Alhaji Musa Ya?u V. Maclean D. M. Dikwa (2000)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A. 

This is an appeal from the judgment of the High Court of Justice Jos, Plateau State of Nigeria, delivered in suit PLD/J/391/90 on 4th March, 1997, it is an appeal complaining about damages awarded the plaintiff by the learned trial Judge.

The plaintiff in the suit, who is the respondent in this appeal, had, by his writ of summons filed on the 3rd of March, 1990, claimed various sums as special and general damages from the defendant, now the appellant. The plaintiff was said to have suffered damage as a result of defendant’s negligence while driving his vehicle, 504 Peugeot Station wagon Taxi Cab No. PL 1956 JE on 18th December, 1988. For, the defendant caused his vehicle to violently hit the plaintiffs Peugeot saloon car No. PL 565 P, knocking it off the road, into the gutter where it caught fire. The car was completely burnt beyond redemption. The plaintiff was unconscious and was hospitalized.

Parties filed and exchanged pleadings. In the plaintiff’s amended statement of claim, he claimed as follows:-

Particulars of damages

Special damages

(a) i. Cost of 504 Saloon car Reg. No. PL 565 owned by the plaintiff completely burnt down by fire N47,750.0

1. Value/Cost of items burnt in the vehicle N00.500.00.

(b) General damages:-

Plaintiff suffered physical and mental injuries. He was hospitalized and incurred expenses in getting medical treatment.

Plaintiff lost usage of the vehicle since then and has accordingly

incurred general damages assessed at –           N292,000.00

N338,250.00

The plaintiff shall at the trial of this suit rely on the record of the Barakin Ladi Division of the Nigeria Police, in proving the extent of destruction caused and other matters shown there in:

The plaintiff shall further rely on the valuation report of his vehicle from Osiro Nigeria Ltd. of Plot LX 99T Liberty Dam layout off Maina Hotel Jos, dated 19th, September, 1991 showing the value of the plaintiffs vehicle prior to accident as follows:-

Pre-accident value (P.A.V.)       N47,500

Less Salvage Value                   1,750

Balance             45,750

At the end of the trial, the learned trial Judge gave judgment in favour of the plaintiff and awarded him damages as follows:-

“(a) N45,750.oo value of the car at the time of the accident (special damages as claimed by him).

(b) N180,000.00 general damages.”

The defendant appealed. At the hearing of the appeal, Counsel for the appellant was not in court. This court, with briefs of argument filed on 6/12/99 in accordance with the Rules of court, deemed the appellant’s appeal argued. Counsel for the respondent who was in court was called upon to reply and he simply adopted his brief of argument.

It is clear from the grounds of appeal and appellant’s issues in his Counsel’s brief of argument that the main thrust of his complaint is against the award of these damages.

The appellant had filed 6 grounds of appeal based on which his Counsel identified 6 issues for determination as follows:-

“1. Whether the learned trial Judge was right in awarding the sum of N180,000.00 as general damages to the plaintiff/respondent?.

2. Whether the learned trial Judge was right in awarding the sum of 45,750.00 as special damages when there was no proof of same before the court?.
3. Whether having awarded the sum of N45,750.00 as special damages the trial Judge would not be awarding double compensation to the defendant/respondent by awarding another sum of N180,000.00 as general damages?.
4. Whether the learned trial Judge was right in relying on the evidence of PW3 and Exhibit C, the evidence having been procured after the case was instituted?.
5. Whether the trial Judge was right in holding that the vehicle in question i.e. Peugeot 504 Station wagon Registration No. PL 565 belonged to the plaintiff?.
6. Whether the decision of the trial Judge is not against the weight of evidence?.”

Learned Counsel for the respondent on his part, set out in his brief of arguments, his own issues for determination thus

“1. Whether the fact that the defendant/appellant pleaded and relied on contributory negligence he cannot be deemed to have admitted liability vis-a-vis the evidence adduced?.

2. Whether on the totality of evidence led at the trial the learned trial Judge was wrong when he entered judgment for the plaintiff/respondent?.
3. Whether once special damages are awarded, awarding general damages again necessarily amounts to double compensation?.”

