Seven-up Bottling Company Plc. V. Nkanga Udo Nkanga & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of Hon. Justice Eno Otu of the High Court of Akwa Ibom State, sitting at Etinan, delivered on the 20th of March, 2006, wherein, the court awarded the sum of N37.7 million being special and general damages against the appellant.

The facts of this case culminating to this appeal were that on the 12th day of June, 1991, the present respondents were all returning from a fish market at Ibeno, Akwa Ibom State, in a pick-up van belonging to the 1st respondent. As they reached the village of Ikot Obio Inyang, along Etinan – Uyo Road, the appellant’s truck collided with the respondent’s vehicle, completely damaged same and caused various injuries to all the passengers. One of the passengers, Affiong Etim Inyang died instantly. Others were admitted and treated in the government hospital for various degrees of injuries and trauma sustained.

The respondents thereafter filed two separate suits against the appellant jointly and severally with the 6th respondent, the husband of the deceased passenger, Affiong Etim Inyang, suing on her behalf. The two suits were subsequently consolidated. The respondents called 6 witnesses and tendered Exhibits 1 – 27(C) in evidence. The appellant, apart from filing a statement of defence, neither called witnesses to testify nor tendered any exhibits in defence. Thereafter, the court gave judgment for the respondents in the total sum of N37.7 million.

Dissatisfied with the judgment, the appellant appealed to this court on one ground. From the lone ground of appeal filed the appellant in his brief of argument dated 22/1/2008 and filed on 24/1/08, identified and formulated a sole issue for determination as follows:

“In the light of the Lower Court’s failure to make a prior appraisal/assessment thereof, whether the award of the full claim of N37.7 million as damages was justified as to preclude an interference therewith by the Court of Appeal.”

Upon being served with the appellant’s brief of argument, the respondents filed their brief of argument dated 2/4/08 and filed on 3/4/08. On the same 3/4/08, the respondents also filed a notice of preliminary objection containing 3 grounds of objection. The 3 grounds of objection were fully argued in pages 3 – 8 of the respondents’ brief. The respondents in their brief also formulated one issue for determination at page 9. The issue is as follows:

“Whether the learned trial Judge was right in entering judgment for the plaintiffs (now respondents in this appeal), when there was absolutely no defence to the suit, and the amount claimed was never contested at the trial court.”

The appellant submitted on the sole issue formulated, that the primary duty of evaluation and appraising evidence for the purpose of considering a claim for whatever specie of damages is indisputably that of the trial court and it is after a proper assessment of the evidence that the trial court may award what in its view constitutes a just and fair amount as damages to the successful litigant. Learned counsel for the appellant, Mr. Oduwobi relied on Kareem & Ors. vs. Ogunde & Anor (1972) All NLR 75 at 80 and Oyerogba vs. Ido Local Govt. (2001) FWLR (Pt.36)928 at 948. On this point, learned counsel submitted that where the trial court made no assessment of damages, an appellate court can make the assessment if on the record enough evidence on which assessment can be based exist. See Nicon Hotels Ltd. vs. NDC Ltd. (2007) 13 NWLR (Pt.1051); Bhojsons Pic. vs. Daniel-Kalio (2006) All FWLR (Pt. 312) 2038 at 2062 and Udo vs. L.R.S.N.C. (2002) FWLR (Pt.104) 665 at 707.

Mr. Oduwobi submitted also that the award of damages by the trial court was not the end product of any form of a just and fair assessment of the pecuniary aspects of the respondents’ claim. He further submitted that the learned trial Judge completely abdicated his primary duty of evaluation of damages and that is a just and sufficient reason in this case to warrant the interference of this court. Learned counsel for the appellant pointed out that the respondents’ claim is for the sum of N37.7 million as special and general damages but they failed to distinguish between what items of the claims were special damages and what claims were general damages. He then referred to the case of Ya’u vs. Dikwa (2001) FWLR (Pt. 62) 1987, where Nzeako, JCA, held that:

“Where a trial court in its award of damages, lumps items which should be items of special damages with those of general damages, it seems to me that the prudent approach is to separate the items and deal with each set of items as appropriate, awarding what may be found due for each, and not to set aside the whole award…”

Learned counsel at pages 7 – 10 of the appellant’s brief of argument carefully and meticulously examined the items of the claims of the 1st to the 6th respondents. He pointed out that whilst items I, V, VI and VII are acceptable, items II, III and IV are objectionable. He argued that whilst the 1st respondent tendered the receipts for the purchase of fish for the 2nd, 3rd, 4th and 5th respondents, he tendered none in respect of his own purchase of fish. Therefore, the claims under items (II) and (III) were not proved. He also argued in respect of item (IV) that there was no evidence in support of the claim. In respect of 2nd, 3rd, 4th and 5th respondents, counsel submitted that item (II) of their claims are unsupported by any evidence. He adopted the same argument in respect of item (III) of the 6th respondent. Lastly, Mr. Oduwobi referred to the respondents’ pleadings where they stated that their solicitor wrote to the defendant demanding the sum of N5million as compensation and that 1st respondent in his oral testimony stated that it was N5.2 million, and submitted that the respondents were not entitled to anything more than that. He then concluded that the award of general damages is purely at the discretion of the court, and that this court should take the above matters into consideration.

