signs at the back and two at the front. The tailboard I also had two triangular signs. After putting the road signs, I and the conductor stepped outside and wandering what we were going to do and vehicles were passing. The next thing we heard was ‘GBOAYAI, I’. My conductor and I went to look and saw that 1st Plaintiff with his car had scattered our road signs and hit our vehicle at the back. The weather was bright. His hitting the road Sign completely destroyed them. It was 1st Plaintiff who was at fault. I want the Court to dismiss this case of the Plaintiffs who was at fault. I want the Court to dismiss this case of the Plaintiffs because it was 1st Plaintiff who scattered my road signs and hit my vehicle at the back. I placed the road signs, but (sic) the signs tailboard carried. I did not park my vehicle in the middle of the road. I cleared my vehicle. The time this incident happened was very bright about 5 pm. My vehicle did not cause an obstruction. Other vehicles were passing. We Defendants are not at fault and so the Plaintiffs are not entitled to their claims. I am the one who send the conductor to make a report to the Police. When the Police came they realised I was not the cause and the DTO said I should come and carry my vehicle. When I came to carry my vehicle, the DPO said I should be charged to Court. I was discharged. The time of the accident was not 6.30 pm. 6.30 pm was when the Police arrived the scene.” see pages 42 – 43 of the record.

Under cross-examination by the learned Counsel for the Plaintiffs/Respondents, DW1 further stated:

“The front of the 1st Plaintiff’s vehicle was damaged. After the accident I did not see the 1st Plaintiff there again… My vehicle engine had a strange noise that is why I parked and cleared from the road to check it out. My engine did not knock I cleared the vehicle completely out of the road. No part of the vehicle was on the road at all. I placed the road signs since I was parked. I put the signs at the back of the vehicle and the front of the vehicle. It was at the side of the road that I kept the road signs. The 1st Plaintiff hit me out side the road. He left the main road where he is supposed to drive and came outside to hit me. The road was clear or empty as people and vehicles were passing. I remember that Police came there and made a sketch. I signed the sketch. The sketch showed the resultant position of the vehicles after the accident. I was carrying crates of mineral drinks inside my vehicle. I merit the conductor to go and make a report at the Police station. I do not know if my conductor made any statement to the Police.”

Now, let me state at this juncture that a trial Judge who heard and saw a witness give evidence in Court is best suited to ascribe probative value to the evidence of such a witness and it is also trite that an appellate Court will not interfere with the trial Court’s findings of facts where the findings are borne out of the evidence before the trial Court. An Appellate Court will interfere with the findings of a trial Court only when such findings have been made on legally inadmissible evidence or they are perverse or are not based on any evidence before the Court. See Sunday Nwachukwu v. Benson Egbachi (1990) 3 NWLR (Pt. 136) 485 at p. 437 and Iyaro v The State (1990) 1 NWLR Pt. 69) at p. 256.

The next question to be asked is this: what were the findings adumbrated above? Can it be said that the trial Judge properly evaluated the evidence adduced by both sides before arriving at her verdict that the Appellants were negligent?

To answer the two questions posed above, let me start with the evidence of PW3 whose evidence the learned trial Judge heavily relied in finding for the respondents. PW3 testified inter alia thus:

“… I asked him why he- placed a vehicle on the road without any indications including grass to show that there was a vehicle blocking the road. Other people who were there were making trouble with the driver and asking him why he did not place even grass to show the circumstance. He did not say anything …”

Let me quickly say that this witness was not an eye witness to the accident for he said under cross-examination thus: “I cannot say how the accident occurred since I did not witness the accident. By the time I arrived other persons were present.”

That aside, from the evidence of this witness, it was not only him that was making trouble allegedly with the driver of the lorry because he said, other people were also asking the Appellant why he did so. Though the respondents were not bound to call a host of witnesses to prove their claim, but in view of the burden of proof that has been placed by law on them, it would have been prudent for them to have done so.

I have earlier stated in this evidence that PW3 did not know how the accident occurred. That being the case he could not give evidence of whether the lorry being driven abruptly stopped in the middle of the road. This evidence becomes crucial in the light of the evidence of PW4 wherein he said:

“One of my findings is that 1st Plaintiff was at fault. This is based on accident law to the effect that whichever vehicle hits the other from behind is at fault. There are exceptions:

(1) The vehicle at the front may have stopped abruptly.

