Nadim Chagaury & Anor V. Ibrahim Yakubu (2005)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER ODILI J.C.A.

This is an appeal from the judgment of U. M. Kusherki, J. of the High Court of Abuja, in which the learned Judge awarded the respondent the sum of N300,000.00 (three hundred thousand naira) as compensation for general damages in suit No. FCT/HC/CY/147/97, delivered on 2nd day of March, 2000.

The facts of the matter briefly stated are:

The respondent (plaintiff at the lower court) a driver was employed by the 2nd appellant and was attached as a driver to the 1st appellant. By virtue of the work of the respondent he normally carried the 1st appellant cooks to their residence in Karmo FCT, sometimes between 8pm to 9pm for which he was paid over-time salary.

On or about 20/5/94, the respondent after dropping the 1st appellant’s cooks in Karmo at about 9pm was on his way back to the 1st appellant, when he was attacked by armed robbers who shot at his face. Notwithstanding, he was able to drive the vehicle back to the 1st appellant, who promptly took him to the hospital for treatment. After treatment at the hospital, five of the six pellets of bullet that were lodged in the respondent’s face were extracted, leaving one pellet in situ.

From the said 20/5/94, the respondent was still in the employment of the 1st appellant still driving the 2nd appellant, even while the suit was instituted on 15/4/97, wherein the respondent claimed fifteen million (N15,000,000.00) from the appellants for negligence. N5,000,000.00 as special damages and N10,000,000.00 for general damages. The respondent gave evidence as to how he was attacked by the armed robbers and how the pains he was having disappeared after five pellets were removed from his face. The appellants called two witnesses one of whom was a medical doctor, who treated the respondent. He stated in evidence that removing the remaining pellets would cause serious negative health problem for the respondent as same was lying quiescent it could be left in suit.

The lower court held that the appellants were not negligent, but still went on to award the respondent N300,000 (three hundred thousand naira) general damages.

It is against that judgment and award of damages that the appellants have come before this court, seeking the setting aside of that award. The respondent cross-appealed asking for an upward increase in the award of damages.

At the unnumbered two pages of the record of proceedings the appellant set out three grounds of appeal. It is from those three grounds and two additional grounds that appellants distilled two issues for determination.

The respondent also formulated two issues for determination. They are:

1. Whether ground iv and v of the grounds of appeal and issues I and II which derived from them are competent.
2. Whether the award of N300,000.00 (three hundred thousand naira) general damages was legally justified in the circumstances of this case.

I find the issues as formulated and put forward by the appellants easier to understand, I would prefer to utilise them for ease of reference. They are:

1. Whether the lower court was right in awarding the respondent N300,000.00 general damages compensation after holding that the appellants were not negligent.
2. Whether the award of N300,000.00 general damages was legally justifiable in the circumstances of this case.

Respondent in his brief of argument at page 3 raised a preliminary objection on the jurisdiction of the Court of Appeal to hear the two issues arising from grounds IV and V of the appeal.

Learned Counsel for the respondent said that in this appeal it is clear that grounds I, II and III of the grounds of law and fact without leave of the High Court or the Court of Appeal. That section 241(1)(b) of 1999 Constitution does not apply to the appellant since the 3 grounds are not grounds of law. They are grounds of mixed law and fact.

Learned Counsel in that preliminary objection went on to say that with regard to grounds IV and V of the additional grounds of appeal; that they are not grounds of law as labelled by the appellants but grounds of mixed law and fact.

On grounds IV, learned Counsel said this additional grounds questioning the amount of three hundred thousand naira (N300,000.00) compensation awarded to respondent as compensation for psychological feelings of having the pellet in his body. Also, particulars of error (a) and (b) are fact and law therefore ground IV is ground of mixed law and fact.

Learned Counsel said that in the case of Onifade v. Olayiwola (1990) 11 SCNJ 10; (1990) 7 NWLR (Pt. 161) 130, it was held that once the ground of appeal is grounds of mix law and fact without leave, such grounds will be struck out as incompetent and in that case the preliminary objection succeeded.

He cited the cases of Tilbury Construction Company Ltd. v. Ogunniyi (1988) 3 SCNJ 12, (1988) 2 NWLR (Pt. 74) 64; Amorc. v. Awoniyi (1994) 7 SCNJ 390, (1991) 3 NWLR (Pt. 178) 245; Enitan v. State (1986) 3 NWLR (Pt. 640) at 605 – 606

Learned Counsel for the respondent said that it is important to point out that no issue was formulated from grounds 1, 2, 3 of mix law and fact. That even though they are incompetent in law, they are deemed abandoned in the appellant’s brief.

Learned Counsel said in respect to ground V that the additional ground of appeal is questioning the amount of N300,000.00 (three hundred thousand naira) compensation for suffering from physical disability. Also, the particular of error (a), (b) (c), (d) and (e) are issues of fact not law. Therefore, grounds V of the additional grounds of appeal is a ground of mixed law and fact. That the Supreme Court has held in a plethora of cases that an appeal on question of damages must be by leave of the court. He cited the case of Cross River Newspaper Corporation v. Oni (1995) 1 SCNJ 218 at 229; (1995) 1 NWLR (Pt. 371) 270. Also, the case of Honik Sawmill (Nig.) Ltd. v. Hoff (1994) 2 SCNJ 86; (1994) 2 NWLR (Pt. 326) 252 and Yusuf v. Union Bank Plc. (1996) 6 SCNJ 203 at 204; (1996) 6 NWLR (Pt. 457) 632.