Learned counsel for the respondents, Mr. I. A. Inyang, on the preliminary objection, submitted under ground 1, that this appeal is incompetent by reason of total non-compliance with the requirement of Order 8 Rule 7(b) and Order 8 Rule 11(a) of the Court of Appeal Rules, 2007, which are conditions precedent to the hearing and prosecution of this appeal, namely that the appellant failed to deposit any sum for the prosecution of the appeal as required by the rules. He argued that Order 8 Rule 7 is mandatory and that non-compliance with the said rule touch on the competence of the appeal. Relying on Afribank Nig. Plc. vs. Akwara (2006) 5 NWLR (Pt. 974) 619 at 646, counsel submitted that rules of court are to be obeyed.

In ground 2 of the objection, counsel for the respondents’ submitted that the sole ground of appeal filed by the appellant does not disclose any reasonable ground. He contended that though the sole ground of appeal was titled “Error in Law”, it is a ground of mixed law and facts. Counsel relied on Onifade vs. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Akwiwu Motors Ltd. vs. Babatunde Sangonuga (1984) 5 SC 184 at 185; Mark vs. Eke ,(2004) All FWLR (Pt. 200) 1455, and urged this court to dismiss the appeal on this ground of objection.

In ground 3 of the objection, he contended that the sole ground of appeal is misconceived in so far as it claims that a party who did not adduce any evidence before the court and who raised no issue on the evidence can now turn around to complain of non evaluation. Learned counsel argued that for there to be evaluation of evidence tendered in court there must be two conflicting versions of the evidence from the parties before the court. He referred to Wali vs. Bafarawa (2004) 16 NWLR (Pt. 898) 1 at 47 -A8; Doma vs. Ogiri (1998) 3 NWLR (Pt. 541) 246; Kwajaffa vs. Bank of the North (2004) 13 NWLR (Pt. 889) 946; Onisaodu vs. Elewuju (2006) 13 NWLR (Pt.998) 517, and submitted that for there to be evaluation or assessment or appraisal of evidence in any proceeding before the trial court, the Judge must put the evidence adduced by the plaintiff on one side of the scale and that by the defendant on the other side by the scale and weigh them together. Relying on Provost, Lagos State College of Education & Ors. vs. Dr. Kolawole Edun & Ors. (2004) All FWLR (Pt. 201) 1628 and Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 738, counsel submitted that where there is an absence of defence to a plaintiff’s case, the only alternative is to give judgment for that plaintiff.

In the alternative, the respondents’ counsel argued the tone- issue formulated for determination. I observed that the submissions of the learned counsel for the respondents on this issue are a recapitulation or replication of his arguments in ground 3 of their preliminary objection. Although repetition strengthens memory, it is unnecessary to repeat those arguments here.

Learned counsel for the respondents submitted that the attack on the respondents’ claim are in vain, because the evidence of the respondents including the exhibits, were not controverted, therefore, the court was right to accept them. He referred to NNPC vs. Sele (2004) 5 NWLR (Pt. 886) 379 and submitted that where the evidence adduced to prove special damages is not challenged or controverted, then the evidence is unassailable and can be relied upon. In the absence of evidence to the contrary an amount awarded in damages on such evidence is reasonable. He urged the court to ignore the sum of N1,163,000.00 computed by the appellant as special damages for the 1st plaintiff and the sum of N2,541,940.00 as the total amount of special damages for the other respondents.

Counsel submitted further that when a party to a suit proffers evidence in proof of his claim and the opposite party who had the opportunity fails to challenge or controvert the evidence, the court is bound to accept, use and act on such evidence. Relying on Udo vs. C. R. S. N. C. (supra); Oyerogba vs. Ido Local Govt. (supra) and NICON Hotels Ltd. vs. NDC Ltd. (supra). On the attack of the appellant on the award of damages claimed by the respondents under various heads and granted by the trial court, counsel contended that the respondents pleaded all their particulars of losses, expenses and damages at pages 9 – 11 of the record and they gave copious evidence in support of their claim but the appellant did not contradict or controvert the evidence adduced by the respondents. Counsel referred to NNPC vs. Sele (supra).

On appellant’s contention that the damages granted by the court is “ridiculously high and excessive”, it was contended for the respondents that there is no ground of appeal to support the allegation, therefore, the court should discountenance it. Counsel referred to Code of Conduct Tribunal vs. Silas (2004) FWLR (Pt. 192) 1 and Mark vs. Eke (2004) All FWLR (Pt. 200) 1455 in support of his submission. Relying on USA vs. Achoru (1990) 1455 in support of his submission. Relying on UBA v. Achoru (1990) 6 NWLR (PI. 156) 254, Mr. Inyang submitted that since the enjoyment of life’s amenities has a direct correlation with physical deprivation and the expectation of life of the plaintiff, the length of the period of life during which the deprivation will continue is a relevant factor in the determination of the damages to be awarded. He referred to Nwadike vs. Ibekwe (1987) 4 NWLR (PI. 67) 718 at 737, where the Supreme Court held that:

“But letters and negotiations between solicitors are inadmissible against themselves as well as against their clients.”

and submitted that the contention of the appellant that the trial court should have accepted the offer of N5.2 million, should be discountenanced. On the contrary the court should consider the decline in the purchasing power or value of the naira between the time the action was filed and when judgment was delivered as was done in Ishaku vs Aina (2004) 11 NWLR (Pt.883) 164 at 173. Counsel then urged the court to dismiss the appeal.

Upon being served with respondents’ brief and notice of preliminary objection, the appellant in accordance with the rules filed an appellant’s reply brief. On ground 1 of the objection, learned counsel for the appellant submitted that failure to fully comply with the provisions of Order 8 of the Court of Appeal Rules, 2007, is a mere irregularity which has no nullifying effect on the competence of the appeal because the requirement as to the annexture contemplated by the Order, relates only to the compilation of the record of appeal and not to the filing of the Notice of Appeal which is done much earlier than the record compilation.

