Nigeria Bottling Co. Plc. & Anor. V. Mr. Odutola Oresanya (2009)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

This appeal is against the judgment of High Court, Abeokuta, Ogun State delivered by Olapede, O. O., Judge, delivered on 02-06-2005.

The brief fact of the case is that the Respondent as Plaintiff instituted the suit against the 2 appellants as Defendants claiming the sum of N2,000,000.00 as special and general damages for the motor accident which occurred on 19-05-2003 along Akarigbo Street, Isale-Ako Sagamu due to the negligence of the 2nd appellant who at the material times, was a driver in the employment of the 1st Appellant. During proceedings of the suit at the lower court, parties exchanged their pleadings and it was adjourned to a date for hearing. The Respondent testified as PW1 and called another witness who testified as PW2. The Appellants who filed their joint statement of defence and was represented by a learned counsel, failed to call any witness for their defence by resting their case on that of the Respondent. In a reserved judgment delivered on 02-06-2005, the trial judge entered judgment in favour of the Respondent for a total sum of N1,206,200.00 (One million, two hundred and six thousand two hundred Naira) only. The total award was in respect of the special and general damages.

Dissatisfied with the decision of the trial court on the award, the appellant filed their notice of appeal on 07-06-2005 containing seven (7) grounds of appeal.

By rules of this court both parties filed and exchanged their respective briefs. They adopted and relied on their briefs. The Appellant, distilled their grounds of appeal and formulate the following 6 issues for determination:-

“(i) whether the learned trial judge, rightly or wrongly applied the doctoring of Res Ipsa Loquitor to the Respondent’s suit. (ground 1).

(ii) Whether the Respondent proved his allegation of dangerous and reckless driving as required by law? (ground ii).

(iii) Whether the learned trial judge rightly made the award of special damages in favour of the Respondent?(grounds iii & iv)

(iv) Whether the learned trial judge is justified in awarding general damages of N500,000.00 against the appellants? (ground vi)

(v) Whether the learned trial judge rightly or wrongly held that it is not necessary to call the spray-painter who painted the Respondents vehicle (ground v).

(vi) Whether the judgment is or not against the weight of evidence? (ground vii).”

On the part of the Respondent, the following issues were raised thus:-

“(a) Whether the doctrine of Res Ipsa Loquitor was properly applied in this case.

(b) Whether the Respondent proved his allegation of dangerous and reckless driving against the appellants.

(c) Whether the Respondent led evidence to prove the items under special damages.

(d) Whether the learned trial judge was justified in awarding general damages of N500,000.00.”

Learned counsel for the appellants argued their issues (i) and (ii) together, and I will therefore, determine the issues of application of the doctrine of Res Ipsa Loquitor and reckless and dangerous driving together.

Appellants are contending that the doctrine of Res Ipsa Loquitor could not apply to the case, and that the trial judge had erred when he applied the doctrine and granted the Respondent the reliefs in his claim. On the part of the Respondent, it was contended that contrary to the submission of the appellants, the maxim of Res Ipsa Loquitor was properly applied by the trial judge.

In our jurisprudence, the maxim Res Ipsa Loquitor means the thing speaks for itself. It is a rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened, provided character of accident and circumstances attending it, lead reasonably to belief that in absence of negligence, it would not have occurred, and that thing which caused injury is shown to have been under management and control of alleged wrongdoer. See Black’s Law Dictionary 5th edition at page 1173.