Learned Counsel said that section 220(1)(b) of 1979 Constitution is in pari material with section 241 (1)(b) of 1999 Constitution. That the appeal should be struck out in its entirely. That it is trite law ex nililo nihil fit, you cannot put nothing on nothing (sic). That the appeal lacks merit. Furthermore, that the appellants have no locus standi to file all the five grounds of appeal and no locus standi to postulate the two issues for determination and so the appeal should be struck out.

On issue No.1, the learned Counsel for the respondent said that the appellants abandoned grounds 1, 2 and 3 of the grounds of appeal that no issue was formulated from them in the appellant’s brief of argument and that looking at appellants, brief of argument page 1. paragraph 2(iii),the 1st issue covered ground IV of additional ground of appeal while the second issue is covered by ground V of the additional grounds of appeal. That on ground IV of the additional ground of appeal is ground of taw and fact without leave of the High Court or Court of Appeal. Therefore section 241(1)(b)of 1999 Constitution does not apply since the ground of appeal is found to be of law and fact. That ground IV is questioning the learned trial Judgments award of N300,000.00 (three hundred thousand naira) for psychological feeling. Also that the particulars of error (a) and (b) are fact and not law.

Learned Counsel for the respondent said that it is important to point out that no issue was formulated from grounds 1, 2, 3 of mixed law and fact. That even though they are incompetent in law, they are deemed abandoned in the appellant’s brief.

Learned Counsel said in respect to ground V that the additional ground of appeal is questioning the amount of N300,000.00 (three hundred thousand naira) compensation for suffering from physical disability. Also, the particulars of error (a), (b), (c), (d) and (e) are issues of fact not law. Therefore, grounds V of the additional ground of appeal is a ground of mixed law and fact. That the Supreme Court has held in a plethora of cases that an appeal on question of damages must be by leave of the court. He cited the case of Cross River Newspaper Corporation v. Oni (1995) 1 SCNJ 218 at 229. Also, the case of Honik v. Hoff (1994) 2 SCNJ 86 and Yusuf v. Union Bank Plc. (1996) 6 SCNJ 203 at 204, (1996) 6 NWLR (Pt. 457) 632.

Learned Counsel said that section 220(1)(b) of 1979 Constitution is in pari material with section 241(1)(b) of 1999 Constitution. That the appeal should be struck out in its entirely. That it is trite law ex nihi nililo fit you cannot put nothing on nothing (sic). That the appeal lacks merit. Furthermore, that the appellants have no locus standi to file all the five grounds of appeal and no locus standi to postulate the two issues for determination and so the appeal should be struck out.

On issue No.1, the learned Counsel for the respondent said that the appellants abandoned grounds 1, 2 and 3 of the grounds of appeal that no issue was formulated from them in the appellant’s brief of argument page 1 paragraph 2(iii) the 1st issue covered ground iv of additional ground of appeal, while the second issue is covered by ground V of the additional grounds of appeal. That on ground IV of the additional ground of appeal is ground of law and fact without leave of the High Court or Court of Appeal. Therefore, section 241(1)(b) of 1999 Constitution does not apply since the ground of appeal is found to be of law and fact. That ground IV is questioning the learned trial Judgments award of N300,000 (three hundred thousand naira) for psychological feeling. Also, that the particulars of error (a) & (b) are facts and not law.

Learned Counsel for the respondent said that also ground V or the additional ground of appeal is not ground of law as labelled by the appellants. Ground V is chal1enging the learned trial Judge of the award of N300,000.00 (three hundred thousand naira) as compensation for suffering from physical disability. That it is clear that particulars a, b, c, d and e are facts.

Learned Counsel went on to contend that it is trite law that damages are issues of fact and must be appealed on with the leave of court. He cited the case of Cross River Newspaper Corporation v. Oni (1995) 1 SCNJ 218 – 229; (1995) 1 NWLR (Pt. 371) 270.

Counsel urged the court to strike out issues I and II. That the appellants having failed to obtain leave have no locus standi to file the appeal. That the appeal in its entirety is an abuse of court process, incurably defective and the court should strike it out for being incompetent ab initio.

I would like to first tackle the matter of the preliminary objection of the learned counsel for the respondent upon which learned counsel for respondent said the court lacked jurisdiction to handle the appeal based on the grounds of appeal Nos. 1, 2 and 3 which were abandoned and ground IV and V which the appellants did not utilise with leave of court. I disagree, the appellants had in applying to court to file additional grounds namely IV and V asked for leave, that leave was the necessary permit needed to give competence to the process and give legal backing to the appeal and the utilisation of the grounds of appeal IV and V in the formulation of the issues.