Counsel pointed out that the respondents did not object to the appellant’s application for departure from the rules and for the deeming of the compilation the record compiled as the record of appeal. Consequently, the respondents have waived whatever defects the record supposedly suffers from.

In respect of ground 2 of the preliminary objection, the appellant’s counsel contended that the respondents actually argued it in pages 14 paragraph 5.17 in the respondents’ brief, which indicate that it is part of the merits in the main appeal. Counsel submitted further that the lone ground of appeal filed is not vague rather it is sufficiently clear and the ground disclose a reasonable complaint.

On ground 3 of the preliminary objection, the appellant contended that the issue raised therein dealt with the merit of the appeal and it was argued copiously at pages 9 – 11 of their brief and it ought not to have been raised as a preliminary objection.

On the main appeal, learned counsel for the appellant contended that the appellant already conceded liability on the main cause of action which is negligence, so the question of evaluation of evidence is not in issue. He submitted that unless specifically admitted, a claim for damages is by law always deemed to be in issue, even when a defendant is in default of defence. Counsel relied on Iwueke vs. Imo Broadcasting Corporation (2005) All FWLR (Pt.288) 1025 at 1043, and submitted that whether or not a defendant adduced evidence, damages remained in issue and must be evaluated.

The appellant also contended that the ground of appeal filed specifically questioned the excessive nature of the damages awarded by the trial court under paragraphs of the particulars of errors. On the issue of the depreciation of the Naira, Mr. Oduwobi pointed out that it was not an issue at the trial of the case and the court is not empowered to take judicial notice of the depreciation of the Naira for the purpose of awarding damages. He relied on UBN Plc. vs. Okoror (2002) FWLR (PI. 122) 24 at 36 and Ifeanyi Chukwu Osundu Co. Ltd. vs. Akhigbe (1999) 11 NWLR (Pt. 625) 1 at 22.

It is settled law that when an objection is raised in respect of the competence of an appeal, the jurisdiction of the court to entertain the appeal becomes an issue. In such situation, it becomes imperative and fundamental for the court to consider, determine or resolve it first at the preliminary stage before going into or dealing with the merits of the main appeal. See NBA vs. Eyamba (2005) 12 NWLR (PI. 939) 409 at 433; UBA Plc. vs. ACS (Nig.) Ltd (2005) 12 NWLR (Pt.939) 232 at 259; Goji vs. Ewete (2001) 15 NWLR (Pt.736) 273 at 280 and Tiza vs. Segha (2005) 15 NWLR (Pt.949) 616. I shall deal with issues raised in the preliminary objection now.

Ground 1 of the preliminary objection is that the appeal is incompetent by reason of the total non-compliance with the requirements of Order 8 Rules 7(b) and 11(a) of the Court of Appeal Rules, 2007, which are conditions precedent to the hearing and prosecution of this appeal.

At this juncture, it becomes necessary to examine the provisions of Order 8 Rules 7(b) and 11(a) of the Court of Appeal Rules, 2007. They provide as follows:

“Order 8 Rule 7(b):

Every record of appeal shall contain the following documents in the order set out.

(a) ………..

(b) a statement giving brief particulars of the case and including a schedule of the fees paid;

(c) ………

(d) ………

Rule 11(a):

Upon the transmission of the record of appeal, whether by the registrar or by the appellant, the appellant shall within such time as the Registrar of the court shall direct, deposit such sum as shall be determined by the Registrar for the due prosecution of the appeal and for the payment of any cost which may be ordered to be paid by the appellant.

Provided that no deposit shall be required where the deposit would be payable by the Government of the Federal Republic of Nigeria or of a State, or by any Government department.

(b) ………

A careful perusal of the above rules clearly reveal that non-compliance with them cannot affect the competence of the appeal which was properly and duly filed. Non-compliance with Order 8 Rules 7(b) and 11(a) of the Court of Appeal Rule, 2007, is at the very worst a mere irregularity which cannot nullify or render an appeal incompetent. It is conceded that rules of court are not made for fun but are made to be obeyed by the parties. It is equally true that the rules of court are not omnipotent masters at war with justice. Rather, they are subservient handmaids to aid justice.

Failure to comply with the provisions of Order 8 Rules 7(b) and 11(a) ought not to make an appeal incompetent. Order 19 Rule 3(1) and (2) of the Court of Appeal Rules, 2007, provide as follows:

“1. The court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with the Rules or any part thereof.

2. Where there is such waiver of compliance with the Rules, the court may, in such manner as it thinks right, direct the appellant or the respondent as the case may be, to remedy such non-compliance or may notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstances.”

From the above Rule, it is clear that the rules governing the record of proceeding is permissive and flexible. it is trite law that the Rules of court are meant to be obeyed because they provide support in the administration of justice. But, it must be understood that being rules made to assist the court in its effort to determine issues or controversies before the court, care must be exercised in order to avoid the elevation of rules of court to the status of a statute because rules of court are subsidiary instruments. Consequently, rules of court are to be used by the courts to discover justice and not to stifle or frustrate the actualization of justice. Rules of court are not sine qua non in the just determination of a case and therefore not immutable. See Duke vs. Akpabuyo Local Govt. (2005) 10 NWLR (PI. 859) 130 at 142 -143; UTC (Nig.) vs. Pamotei (1989) 2 NWLR (PI. 103) 244; Salami vs. Bunginmi (1998) 9 NWLR (Pt.565) 255.