Indeed, the appellant’s issues are preferable to the respondent’s as they appropriately and clearly hit at each of the six grounds of appeal. I will use them to determine the appeal.

As to issue No.1 which was whether the learned trial Judge was right in awarding general damages of N180,000.00 to the plaintiff/respondent, learned Counsel for the appellant, Mr. Amupitan submitted that it was arbitrary and excessive and that the learned trial Judge applied the wrong principle of law in making the award. He conceded that the court had enormous discretion in the award of general damages in a claim of negligence, but that such discretion must be judicially and judiciously exercised in accordance with laid down principles. He referred to A-G Oyo state v. Fairlakes Hotel Ltd. (1989) 5 NWLR (Pt.121) 255; (1989) 12 SCNJ 1 at 10; ACME Builders Ltd. v Kaduna State Water Board. (1999) 2 NWLR (Pt.190) 288; (1999) 65 LRCN 218 at 242; Ijebu-Ode Local Government v. Balogun (1991) 1 NWLR (Pt.166) 136; (1991) 1 SCNJ 1 at 18 (Per Karibi-Whyte, JSC).

Counsel drew a distinction between general damages which are such that there is no measures for their assessment and special damages as pecuniary losses which “have crystalized before trial.” He cited Issa v. Union Bank of Nigeria Ltd. (1993) 4 NWLR (Pt. 288) 502 at 510 (Per Achike, JCA): Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86 at 99 (Per Kolawole, JCA); Adelike v. Osoba (1980) OSLR 8; A.N.T.S. v. Atoleye (1993) 6 NWLR (Pt.298) 233 at 257 and Ifeanyichukwu Osundu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1 (per Uwaifo, JSC).

Learned Counsel for the appellant urged us to review the award since the court has the power to do so, citing Uwa Printers Ltd. v. Investment Trust Ltd. (1988) 5 NWLR (Pt.92) 110 at 122-3. He submitted that any claim for “loss of use” is a specific loss and therefore special damages, which must be specifically proved. He attacked the basis upon which the learned trial Judge made the award of general damages in this case, pointing out that medical expenses and loss of use of the plaintiffs car cannot come under general damages but special damages. He urged us to set aside the award.

Learned Counsel for the respondent, Mr. Kwede in reply, (stating that he was addressing appellants issues 1,2,4,5 and 6 together) submitted that the award of N150,000.00 general damages was not excessive. In his view, the learned trial Judge painstakingly evaluated the evidence before him before awarding the sum as he had discretion to do. He cited the case of Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt.160) 72.

He said the evidence of the plaintiff was not discredited by the defendant and the award was in accordance with the decision in Egbunike v. ACB (1995) 2 NWLR (Pt.375) 34; (1995) 2 SCNJ 58 at 62. Learned Counsel further submitted that the learned trial Judge rightly awarded the items as general damages rather than special damages.

I shall now consider the applicable law along with the various contentions made by learned Counsel for the parties before this court. There can be no doubt that a trial court has the power to award special and general damages in a claim for damages for the tort of negligence.

It is usual to draw a distinction, however between special and general damages because different principles apply to their claim, pleadings relating to them, proof required and to their assessment.

In the case of special damages, the party claiming must set out in his pleadings sufficient facts and particulars of his claim and damage. He must strictly prove them in his evidence in a manner that permit the trial court to quantify or assess them. See Ijebu-Ode Local Government v. Balogun (1991) 1 NWLR (Pt.166) 136; Incar Nigeria Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453 at 460; West African Shipping Agency v. Kalla (1978) 3 SC 21. In the case of general damages on the other hand, it may not be necessary to plead the particulars. Evidence of the injury will be led, but such damages are presumed as the natural consequences of the injury suffered by the plaintiff. A major difference between special and general damages lies in the determination of their measure or quantum. Special damages have measure, general damages have none. After sufficient evidence of the injury is led in the case of general damages the measure is usually seen to be at large and at the discretion of the court. This discretion must however be exercised judicially and judiciously. The award must be within the ambit of the law. The Supreme Court had had cause to define general damages as such damages as may be given when the Judge cannot point out any measure by which they may be assessed, except the opinion and judgment of a reasonable man. See Lar v. Stirling Astaldi (Nig) Ltd. (1977) 11-12 SC 53 at P. 63 (Per Fatayi Williams JSC (as he then was), adopting the decision in Prehn v. Royal Bank of Liverpool (1870) LRS Exh. 92 (Per Martin Bat P. 99 – 100). Put in another way, general damages are the kinds implied by law in every breach of legal rights, its quantification however being a matter for the court.

