N.E. Ekpe V. S.A. Fagbemi (1978)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

The Plaintiff who is the Respondent in this appeal was the owner of a car No. LN 3542. On February 9, 1969, that car was being driven along Ladoke Akintola Road, which is a major road, when, at the junction of that road with Oba Docemo Road-which is a minor road-it was in collision with a car driven by the Appellant. The car of the Respondent was badly damaged as a result of the accident.

On the 20th October 1969, the Respondent commenced an action against the Appellant in the High Court, Ikeja, claiming 2,280 pounds damages for negligence made up of 602: 14s:3d(pounds) being the estimated costs of repairs, 1,200 pounds for loss of use for 12 months and 577 :5s:9d(pounds)  as general damages.

After a review of the evidence adduced by the parties, the learned trial judge found the Appellant liable for negligence in driving his car from the minor road into the major road without having taken a proper lookout. He also found the driver of the Respondent liable for contributory negligence but that the Appellant was far more to blame than the Respondent’s driver. In apportioning responsibility, he assessed the Appellant four/fifths blame and the Respondent’s driver one/fifth. He also assessed general damages at 700 pounds and loss of use for 6 months at 540 pounds and arrived at a total of 1,240 pounds out of which he awarded the Respondent 992 pounds, being four/fifths of the total. There is no appeal on the issue of liability for negligence. The appeal is against the assessment of damages only.

Having regard to the grounds of appeal, it may be necessary to set out in full the portion of the judgement of the trial judge showing how he arrived at his assessment.

The portion of the judgement reads:
“If there had been any question as to what and what had been damaged in the plaintiff’s car this point would have been of importance but the damage to the vehicle was not questioned and I am of the  view that Exhibit A had been properly proved and the estimate for the repairs given therein can be accepted. It was conceded that the cost of repairs could only be awarded as part of the general damages  since no repairs had been carried out by the plaintiff. I think that view is right and for general damages, therefore, I would allow a total of 700 pounds. On the plaintiffs case for loss of use no receipts or other  supporting documents were produced.

I accept that it is necessary for the plaintiff, for the proper performance of his duties, to have a car but I think an award of 3 pounds per day would meet the justice of his  case. I do not think that the plaintiff can properly claim for twelve months as his action was taken eight months after the accident. Again, the defendant should not be made to pay for the loss of use for any  longer than it is necessary to repair the plaintiff’s vehicle. This period I would put at six months, four months to get the spares out and two months to effect the necessary repairs. In the event the total I would work on for loss of use is 540 pounds.

The total damages I would have allowed had the plaintiff’s driver been wholly free from blame come to 1 ,240 pounds.
The plaintiff would for reasons already given recover four/fifths of that sum, i.e. 992pounds. In the circumstances the defendant shall also pay the plaintiff costs assessed at 70 guineas” . The appeal was canvassed on the following grounds:
“(i) The learned trial judge erred in law when he accepted the estimate of repairs of 602: 14s:3d(pounds)  whereas the engineer who prepared the estimate was not called as a witness by the Plaintiff.

(ii) The learned trial judge erred in law in awarding loss of use for 6 months at 3pounds a day when no repair has been effected on the car and plaintiff did not prove that he spent any money for alternative transport.

(iii) The learned trial judge erred in law when he awarded 700pounds (N1,400:0k) as general damages as cost of repairs when the Plaintiff by evidence and pleading puts the repair cost at 602:14s:3d (N1,205 :42k).

(iv) The award of 540pounds (N1,080.00k) for loss of use is excessive in all the circumstances of the case.” In arguing the appeal, learned counsel for the Appellant simply reiterated his grounds of appeal and submitted that as there was no evidence that the Respondent had actually carried out repairs of the car, he was not entitled to recover any sum. He submitted that Exhibit A, the estimate for the cost of repairs, was improperly admitted in evidence in that it was not produced at the trial by its author. In his reply learned counsel for the Respondent, while conceding that the learned trial judge was wrong in law to have awarded 700 pounds as general damages when only 577:5s:9d(pounds)  was claimed under that item, submitted that the Respondent proved special damages, to wit cost of repairs, for which the learned judge made no award.

In the first ground of appeal, it is complained that Exhibit ‘A’ was improperly admitted in evidence in that it was not produced by its author and ought therefore to be disregarded.

We observe that the document was not objected to when it was tendered in evidence and its admissibility was not put in question. As the point was not taken at the trial, we would not allow the Appellant to raise it on appeal: See SEISMOGRAPH SERVICE (NIGERIA) LTD. v. CHIEF EVAUFE (1976) 9 AND 10 SC 135 AT P.155 and CHUKIRA AKINNE v. MATTEWS EKINDO 14 W.A.C.A 59 AT P.60. The real questions for determination in this appeal are:

(1) Whether the learned judge is right in treating the cost of repairs as an item to be taken into account in the award of general damages or that the cost of repairs should be treated independently as an item of special damages;
(2) Whether under the circumstances of the case the award of general damages can be justified; and
(3) Whether the award for loss of use was excessive.