The appellant basing his two issues for determination from the additional grounds IV and V acted in order, those additional grounds coming in after leave of court to bring in additional ground was granted. I must add that it is not correct that an appellant before the Court of Appeal must obtain leave before proceeding, where the ground of appeal ab initio is either of fact or of mixed law and fact. That is a situation obtainable in the Supreme Court and not in the Court of Appeal. I would here refer to some decided case in support of my view. See Cross River State Newspaper Corporation v. Oni (1995) 1 NWLR (Pt. 371) p. 270 at 285 paras. C-F. The Supreme Court held;

A ground of appeal which questions the quantum of the trial court’s award of damages on the ground that the trial court had taken into consideration extraneous factors without supporting evidence clearly raises issues of mixed law and fact. This is because, the court is being invited under that ground of appeal to investigate the existence or otherwise of certain facts upon which the award of damage were allegedly based. Such ground of appeal without doubt is a ground of mixed law and fact so, too ground of appeal as in the instance case, which challenges the findings of fact made by the trial court. Such ground of appeal can only be validly argued with the leave of the court. Failure to obtain such leave where necessary renders the grounds of appeal concerned incompetent and liable to be struck out. In the instant case, the second ground of appeal raises questions of mixed law and fact for which the appellant ought to have sought and obtained the leave of the Court of Appeal or the Supreme Court before filing. The appellant did not however obtain such leave. In the circumstance, the said ground of appeal and the issue raised therefore are declared incompetent and are accordingly struck out. Per Iguh, JSC.

An application to file and argue additional grounds of appeal as was made in this appeal presupposes the existence of a valid ground of appeal to which the additional grounds are additional and can therefore be added to or can attach.

An application to file and argue amended grounds of appeal presupposes that there is in existence a valid ground of appeal. One cannot amend or add something to nothing just as one cannot make something out of nothing. See Enitan v. The State (1986) 3 NWLR (Pt. 30) 604 a judgment of the Supreme Court.

It may be necessary to restate the initial three grounds of appeal of the appellant which are as follows;

(i) The Honourable Learned Judge erred in law and in fact by awarding the respondent N300,000.00 as compensation for psychological feelings of having a foreign object in his body after holding that the appellants were not negligent.

(ii) The Honourable Trial Judge erred in law and in fact by awarding the respondent, when there was no legal basis on which the award could be anchored.

(iii) The Honourable Trial Judge erred in law and in fact by awarding a collosal sum of N300,000.00 in favour of the respondent.

By leave of court the appellant filed an amended notice of app incorporating two additional grounds as IV and V. They are:

(iv) The lower court erred in law, in awarding the respondent the sum of N300,000.00 as compensation for psychological feelings of having a pellet in his body after holding that the appellant were not negligent.

(v) The lower court erred in law, in awarding the respondent N300,000.00 as compensation when he was found not to be suffering from any physical disability.

Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) p. 253 at p. 265 held by the Supreme Court:

“The rules of appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality, whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure both in the Supreme Court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form what is important in a ground of appeal, and the test the court should apply is whether or not an impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection or as the case may be error of fact” (Nteogwuija v. Ikuru ((1998) 10 NWLR (Pt. 569) 267 referred to and approved); Per Ayoola, JSC.

The provisions of Order 3 rule 2(1) to (4) of the Court of Appeal Rules spell out what are required of a ground of appeal and the purpose is to ensure that the respondent is not taken by surprise. Per Ogundare, JSC at pp. 271 – 272 of Aderounmu v. Olowu (supra).

Onu, JSC in Olanrewaju v. Ogunleye (1997) 1 SCNJ 144 at 152; (1997) 2 NWLR (Pt. 485) 12 had this to say:

Suffice it to say that these five grounds it would appear clear are either grounds of fact or at best of mixed law and facts…

For such grounds to be allowed to be argued in this court, leave of either the Court of Appeal or of this court ought to be first sought and obtained before filing them pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979, as amended.

The situation in the case in hand is different from the circumstances in Honika Sawmill (Nig.) Ltd. v. Hoff (1994) 2 NWLR (Pt. 326) 252 at 261 – 262 F – H where it was held:

“Whether on appeal matters are raised or complained of which were not matters on which issues were joined in the trial court or which the trial court did not try since matters logically do not arise out of the decision appealed from and leave of the court is required to argue them. In the event that no such leave is sought and obtained, such matters cannot be relied upon for the distillation of any issue or issues upon which argument may be founded and proffered. A ground of appeal raising such fresh matters without leave is non sequitur, and will be struck out. And it is axiomatic that an issue based on such a ground will be deemed unarguable and simply struck out.”

In the instant case, there is nothing I see invalidating grounds 1, 2, 3 or even the additional grounds of appeal which came in by leave of court as grounds iv and v. The appellant was therefore at liberty to distil the related issues from any of the grounds or singly or in conjunction with one another or several of the grounds so long as the court can see that the issues for determination are not from extraneous grounds or grounds of appeal not before court. All that can happen is that those grounds not utilised in the distillation process of issues are taken as abandoned and therefore struck out.

The preliminary objection in my view from the foregoing fails and it is hereby dismissed. I will now proceed with the issues for determination.