(2)………….”

The Respondents as can be gleaned from the records did not adduce evidence that the lorry stopped abruptly in the middle of the road but on the other hand the Appellants testified inter alia:

“My engine had a strange noise that is why parked and cleared from the road. … I cleared completely out of the road.” DW1 also affirmatively asserted that he placed the road signs where he parked the vehicle, one at the back of the vehicle and the other in front of it. DW1 categorically stated that “the road was clear or empty as people and vehicles were passing.” The Respondents on the other side did not adduce iota of evidence to the effect that the road was obstructed by the lorry of the Appellants.

Exhibit S is the sketch map, drawn by PW4, a cursory look at the said map shows that the vehicle was not parked in the middle of road as claimed y PW1, the 1st Respondent. The lorry was cleared off the road from the sketch map. This has in a. way corroborated the evidence of the Appellants that they parked off the road.

Again, the Appellants stated in their evidence that the tailboard of the lorry had two triangular signs which are reflective. The accident according to the Appellants happened in the evening 5.00 to 5.30 pm and the weather was bright.

I am of the considered opinion that the trial Judge evaluated properly the pieces of evidence highlighted above; she would have come to a different conclusion from the one she arrived at. Though an appellate Court will not ordinarily interfere with the findings and conclusions of the trial Court, it can do so when such findings and conclusion arrived at by the trial Court are not borne out of proper evaluation of the evidence. I am of the considered view in the light of all that has been said that the findings and conclusions reached by the lower court are not borne out of the evidence adduced and are therefore perverse. I set same aside.

Having arrived at this conclusion, I am minded to say that no useful purpose would be achieved by giving consideration to the remaining issues formulated by learned Counsel but our Court being a ‘penultime one, let me briefly say something on the award of damages dished out by the learned trial Judge to the Respondents.

In paragraph 8 of their amended statement of claim, the Plaintiffs/Respondents claimed the sum of N2, 190, 341.00 (Two Million, One Hundred and Ninety Thousand, Three Hundred and Forty One Naira) as cost of specialized medical treatment. See pages 10 – 11 of the record. Curiously, the Court awarded N3 Million which is more and above what the Respondents claimed in their pleadings. Let me say without mincing any word that what the trial Court did was improper. In fact what the trial Judge did was making out for the Respondents a different case from the one placed before her for adjudication. This is patently wrong in law. See Orizu v Anyaegbunam (1978) LRN 216 at 222; Elike v. Nwankwoala (1984) 13 SC, 301 at 311 – 312 and Alh. Otaru & Sons Ltd Idris (1999) 6 NWLR (Pt. 606) 330.

The Court is neither a Father Christmas nor a charitable institution. It cannot give a party what that party is not asking for – Ekpenyong & ors v Nyong Ors (supra). It is not open to a trial Judge to make his own individual assessment of special damages, but he must ac strictly on the evidence adduced before him establishing the amount to be awarded. See the case or Nigerian Airways Ltd v Abe (1988) 4 NWLR (Pt. 90) CA. 524 at 536 paras E – F. The Court is not entitled to use its own conceived parameters in place of evidence. See Badmus v Abegunde (1999) 11 NWLR (Pt. 627) SC 493 at 502 paras C – D.

Again, a cursory look at the evidence adduced before the learned trial Judge shows that there was no basis for the award of N500, 000.00 as a replacement of the damaged car of the respondents. In fact there was no iota of evidence as to the condition of the vehicle before and after the accident. Similarly the award of N1.5 Million Naira general damages cannot be justified in the light of the evidence adduced by both parties as adumbrated (supra). All the awards made by the learned trial Judge for special and general damages are hereby set aside.

In the result, in the light of all that has been said, the appeal is pregnant with a lot of merit and ought to be allowed and it is accordingly allowed by me. The judgment of the lower Court and the award of damages both special and genera) made to the Respondents are set aside. I award N50, 000.00 costs in favour of the Appellants and against the Respondents

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Other Citations: (2009)LCN/3411(CA)