The first question arose from the statement of the learned judge in the portion of his judgement (Supra) to wit: “It was conceded that the cost of repairs can only be awarded as part of the general damages since no repairs had been carried out by the Plaintiff”. It appears that the learned judge regarded the address of counsel for the Defendant/Appellant at the trial as being such concession. The relevant part of the address reads: “All fiinancial losses which at hearing have not been crystallyed should be general damages to the cost of repairs here can only be claimed as general damages-Sheaman Vs. Folland 1950 2.KB at 3.” It seems to us that the learned judge did not appreciate that the facts in Shearman Vs. Folland’s case are distinguishable from the facts of the case before him.

In that case the Plaintiff, an elderly woman, was knocked down and injured by the Defendant’s motorcar driven by his servant. The negligence of the driver was not disputed and liability was admitted by the Defendant. In dealing with an item of the claim labeled “special damages” attributable to the necessity, consequent on the accident, that the Plaintiff should for the future have an attendant who should live in the same hotel as the Plaintiff, in a room costing the same weekly sum as the Plaintiff (namely, seven guineas) and at a minimum salary of three guineas a week (ten guineas a week in all), the trial judge held that while an attendant was necessary, among other things, the claim, relating as it did to attendance expenses not already incurred but prospective, was a claim for general and not special damages. In upholding the aforementioned holding, the Court of Appeal per Asquith L.J. at p.51 stated:

“On the second point he (the trial judge) was unquestionably right, all damages which up to the time of hearing has not yet crystallized in actual disbursement is still prospective in general damages. The  judge has awarded 4,500 Pounds as general damages. Somewhere embodied in this figure is the prospective damage represented by the need for an attendant, along with other elements such as damages for pain  and suffering, and for loss of amenities. ”

The above statement of the law was concerned, as is clearly shown therein, with the assessment of damages for a prospective and future damage. In the case in hand, the damage to the Respondent’s car is not prospective but, as a matter of fact, it was retrospective.

The car had suffered a real and actual damage. That being the case, the Respondent was entitled to recover the cost of its repairs plus a certain sum as compensation for loss of its use during a reasonable time of repairs:
See THOMAS KEREWI v. BISIRIYU ODEGBESAN (1965)1 All N. L. R. 95. We may add that it does not matter that the repairs have not been carried out at the date of the trial: See The Kingsway (1918) P.344 or even that the repairs would never be carried out: See The London Corporation (1935) P.70.

It follows from the foregoing that the learned trial judge erred in law in treating the claim for cost of repairs as an item of general damages. Having found, quite rightly in our view, that the estimate for the cost of repairs as contained in Exhibit ‘A’ was properly proved and was acceptable, he ought to have awarded the Respondent the estimated cost of repairs.

It may be pertinent to point out in this regard that the particulars of the ground of appeal No.3 concedes, at least by implication, that the Respondent proved the cost of repairs to be 602:14s:3d(pounds)  (N1,205:42). For this reason, we will award the Respondent that sum. It has not been seriously disputed that the Respondent is entitled to damages for loss of use of the car. The main complaint is that the award of 540pounds (N1,080) was excessive. Learned Counsel for the Appellant has not convinced us that the trial judge acted upon some wrong principle of law in making the award or that the amount awarded was so extravagant as to make it an entirely erroneous estimate of the damages.
It is only when we are so convinced that we may interfere with the assessment of the learned trial judge:
See GEORGE ONAGA AND ORS v. MICHO AND Co. (1961) All N. L. R. 324 AT 328 and KWABENA v. ASARE HARTEY 14 W.A.C.A AT 48. On the contrary, we are satisfied that the award is reasonable.

The evidence shows that the spare parts for repairs of the car were not  then available and would have to be ordered from Italy and it would take about four or more months to receive their delivery and thereafter the repair works would take more months. Under those circumstances we do not consider the award of 540 pounds being 6 months at 3 pounds daily for  the hire of another car as being excessive. It follows from the foregoing that the award of 700 pounds as general damages cannot be justified. The Respondent having been fully compensated by the awards for the cost of repairs and loss of use for the damage done to him, he is not entitled to recover an additional sum as general damages. Such additional sum would be unjustified double compensation: See GEORGE ONAGA Vs. MICHO AND CO. (Supra). 

Consequently, the assessment in the sum of 700 pounds as general damages is hereby set aside and the sum of 602:14s:3d(pounds)  as special damages for the cost of repairs is substituted therefore. The assessment in the sum of 540pounds for loss of use is affirmed. Accordingly, the Respondent is entitled to 4/5 (four/fifths) of the total of the two sums which come to 916:4s:2d(pounds)  (N1,832.41). The appeal is partly allowed. The judgement of the trial judge in the sum of 992:0s:0d(pounds)  is set aside. Instead, there shall be judgement for the Respondent in  the sum of ‘916:4s:2d (N1,832.41).

Costs in favour of the Appellant is assessed at N82.

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Other Citation: (1978) LCN/2073(SC)