S.C.C. Nig. Ltd.& Anor. V. Mr. Levi Ekenma (Suing as Representative Plaintiff on Behalf of the Deceased’s Immediate Family Members) (2008)

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AYOBODE O. LOKULO-SODIPE, J.C.A,

This appeal is against the judgment of the High Court of the Federal Capital Territory (presided over by Honourable Justice A.I. Adebukunola Banjoko) delivered on 14th June, 2005. (See pages 206- 229 of the Record). A Ruling was later delivered on 11th October, 2005 by the trial court in respect of the said judgment. (see pages 231-237 of the Record).

In the 2nd Amended Statement of Claim at pages 29-33 of the Record, the Plaintiff/Respondent disclosed that he was instituting the action before the lower court as “a representative Plaintiff” on behalf of the Immediate Family of the deceased, one Prince Stanley Ezewuodo. The plaintiff disclosed in the said 2nd Amended Statement of Claim (hereinafter simply referred to as Statement of Claim”) that he is a cousin to the deceased Prince Stanley Ezewuodo. The action was instituted under the Fatal Accident Act. It was alleged that the death of Prince Stanley Ezewuodo resulted from a fatal vehicle/pedestrian accident that occurred on 31/08/2004 between a REO Truck with Registration No. BM 435 LND belonging to the 1st Defendant and driven by the 2nd Defendant. The accident was alleged to have occurred due to the negligence of the 2nd Defendant. The Plaintiff’s claims are set out in paragraph 20 of the Statement of Claim which as earlier stated is at pages 29-33 of the Record. The paragraph reads thus: –

“Wherefore the plaintiff claims under the Fatal Accident Act of 1961, on behalf of the deceased’s immediate family members, against the 1st defendant vicariously liable for the negligence of the 2nd defendant in the causation of the fatal accident as follows:

“(1) the sum of N844,680.00 being damages for reasonable funeral expenses of the deceased person incurred by members of his immediate family.

(2) N8,000,000.00 as compensatory damages being general damages for the immediate family members of the deceased person.

(3) Alternatively to sub-paragraph 1 & 2 (sic) above, the plaintiff claims against the defendants jointly and severally the sum of N8,844,680.00 as special and general damages for the negligence of the defendants in the causation of the fatal accident.

(4) Costs of this action including professional legal fees paid to the plaintiff’s Solicitors.”

The main facts upon which the monetary claims of the Plaintiff set out above were predicated, as deducible from the averments in the Statement of Claim include (i) that the deceased was an employee of Servtrust Limited posted to Embassy of Sweden in Abuja and that he earned a monthly income of N18,129.38; N15,000.00 monthly from the sale of art/craft which he engaged in on part time basis; and N7,000.00 monthly honorarium from the family of the then Swedish Ambassador to Nigeria and which formed part of the proceeds he used in maintaining himself. The deceased who hails from the Royal family of Eze Nzewuodor Nwabiri of Okolochi in Owerri West Local Government of Imo State was said to be 27 years old at the time of his death and was at all times prior to his death, subject to the Igbo customary law and custom. The plaintiff and members of the immediate family of the deceased in the course of burying the deceased were said to have incurred the sum of N844,680.00 as ‘burial expenses’. The breakdown of the said sum was set out in the Statement of Claim. Likewise the five members of the immediate family of the deceased on whose behalf the action was instituted by the plaintiff were set out in the Statement of Claim.

The Defendants/Appellants filed a joint Statement of Defence in response to the Statement of Claim. This is at pages 23-25 of the Record. The Statement of Defence was not amended after the Plaintiff filed a 2nd Amended Statement of Claim. In the Statement of Defence, the Defendants admitted that the 2nd defendant was the driver of the REO Truck with Registration No. BM 435 LND. The Defendants not only denied that the accident involving the vehicle driven by the 2nd Defendant and the deceased Stanley Ezewuodo occurred at the scene alleged by the plaintiff, but also that the 2nd Defendant was in any way responsible for the said accident. The Defendants alleged that the said accident was due to the negligence of the deceased in crossing the road without maintaining a proper lookout. The Defendants averred that the deceased was negligent in the causation of the accident that resulted in his death. Apart from denying that the sum of N844,680.00 was spent as burial expenses on the deceased, the Defendants further averred that the plaintiff was extravagant and unreasonable in the said burial expenditure if at all the same was incurred. A Reply was filed by the Plaintiff to the Statement of Defence.

The lower court in its judgment set out twelve (12) Issues for the just determination of the case. (See page 218 of the Record). The said court awarded the Plaintiff/Respondent on behalf of the immediate family of the deceased the sum of N844,680.00 being “specific damages” for funeral expenses; and the sum of N963,881.40 as general damages. This was sequel to the following findings amongst others made by the lower court – (i) that there was no evidence of contributory negligence on the part of the deceased; (ii) that the Defendants were negligent in this case; (iii) that the 1st Defendant was vicariously liable for the tort committed by the 2nd Defendant. In arriving at the general damages awarded, the lower court found the monthly ascertainable income of the deceased to be N32,129.38; and applied thirty (30) years as the years of purchase of the deceased. The sum of N50,000.00 was also awarded as costs of the action. The lower court struck out Relief 3 because it had been taken care of under Reliefs 1 and 2 (i.e. claims for funeral expenses and general damages respectively), The lower court having stated that it “must also order the way in which the damages awarded are to be shared by the dependent” ordered that “Reliefs 1 and 2 be shared according to the customary law which operates in Okolochi, Owerri, Imo State the village of the deceased”.

It is clear from the Ruling at pages 231-237 of the Record that by a motion dated 24th June, 2005 and filed on the same day, the Plaintiff/Respondent brought a motion on notice before the lower Court and therein sought for: (i) an order of the court correcting the error(s)/mistakes arising from accidental slip in the arithmetical calculations of award of general damages contained in the judgment delivered by the court in the case on the 14th of June 2005 to reflect the appropriate figure or amount based on the finding of the court; (ii) an order of court entering judgment based on the corrected amount of damages in favour of the Plaintiff, particularly under sub-head, of general damages. The grounds of the application are duly set out in the Ruling in question. The application was opposed by the party named as the Defendant/Respondent therein (now 1st Appellant).

In its Ruling in respect of the application (i.e. pages 231-237 of the Record), the lower court having first held that it was not functus officio the judgment delivered on 14th June, 2005 concluded thus:-

“The calculation of the court was to take the amount earned on a monthly basis and multiply that by (30) years and made the error of not multiplying if (sic: it) first by twelve (12) months. It is clear that to follow this procedure will take the amount far above what was even claimed and it is trite that the court is not Father Christmas. Had the calculations been correctly done, i.e. N32,129.38 x 12 x 10 years, the court will have certainly reduced the years of purchase to accommodate the claim.