In the instant appeal, the Respondent had pleaded in his paragraph 7 Res Ipsa Loquitor as an alternative to the plead of negligence on the part of the 2nd appellant. In his relevance on the principle of Res Ipsa Loquitor, the Respondent testified as follows on page 14 of the record:-

“Prior to the accident, I saw the truck offloading at the other side. I did not see it coming to me as I was concentrating on my driving till I heard the crushing sound caused by the impact of my vehicle….” (Underlined is mine for emphasizes)

It is to be noted that the underlined evidence of the Respondent was not controverted by the appellants. During trial, the Appellants merely filed their statement of defence but deliberately refused to call witnesses to prove their defence that the 2nd Appellant was not negligent. Their failure to call their witnesses to substantiate their defences, means that, their joint statement of defence filed on 12-03-2004, was intended to make at the trial. It is trite law that a pleading, cannot stand for evidence except it is admitted by the other party, see I.B.W.A. VS. IMANO LTD (2001) 3 SCN] 160, 183; ODUNSI VS. BAMGBALA (1995) 1 SCNJ 270.

It is also settled law, that any averment raised in a pleading and has not been supported by evidence such pleading is to be discountenanced. See M.I.N. LTD. VS. M.F.K.W.A. LTD. (2005) 10 NWLR(pt. 934) 645.

In the instant appeal, it was not in dispute at the trial court, that, the 2nd Appellant was operating the truck of the 1st appellant on the fateful day of 19-05-2003 along Akarigbo Street, Isale-Oko in Sagamu, when the truck, swerved off its lane, and moved to Respondent’s opposite lane, and hit Respondent’s personal car which resulted into many damages as testified by the Respondent. Based on the Respondent’s uncontroverted evidence, it was fair and reasonable that the trial judge applied the maxim of Res Ipsa Loquitor. Moreover, the Appellants who participated in the trial, failed to call their own witnesses who could have rebutted the presumption that 2nd appellant was negligent and reckless by failing to take care of the other road users at the material time of the accident.

What was heard at the lower court was the evidence of the Respondent and his witness PW2, who painted the vehicle that was butchered by the 2nd appellant who was an agent/servant of the 1st Appellant.

The learned trial judge in his judgment at page 62 of the record had found as follows:-

“Now certain things are not disputed in this case before this court. That the 2nd Defendant is an employee of the 1st Defendant is not disputed. That 2nd Defendant was operating the truck of the 1st Defendant on the 19th day of May, 2003 along Akarigbo Street, Isale -Oko in Sagamu is not contested. That the said truck and the car of the Plaintiff had contact on the said day is not disputed. That the collision resulted into some damages on the Plaintiff’s car is in no way disputed. All these emerged from the uncontroverted evidence of the Plaintiff in this case. The Defendants both filed a joint statement of defence on 12/03/04 but both chose not to adduce any evidence to establish the averments (statement of defence) therein.”

From the undisputed facts at the trial proceedings, the trial judge had only to consider the relevant evidence of the Respondent’s case with minimal evaluation because there was no iota of evidence in contradicting the claim; see CAPPA VS. AKINTILO (2003) 14 NSCQR 469.

In the instant appeal, the Respondent had effectively established at pages 13 & 14 of the record the essential ingredients of negligence and reckless driving committed by the 2nd appellant and the accepted ingredients are:-

(a) Existence of a duty to take care owed to the appellant by the 2nd appellant.

(b) Failure to attain that standard of care prescribed by the Law (Section 18 of the Road Traffic Law, Cap 115, Laws of Ogun State, 1978) and Section 138(1) of the Evidence Act.

(c) Damages suffered by the Respondent which must be connected with the breach of duty of care to others.

From the above stated ingredients of negligence, the Respondents had proved beyond reasonable doubt the criminal offences under the Road Traffic Law cap 115 Laws of Ogun State, 1978 and section 138 (1) of the Evidence Act, 1990. I have no reason to disturb the findings of the trial judge who had the exclusive opportunity of seeing and observing the evidence of the Respondent who gave a traffic accident which affected his car but his life was safe.

At page 66 of the record being part of the judgment, the learned trial judge had this to say:-

“It is correct that dangerous driving being a criminal offence, needs to be proved beyond reasonable doubt in this civil action. That is the requirement of section 138(1) of the Evidence Act. I find no evidence to the contrary that the 2nd Defendant, while operating the 1st Defendant truck left his lane to collide the Plaintiff’s car on its own lane. This piece of evidence remains uncontradicted and exhibits A – A3 do show that the two vehicles were moving in opposite directions.”