Issue 1

On issue No.1, the learned Counsel for the appellants referred the court to the evidence of the respondent at the trial court stating that he was promptly treated by doctors and the appellants for all the costs of treatment. Furthermore, the respondent up to the time of his evidence in court was still in the appellants employment and was not under any physical disability. That the respondent’s employment was terminated on 30/4/99 due to the general redundancy in the 2nd appellant’s work as most or all their contracts in Abuja had by then been executed.

On the issue No.1 which tackles the matter of whether or not, it was proper for the lower court after finding that the appellants were not negligent could still award damages against them which question the appellants urged the court to answer in their favour to the effect that the award of damages after such a finding was not justified and could be explained under any heading in law. This position I am inclined to accept as the correct position in the circumstances of this particular case. I would like to make reference to a few of the piece of evidence proffered for a better understanding of the circumstances on which the learned trial Judge made his finding exculpating the appellants from negligence. At page 16 of the record of proceedings the respondent stated inter alia as PW1:

Learned Counsel for the respondent further stated that on the other hand if the court holds other wise (which they are not conceding) it is submitted that the issue of negligence of the appellants at paragraphs 8, 19(a)(b) of the amended statement of claim which were admitted by paragraph 2 of the statement of defence of appellants; are as follows:

“8. Before that day of attack by the armed robbers, the plaintiff had always been complaining that the 1st defendant was making him work too late to the night.”

“19. The defendant were negligent and always forcing the plaintiff to work till mid night. The 1st defendant owed plaintiff duty of care. Plaintiff suffered damages, the plaintiff was 22 years old by 1996.”

Learned Counsel for the respondent said that these are evidence of negligence which fact the defendants (appellants) left uncontradicted and unrebutted. That the claim of respondent is not under Workmen’s Compensation Act, Cap. 470, LF 1990. Therefore section 25(2) cited by appellant is not relevant to this appeal. That the appeal should be dismissed for it lacked merit ab initio. This position of the appellant, I am inclined to accept as the correct position in the circumstances of this particular case. I would like to make reference to a few of the pieces of evidence proffered for a better understanding of the circumstances on which the learned trial Judge made his finding exculpating the appellants from negligence. At page 16 of the record of proceedings the respondent stated inter alia as PW1:

“My name is Ibrahim Yakubu of New Karu Nasarawa State. I am a driver. I know the defendant. I was employed by the 2nd defendant since 7/6/93 and on 20/5/94, I was sent to Karmo to drop Elizabeth and Helen cooks to the expatriate, Mr. Nadim 1st defendant. It was around 9.00 p.m. then we normally close at 6.00pm. But because of the assignment given to me by Mr Nadim, I had to wait till I carried the ladies to Karmo. I dropped them there and on my way coming back near the forest reserve, I saw one wood, a log (sic) just like electric pole placed across the road..

As I refused to surrender the key to the man he shot me on (sic) my head, but I managed to drive away and took the vehicle back to the residence of the expatriate at Area 8 Garki. Seeing what happened to me, the 1st defendant took me to Garki General Hospital. And he came to Wuse Police Station and reported the incident. I made statement and I was admitted at the hospital for 7 days.”

From the foregoing, I am satisfied that the learned trial Judge ruled improperly in granting the damages of N300,000.00, after finding that appellants were not negligent. I answer issue 1 in negative.

The suit was filed in 1997, while respondent as plaintiff was still in the employment of the appellants/defendant.

Dr. Evans Onyekele testified as DW2 and he said among other things at page 22 of the records:

“It is not necessary to send the plaintiff to an overseas hospital as there is nothing that can be done to remove these pellets (sic). Trying to remove the pellets will result to causing damages to his face. The pellets themselves as they are, they are sterile (sic) objects and the symptoms, he complained of cannot be associated with the pellets. They cannot cause itching or body pain.

“Cross by plaintiff counsel – Nil.”

The plaintiff/respondents appointment was terminated on 30/4/99. The letter to that effect was tendered from the bar.

Apart from the related documents, the above were in substance the evidence, which the learned trial Judge had at his disposal to make his finding and enter his decision. The question clearly he had to grapple with was whether or not, the appellants were negligent or their action or inaction was responsible for the incident and the consequent injury to the respondent. I would like to refer to the case of Ibeanu v. Ogbeide (1998) SCNJ 77; (1998) 12 NWLR (Pt. 576) 1 at 12.

The Supreme Court held:

The doctrine of res ipsa loquitur does not apply in this case. Since there is evidence of the witnesses on how the accident occurred, it is inappropriate to apply the doctrine. The question of the 2nd appellant’s negligence must be determined from the evidence of the witnesses. Per Mohammed, JSC at P. 88. United Bank for Africa Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 254. The Supreme Court held at 275 paras. G-H:

1. The onus is on the person alleging negligence to lead evidence and give particulars of the negligence. In the instant case, the court below was right in its decision that since the appellants did not give any evidence in proof of the alleged negligence of the respondent, a case of contributory negligence was not made out.
2. Negligence is the failure to take reasonable care where there is a duty, and it is attributable to a person whose failure to take reasonable care has resulted in damage to another p. 277 para. D.

