Mr. Micheal Agbonavbare V. Mr. Johnson Ogbebor & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
The respondents as plaintiffs instituted an action against the appellant then defendant in Suit No. B/508/94 at the High Court of Edo State, holden at Benin City claiming the sum of N1,000,000.00 (One million naira) special and general damages for negligence and assault. The defendant now appellant counter-claimed against the respondents claiming the sum of N2,000.000.00 (two million naira) special and general damages for negligence: The claim and counter-claim arose as a result of an accident which occurred in Benin City on the 8th March 1992 and which involved the appellant’s Peugeot saloon car with Registration number NG 2573 MA, the 1st respondent’s Mitsubishi bus with Registration number BD 5827 T driven by the 2nd respondent and a police patrol car. Pleadings having been filed and exchanged were subsequently amended by leave of court. At the trial the respondents testified for themselves and also called three witnesses while the appellant testified for himself and called three witnesses. The learned trial Judge listened to addresses of counsel and in a reserved judgment delivered on the 23rd July 1997 found in favour of the respondents in the claim for negligence in the sum of N46,850.00 (Forty six thousand eight hundred and fifty thousand naira) as special damages while dismissing the appellants counter-claim for negligence. Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal by a notice of appeal dated the 25th July, 1997 which contains only the omnibus ground viz –
“The judgment is against the weight of evidence. Additional grounds of Appeal shall be filed on receipt of the record.”
Still within time allowed to do so, the appellant on the 22nd August 1997 filed four additional grounds of appeal which are reproduced hereunder:
ADDITIONAL GROUNDS OF APPEAL
GROUND 1
The learned trial Judge erred in law in admitting exhibit J03 in evidence and copiously making use of same in his judgment.
GROUND 2
The learned trial Judge misdirected himself on the facts when he held that:
“What is certain from the nature of the testimony of the defendant on the issue of the kind of damage to the vehicle on impact from the vehicle of the plaintiff is that the defendant’s vehicle was hit from the rear. It is the push of the impact of the collision which caused damage to the defendant’s driver (sic) to collide with NPF 4686 A on Ogbelaka Street. Exhibit JO3, shows that the defendants (sic) vehicle after the collision is still substantially on Sakponba Road.”
GROUND 3
The learned trial Judge misdirected himself on the facts when he held that
“Evidence in this suit shows that the defendant sighted the 2nd plaintiffs vehicle on Sakponba Road and wrongly estimated the distance it would take the 2nd plaintiffs (sic) vehicle to reach the junction while the defendant crossed. The result of the wrong estimation of the defendant caused the collision.
GROUND 4
The learned trial Judge erred in law when he failed to or adequately evaluate the evidence led by the defendant/appellant in support of his counter-claim and denial of the plaintiff/respondent’s claim before holding that the defendant/appellant’s wrong estimation of distance caused the collision and that “it is the only irresistible inference and the conclusion to be made from the set of facts tendered by the parties and their witnesses”, and therefore dismissing the defendant’s counter-claim thereafter and thereby occasioned a miscarriage of justice.
By an application on notice dated the 1st June 2000, the appellant sought for an order of court for leave to file and argue the additional ground of appeal set out in the document attached to the supporting affidavit as exhibit A and deeming the said additional ground of appeal as properly filed and served, the prescribed filing fees having been paid. This application was moved by the appellant and granted by the court on the 15th January 2002. The said additional ground of appeal reads as follows:
ADDITIONAL GROUND OF APPEAL
The learned trial Judge erred in law in accepting the evidence of PW4 Kenneth Omoigui who failed to disclose his training and experience in accordance with the provisions of section 57 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990.
Out of these grounds of appeal the appellant formulated the following issues for determination in this appeal-
(1) Was there proof of negligence alleged against the appellant?
(2) Was exhibit JO3 the sketch plan of the accident scene admissible in evidence?
(3) Did the respondents strictly prove the special damages awarded in their favour?
(4) Was the trial court right to dismiss the appellant’s counter-claim?
The amended respondents’ brief is dated the 11th February 2004 and filed same day. Two issues were therein distilled from the grounds of appeal for the determination of this court viz –
(1) Whether or not the wrongful admission of exhibit JO3 (not conceded) can of its own lead to a reversal of the judgment of the court in the face of S.227 Evidence Act?
(2) Whether on a calm and dispassionate view of the facts as evaluated by the trial Judge with the benefit of watching the demeanour of witnesses, etc this judgment can be faulted as it relates to the appellant’s appeal.