In appellants issues (i) and (ii) which are similar to the Respondents’ issues 1 and 2, I hold that the Respondent had proved negligence against the 2nd appellant, and I am satisfied that it was proper that the trial judge applied the maxim of Res Ipsa Loquitor which was alternatively claimed by the Respondent. The appellants’ issues (i) and (ii) are resolved against them.

ISSUES iii & (iv)

In arguing issue (iii), learned appellants referred to the Respondent’s particulars of special damages claimed in paragraph 28 of the statement of claim that read as follows:-

“1. The cost of replacing the Honda Odyssey Rear tail gate/boot at 2900 U.S. dollars = N406,000.00

2. Cost of replacing the new light at 460 U. S. Dollars = N64,400.00
3. Freight and clearing of the parts at 970 U. S. dollars at N140.00 per dollars = N135,800.00
4. Payment for body work, paints spraying and fixing of damages parts = N100,000.00

Appellants’ then submitted that the onus of proof of special damages is always on the party claiming such damages and is always constant and does not shift, and relied on the cases of S.P.D.C. (NIG.) LTD. VS. TIEBO VII (2005) 9 NWLR (pt.931) 439 and A.C.B. VS. NEKA B.B.B. MANUFACTURING CO. LTD. (1996) 4 NWLR (pt.444) 564. Appellants still contended that the trial judge was wrong on reliance on Exhibit D, which was tendered by the Respondent, and then submitted that an unsigned document is a worthless document and should have been expunged from the record, and relied on the case of OWENA BANK (NIG.) PLC VS. O.B.C. LTD. (2005) 8 NWLR (pt.928) 547; ATTORNEY GENERAL, ABIA STATE VS. AGHARANYA (1999) 6 NWLR (pt.607) 362 and then urged this court to commend the supreme Court decision relied upon and regard Exhibit “D” as an unsigned document and therefore not admissible. Appellants urged this court to hold that there is no evidence in respect of the special damages. In connection with the special damages claim for body work, paints, spraying and fixing of damages parts, learned counsel for the appellants submitted that, in order to meet the requirement of special damages, the Respondent is required to strictly plead the amount expended on body work, amount spent on paints, spraying and the expenditure on the fixing of damaged parts. That in the instant appeal, the respondent just lumped the various works together and also made a bulk claim of N100,000.00, and that the Respondent did not separately plead items of special damages. That it was wrong for the trial court to rely on Exhibits “E” and “F” when it granted the special damages of the spraying, painting and workmanship of the amount pleaded.

In respect of general damages, learned counsel for the Appellants has contended that the award of N500,000.00 general damages was not supported by any evidence and that the trial judge acted on wrong principles of law. Counsel relied on the cases of ADEKUNLE VS. ROCKVIEW HOTEL LTD (2004) 1 NWLR (pt. 853)161; U.B.N LTD. VS. ODUSOTE STORES LTD (1995) 9 NWLR (pt. 421) 558 and urged the court to hold that the award of general damages in the sum of N500,000.00 was a double compensation, on which Appellate courts have been avoiding. Counsel referred to the cases of ADEKUNLE VS. ROCKVIEW HOTEL LTD (supra) at 175 – 176 and IBILE HOLDINGS LTD. VS. P.D.S.S. (2002) 16 NWLR (pt.792) 117, 130 and urged the court to resolve issues (iii) and (vi) in their favour.

