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.