In the case of A-G Oyo State v. Fairfakes Hotel Ltd. (1989) 5 NWLR (Pt.121) 255; (1989) 12 SCNJ, 1 at P. 16. Agbaje JSC, categorised general damages as being in two classes:-

“1. That in which they (damages) may either be inferred (e.g. in cases of defamation or of personal injury to plaintiff when pain and suffering may be presumed), and;

2. That in which they will not be inferred but must be proved (for instance damages arising by way of general loss of business following the injury). Even in regard to this later category evidence will not be allowed to be given by a plaintiff of loss of particular transaction or customer (following the injury) with a view of showing specific loss, for that is a matter which falls in the realm of special damages.”

Because of the indeterminate nature of the quantum in general damages, what will be awarded in one case by the trial judge may vary from that awarded by another. The award would naturally differ from individual to individual, being dependent on the trial Judge’s discretion. It is for this reason that when the issue of general damages forms a ground of appeal, the appeal court is careful in considering the quantum of damages awarded as general damages. See: Issa v. Union Bank …. Ltd. 1993) 4 NWLR (Pt.288) 502, at 510.

This appeal court is called upon by the appellant to interfere with the trial court’s award of general damages. In considering the plea of the appellant, it must be borne in mind that an appellate court can interfere with an award of general damages only if the award is made on wrong principles of law or the amount awarded is so high or so low as to make it an entirely erroneous estimate. See the case of Edigbonya v. Dumez (1986) 3 NWLR (Pt. 31) 753; Soleh Boneh Overseas (Nig) Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549 at 464 per Oputa JSC; Strabag Construction (Nig.) Ltd. v. Okpan Oglaarekpe (1991) 1 NWLR (Pt.170) 233.

These principles arise from the nature of general damages which, as I earlier stated is such that there is no measure but is rather at the discretion of the trial Court.

Where an appeal court decides to interfere with the award of general damages, this would be because it is so unreasonable in the circumstances of the case being perhaps too low or manifestly excessive. (See Issa v. Union Bank Ltd. (supra), Obere v. Board of Eku Baptist Hospital (1978) 6-7 SC 15 and Uwa Printers Ltd. v. Investment Trust Ltd. (1988) 5 NWLR (Pt.92) 110 at 122-3 (SC). The appellate court would in doing so be looking at the Judge’s appreciation of the facts on which he based the award and the principles of law which he applied in making the award.

For example, if on the facts of a case an item of specific loss is adjudged general damages, this would be wrong. For such a loss is clearly an item of special damages, which has crystalized before the trial and is required to be strictly proved. A claim for loss of use arising in a suit on negligence, unlawful damage to chattel or property, such as a vehicle, as in this case, is one for special damages. It must be specifically pleaded and strictly proved before an award can be made on it by a trial court.

It is in the light of the foregoing principles, the issues in the appeal will now be considered.

The question arising in issue No.1 emanated from the particulars set out in the pleadings of the plaintiff (supra), the evidence proffered at the trial by the plaintiff and his witnesses and the decision of the learned trial Judge after reviewing the evidence. It is observed that the appellant led no evidence whatsoever on the matter of the damages claimed by the plaintiff in his particulars. In the part of the decision complained of, the learned trial Judge set out the basis of plaintiff’s claim for general damages thus:

“The plaintiff has also claimed N292,000 general damages for physical and mental injuries which led to his being hospitalized where he received medical treatment, and for loss of usage of his vehicle from the time of the accident.