By a motion on notice dated 27th March 2000 and filed same day, the respondents as cross-appellants being dissatisfied with part of the decision of the trial court below sought for an order pursuant to Order 3 Rule 4 of the Court of Appeal Rules 1981 (as amended) and under the inherent jurisdiction of this court to extend time to file their cross-appellant’s brief and to deem same which had been exhibited to the application as exhibit “A” as properly filed and served. This application was granted and the said respondents/cross-appellants brief was deemed filed on the 3rd April, 2000. The sole ground of appeal in the cross-appeal is as follows, “The learned trial Judge erred in law when he held inter alia – the 1st and 2nd plaintiffs have claimed for damages for assault against the defendant.
Beside the ipse dexit of the 1st and 2nd plaintiff which support each other that they both received slaps from the defendants there is no independent evidence of the assault. I am unable to hold that the assault has been proved. I therefore refuse to make any award on it. The claim of the plaintiff for assault is refused”. The sole issue arising from this sole ground of appeal is whether the learned trial Judge was justified in law in refusing to award the plaintiffs/cross-appellants damages for assault on the ground of lack of corroboration of the evidence of the plaintiff when in fact the evidence of PW5 John Osagie was not evaluated and the entire evidence and pleadings on this point not properly considered.
The appellant/cross respondent’s brief is dated the 30th April 2003 and the sole issue arising for the determination of this court from the said appellant/cross respondent’s brief of argument is as follows, “Was the learned trial Judge right in holding that the cross-appellants claim for damages was not proved? When this appeal came up for hearing on the 9th May 2006 K.O. Obamogie Esq of counsel adopted the appellant’s amended brief of argument dated 30th April 2003 and deemed filed on the 27th January 2004 as well as the Appellant/cross respondents brief of argument also dated the 30th April 2003. He urged this court to allow the appellant’s appeal, set aside the decision of the lower court with respect to that court’s finding on negligence, dismiss the respondent’s claim for negligence and enter judgment for the appellant with respect to his counter-claim. Counsel also urged this court to hold that the respondents cross-appeal has no merit and to dismiss it. O.M. Jamgbadi Esq of counsel, adopted the respondent’s Amended brief of argument dated the 11th February 2004 and filed same day. He also relied on the respondents’ motion granting leave to file the respondents cross appeal dated 3rd April, 2000. He urged this court to dismiss the appellant’s appeal and to allow the cross-appeal of the respondents.
I shall first deal with the appeal proper before going on to deal with the cross appeal. After a careful consideration of the issues canvassed by the parties I think the proper issues for determination in this appeal are –
(1) Was the trial court right in finding for the respondents for negligence. Could not the appellant’s counterclaim for negligence have succeeded?
(2) Granted that Exhibit JO3 was wrongly admitted, could the trial court from the totality of the evidence placed before it still have found in favour of the respondents for negligence?
On the 1st issue the appellant has submitted that the learned trial Judge was wrong to have concluded that “Evidence in this, suit shows that the defendant sighted the 2nd plaintiff’s vehicle on Sakponba road and wrongly estimated the distance it would take the 2nd plaintiff’s vehicle to reach the junction while the defendant crossed. The wrong estimation of the defendant caused the collision. It is the only irresistible inference and conclusion to be made from the set of facts tendered by the parties and their witnesses” The evidence of PW1 who is the 2nd respondent in this appeal as well as that of PW 4 under cross-examination are said to contradict this finding by the learned trial Judge. Reliance was placed on the Supreme Court case of THE STATE v. COLLINS OJO AIBANGBEE (1988) 7 SCNJ 128 AT 151; (1988) 3 NWLR (Pt.84) 548 to the effect that a court’s judgment must be based on hard facts adduced by the parties and not on mere conjectures. It was further contended for the appellant that the respondents’ case was so riddled with contradictions that the trial court ought not to have believed same and upheld the respondents’ claim for negligence. The appellant’s counsel went on to say further that there is neither magic nor sanctity in the words and expression “I believe” or “I am satisfied” and that belief and satisfaction should represent the court’s reaction towards facts and possibilities based on those facts. He relied on BOZIN v. THE STATE (1985) 7 SC 450 at 482; (1985) 2 NWLR (Pt.8) 465.
It was contended further for the appellant that the learned trial Judge ought to have taken due cognizance of the speed at which the 2nd respondent was driving at the time of the accident and that the court’s rejection of the testimony about the speed of the 2nd respondent principally on the ground that the appellant and the police failed to produce in court the driver of the vehicle that was being over-taken by the 2nd respondent at the time of the accident was wrong. It was contended that there is no obligation to call a host of witnesses present at an incident as only one witness is enough to induce belief in a court. Reliance was placed on the case of STEPHEN v. THE STATE (1986) 4 SC 222 at 258 -259; (1986) 5 NWLR (Pt.46) 978.
Appellant submitted that for the trial court to have dismissed the counterclaim of the appellant for negligence was wrong having been based on wrong principles such as-
(1) Wrongful estimation of the distance of the respondents’ bus by the appellant which finding by the court is not supported by the evidence adduced by the parties.