It should be noted that it is not every irregularity or non-compliance with the rules of court that will nullify an entire proceedings. Non-compliance with the rules does not generally render the proceedings of a court void. See Bango vs. Chado (1998) 9 NWLR (PI. 564) 139 and Kalu vs. Odili (1992) 5 NWLR (Pt. 240) 130. In the instant case, it is clear ,that what brings, an appeal into life is the Notice of Appeal and it is matters relating to the filing of the Notice of appeal thereof that affect the competence of the appeal itself.

Furthermore, from the record it could be seen that the appellant had filed an application for departure from the rules and for the deeming of the compilation of the record to serve as the record of appeal. On the 20/11/07, when the application was heard, the respondents indicated that they had no objection to the application. The respondents therefore must be taken to have waived whatever defects in the record. They are therefore estopped from complaining.

In respect of the objection touching on non-compliance with Order 8 Rule 11(a), there is nothing on the record indicating or suggesting that the Registrar of the court has made any direction for the deposit of any amount or sum assessed by him as stipulated in the said Rule. Moreover, there is no certificate filed by the Registrar suggesting that the appellant has not complied with the conditions of appeal. The respondents have dissipated so much energy in chasing the shadow instead of the substance. I see no merit in ground one of the preliminary objection and it is hereby dismissed.

I have examined ground 2 of the preliminary objection carefully and in my considered view the lone ground of appeal filed is clear, succinct and it discloses a reasonable ground of appeal and it is in accordance with Order 6 Rule 3 of the Court of Appeal Rules, 2007. The question whether the ground of appeal filed by the appellant is an “Error in Law” or “Mixed fact and Law” is not referable to ground 2 of the preliminary objection which purports to complain about the sole ground of appeal being “different from the main grievance of the appellant”. There must be a reasonable connection between a ground of objection and the argument proffered on the ground. I see no merit in this ground; it is baseless and bereft of substance.

Ground 3 of the preliminary objection deals with the merits of the appeal, and indeed the respondents argued this point at pages 9 – 16 of the brief of arguments in respect of the main appeal. I will not dissipate any energy on this ground of objection for the interest of justice demands that I go straight to deal with the substance of this appeal at this juncture.

I have carefully perused and examined the issue for determination formulated by the parties in this appeal. In my view the lone issue formulated by the appellant is succinct, concise and it encompass the sale ground of appeal and particulars of errors filed. I shall therefore adopt and rely on it for the determination of this appeal.

In other to bring the main issue in this appeal into proper perspective it is desirable that I reproduce the ground of appeal filed in extenso.

“Ground of Appeal

The learned trial Judge erred in law when in awarding the full sum of N37.7 million in favour of the plaintiffs as per their claims, he completely failed to evaluate and/or access the evidence adduced for the plaintiffs in support of their claim for special and general damages.

Particulars of Error

(a) The plaintiffs claimed “jointly and severally” the sum of N37.7 million “being special and general damages” for the injuries allegedly suffered by them. In support of their claim, they supplied copious particulars of the alleged damage and at the trial, they entered a total sum of 27 exhibits. None of those was subjected to any appraisal by the learned trial Judge in his judgment.

(b) Both in their pleadings and in their evidence, the plaintiffs voluntarily acknowledge that prior

to their institution of the suit, their solicitor had written to demand compensation for their losses/damage from the 2nd defendant limited to the total sum of N5.2. The learned trial Judge granting the much more substantial sum of N37.7 million gave no consideration to this fact.

(c) The award of damages was insupportable, excessive and was not in line with settled principles of law in relation to the grant of damages.”

From the ground of appeal and the issue for determination formulated by the appellant, the main issue in contention in this appeal is limited to the narrow issue of damages only. The appellant already conceded that it did not challenge or controvert the evidence adduced by the respondents in respect of the claims, rather its main grouse is that the trial court made no assessment, or appraisal of the damages awarded. The appellant already: conceded liability on the respondents’ claims before the court below, therefore its case is not about the evaluation of the evidence relating to the main cause of action, which is negligence.

It is for this reason that I reach the conclusion that the learned counsel for the respondents missed the point. The arguments copiously rendered at pages 6 – 8 of the respondents’ brief in respect of ground 3 of the preliminary objection and the arguments proffered on the main appeal from pages 9 – 14 of the respondents’ brief of argument are misconceived and must be discountenanced. The question of unchallenged and uncontroverted evidence adduced by the respondents is not an issue presently in this appeal. The copious and pendatic submissions of the respondents’ counsel, about the trial court’s primary duty of evaluation being invocable only when a defendant adduces evidence, is a misconception which stems from a misunderstanding of the different principles applicable to evidence in respect of the main cause of action on the one hand and award of damages on the other. It is beyond argument that a trial court is entitled to treat an unchallenged evidence in respect of the main cause of action as accepted and thus requiring no further placement on the imaginary scale. However, it is well settled law that damages are always in issue requiring the plaintiff to prove them.

Any allegation in pleadings that a party has suffered damages and any allegation as to amount of damages so suffered is deemed to be transversed ruless, specifically admitted. See Iwueke vs. Imo Broadcasting Corporation (supra) and Osuji vs. Isuola (1989) 3 NWLR (Pt. 111) 623.

In Kareem & Ors. vs. Ogunde & Anor. (1972) All NLR 75 at 80, Coker, JSC, said:

“We must repeat the advice which we had given on a number of occasions that in cases involving the assessment of damages, it is the duty of a trial court or tribunal to assess the damages proved and payable even if that court had decided that the entitlement of the claimant thereto had not been proved………..”