On issue No.2, which is whether the award of N300,000 general damages was legally justifiable in the circumstances of this case.

In answer to that second question above, learned Counsel for the appellant recounted the evidence at the court of trial and all that the appellant did in rendering the medical treatment of the respondent and even what the respondent said on the various efforts of appellants for his well being after the incident. He referred to the evidence on DW2, the medical which showed clearly that respondent’s claim cannot even be sustained under the Workmen’s Compensation Act as the Act is meant to compensate employees, who in the course of their duties suffer injury(ies) and as a result were left with physical disability. That the compensations are for the physical disability of the employees which may be temporary or permanent. Learned Counsel said that in the instant case, the inevitable finding of the trial court is that the respondent has not suffered any physical disability and hence, there is nothing to compensate him for under the Workmen’s Compensation Act. That the second schedule of the Act provides for the percentage disability from a different injury to the employee. Thus, a loss of two limbs would attract 100% disability etc. That it is submitted that there is no legal basis on which to anchor the award of N300,000.00 as compensation for psychological feeling of the respondent and the court should so hold. That the appeal should be allowed.

The respondent’s counsel in response on this issue No.2 submitted that as far as the learned trial Judge is concerned the award of N300,000.00 (three hundred thousand naira) general damages was only made in respect of one item of the claim which is that he carries foreign body (1 pellet/splinter) of gunshot in his skull for the rest of his life. That despite the admission made by the appellants by their statement of defence at paragraph 2, the learned trial Judge did not award any general damages on pains, suffering, loss of amenities of life, loss of expectation of life, loss of present and future pecuniary (loss of employment) taste, smell irritation at the nose eyes, ears and 5 scars on the skull/face. He cited the cases of Eseigbe v. Agbolor (1993) 12 SCNJ 82 at 93; (1993) 9 NWLR (Pt. 316) 128. UBA v. Achoru (1990) 10 SCNJ 17 at 35; (1990) 6 NWLR (Pt. 156) 254 the learned Counsel for the respondent urged the court to dismiss the appeal.

It is difficult to follow the thinking of the respondent’s counsel on the amount of damages in view of the fact, that I do not even see why the appellant should have been ordered to pay anything even if minimal considering that there was no finding of negligence on their part and even though there is clearly no responsibility attached to the appellants as to the incident itself or the circumstances that brought about the injuries. Furthermore, the appellant acted as a responsible caring employer by making sure that all the medical attention necessary was given and paid for by them and continue to have the respondent in their employ for many years until the economic situation made it difficult for his employment and those of others to be maintained. Definitely in my view, I see no basis for the award of any general damages not to talk of N300,000.00 general damages which could not be explained or placed.

Therefore, it is necessary to point out that the circumstances of the instant case are different from that existing in the cases of: Eseigbe v. Agholor (1993) 9 NWLR (Pt. 316) 128. The Supreme Court held that the principle is that an appellate court will not normally interfere with the award of damages by the trial court on the ground that it would have awarded a lesser amount if it had tried the case. Thus, to succeed in reversing the award of damages made by the trial court the appellant must show:

(a) That the trial Judge acted upon some wrong principle of law;

(b) That the award was an erroneous estimate of the damages claimed and proved; or

(c) That the damages awarded was manifestly too high or too low.

In Royal Petroleum Company Limited v. First Bank of Nigerians Limited (1997) 6 NWLR (Pt.510) 484 at 598 paras. G-H per Akpabio, JCA;

“A Court of Appeal will not interfere with the findings of the trial Judge as to the amount of damages, unless it is satisfied that the trial Judge acted on wrong principle of law or that the amount awarded is so high or so low as to make it an entirely erroneous estimate of the damages to which the claimant are entitled.”

Having the two cases above cited in mind there is a need for this court’s intervention in the award of the damages of N300,000.00 and I do so intervene and interfere. Therefore, I answer issue No.2 in the negative and hold that the award of N300,000.00 general damages was legally not justifiable in the circumstances of this case. The conclusion therefore, is that the appeal succeeds and I set aside the judgment awarding the N300,000.00 general damages to the respondent.

The respondent in the main appeal cross-appealed as cross appellant and filed a brief of argument in respect thereof. He formulated two issues for determination which are:

i. whether in the pleadings paragraphs 1 & 2 of the statement of defence of cross-respondent amount to admission of the cross-appellants amended statement of claim.

ii. whether having admitted the cross-appellant’s amended statement of claim the failure to award general damages on pains, sufferings, loss of amenities of life, loss of expectation of life, loss of present and future pecuniary (loss of employment) taste, smell, irritation at nose, eyes, ears and 5 scar on the skull/face of cross-appellant in view of evidence of PW1 and exhibits A, B, C, D, F & F (1) occasioned a miscarriage of justice.

The cross-respondents also formulated two similar issues after raising a preliminary objection. This would be looked into later. They are:

1. Whether the cross-respondents admit cross-appellants claims in their statement of defence.
2. Whether the cross-appellant proved his case to warrant the award of N13 million damages.