In response, learned counsel for the Respondent had argued that the items of special damages were pleaded, particularized and adduced evidence on them. Counsel referred to paragraph 29 of the statement of claim. The Respondent has totally accepted that issues are presumed to be joined in claim for damages, and that any allegation that a party has suffered damage, or as to the amount of damages, is deemed traversed unless same is specifically admitted. Counsel has however contended that the position of the law cannot stop a defendant who wishes to contend, that the damages claimed are too remote or that they are not the consequences of the default alleged and the Defendant has to plead facts to sustain his defences, and referred to REYNOLDS CONSTURCTION COY. VS. ROCKONOH PROPERTIES (2005) ALL FWLR (pt. 274) 782. Counsel then referred to the Appellants paragraph 32 of their statement of defence at the lower court and then contended that no where did the Appellants challenged the amount claimed as special damages. The Respondent submitted that his evidence was not challenged, more so, there was no evidence from the Appellants to controvert his evidence. That in the same manner, the appellants did not give evidence challenging the exchange rate of the Naira to the United State dollars, the effect of which the Respondent’s evidence on special damages remained unchallenged, and that this court is urged to hold so. As to Exhibit “D”, learned counsel for the Respondent has submitted that there is no provision for signature and that the Exhibit is a receipt, which is not necessary in proving special damages and relied on the case of UMAN VS. OWOEYE (2003) FWLR (pt.152) 38.

On the Appellants’ issue that the sum of N100,000.00 for body work, paints, spraying and fixing of damaged parts, the Respondent submitted that himself and PW2 gave clear evidence on this leg of expenditure and tendered exhibit E and F. That the evidence of PW2 was not challenged on whether or not he did the body work and was dully paid and that the car was painted and damaged parts were fixed. Counsel urged this court to hold that the issues of special damages were specifically pleaded and gave credible evidence in support. This court is urged to resolve issue (iii) in favour of the Respondent and against the Appellants.

On the issue of general damages, learned counsel for the Respondent has submitted that general damages are such that the law presumes to flow from the wrong complained of; that the relief is given to assuage a loss that was naturally caused by the act of the Defendant. That once general damage is pleaded and averred, the law presumes such a loss to be a direct and possible consequences of the act complained of. That the relief for general damages does not have a particular yardstick and is incapable of exact calculation; and relied on the case of CAMEROON AIR LINES VS. OTUTUZU (2005) ALL FWLR (pt.258) 997; NIKO ENGINEERING LTD. VS. AKINSINA (2005) ALL FWLR (pt. 293) 2150; OCEANIC BANK INT. LTD. VS. CHIDER IND. LTD. (2000) ALL FWLR (pt. 4) 678. Counsel then contended that in the instant matter, where the appellants could not challenge the evidence of the Respondent, it was right that the learned trial judge awarded the sum of N500,000.00 out of the general damages of N1,107,800; and that the general damages granted cannot be regarded as double compensation. That, each case must be considered in its own circumstance, and relied on the case of ALHAJI M. A. KUSFA VS. UNITED BAWO CONSTRUCTION CO. LTD. (1994) 4 SCNJ 1, 27. Counsel has contended that, the award of general damages in this appeal was based on the inability of the Respondent to use the vehicle for his business and other purposes, due to the accident, caused by the Appellants. Counsel has urged this court to resolve the issue of general damages in favour of the Respondent.

I have carefully considered the parties issues on special and general damages as well as the findings and conclusions of the learned trial judge who had the advantage of hearing the evidence adduced by the Respondent and PW2. It is settled law that in any allegation of damages pleaded in special and general claim, same is presumed to be joined or traversed, unless the other party has specifically, pleaded and/or admitted. That settled principle of law however, is that, a Defendant, who wishes to contend, that he is not liable because the special or general damages claimed is too remote, or not so consequential as he is not in default of the damages claimed, has the obligation to plead specifically or in particularized items claimed to sustain his defence. This subjection is supported by the decision of the Supreme Court in REYNOLDS CONSTRUCTION COY VS. ROCKONOH PROPERTIES (supra) at 804 where Oguntade JSC stated as follows:-

” …..from judicial authorities available, it can be correctly stated that the position of the law is that where a plaintiff alleges that he had suffered damage and claims for damages, the allegation and the damages will be deemed to be in issue unless the defendant specifically admits them. A defendant who however wishes to contend that the damages claimed were too remote or that they were not the consequence of the default alleged or that the plaintiff did not take reasonable steps to mitigate his loss should pleaded the facts to sustain such defences unless the nature of the facts pleaded by the Plaintiff by themselves raise their defences…..”