Also in Umunna vs. Okwuraiwe (1978) 6 – 7 SC 1, it was held that it is not enough for the court to simply award damages in an unliquidated pecuniary damages claimed without giving any reason as to how it arrived at what in its opinion amounted to reasonable damages.

In Oke vs. Aiyedun (1986) 2 NWLR (Pt. 23) 548, Aniogulu, JSC, said at page 565, that:

“It is a principle of pleading that that which is not denied is deemed to have been admitted and if a plaintiff filed a statement of claim and the defendant failed or refused to file a statement of defence in answer thereto, he clearly will be deemed to have admitted the statement of claim, leaving the trial court with the authority to peremptorily enter judgment for the plaintiff without hearing evidence. An exception to that would obviously be in respect of a claim for damages, for damages are always said to be in issue, requiring the plaintiff to prove them.”

See Olurotimi vs. Felicia Ige (1993) 8 NWLR (Pt. 311) 257 at 266 and UPS Ltd. vs. Ufot (2006) 2 NWLR (Pt. 963) 1 at 28.

The learned counsel for the respondents referred to the- cases of Provost, Lagos State College of Education & Ors. vs. Dr. Kolawole Edun & Ors. (2004) All FWLR (Pt. 201) 1628; Omoregbe vs. Lawani (1981) 3 – 4 SC 108; Odulaja vs. Haddad (1973) 11 SC 35; Nigerian Maritime Services Ltd. vs. Afobi (1978) 2 SC 79 and Dumez vs. Ogbadu (1972) 1 All NLR 241. In the circumstance, they are not applicable to the facts of this instant case on appeal.

A careful perusal of the record of proceedings reveal that the learned trial Judge completely abdicated or neglected his primary duty of appraising and assessing of damages. This is clear from the finding of the trial court at page 54 of the record, where he held that:

“This case has been in court for over thirteen years now. It is unfortunate that the defendants decided to behave the way they did. From Exhibits 5 and 6, the VIO’s Report and the Certified True Copy of the Charge Sheet against the 1st defendant coupled with the evidence of PW2 to PW6, it is obvious that the 1st defendant was driving recklessly and by his negligence caused the accident that led to the loss of life, serious injuries to the plaintiffs and damage to the pick-up van belonging to the 1st plaintiff. As there is no evidence to contradict the testimonies of the plaintiffs, this court has no alternative than to enter Judgment for the plaintiffs as per their statement of claim.

Judgment is therefore entered in favour of the plaintiff (sic) in the sum of N37.7 million as per the composite statement of claim filed on 12/3/98.”

It is glaringly clear and obvious that the trial Judge failed completely to subject the claim for damages to any form of appraisal or assessment. The award of the damages was certainly not the result of any form of a just and fair assessment of the pecuniary aspects of the respondents’ claims. Obviously whatever award of damages made by the trial court was arbitrary. In Nicon Hotels Ltd. vs. NDC Ltd. (supra), it was held that an appellate court will interfere in the award of damages by the trial court where;

“(a) the trial court acted on some wrong principles of law;

(b) the award is arbitrary;

(c) the trial court took into account irrelevant matters or failed to take into account relevant matter.

(d) injustice would result if the appellate court does not interfere; and

(e) the amount awarded is either so ridiculously high or so ridiculously low that it must have been an erroneous estimate of the damages.”

In the instant case on appeal all the conditions stated under paragraphs (a) – (e) are manifested. In Bhojsons Plc. vs. Daniel-Kalio (2006y All -FWLR (Pt.312) 2038 at 2062; the Supreme Court held inter alia that:

“….where the trial court made no assessment of damages, an appellate court can make the assessment itself if there exists on the record (as in this case) enough evidence on which assessment can be based. Again this is good law and remains good law.”

Also in Udo vs. C. R. S. N. C. (2002) FWLR (Pt. 104) 665 at 707, where this court held that:

“But where an appellate court in as good a position as the trial court to assess an item of special or general damages, the appellate court will be entitled to assess such damages and avoid remitting the case unnecessarily to the trial court for determination of the issue where the court failed to assess such damages.”

See also UTB (Nig) Ltd. vs. Ozoemena (2001) 7 NWLR (Pt. 713) 718 at 736, 740 -741; Ekpe vs. Fagbemi (1978) 11 NSCC 211 and Cross Line Ltd. vs. Thompson (1993) 2 NWLR (Pt. 273) 74.

In the instant case on appeal, the respondents at the court below lumped items which should be items of special damages with those of general damages. This is wrong. Special damages are separate and different from general damages. The major difference between special and general damages lies in the determination of their measures or quantum. Special damages have a measure, general damages have none.

In SPDC (Nig.) Ltd. vs. Tiebo VII (2005) 9 NWLR (Pt. 931) 439 at 466, Oguntade, JSC, in his usual erudity held inter alia:

“There is a world of difference between proof of special damages and proof of general damages and courts of law must not mix up the adjectival or procedural requirements of the two claims. The distinction between special and general damages for the purpose of assessment of awards must always be borne in mind. While proof of special damages is strict, proof of general damages does not require the strictness in proof of special damages. General damages are such as the law will presume to be the direct, natural or probable consequence of the action complained of.

They are such as the court may give when there is no measure by which they are to be assessed except the opinion and judgment of a reasonable man.

Although the quantification is a jury question they must be averred. Special damages, on the other hand are such as the law will not infer from the nature of the act.