….First, he said at the time of the accident he was unconscious. He was conveyed in a vehicle to B/Ladi Hospital for immediate attention…….

transferred to Plateau Hospital Jos…….that while a principal at Kuru Secondary School, his five children were attending Corona Private School, he had to arrange for commercial vehicle to be conveying the children.

And as the Principal in Pankshin he has (sic) to be transporting himself from Kuru to Pankshin and back …. transferred to the Headquarters in Jos. He had to arrange for his transportation in a commercial vehicle…. he enrolled in the University in Jos … for PHD … the plaintiff had to be going to Kaduna to see his supervisor….. the plaintiff… was a farmer, was also running a shop which if he had his vehicle he would have made over N2,000.00.”

Thereafter, the learned trial Judge quite correctly in my view, stated the principle of law that general damages need not be proved and that where the plaintiff gives circumstances that should entitle him to general damages the court should consider the contention in awarding him general damages. He also correctly stated that general damages are at the discretion of the court but this must be exercised-judicially and judiciously. He then concluded his consideration of the claim for general damages as follows:-

“In the instant case the plaintiff has given a catalogue of instances the court should take into consideration in awarding general damages… Having noted the catalogue of the instance …. and the fact that this is a 1988 case, this court having given due consideration to the facts placed before this court. I hereby award N180.000.00 general damages in favour of the plaintiff….”

In his brief of argument, Mr. Amupitan learned Counsel for the appellant complained about the principles upon which the learned trial Judge awarded the sum of N180.000.00 as general damages. He submitted that, “the catalogue of instances relied on were instances of specific losses, claimable as special damages, the amount awarded was ridiculously high – being four times the value of the lost item and that the Judge relied on facts not pleaded.

These complaints raise those issues which often compel an appeal court to re-examine the principles upon which the court below based its award of general damages. This can be clearly seen from the submission of learned Counsel for the appellant. I have considered the legal definition of general damages from authorities which I have set out above, the difference between general and special damages, and the principles earlier set out, particularly those illustrated in the case of Uwa Printers Ltd. v. Investment Trust Ltd. (supra).

I hold the view that learned Counsel for the appellant is to some extent on firm grounds in his submission, and not so in some others. This will become clear presently. Out of the catalogue of instances relied on by the learned trial Judge is what turns out to be a claim and evidence of loss of use by the plaintiff of his vehicle, arising from its irredeemable state as a result of the negligence of the defendant/appellant. (By the way, before proceeding further, I must observe that the manner in which the grounds of appeal and the argument in appellant’s brief were put up, the issue whether liability for negligence was duly proved, as decided by the court below, does not arise. In my view learned Counsel for the appellant, quite correctly avoided that element, concentrating on the issue of award of damages which is indeed potent).

Returning to the question of loss of use, vis-a-vis general damages, a claim for loss of use is clearly an item of special damage which ought to be clearly pleaded with full particulars and strictly proved as required by law. It is not general damages. A claim for loss of use is an item of specific loss. It falls under special damages. It should therefore not I have been lumped with the rest of the catalogue. To that extent, there is force in the submission of the learned Counsel for the appellant. As there were no pleadings on that head, no particulars and no strict proof by the plaintiff as required by law, no damages should be awarded based on loss of use. The same decision as with “loss of use,” applies to the claim for medical treatment which forms part of the items in the catalogue of damages to which the plaintiff testified. It is an item of specific loss which must come under special damages and be strictly proved.

The award of general damages by the learned trial Judge wrongly included these items. The sum awarded by him was however not based entirely on the claim for loss of use or medical treatment. But, he did not set out in his judgment which item out of the “catalogue of instances” which he had noted which he had take into consideration. He ought to have examined the items and identified those appropriate for general damages. The way he put the matter in his judgment, creates the impression that he took into account all the items, including those which ought to come up as special damages. In the premises, it is rightly presumed that his award of N180,000 for general damages covered those items of special as well as of general damages. This should not have been so. It is to this extent the submission of the appellant’s counsel is upheld.