(2) Wrongful admission of exhibit JO3 – the sketch plan of the accident scene
(3) Lack of consideration of the speed at which the 2nd respondent was, during at the time of the accident and the rejection of same which was based on wrong principles.
Counsel submitted that in an appropriate case such as this the appeal court can intervene and urged this court to do so. He relied on the case of FINNIH v. IMADE (1992) 1 JCR 114; (1992) 1 NWLR (Pt. 219) 511. The respondents on their part have submitted on this issue that the findings evaluation, ascription of value on the facts and inferences drawn by the Judge were right and unquestionable and should therefore be upheld. It was contended for the respondents that the appellant did not exercise a proper or careful lookout on emerging unto a major road – Sakponba road from a minor road – Ogbelaka street and the appellant’s failure to specifically deny this fact save for a bare denial of the amended statement of defence amounts to an acceptance of the respondent’s averment. Reliance was placed on the following cases-
LEWIS & PEAT (NRI) LTD v. AKHIMIEN (1976) 7 SC. 157; AJIBADE v. MAYOWA (1978) 9 & S.C. 1; MOSHESHE GENERAL MERCHANT LTD v. NIGERIA STELL PRODUCTS LTD (1987) 2 NWLR (Pt. 55) page 110; BELLO v. EWEKA (1981) 1 SC 101.
The respondents submitted that all that the appellant had done was his own evaluation of evidence favourable to him without weighing the evidence on an imaginary scale against the evidence of the respondents. On alleged contradictions on the part of the respondents, the respondents submitted that it is not every conflict or imagined contradiction that can vitiate a trial court’s decision and that for such contradictions to be considered fatal to a case the contradictions must be material or substantial which is not the case here. With regard to the speed of the 2nd respondent, the respondents’ counsel submitted that corroboration is required under S. 179(4) of the Evidence Act.
It is undoubtedly the true position of the law as rightly observed by the learned trial Judge that, “It is the law of Road Traffic that all vehicles approaching a major road from a feeder or minor road must stop and allow the vehicles on a major road to traverse the road….
I do not think that in itself creates any problems as it should be a known fact by all those who drive their vehicles on our roads. The allegation is that the appellant failed to have a proper lookout while emerging into Sakponba road which is a major road from Aruosa street which is a minor road into Ogbelaka Street which is a minor road and that was the cause of the accident. This is what the learned trial Judge had to say -“The evidence tendered even by the defendant himself is that he crossed from Aruosa Road to Ogbelaka, crossing Sakponba road just before the collision. The irresistible question to be asked on the given facts is why was vehicle No. 2573 MA on Sakponba Road when it was moving along Sakponba road? In the question lies the identification of blame. It is the rule of road traffic that all vehicles approaching a major road from a feeder or minor road must stop and allow the vehicles on major road to traverse the road. Evidence in this suit shows that the defendant sighted the 2nd plaintiff’s vehicle on Sakponba road and wrongly estimated the distance it would take the 2nd plaintiff’s vehicle to reach the junction while the defendant crossed. The result of the wrong estimation of the defendant caused the collision. It is the only irresistible inference and the conclusion to be made from the set of facts tendered by the parties and their witnesses.” For the appellant to contend that this finding of fact is not based on some evaluation by the trial court cannot be correct as the learned trial Judge gave reasons for his finding. The court below certainly did not resort to expressions like, “I believe” or “I am satisfied” in arriving at its finding. It is the primary duty of a trial court to ascribe probative value to the evidence of witnesses that testified before it and the Court of Appeal will not interfere with such finding except it is seen to be perverse. The question now is whether this finding of the learned trial Judge is unsupportable. I cannot find any shred of evidence on the part of the appellant to counter this finding of the learned trial Judge. It is not enough for the appellant to assemble bits and pieces of evidence and seek to give them an interpretation of his own which tend to portray the finding of the court as being perverse or dwell on perceived contradictions to the same effect. As has rightly been argued by the respondents, not all contradictions are of a kind which can puncture a watertight case. Such contradictions must be such as to substantially shake the credibility of evidence of witnesses at the trial. I find no contradiction of such a substantial kind. I think it is a fair assessment or evaluation of the evidence that had the appellant fully crossed into Ogbelaka Street from Amosa Street, traversing Sakponba road the accident would not have occurred and therefore the finding of the court below on wrong estimate of distance by the appellant resulting in the accident cannot in my view be faulted. The appellant has argued quite strenuously that had the trial court taken due cognizance of the speed at which the 2nd respondent was driving at the time of the accident it would have come to a different finding. The learned trial Judge had rejected the evidence of excessive speeding on the part of the 2nd respondent as there was no corroboration of that evidence. Section 179(4) of the Evidence Act Laws of the Federation of Nigeria 1999 states that, “A person charged under the Road Traffic Law of a state with driving at a speed greater than the allowed maximum shall not be convicted solely on the evidence of one witness that in his opinion he was driving at such speed”. It is therefore not true that the learned trial Judge failed to evaluate the evidence of the defence before arriving at its conclusion. The counter-claim also fails and issue No 1 must therefore be and is accordingly resolved in favour of the respondents.
