A. G. Leventis Nig. Plc V Chief Christian Akpu (2007)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Enugu Division (hereinafter called “the court below”) delivered on 3rd July, 2001 allowing in part, the decision of the trial High Court, Onitsha in Onitsha Judicial Division presided over by Nwankwo, J., delivered on the 18th May, 1998 in favour of the plaintiff/respondent.Dissatisfied with the said decision, the appellant has further appealed to this court on four (4) Grounds of Appeal. Without their particulars, they read as follows:GROUND ONE”The learned Justices of the Court of Appeal erred in law in failing to consider or adjudicate upon a Ground of Appeal and issue for determination raised by the defendant/appellant, viz that the plaintiff/respondent failed to plead particulars of negligence and that consequent upon this failure, any evidence of negligence went to no issue”.

GROUND TWO

“The learned Justices of the Court of Appeal erred in law when after striking out the major piece of evidence upon which the learned trial Judge depended upon for his finding of negligence, they proceeded to re-evaluate the evidence before the court of trial without considering or evaluating any of the evidence proffered at the court of trial by the defendant/appellant”.

GROUND THREE

“The learned Justices of the Court of Appeal erred in law in proceeding to evaluate the evidence of the parties before the trial court by themselves after striking out the piece of evidence upon which the trial court based her finding of negligence on”.

GROUND FOUR

“The learned Justices of the Court of Appeal erred in law and on the facts in awarding the sum of N2.0M to the respondent as damages that will restore the respondent “monetarily to the position he would have been if the breach of contract had not occurred”, when the trial Judge disbelieved that this N2.0M actually represents what will restore the respondent monetarily to the position he was in before the alleged breach of contract”.

I note that Grounds two and three are substantially the same although differently couched. When this appeal came up for hearing on 20th March, 2007, the appellant and his counsel were absent although there was evidence of serving of Hearing Notice on counsel. Pursuant to Order 6 Rule 6 of the Rules of this Court, 1999, the appeal was deemed argued.

The facts of this case leading to this appeal briefly stated, are that the respondent as plaintiff, at the High Court, Onitsha, took out a Writ of Summons against the appellant, claiming as follows:

“(a)Two Million (N2,000,000.00) being the cost of replacement of the ENGINE of the plaintiff’s said 500 SEL Mercedes Benz Car destroyed by the defendant.

(b)Five Hundred Naira (500) per day from 28th January, 1993 till the date of judgment being the cost of chartering vehicle for his movement/business.

(c)One Million Naira (N1,000,000.00) being general damages for emotional distress, financial and social disability caused the plaintiff since the said 28th January, 1993”.

I note that the above claims are the same as those claimed by the respondent in Paragraph 18 of his Statement of Claim at page 8 of the Records.