There are however items in the “catalogue” which clearly pass for items of general damage. The plaintiff claimed N292,000.00 for physical and mental injuries. These emerged from the testimony of the plaintiff and his witnesses, evidence which showed that the plaintiff suffered physical injury and was unconscious following the accident and was hospitalized. There can be no doubt that in the circumstances of the accident both physical and mental injury did occur for which the plaintiff is entitled to general damages. Learned Counsel for the defendant/appellant failed to recognise and address this when he asked this court to set aside the whole award. I am unable to accede to that request.

Where a trial Court in its award of damages, lumps items which should be items of special damages with those of general damages, it seems to me that the prudent approach is to separate the items and deal with each set of items as appropriate, awarding what may be found due for each, and not to set aside the whole award. This I intend to do in due course in this appeal.

Apart from the injuries which the plaintiff suffered, there is the general inconvenience and trauma which made him unconscious and of not having his vehicle to use at the time he required it and pursuing the use of public transport for himself and family. This is also quite apart from the specific financial injury of loss of use and hospital fees. For the injuries, inconveniences as well as trauma, the plaintiff is entitled to general damages.

It is on this account that I have came to the conclusion that the appellant succeeds in part and the respondent in part on the points raised in Issue No. 1 relating to the award of N180,000 for general damages.

What would the plaintiff be entitled to in the premises? It seems to me that the item of loss of use and medical treatment would have weighed heavily on the learned trial Judge more than the physical and mental injury suffered by the plaintiff. There was no evidence, however to show what he could have apportioned to each item having inappropriately lumped them together. The decision therefore now remains at large and in the discretion of this court as to what general damages to award in these circumstances.

I should think it will be just in the exercise of that discretion to split the award of the learned trial Judge, apportioning only N40,000 to the plaintiff for those items which I have adjudged as falling in law under general damages. There can be no doubt that the plaintiff did suffer much trauma, physical and mental agony from this accident, taking all the circumstances of the matter into account. The sum of N40,000.00 is therefore awarded to the plaintiff/respondent as general damages while the rest of the learned trial Judge’s award on general damages is set aside. As to the items now adjudged as special damages lumped with those of general damages. I make no award. For, there are no particulars in the pleadings and no strict proof thereof.

Issues No.2 and No.4

It is to be observed that issues 2 and 4 deal with proof of special damages and the reliance for their proof by the plaintiff/respondent on the evidence of PW3. I shall consider the two issues together. The appellant’s Counsel attacked the award of N45,750.00 as special damages. Learned Counsel submitted that there was no proof of this item, for, special damages must be averred and proved strictly. He cited the case of A.-G, Oyo State v. Fairlakes Hotel Ltd (supra), decided by the Supreme Court, Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86 at P.99 and Badmus v. Abegunde (1991) 11 NWLR (pt.627) 499; (1999)71 LRCN 2911 at 1961. Duruji v. Azie (1992) 7 NWLR (Pt.256) 688.

After referring to the evidence of the plaintiff and his witness. PW3, he cited the legal principle that where a vehicle, is involved in an accident through the negligence of another and is a total, loss the plaintiff is entitled to damages as to only the pre-accident market value of the vehicle less the value of the vehicle’s scrap plus damages for loss of earnings. He cited Ibeanu v. Ogbeide (1998) 11 NWLR (Pt.576) 1; (1998) 62 LRCN 4880 at 4898.

Counsel further submitted that these damages have to be proved by credible evidence not by speculative and inadmissible evidence. In Counsel’s view, the averment of the plaintiff was that the pre-accident value of the damaged vehicle of the plaintiff was N47,750 but what the plaintiff attempted to prove was N45,750.00

He thought the learned trial Judge applied the wrong principles and that this court must intervene if satisfied that the Judge had applied the wrong principles of law in assessing the damages. For the respondent, his counsel stated that he was addressing the two issues, No.2 and No.4 along with issues 1, 5 and 6. It would have been more appropriate if he had separated them because they are largely distinct. Be that as it may, it has been possible to identify his submission which answer the two issues. He submitted that the learned trial Judge rightly found for the plaintiff/respondent. He pointed out that the defendant-appellant never said anything in his defence in relation to the damages claimed by the plaintiff/respondent throughout the proceedings. He cited the case of Egbunike v. ACS (1995) 2 NWLR (Pt.375) 34; (1995) SCNJ 58 at 62.