In the instant appeal matter, the Respondent had pleaded in his paragraph 28 of the statement of claim at page 6 of the record as follows:-

“28. The Plaintiff avers that the negligent driving by the 2nd Defendant resulting in the damage to his vehicle caused him damages.

PARTICULARS OF SPECIAL DAMAGES

N : K

1. The cost of replacing the Honda Odyssey Rear tail gate/boot at $2,900

US dollars at N140,00 per dollar 406,000.00

2. Cost of replacing the rear light at $460

US dollar at N140.00 per dollar 64,400.00

3. Freight and clearing of the parts at

$970 US dollar at N140.00 per dollar 135,800.00

4. Cost of hiring alternative transportation for running of Plaintiff’s private business and pleasure since 20th day of May, 2003 at the rate of W500 per day (154 days) 77,000.00
5. Cost of hiring alternative transportation for Plaintiff’s wife to facilitate her movement to her place of work at Abeokuta between 20th day of October, 2003 (109 working days) at the rate of N1,000.00 day. 109,000.00
6. Payment for body work, paints, spraying and fixing of damages parts. 100,000.00
7. General damages 1,107,800.00

= = = = = = = =

TOTAL N2,000,000.00”

= = = = = = = =

In response to the Respondent’s paragraph 28 quoted above, the appellants merely pleaded in their paragraph 32 of the statement of defence as follows:-

“32. Contrary to paragraph 28 of the statement of claim, the 2nd defendant took all the necessary precaution in the circumstance to avoid the accident but for the negligence of the Plaintiff who stopped abruptly without regard to other road users coming behind him.”

Now the pertinent question in the parties pleadings quoted above is this, who adduced evidence in support of his pleadings? The Respondent clearly testified in support of his pleadings in paragraph 28 and his evidence is contained on pages 15 – 16 of the record. On the part of the 2nd appellant, who pleaded that he did all he could to stop the accident from happening and then shifted the blame on the Respondent, woefully failed to support the pleading. The statement of defence remained a mere pleading which cannot substitute an evidence. See IBWA VS. IMANO LTD. (supra); ODUNSI VS. BAMGBALA (supra); M.I.N. LTD. VS. M. F. KWA LTD. (supra). Now since it was only the evidence of the Respondent at the trial court, the trial court had only that of the respondent to consider. This fact become necessary because the evidence adduced remained unchallenged, uncontroverted or undenied. The appellants contention that the exhibit “D” tendered and unchallenged is a worthless document because it was not tendered. In my considered opinion the objection on exhibit “D” at this appellate court, is baseless. In the first instance, when exhibit “D” was tendered, there is no where showing that, the learned counsel for the Appellants objected to its admissibility. It was only at page 24 of the record that learned counsel cross examined the respondent on exhibit “D” and the Respondent clearly stated that:-

“Exhibit is an invoice and receipt …..was all I took for what I paid. It was included in the goods when I received the package. ……this exhibit “D” was issued to me after full payment along with the goods confirm that there is no stamp on Exhibit “D”.

