Mrs. Esther Ighreriniovo Vs Ukusemuya (2013)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

The appellant as plaintiff initiated her action in the High Court of Justice, Delta State against the respondents jointly and severally for the sum of N20,000,000.00 (Twenty Million Naira) as general damages or compensation for the loss of the appellant’s right leg which was amputated and for pain and other hardships suffered by her as a result of an accident which was caused by the action of the respondents on the 3rd November, 1994.

The trial of the matter was conducted by Narebor, J. The plaintiff testified and called three other witnesses. The defendants did not proffer any evidence in support of their pleadings. In short, they rested their case on that of the plaintiff.

The learned trial judge was duly addressed by counsel on both sides on the evidence garnered by him. In his judgment, he reasoned as follows:-

“In paragraph 36 (1)-(3) plaintiff pleaded particulars of negligence and gave evidence. P.W.1 also testified. On their part, there is no evidence by defendants to give breath of life to their pleadings in the statement of defence on the issues canvassed by the counsel. The available uncontroverted and credible evidence shows clearly that plaintiff was hospitalized as a result of her leg injury which was caused by defendants’ negligence in failing to secure the pipes properly and thus caused the pipes to fall off 1st defendant’s trailer. I so find. I also find that plaintiff’s right leg was amputated.

Accordingly, having regard to the totality of uncontroverted evidence, N15,500,000.00 (Fifteen Million, Five Hundred Thousand Naira) be, is hereby awarded in favour of plaintiff against the defendant jointly and severally being general damages or compensation for the loss of plaintiff’s right leg which was amputated, and for other loss or hardships suffered by plaintiff namely, pain and suffering and loss of amenities of life.”

The defendants felt unhappy with the stance of the trial judge and appealed to the Court of Appeal which found negligence duly established against the defendant. However, it found the sum of N15.5 Million damages awarded by the trial court as ‘rather quite high’. The Court of Appeal allowed the appeal on quantum of damages and substituted the award made by the trial judge with the sum of N2,000,000.00 (Two Million Naira) in favour of the plaintiff.

The plaintiff felt dissatisfied with the position taken by the Court of Appeal and appealed to this court by a Notice of Appeal dated 28th March, 2003 which contains three grounds of appeal complaining against the drastic reduction of damages awarded by the learned trial judge.

The defendants, with the leave of this court granted on 15th December, 2004, have cross-appealed to this court by their Notice of Cross-Appeal dated 28th January, 2005.

On 5th February, 2013 when the appeal was heard, learned counsel for the appellant cross-respondent urged that the appeal be allowed and the award of damages made by the trial court should be restored. He urged that the cross-appeal be dismissed. He observed that the cross-appellants did not testify at the trial court.

Learned counsel for the respondents/cross-appellants urged the court to dismiss the appeal on quantum of damages. He further cited the case of C & C Construction Co. Ltd. v. S. Okai (2003) 18 NWLR (pt. 851) 79 where an award of N1.1 Million was made. Finally, he urged that the cross-appeal be allowed.

Learned counsel for appellant/cross-respondent in reply on point of law observed that pain and loss were not proved in S. Okai’s case unlike in this case wherein pain and loss have been proved.

On page 5 of the appellant’s brief of argument the sole issue couched for determination of this appeal read as follows:-

“Whether on the proper appraisal of the facts, evidence and circumstances of this case, the Court of Appeal was right in law when it interfered with the award of damages made by the learned trial judge.”