He conceded that special damages ought to be specifically pleaded and strictly proved. He quoted the principles in Shell Dev. Co. Ltd. v. Otoko (1990) 6 NWLR (Pt.159) 693, cited by Counsel for the respondent but insisted however, that the plaintiff/respondent pleaded and presented credible facts entitling him to special damages. He cited Maduga v. Bai (1987) 3 NWLR (Pt.62) 663, which shows that:

“where a plaintiff gives evidence of loss … and the price of the car and there is nothing to suggest that he is lying and nothing contradicts him, the court should believe him.”

He drew our attention to the evidence of PW3 at page 25 of the records and plaintiffs at page 24 to show that it was misleading for the appellant’s counsel to ascribe the figure of N45,750.00 to the plaintiff as pre-accident value, when it was that his car was valued at N45,750.00

He stated that in line with the decision of the courts the learned trial Judge who believed the evidence of the expert witness PW3 which had not been discredited was bound to make the deductions which he did to arrive at N45,750.00 which he awarded. He cited S.G.E. (Nig.) Ltd. v. Okpanum (1989) 4 NWLR (Pt.115) 373.

I will deal with his other submissions on these issues later with those of the appellant. I have examined the judgment complained of, which fully reviewed the pleading of the parties and the evidence of the plaintiff and 3rd PW. They form the object of the issues raised for the appellant here, the difference if any or is it discrepancy between the figure of N47,750.00 in the statement of claim and N45,750.00 given in evidence by the plaintiff and PW3 set out in Exhibit C, as alleged by the appellant is insufficient in my view to set aside the award.

I am prepared, to accept the figure as the learned trial Judge did of N45,750.00, contained in the evidence of the plaintiff, and PW3, a trained vehicle Inspection Officer and in Exhibit C, the valuation Report. None of these were either challenged nor controverted by the defence at the trial.

I am also prepared to uphold the learned trial Judge’s finding. The claim of special damages was strictly proved by the plaintiff and his witness, PW3. The purported discrepancy does not detract from the much more substantial truth emanating from the evidence and findings of the court below, that negligence was proved against the defendant, that the plaintiff suffered damage. There is also the legal position that in such circumstances, plaintiff is entitled to damages. For a variety of reasons, I have come to this conclusion that appellant’s idea about the figures N47,500.00 and N45,750.00 in the amended statement of claim on P. 20 of the records and in evidence seems to be a misapprehension from juggling of figures. The arithmetic is clear and does not affect the claim or the proof. It is pertinent to identify that on page 20, when N47,500.00 is added to other figures making up the total claim, they do not add up to N338,250.00, the total also on page 20, being the total claim made by the plaintiff in his evidence. Rather, they add up to N340,250.00. On the other hand, N45,750.00 given in evidence when added to these other heads of claim brings the total to N338,250.00 as claimed. These figures as set out herein show that:-

N47,750.00              N45,750.00

500.00                  500.00

292,000.00               292, 000.00

= = = = = = =             = = = = = = = =

340.250.00                  338.000.00

= = = = = = =             = = = = = = = =

The total of N338.250.00 (and not N340,250.00) in the statement of claim and given in evidence by the plaintiff at page 24 of the records justifies the evidence of N45,750.00 which the lower court set out in his judgment at page 37 of the record of proceedings. It must be recalled that the lower court had rejected the claim of N500.00 for items burnt in the car of plaintiff. Also Exhibit C, the inspection report of Mr. Duke, PW3 bears out the facts – pre-accident value was N47,500.00 less salvage value of N1,750.00, leaves the sum of N45,750 stated in the testimony of the plaintiff.

Another point is that, none of the evidence on quantum of special and general damages tendered at the trial by the plaintiff and PW3 was controverted at all by the defence. When a party to a suit proffers evidence in proof of his claim and the opposite party who had an opportunity fails to cross-examine him or challenge or controvert the evidence, the court is bound to accept, use and act upon such evidence. That is the law as enunciated by the highest courts of our land, in a plethora of cases. To name just a few, see: Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Bello Afolabi (1978) 2 SC 79 at 81 – 82. Adel Boshalli v. Allied Commercial Exporters Ltd. (1961) (1961) 2 SNLR 322; All NLR 917 (per Lord Guest) (Privy Council), Agbaje v. Ibru Sea Food of Ltd. 1972 5 SC 50. Omoregbe v. Lawani (1980) 3-4 SC 108 at 117. Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (pt.361) 124 at 139, (per Iguh, JSC.)