On issue No.1 of the cross-appellant’s brief of argument learned Counsel referred to paragraphs 1 & of the statement of defence.

1. The defendants admits paragraphs 1, 2, 3, 4, 5, 9 11, 13, of the statement of claim (hereinafter referred to as the claim). That it is trite law that what is admitted need no proof.
2. The defendants deny paragraphs 2, 6, 7, 8, 10, 12, 14, 15, 16(a), 16(b), 17, 18, 19(a), 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 & 33 of the claim and will put the plaintiff to strictest proof hereof.

Learned Counsel submitted that this is evasive and uncontroversial averment which amount to admission. That these paragraphs of the amended statement of claim referred to therein amount to admission by the cross-respondents and that the Supreme Court had held in a plethora of cases that averment of the statement of defence that contains sentences.

“Put the plaintiffs to the strictest proof thereof amount to admission.”

He cited the case of Eseigbe v. Agborlor (1993) 12 SCNJ 82; (1993) 9 NWLR (Pt. 316) 128. Also, the case of Meridien Trade v. Metal Construction (1998) 3 SCNJ 1, (1998) 4 NWLR (Pt. 544) 1; Ibeanu v. Ogbeide (1998) 9 SCNJ 77; (1998) 12 NWLR (Pt. 576) 1; Honika Sawmill (Nig.) Ltd. v. Hoff (1994) SCNJ 86 at 97; (1994) 2 NWLR (Pt. 326) 252; Egbunike v. ACB Ltd. (1995) SCNJ 58; (1995) 2 NWLR (Pt. 375) 34; Oseni v. Dawodu (1994) 4 SCNJ 197; (1994) 4 NWLR (Pt. 339) 390.

In the cross-respondents notice of preliminary objection of the cross-appeal in the cross-respondents brief of argument learned Counsel said the grounds of appeal of cross-appellant complained of “error in law and fact” which learned Counsel said makes the cross-appeal incompetent that in our system of adjudication where the Judge sits as the Judge and jury it is erroneous to allege error in law and misdirection in fact. He cited the cases of Olanrewaju v. Ogunleye (1997) 1 SCNJ 144 at 152; (1997) 2 NWLR (Pt. 485) 12; Royal Petroleum Co. Ltd. v. FBN Ltd. (1997) 6 NWLR (Pt. 510) 584.

On the issue of direction, learned Counsel for the cross-respondent referred to the Supreme Court case of Wadih Chidiak v. Laguda (1964) 1 All NLR 160 at 162.

That the ground of appeal in the circumstance that raised the issue that the “Judge erred in law and in fact” is in view of the definition of misdirection above held to be incongruous and therefore not arguable. He referred to Olanrewaju v. Ogunleye (1997) 1 SCNJ 155 at 152; (1997) 2 NWLR (Pt. 485) 12.

Learned Counsel stated further that the two grounds of appeal contain only particulars of error without the nature of misdirection. That it is in violation of the mandatory provision of Order rules 1 & 2(2) Court of Appeal Rules and so the court should strike out the two grounds of appeal on grounds of incompetence and for violation of the rules of this court.

Learned Counsel for the cross-respondent said ground one of the cross-appellants’ notice of appeal is also vague. That the said ground does not disclose that there are two cross-respondents. Also, that the said ground 1 of cross-appellant’s Notice of Appeal read with the particulars are argumentative and narrative and thus, a violation of Order 3 rule 2(3) and (4) of the ground should be struck out.

On ground 2 of the cross-appellants’ notice of appeal, learned Counsel for the cross-respondents said that ground is also incompetent, on the ground of vagueness as the cross-appellant is not sure of what he wants, i.e. whether it is N4 million or N13, million. That in the light of the foregoing, the grounds of appeal is incompetent and should be struck out.

Learned Counsel for the cross appellant said, the cross-appellant obtained leave of the trial court before filing the 2 grounds of appeal in regard to the particulars of error and so the preliminary objection of cross-respondent is misconceived.

I agree with the submission of learned Counsel for the cross-appellant that the necessary leave was duly obtained before the filing of the grounds where error or misdirection was contended. That met with the requirements to obtain leave where the ground is of law and fact or mixed law and fact. I am supporting this view with the cases of Olanrewaju v. Ogunleye (1997) 1 SCNJ 144; (1997) 2 NWLR (Pt. 485) 12 and so Royal Petroleum Co. Ltd. v. FBN Ltd. (1997) 6 NWLR 584.

It is in the light of that, I hereby dismiss this preliminary objection of the cross-respondent for lacking in merit.

I would therefore go into the issues for determination in this cross-appeal.

The learned Counsel for the cross-respondent contended that by the state of pleadings, the cross respondents have admitted the cross appellant’s case in its entirety thereby making the requirement to prove his claim unnecessary. He went on to submit that in no way did the cross-respondents admit the cross-appellants case in their statement of defence. That a careful perusal of the statement of defence would reveal that the cross-respondents did not file only paragraphs 1 and 2 in their statement of defence, but the statement of defence contained paragraphs 1, 2, 3, (a) (b) (c) (d) (f) (g) (h) (i) (j) (k) 1 and 4;

That in construing whether the defendant has admitted the plaintiff’s claim, it is not just a paragraph of the statement of defence that would be read in isolation but the whole statement of defence. He referred to the case of Titilayo v. Olupo (1991) 9 – 10 SCNJ 122 at 133; (1991) 7 NWLR (Pt. 205) 519 a Supreme Court case.