They do not flow in the ordinary course. They are exceptional in their character and therefore they must be claimed specially and proved strictly ”

See also Usman vs. Abubakar (2001) 12 NWLR (Pt.728) 685; Consolidated Breweries Plc. Aisowieren (2001) 15 NWLR 424.

Now, where a trial court in its award of damages, lumps items which should be items of special damages with those of general damages, an appellate court will take the prudent approach of separating the items and dealing with each set of items as appropriate, awarding what may be found due for each item and not to set aside the whole award. See Ya’u vs. Dikwa (supra).

I shall now consider the claims of the respondents for special damages separately from that for general damages. The 1st respondent’s claims are as follows:

“A. NkangaUdo Nkanga:

i. Loss of Earnings in respect of plaintiffs car destroyed in the accident at N500 per day from 13/6/91 – May 1998.

N162,000 per annum x 7 yrs. – N1,184,900.00

ii. Loss of income from Fish business at

N250 per day and for 7 yrs. i.e. upto May 1998 – 567,000.00

iii. Cost of fish destroyed – 100,000.00

iv. Cost of repair work as at 1991 = N70,000.00

but by 1998 = N200,000.00 – 200,000.00

v. Medical bill – 20,000.00

vi. Cost pf drugs

vii. Transport cost to Hospital and back – 4,000.00

viii. Loss of amenities i.e. inability to resume sex

life leading to desertion of wife – 5,000,000.00

ix. Pain suffering and shock 5,000,000.00

= = = = = = = =

Total – 10 Million

= = = = = = = =

B. Ndem Sunday Udo:

i. Loss of Earnings as a professional driver at

N100 per day = N2,800 per month =

N33,000 per yr. = N231,000 as at May 1998 – 231,000.00

ii. Loss of earnings for another 14 years at

N100 per day – 462,000.00

iii. Medical bill – 50,000.00

iv. Drugs – 40,000.00

v. Transport to hospital and back from home – 10,000.00

vi. Loss of amenities:

a. Inability to resume sex life procreate – 3,000.000.00

b. Inability to play football – 1,000.000.00

vii. Pains, suffering and shock – N2 million

C. Christiana Etim Ebong:

i. Loss of earnings from her trade at the rate of

N100 per day = N2,800 per month = N33,000

per annum and as at May 1998 = N231,000 – 231,000.00

ii. Loss of earning for another 11 years at the

sum of N100 per day – 462,000.00

iii. Medical bill – 40,000.00

iv. Drugs – 30,000.00

v. Transport to Hospital and back home – 5,000.00

vi. Loss of Amenities:

Inability to procreate and resume sex life – 3,000,000.00

vii. Pain suffering and shock – 1,000,000.00

viii. Loss of 29 week pregnancy or baby – 1,000,000.00

D. Arit George Udo:

i. Loss of Earnings from her trade at the rate

of N100 per day = N2,800 per month =

N33,000 per annum and as at May 1998 – N231,000.00

ii. Loss of earnings at N100 per day for 14 yrs. – 462,000.00

iii. Medical bill – 40,000.00

iv. Drugs – 30,000.00

v. Transport to and from hospital – 5,000.00

vi. Loss of amenities – 3,000,000.00

vii. Pain, suffering and depression – 1,300,000.00

E. Felicia Nkechukwu Mello:

i. Loss of Earnings from her trade at the rate

of N100 per day = N2,800 per month = N33,000

per annum and for 7 years i.e. by May 19998 – N 231,000.00

ii. Loss of earnings at N100 per day for 14 yrs. – 462,000.00

iii. Medical bill – 25,000.00

iv. Drugs – 25,000.00

v. Transport to and from hospital – 5,000.00

vi. Loss of amenities – 3,000,000.00

vii. Pain, suffering and depression – 1,350,000.00

F. Udo Usse Essien for Affiong Etim Inyang:

i. Funeral Expenses:

a. Disco & Canopies – 7,000.00

b. Coffin & Dressing – 11,000.00

c. Drinks – 13,000.00

d. Food items – 7,570.00

e. Embalment – 50,000.00

ii. Cost of fish destroyed – 50,000.00

iii. Loss of earnings at N100 per annum and

for 21 years – 693,000.00

iv. Loss of motherly care and support for 4

children and family members – N4.3m.”

Obviously, items I – VII of each of the respondents’ claim fall within the category of special damages and these must be strictly proved. The appellant in his brief of argument conceded that items (I), (V), (VI) and (VII) were strictly proved and therefore ought to be granted. I have also examined the claims and related same to the evidence and the exhibits. I am very satisfied that items (I), (V), (VI) and (VII) have been strictly proved. The appellant argued that the 1st respondent produced no receipt for the fish he allegedly bought. After carefully examining the record, particularly Exhibit 1 at page 73, I cannot agree with the submission of Mr. Oduwobi. Exhibit 1 is a receipt issued to the 1st respondent, Mr. Nkanga Udo Nkanga covering the purchase of fish in the sum of N100,000.00. There is therefore clear proof of the purchase of the fish. Item (ii) was strictly proved.

Having regard to the above, the submission is grossly speculative and misconceived. The only basis for attacking items (II) and (III) was the erroneous believe of the appellant that the 1st respondent did not tender the receipt for the fish he purchased. In the circumstances the claims under items (II) and (III) are proved and strictly proved. Looking at the submissions of the appellant retrospectively, I observed that there was no specific or particular attack on item (III) in the appellant’s brief of argument at pages 7 – 9. Therefore, the 1st respondent is perfectly entitled to same.