On issue No.2 much has been made of exhibit JO3 – the sketch of the scene of accident. From the records in the court’s original file, it was not copied to this court and so is not among the exhibits transmitted to this court from the lower court. Although resort to the sketch of the scene of an accident is of some assistance in a court’s determination of a road traffic case, there is nothing sacrosanct about it if there are other overwhelming pieces of evidence from those who were either themselves involved or were eye witnesses at the scene of the accident. The court’s evaluation of the evidence adduced need no further reproduction here and I’ll resolve issue No 2 also in favour of the respondent.
The cross-appeal will now be considered. The respondents’ claim for assault in the same suit was dismissed by the learned trial Judge. Dissatisfied with that part of the court’s decision which dismissed their claim for assault the respondents cross-appealed. The cross appeal was deemed filed on the 3rd April 2000. The ground of appeal in this cross appeal is as follows:
The learned trial Judge erred in law when he held inter alia, “The 1st and 2nd plaintiffs have claimed for damages for assault against the defendant. Beside the ipse dexit of the 1st and 2nd plaintiffs which support each other, that they both received slaps from the defendants there is no independent evidence of the assault. I am unable on the evidence tendered to hold that the assault has been proved. I therefore refuse to make any award on it. The claim of the plaintiff for assault is refused.” Arising from this ground in the cross-appeal the respondents/cross-appellants have formulated the following issue for the determination of this court – “Whether the learned trial Judge was justified in law in refusing to award the plaintiffs/cross-appellants damages for assault on the ground of lack of corroboration of the evidence of the plaintiff when in fact evidence of PW5 John Osagie was not evaluated and the entire evidence and pleadings on this point not properly considered.” It is the respondents/cross-appellants submission that it is clear that in the amended statement of claim, it was pleaded in paragraphs 11 and 12 that the defendant (appellant/cross-respondent in this appeal) slapped the plaintiff; that apart from the evidence of 1st and 2nd plaintiffs to that effect PW5 John Osagie who was a conductor to PW1 also testified to the same effect.
Counsel for the respondents/cross-appellants submitted that had the Judge properly evaluated the evidence he would have arrived at a different finding and placed reliance on the following authorities for the submission – OSHIYEMI v. AKINTE (1995) 2 NWLR (Pt. 379) PAGE 555 particularly pages 568; MBAMAENYI v. ABOSI (1995) 7 NWLR ?(Pt. 405) page 54 at pages 67-68.
It was counsel’s contention that the trial court having failed to properly evaluate the evidence, the court of appeal can review the facts and come up with its own conclusions.
Reliance was placed on TSOKWA MOTORS NIG LTD v. U.B.N. LTD (1996) 9 NWLR PART 471 PAGE 129; OSHIYEMI v. AKINTE (SUPRA) pages 568-569. Counsel further contended that it is the law that when evaluation does not involve the credibility of witnesses but a complaint against improper evaluation of evidence by the trial court as is the case in this cross appeal the appellate court is permitted to interfere and make the proper evaluation in order to do substantial justice. ADEYER II v. ATANDA (1995) 5 NWLR (Pt. 397) page 515 at 528 was relied upon. It was also submitted that one credible witness is enough for proof of assault and not necessarily many witnesses. The appellant/cross-respondent on his part submitted that a claim for damages for assault must be proved beyond reasonable doubt and not on a balance of probabilities. It was also contended that the 2nd cross appellant’s evidence that he was assaulted before the arrival of the 1st cross-appellant was not in line with the pleading and evidence of the 1st cross appellant. It was further contended that the 2nd cross appellant who claimed to have sustained injuries from the alleged assault and obtained first aid treatment neither called any medical evidence at the trial nor the person who allegedly administered first aid treatment on him.
An allegation of the commission of assault on a person is an allegation of the commission of a crime on that person by the provision of S. 138 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. Such an allegation whether in a civil or criminal proceeding must be proved beyond reasonable doubt and not on a balance of probability. Suffice it to say that this is an elementary principle of law. If the 2nd cross-appellant was assaulted and sustained injuries and was treated he would have discharged that onerous burden of proof by calling evidence to establish the injury sustained. Even more so he would have called as witness whoever administered some treatment on him. The learned trial Judge was therefore right in his finding that the respondents/cross-appellants had not proved the commission of assault beyond reasonable doubt. The cross appeal therefore fails and is accordingly dismissed.
In all both the main appeal filed by the appellant and the cross-appeal of the respondents fail and are accordingly dismissed.
Parties are to bear their own costs.
Other Citations: (2006)LCN/1997(CA)