The learned Counsel for the cross-respondent said the statement of defence denied the cross-appellant’s statement of claim and went further to make averments, which contradicted the said statement of defence without any ambiguity. That it is therefore strange to submit as done by the cross-appellant that his statement of defence was admitted by the cross-respondents and he urged the court to so hold. That the learned cross-appellant’s counsel cited several authorities, which are quite irrelevant to the case in hand and the court should discountenance them. That the cross-appellant having failed to move his case, the cross-appellant cannot now claim that there was no need to prove his case on the ground that same has been admitted in the statement of defence as earlier argued, the statement of defence did not admit the cross-appellant’s case and he urged the court to so hold.

The issue No.1 of this cross-appeal is indeed a curious number as what the cross-respondent said in paragraphs 1 and 2 of their statement of defence were simply to admit non controversial issues put forward by the cross-appellant in their statement of claim. I do not understand what the cross-appellant expected the cross-respondent to do, when the said paragraphs of the statement of claim which the cross-respondent admitted viz 1, 3, 4, 5, 9, 11, 13 were basically that cross-appellant was in the employment of the cross-respondent and the incident had in the course of his lawful duties and that cross-appellant had sustained injuries for which he had medical treatment. There were no areas of dispute on those paragraphs and the cross-respondent could not be expected to dispute just for the sake of disputing or controverting, when there would be no gain from it and would be a useless exercise since those areas were even discemable easily from the facts that would ensue in the course of the trial. I have little difficulty in finding for the cross-respondent, and I say clearly that the issue No.1 is worthless and is neither here nor there, infact, it has no basis for being pushed forward and would not change the facts or lend weight to any part of this cross-appeal. I have even gone to this trouble of delving into that issue because the Supreme Court said every issue must be considered and a pronouncement made on it. See Titilayo v. Olupo (1991) 7 NWLR (Pt. 205) 519. The Supreme Court held:

1. It is the duty and responsibility of an appellate court to consider and pronounce on all the issues formulated for determination arising from the grounds of appeal filed by an appellant. A deliberate failure to do so may, amount to failure to perform its statutory duty and consequently result in a miscarriage of justice. P. 529 paras. C-D per Kawu, JSC.
2. It is within the competence of the appellate court to identify what in its view are the real issues raised by the grounds of appeal and resolve them. Generally, it would be wrong for an appeal court to over simplify the issues arising in an appeal to appear as if the only complaint is that of wrong evaluation of evidence, and by so doing over-look specific issues properly raised before it. On the other hand, an appeal court is not bound to accept the issues formulated by an appellant or the respondent as the real issues in controversy. P. 537.

On issues No.2, the learned Counsel for the cross-appellant and that by the state of the pleading, evidence before the court warrants increasing the general damages in this case. That the cross-appellant claims N15,000.000.00 (fifteen million naira) damages and was awarded only N300,000.00 (three hundred thousand naira). He referred to the definition of pleading in Blacks Law Dictionary. Also the definition of evidence.

Learned Counsel for the cross-appellant contended that since the cross-respondent did not file any amended statement of defence to contest the amended statement of claim that it means that the amended statement of claim of cross-appellant was not denied or controverted. He referred to the items of injustice arising from the amended statement of claim which were never controverted, but only evasively denied by the cross-respondent at paragraph 2 of the statement of defence. He referred to UBA v. Achoru (1990) 10 SCNJ; (1990) 6 NWLR (Pt. 156) 12, 17; Limpo Chool v. Camden Islington Area Health Authority (1980) AC 174 at 1921-1022. Donimock v. Mile (1969) AC No. 456 at page 2004 and page 2003 of Kemp & Kemp Quantum of Damages (Special Edition). Also, the case of Flint v. Lovell (1935) 1 KB 354; Raini v. Akinsanmi (1990) 4 SCNJ 159; Davies v. Smith & Smith (1958) CA No. 349 P. 4002; Smith v. Manchester Corporation (1974) 17 KLR 5036.

Learned Counsel said the evidence of the medical doctor further confirmed the everlasting sorrow of having a pellet in cross-appellants skull for the rest of his life. Also, that general damages may be awarded to assuage such a loss which flows naturally from the defendants’ act. That it does not need to be specifically pleaded. It arises from inference of law and need not be proved by evidence. They are presumed by the law to be direct and probable consequence of the act complained of. He cited Amaye v. Associated Contractors Limited (1990) 6 SCNJ 149; (1990) 4 NWLR (Pt. 145) 422.

Also, cited is the case of Eseigbe v. Agholor (1993) 12 SCNJ 82 P. 110; (1993) 9 NWLR (Pt. 316) 128 on the same principle above stated. Also the case of Iyaji v. Eyigebe (1987) 7 SCNJ 167; (1987) 3 NWLR (Pt. 61) 523.