In respect of the 1st respondent’s claim in item (IV), it is my considered view that the appellant’s attack on it is unjustified and unwarranted as far as the claim for N70,000.00 for repair works as at 1991 is concerned. If the appellant was uncomfortable or disagreeable with the claim the proper thing to do was to cross-examine PW1 and challenge, controvert or contradict his evidence. . Not having done so the evidence of the 1st respondent remained unchallenged and uncontroverted. Exhibit 10 is proof of the claim under item IV. It is too late in the day for the appellant to challenge or attack Exhibit 10. The best time to do so was at cross-examination when 1st respondent testified in court. The 1st respondent is entitled to his claim for N70,000.00. See Adaku Amadi vs. Nwosu (1990) 2 SCNJ 59; and Hawaj vs. Mediowa (Nig.) Ltd. (2000) 13 NWLR (Pt. 683) 77.

However, his claim for N200,000.00 does not make sense at all. There was no evidence offered or proffered in proof of it on the record. How did the 1st respondent arrive at the sum of N200,000.00? A plaintiff who claims special damages must allege with particulars so that the defendant would not only know the amount of loss or damage which the plaintiff alleged he suffered, but also how such amount was made up or calculated. See Ngolari vs. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626 and Imana vs. Robinson (1979) 3 _ 4 SC 1. The onus is on the 1st respondent to prove special damages strictly. To discharge this burden, the 1st respondent must show by credible evidence that he is indeed entitled to the award of special damages. In the circumstances the 1st respondent is not entitled to the sum of N200,000.00 which is not proved.

In respect of claims of the 2nd, 3rd, 4th and 5th respondents, the appellant conceded that items (i), (iii), (iv) and (v) have been proved and that the respondents are entitled to the claim.

The claims under Item (ii) was attacked by the appellant on the ground that they were not strictly proved. No evidence or explanation was given for the specific claim for loss of earnings for another 14 years. At this juncture let me reproduce item (ii) it being the objectionable claim.

“Loss of earnings for another

14 years at N100 per day.”

It should be observed and noted that the 2nd, 3rd, 4th and 5th respondents claimed “loss of earnings” at N100 per day = N2,800.00 per month, N33,000.00 per year = N231,000.00 as at May 1998″. There is therefore no justification for the claims under item (ii) as no evidence was adduced in support of it and no explanation was proffered by the 2nd, 3rd, 4th and 5th respondents for the claim. Any claim for special damages must be specifically pleaded and strictly proved. See Comet S. A. (Nig.) Ltd. vs. Babbit (Nig.) Ltd. (2001) 7 NWLR (Pt. 712) 442. In my considered view, the aforesaid respondents should be awarded only such sum as will fairly compensate them for the loss they have actually sustained. The award should not be a windfall or an amount doled out as a charity. See Odulaja vs. Haddad (1973) 11 SC 357; Kereni vs; Odegbasan (1965) 1 All NLR and UTB (Nig.) Ltd. vs. Ozoemena (2001) 7 NWLR (Pt. 713) 718 at 736.

That being the case I reject the claims under item (ii) of the claims of the 2nd, 3rd, 4th and 5th respondents and I so do. This now brings me to the claim for general damages.

The appellant’s main grouse against the award of general damages made by the trial court is that it is unjustifiably high and too excessive. The appellant contended that the award of special damages is less than N3 million if this is subtracted from the award of N37.7 million, it would mean that the trial court awarded general damages of N34.7 million.

Learned counsel for the appellant, Mr. Oduwobi, pointed out that before the institution of this suit at the trial court, the respondents had, through their solicitor, written two letters to the appellant demanding the sum of N5 million, therefore, the damages which the respondents are entitled should not be more than the sum of N5.2 million.

In the first place, I agree with learned counsel for the respondents that letters and negotiations between solicitors are inadmissible against counsel as well as against their clients. See Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.62) 718 at 737. That being the case the appellant’s contention is of no moment and has no legs to stand.

Furthermore, it is a notorious fact that the sum of N5.2 million in 1991 cannot be the same in 2008. The purpose of an award of damages is to compensate the plaintiffs for damages, injury or loss suffered. The guiding principle is restituto in intergrum, where a court is called upon to assess compensation in tort. The principle forsees that a party which has been damnified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damage for which he is being compensated.

Learned counsel for the appellant made heavy weather on the depreciation of the Naira not being an issue because the lower court never cited Naira depreciation as the reason for the award. He relied on USN Plc. vs. Okoro (2007) FWLR (Pt. 122) 24 at 36 and Ifeanyi Chukwu Osunde Co. Ltd. vs. Akhigbe (1999) 11 NWLR (Pt. 625) 1 at 22.

There are a plethora of cases where it has been held that a court should in the assessment of damages consider the current market situation. It will be most unrealistic to ignore this fundamental aspect and merely theorize with the principles of law, fact and figures presented to it by counsel and witnesses. The court ought, in appropriate circumstances, to keep up with the times and in particular, with the economic strength or decline, as the case may be, of the Naira as purchasing power should constitute relevant factor in appropriate cases. See Usman vs. Abubakar (2001) 12 NWLR (Pt. 778) 685; NEPA vs. Alli (1992) 8 NWLR (Pt. 259) 279; Onogoruwa vs. I.G.P (1991) 5 NWLR (Pt.193) 593; Allied Bank vs. Akubueze (1997) 6 NWLR (Pt. 509) 374 and Ishaku vs. Aina (2004) 11 NWLR (Pt. 883) 164 at 173. Just to mention a few.