The learned trial Judge accepted the uncontroverted evidence on the issue of special damages and that, rightly, in my respectful view.

The decision of the Supreme Court in Ibeanu v. Ogbeide (1998) 12 NWLR (Pt. 576) 1, clearly underscore the principles applicable in assessing special damages, where a vehicle involved in an accident is a total loss and negligence has been proved. In that case, Mohammed JSC (at P.12) paragraph E – F set out the law thus:

“Normally, where the vehicle which is involved in an accident through the negligence of another is a total loss “or “write-off” the plaintiff is entitled as damages only the vehicle less the value of the vehicle as scrap (if any) plus damages for loss of earnings apart from any specific items of special damage proved. See Armels Transport Ltd. v. Martins (1970) 1 All NLR 27.

The trial Court has thus correctly resolved the issue of special damage in accordance with the law in the sum proved by the plaintiff as the pre-accident value of his vehicle, less the value of the scrap.

No evidence was proffered by the defence to counter this. In our jurisprudence, when a trial Court has performed its primary function of reception of evidence of witnesses who testify before it, including documentary evidence and undertakes proper evaluation of the evidence and makes findings, the appellate court would ordinarily not disturb the findings. The exceptions are where it is shown that the trial court has failed to make proper use of seeing and hearing the witnesses from stated or uncontroverted facts or if inferences are shown lo have been drawn by the trial Court which are wrong or cannot be supported at all by the evidence, then the Court of Appeal would exercise its powers of reviewing the facts and drawing necessary and appropriate inferences therefrom, in the interest of justice- see Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35; Okolo v. Uzoka (1978) 4 SC 77.

I find nothing in the records to compel this court to interfere with the lower court’s performance of his judicial function in determining this issue about special damages or to set aside the award of N45,750.00.

Another important legal issue raised by the appellant’s counsel in his brief, under both issue No.2 and Issue No.4 relates to the admissibility of Exhibit C, the valuation report of the motor vehicle inspection officer, PW 3 called as expert. Mr. Amupitan urges us to set aside the award of special damages because according to him Exhibit C, the valuation report made by PW3, on which the award was based, is inadmissible evidence, by virtue of Section 91(3) of the Evidence Act. Exhibit C, was made by PW3 on 19th September, 1991, the accident occurred, and caused damage to the car on 17th December, 1988, and this suit was commenced on 3rd December, 1990. The submission of the teamed defendant/appellant’s Counsel therefore was that the document was made by “a person interested” at a time when these proceedings were pending and its admission in evidence by the lower court contravenes section 91(3). The section provides as follows:-

S.91(3) “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

It is not disputed that Exhibit C was made while the suit was pending at the High Court, as shown by the records and the submission of the respondent’s Counsel.

In reply to the submission of Mr. Amupitan for the appellant, Mr. Akwede for the respondent had submitted as follows:-

“That counsel for the appellant’s interpretation of Section 91(3) which was narrow should not be accepted. He added that to say that once a suit is filed, no other step should be taken to bring material evidence that would assist the court would amount to shifting away….material facts. He said the valuer cannot be said to be a “person interested” in the outcome of the proceedings, as he merely performed a professional duty and no more. He cited Apenu v. Aiyetobi (1989) 1 NWLR (Pt.95) 85 and H.M.S. Ltd. v. First Bank of Nigeria (1991) 1 NWLR (Pt.167) 290 at 29-1-295.

It is my view that, learned Counsel for the respondent was on firm grounds in his submission on this point. Exhibit C is a valuation report made after the inspection of the damaged vehicle was done by an expert vehicle Inspection Officer of 23 years experience. It was tendered in Court by him and admitted in evidence without objection. He was not cross-examined as to his interest in the suit or in producing the document, nor in fact about its contents. His testimony was not at all challenged or controverted by the defence, not to talk of discrediting him in any way.