I have carefully examined exhibit “D” which is contained at page 50 of the record, and as relied upon by the learned counsel for the Respondent, there is no provision for signature on the face value of the document. The document speaks for itself. It is an invoice. In Oxford Advanced Learners Dictionary, 6th edition at page 633, invoice means a list of goods that have been sold, work that has been done, showing what you must pay. In business term, invoice means to write or send something, a bill for work you have done or goods you have provided. It is therefore correct to say that Exhibit “D” tendered by the Respondent was not intended to be signed and therefore a valid receipt for the goods he applied for, paid and the invoice was sent along with the goods, which is in support to show, that the price value in dollars, was purchased, paid and sent by shipping from United States to Nigeria. I am satisfied that the learned trial judge had meticulously considered the value of exhibit “D” and lawfully relied on same and granted the Respondent his claim in particularized items in special damages which were specifically pleaded and adduced credible evidence in support. The appellants’ pleadings remained a useless pleading as its averments were not adduced by evidence. The brilliant argument of learned counsel for the appellants cannot convince the court that they have good defence. It was a fair principle that the trial court and this court have discountenanced the defence of the Appellants pleaded.

In regard to the special damages for body work, painting and spraying of the Respondent’s car, I am satisfied that the Respondent had clearly pleaded same in his paragraph 28(6) of his statement of claim shown above. The plea was adduced effectively as contained at page 16 of the record and Exhibits E and F were admitted without a serious objection. The exhibits were duly dated and executed by the Respondent and PW2, and the other experts who panel beated the car and fixed the damaged parts of the vehicle. It was for the Appellants to call a witness to show that the work done were not worth the sum of N100,000.00 for which the respondent paid. More over exhibit A – A3 are picture showing the Appellants’ trailer vehicle in physical contact with the Respondent’s car that resulted in serious damages. As shown and established by the trial judge, the reliance on the maxim of Res Ipsa Loquitor, was right and fair as I had earlier stated in respect of issues (i) and (ii).

On issue of general damages, it is settled law that damages will flow from the wrong suffered to a complainant. Any grant of general damages is intended to assuage the natural loss and painful mental feelings suffered by the claimant and caused by the Defendant. The relief claimed in such situations has no mathematical exactitude, see the case of CAMEROON AIRLINES VS. OTUTUZU (supra) at 1015 – 1016; NIKO ENGINEERING LTD. VS. AKINSINA (supra) at 2175 and OCEANIC BANK INT. LTD. VS. CHIDER IND. LTD. (supra) at 693.

In the instant appeal, the learned trial judge in his own wisdom denied the Respondent’s damages for the loss of the use of his car for his business and for the use of the hire car for taking his wife for official duty. At the trial court, the Respondent clearly stated on oath, the impact of the resultant crash on his fallout vehicle, and more so, he was on his lane when the 2nd appellant swerved off from his own lane and hit the car of the Respondent in which he was physically driving. Such accident speaks for itself. The cause of physical and psychological impact cannot be explained. It is sufficient that a victim of such accident has claimed for general and special damages. In such situation, it is not unusual to grant relief on special damages where pleaded and proved on evidence and then grant appropriate reliefs for general damages on the circumstances of a particular case. See KUSTA VS. UMFED BAWO CONSTRUCTION COY (supra) at 27 where Olatawura, JSC held as follows:-

“It was in that case that this court stated that the circumstances of each case must be considered as to when general damages can be awarded. The reasoning of the court strengthens my own conclusion in this appeal that the award of general damages in the circumstances of this case cannot amount to double compensation.”

In the instant appeal, the Respondent had pleaded special and general damages which the learned trial court effectively heard and considered the plead and evidence of the Respondent alone because, the Appellants on their own volition failed to call evidence in support of their defence. I have no business to tamper the findings of the trial court, as same was not biased or perverse. The special damages granted was to put his car on good roadworthiness, where as the general damages was to assuage the loss of the Respondent in the use of his vehicle for more than good five months despite his plea to the 1st Appellants’ good company, to repair his car, which they refused to repair.

In the final analysis, I affirm the decision of the trial judge delivered on 2nd day of June, 2005. The appeal has no merit and is hereby dismissed with costs of N30,000.00 in favour of the Respondent and against the Appellants.

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Other Citations: (2009)LCN/3317(CA)