The contention of the appellant that the respondents were not entitled to anything more than N5.1 million is most unreasonable, unrealistic, unfair and I reject it. Though the sum of N37.7 million does appear to be on high and excessive side, there is enough material on record to enable this court carry out its own assessment without the necessity of remitting the case to the lower court for retrial on the issue of damages.

General damages are those damages which the law implies in every breach and in every violation of a legal right. It is the loss that flows naturally from the defendant’s act and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of a reasonable person in the circumstances of the case. See Ndinwa vs. Igbinedion (2001) 5 NWLR (Pt. 705) 140 at 150; Osuji vs. Isiocha (1989) 3 NWLR (pt.111) 633; Odulaja vs. Haddad (1973) 11 SC 357; Omonuwa vs. Wahabi (1976) 4 SC 37; Lar vs. Stirbug Astaldi Ltd. (1977) 11 – 12 SC and ACME Builders Ltd. vs. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288.

The 1st respondent was awarded the sum of N10 million by the trial court as follows:

(vii) Loss of amenities i.e. inability to resume sex life leading to desertion of wife = N5,000,000.00

(viii) Pain suffering and shock = 5,000,000.00.”

In my view the sum of N10 million awarded is excessive and ridiculously high. The award of general damages is not a windfall or a jackpot. This is not the essence of the law. The sum of N2 million for general damages will be adequate compensation for the 1st respondent. For the same reason I award the sum of N2 million each as general damages for the 2nd and 3rd respondents who complained of inability to resume sex life, procreate, pains and suffering and loss of 29 weeks pregnancy. In respect of the 4th and 5th respondents, the sum of N1 million each will be adequate compensation. For the 6th respondent, the sum of N2 million for loss of motherly care and support for 4 children is adequate.

Accordingly, the details of the particulars of the award in respect of each respondent are as follows:

“1st respondent, Nkanga Udo:

Loss of earnings in respect of the car destroyed in the accident at N500 per day

from 13/6/91 to May 1988, N162,000 per annum x 7 yrs. = N1,134,000.00

ii. Loss of income from fish business at N250 per day for 7 years i.e.

up to May 1998 = 567,000.00

iii. Cost of fish destroyed = 100,000.00

iv. Cost of repair work = 70,000.00

v. Medical bill = 20,000.00

vi. Cost of drugs = 4,000.00

vii. Transportation cost to hospital and back = 5,000.00

General damages:

viii. Loss of amenities i.e. inability to resume sex life

leading to desertion of wife = N1 million

ix. Pains, suffering and shock = N1 million

= = = = = = =

Total N3,900.000.00

= = = = = = =

2nd respondent, Ndem Sunday Udo:

i. Loss of earning as a professional driver of N100 per

day, N2,800 per month, N33,000 per year = N231,000

as at May 1990. = N231,000.00

ii. Medical bill = 50,000.00

iii. Drugs = 40,000.00

iv. Transport to hospital and back from hospital = 10,000.00

General Damages as loss of amenities:

a. Inability to resume sex life and procreate )

b. Inability to play football ) = N2 Million

c. Pains, suffering and shock )

= = = = = = = = =

Total = N2,231,000.00

= = == = = = = =

3rd respondent, Christiana Etim Ebong:

i. Loss of earning from her trade at the rate of N100

per day, N2,800 per month, N33,000 per Annum and

as at May 1998, N231,000 = N231,000.00

ii. Medical bill = 40,000.00

iii. Drugs = 30,000.00

iv. Transport to hospital and back from hospital = 5,000.00

v. Loss of amenities

General Damages as loss of amenities:

Inability to resume sex life and procreate )

vi. Inability to play football ) = N2 Million

vii. Pains, suffering and shock )

= = = = = = = = =

Total = N2,306,000.00

= = == = = = = =

4th respondent, Arit George Udo:

i. Loss of earning from her trade at the rate of N100

per day, N2,800 per month, N33,000 per Annum and

as at May 1998, N231,000 = N231,000.00

ii. Medical bill = 40,000.00

iii. Drugs = 30,000.00

iv. Transport to hospital and back from hospital = 5,000.00

v. Loss of amenities )

vi. Pains, suffering and depreciation ) = N1 Million

= = = = = = = = =

Total = N1,307,000.00

= = == = = = = =

5th respondent, Felicia Nkechukwu Mello:

i. Loss of earning from her trade at the rate of N100

per day, N2,800 per month, N33,000 per Annum and

as at May 1998, N231,000 = N231,000.00

ii. Medical bill = 25,000.00

iii. Drugs = 25,000.00

iv. Transport to hospital and back from hospital = 5,000.00

v. Loss of amenities )

vi. Pains, suffering and depreciation ) = N1 Million

= = = = = = = = =

Total = N1,286,000.00

= = == = = = = =

6th respondent. Udo Usse Essien, for Affiong Etim Inyang:

i. Funeral Expenses:

a. Disco & Canopies – 7,000.00

b. Coffin and Dressing – 11,000.00

c. Drinks – 13,000.00

d. Food items – 7,570.00

e. Embalment – 50,000.00

ii. ost of fish destroyed – 50,000.00

iii. Loss of motherly care and support for

4 children and family members – N2 Million

= = = = = = = = = =

Total = N2,138,570.00

= = = = = = = = = =

Grand total = N13.268.570.00.”

On the whole, the appeal succeeds in respect of the quantum of damages. The sum of N37.7 million awarded by the trial court is varied and or reduced to the sum of N13,268,570.00.

Parties to bear their costs.

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Other Citations: (2008)LCN/2948(CA)