Learned Counsel went on to state that it will be seen clearly that the judgment of the learned trial Judge did not consider some material points in the argument of the learned Counsel to cross-appellant which would have operated in cross-appellant’s favour. He referred to the case of Sanyaolu v. INEC (1999) 7 NWLR (Pt. 612) 600.

Counsel for cross-appellant concluded by saying that defendant who fails to adduce evidence in challenge of the plaintiff’s evidence is deemed to have admitted the facts notwithstanding his genera] traverse. See Imana v. Robinson (1979) 3-4 SC 1.

Counsel for the cross-appellant urged the court to uphold the cross-appeal and increase the inadequate general damages awarded by the lower court.

On this issue No.2, the learned Counsel for the cross respondent said the statement of defence of the cross-respondent adequately denied the cross-appellant’s statement of claim. That the amended statement of claim filed by the cross-appellant was on all fours with the earlier statement of claim filed by him except paragraph 26(i)(ii) which merely dealt with the irrelevant issue of termination of the cross-appellant’s appointment which termination took place almost three years after the institution of the suit. That the cross-respondent was not obliged to deny issues which were immaterial or irrelevant to a case in hand. That the cross-appellant did not prove his claim on suffering pains or physical disability in the lower court. That from the totality of the evidence before the court the cross-appellant was not under any physical disability or pain after receiving medical treatment. That there is evidence before the court that after the treatment, the cross-appellant was doing his job as before the armed robbery attack and this from the evidence of cross-appellant himself.

That there is nothing in evidence to show cross-appellant’s loss of the sense of taste or smell or loss of expectation of life. That paragraph 2 of the amended statement of claim cannot be regarded as proof of the averment therein in the absence of the required evidence before court. He cited Obmiam Brick & Stone (Nig.) Ltd. v. ACB Ltd. (1992) 3 SCNJ 1; (1992) 3 NWLR (Pt. 229) 260.

Learned Counsel for the cross-respondent said that the cross-appellant has not proved any case of negligence against the cross-respondents and the lower court was right to have so held. And so having failed to prove a case of negligence against the cross-respondents, there is no legal basis on which to anchor the claim of N13 million damages the cross-appellant is asking for.

In the cross-appellants reply brief, learned Counsel for the cross-appellant said it is trite law that one can allege “error in law and in fact” once one obtains the leave of court before filing the grounds.

He referred to the case of Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253.

Learned Counsel for the cross-appellant further stated that the cross-respondents were negligent in their actions to the cross appellant despite his complaints.

Having considered this issue No.2 in the cross-appeal or even the cross-appeal itself wherein the cross-appellant is asking for an increase in the award of damages on the ground that the general damages awarded by the trial court was inadequate. This argument certainly is lost on me. This is because the learned trial Judge rightly found that there was no negligence on the part of the cross-respondent’s, which would have given rise to justifying cross-appellant claim to damages in the first instance. As if that is not on ground, cross-appellant cannot even stake a claim under the Workmen’s Compensation Act, S. 25(1) which provides as follows:

Where the injury was caused by the personal negligence or willful act of the employer or of some other person for whose act or default the employer is responsible nothing in this Act, shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act.

The cross-appellant does not even have the fall back of a claim based on remoteness of damages. This is because all that a responsible employer should do, the cross-respondent did and there being no fault on their part upon, which this claim of the cross-appellant could be hanging or hinged upon I see no reason to oblige them either in their claim or in this increase they seek in the cross-appeal. See Obmiami Brick & Stone (Nig.) Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt. 229) 260 at 311 para. D per Uche Omo, JSC:

Once issues are joined on liability for and quantum of damages payable, the court can, in considering the issues joined decide whether or not, the damages are remote irrespective of whether or not either of the parties pleaded remoteness of damages. The issue of remoteness of damages is not like special damages which must not only be pleaded but strictly proved.

It is evident that the circumstances envisaged in the case above are not present here.

On the matter of error or misdirection in the judgment of the lower court which the parties made a lot of fuss over, I would like to refer to the case of Oseni v. Dawodu (1994) 4 NWLR (Pt. 339) 390 at 404 paras. F-G per Iguh, JSC wherein he said:

” When an error or misdirection in the judgment of the lower court is complained of, what an appellate court has to decide is whether the ultimate decision of the lower court is right and not whether its reasons for the decision are a misdirection or error, since a misdirection or error that has not occasioned any injustice is immaterial and may not lead to the reversal of or interference with an otherwise correct decision (Ukejianya v. Uchendu (1950) 13 WACA 45 at 46 referred to).

In view of all that is before this court, nothing in the pleading either that of the cross-appellant or the cross-respondent justifies any award of damages or even an increase of the award of N300,000.00 granted by the lower court which award this court had no hesitation in setting aside. The evidence before the court showed no fault on the part of the cross-respondent and there is no merit in the claim in this cross-appeal, which I hereby dismiss.

In conclusion the appeal succeeds. The judgment of the lower court is set aside. While the cross-appeal is dismissed, I award N10,000.00 costs to the appellant. I make no order as to costs in the cross-appeal.

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Other Citations: (2005)LCN/1730(CA)