United Bank For Africa Ltd. & Anor V. Mrs. Ngozi Achoru (1990)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

The two parties in this case, namely, the appellants who were the appellants in the court below, and defendants in the court of first instance; and the respondent who was the respondent in the court below and plaintiff in the court of first instance have appealed against the judgment of the court below.

Appellants are appealing against the judgment as a whole. Respondents are appealing against the reduction by the Court of Appeal of the damages awarded in the High Court. It is obvious that both parties are dissatisfied with the judgment of the court below.

The facts of the case are very simple and straight-forward. The injuries to the plaintiff which gave rise to this action resulted from a motor accident on the 10th September, 1984, on Ibrahim Taiwo Road, Jos. The evidence was that the respondent/plaintiff, a school teacher was driving her car a Peugeot 504 Saloon, Registration No.PL.486 RY along Ibrahim Taiwo Road towards the direction of Bukuru. She stated in her statement of claim and oral evidence that she was on a speed of 40 kilometres per hour, when she suddenly saw an Isuzu Trooper Van Registration No.PL.5679 JD, driven by the 2nd appellant coming towards her from Niven Road, which is a minor road, into Ibrahim Taiwo Road plaintiff/respondent alleged that 2nd appellant was driving with speed and so negligently that when he reached Ibrahim Taiwo Road, on which plaintiff/respondent was, he failed to look out properly to ensure that there was no on-coming vehicle before entering the road. In order to avoid collision and being hit by the 2nd appellant’s vehicle, plaintiff/respondent swerved to the right and consequently collided with a mango tree.

Plaintiff/respondent sustained very severe injuries to her person. The vehicle was very badly damaged. The 2nd appellant managed to control his vehicle which came to a stop within 24 feet of plaintiffs vehicle. 2nd appellant did not suffer any injuries, his vehicle was not damaged. In May, 1903, plaintiff/respondent commenced this action in the High Court at Jos; claiming jointly and severally from the appellants, the sum of N200,000.00, being general and special damages for negligence. Pleadings having been filed and exchanged, the case was heard and judgment was delivered on the 9th December, 1985.

Plaintiff/respondent called evidence and tendered exhibits. Defendants/appellants relied on the case of the 2nd defendants. In the course of the hearing, defendants applied by motion ex parte for leave to join their insurance company. The learned trial Judge refused the application in a ruling delivered on 25/10/85. On the 9th December, 1985, judgment was given in favour of the plaintiff/respondent. The learned Judge awarded N73,210.05, as special and general damages and N1,500.00 as costs.

Defendants/appellants claim that plaintiff/respondent was guilty of contributory negligence with regard to the accident, was dismissed. Not satisfied with the judgment, defendants appealed against the decision to the Court of Appeal. Plaintiff/respondent also appealed against part of the decision but subsequently withdrew the appeal.

The Court of Appeal after hearing the appeal dismissed it. The cross appeal of the respondents was also dismissed. However, the Court of Appeal reduced the damages awarded by the High Court by N25,000.00. The Court of Appeal also found that there was no evidence of contributory negligence on the part of the respondent/plaintiff. It was also held that appellant/defendants did not discharge the burden of proof on them by law to prove that respondent’s negligence contributed to the injury in respect of which action was brought.

Appellants/defendants have further appealed against the judgment of the Court of Appeal to this court. Respondent was granted leave to appeal against that part of the judgment reducing the damages awarded to the plaintiff by the trial Judge, and the overruling of the objection raised against grounds 5 & 6 of the additional grounds of appeal in the court below.

The grounds of appeal of the appellants, excluding particulars are as follows:-

“1. The learned Justices of the Court of Appeal erred in law in holding that the appellants’ application before the lower court was to join N.E.M. insurance company in the suit as a co-defendant rather than a third party, and this error occasioned a miscarriage of justice.

2. The learned Justices of the Court of Appeal misdirected themselves on the facts and the law, when, having agreed with appellants that there was evidence of the manner of driving by the respondent, contrary to the finding of the lower court, then proceeded to find on the established facts that the respondent had not contributed to the accident.
3. The learned Justices of the Court of Appeal again erred in law in basing part of their decision on points on which counsel, particularly the appellants’ counsel, did not have the opportunity of addressing them and this error occasioned miscarriage of justice.”

The respondent has relied on the grounds excluding particulars reproduced hereunder:-

“1. The learned Justices of the Court of Appeal erred in law in reducing the award made by the court of trial in respect of loss of amenities of life from N30,000.00 on the ground that there was an element of double compensation in the award when in actual fact there was none.

2. The learned Justices of the Court of Appeal erred in law in reducing the award made by the court of trial in respect of loss of amenities of life on the ground that that award was tantamount to double compensation was not raised either in the brief or in oral argument.
3. The Court of Appeal erred in law when it held that the evidence of the plaintiff on the aspect of loss of amenities of life appeared scanty and consequently proceeded to re-assess the award made by the court of trial.
4. The Court of Appeal erred in law in overruling the objection raised against grounds 5 and 6 of the additional grounds of appeal filed by the defendants when the grounds of appeal did not give particulars of errors in law alleged in each case.

The briefs of argument are quite comprehensive.