All that was said in his evidence in-chief by the witness showing how he came to be invited by the plaintiff to value the accident vehicle, is shown at P. 24-25 of the records. PW3 said:

“….I am an Insurance Agent Assessor. I am a general contractor in motor vehicle maintenance and repairs…. I know the plaintiff.

In 1991, a friend introduced me to the plaintiff and I was asked to go and assess his accident vehicle and determine the extent of damage….”

The above is the only testimony showing his connection with this case in which he was only a witness. Is he therefore a “person interested” in the suit in terms of the provisions in Section 91(3)?

I do not think so. He could not by any stretch of imagination be. He was not the vehicle owner, nor party to this suit but a professional, requested to perform this professional examination of the accident vehicle. (See Apena v. Aiyetobi, (1989) 1 NWLR (Pt.95) 85. On what terms he did the valuation, the trial court was never told and nobody now knows. The defence asked no relevant questions to counter him. There is thus nothing on the records to show, that he was a person in any way interested in the suit except as a person who performed a professional duty of inspecting and valuing the damaged vehicle. Whether he did this gratuitously or for a fee, he was not asked, and, it is not known. Justice demands that in order to determine if the maker of a document sought to be tendered is a “person interested … in the litigation,” the circumstances surrounding the making of the document and whether the maker can be said to have an interest of a personal nature, must be examined and ascertained. I have tried to so examine and determine these matter before arriving at the decision that PW3 is not a person so interested in the outcome of the suit.

The Supreme Court has provided some guide which enable our courts determine, who is “a person interested” in a suit, whose statement ought not to be received in evidence under that Section 91 (3), of the Evidence Act. I am guided and bound by them.

The test of interestedness in a number of decisions of the court, shows that a person who is not personally interested in the result of a litigation cannot be described as one “interested” in the proceedings under the provisions of section 91(3). It seems to me that it is this “Personal interest” element in Section 91(3) that excludes documents tendered by such persons as independent contractors or those purely on official assignment, such as policemen, officials or servants without direct interest of a personal nature in the litigation or the result of the litigation. It would also exclude a person whose interest in the litigation cannot be identified, such as where there is no evidence establishing it.

A person who may not be affected, one way or the other, by the result of a particular litigation ought not to be regarded as being “interested” in it, in terms of section 91(3). If on the other hand, the maker of a document is one who will personally suffer some loss, damage or detriment from or as a result of the suit which was pending or was anticipated, his interest could possibly qualify as personal, as opposed to official interest. See the case of:- High Grade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt.167) 290 at 312-313, per Karibi-Whyte JSC. Anyaebosi v. R. T. Brisco Nig. Ltd. (1997) 3 NWLR (Pt.59) 84 at 88-89 (per Uwais JSC (as he then was), and at 108-109 per Karibi-Whyte, JSC.

In the light of the foregoing I am able to state that PW 3 is not a “person interested” in this suit in terms of section 91(3) of the Evidence Act and therefore that Exhibit C is admissible.

As to the submission relating to whether the witness saw the vehicle before or during the accident or the price indices which he used in his valuation, how he arrived at it, or whether there was deterioration or vandalization since the accident, these are all matters of fact and evidence. If the defence considered them relevant, what question did the defence ask? Where is its evidence in relation thereto? It is no matter for speculation as appellant’s counsel was doing in his written submission.

The witness, PW3 was also not cross-examined on the whole of the evidence, relating to quantum of damages, valuation etc. Nor was evidence led to counter his evidence or to discredit his expert evidence. The case of S.G.E. (Nig.) Ltd. v. Okpanum(1989) 4 NWLR (Pt.115) 173 cited by learned Counsel for the respondent shows that evidence of the pre-accident value of a vehicle is a technical type of evidence that requires expert opinion. This is the kind of evidence which PW3 proffered at the court below in this case.

I must reiterate that expert evidence cannot easily be countered or demolished or set aside as learned Counsel for the appellant seeks to do, by mere rhetorics at the address stage of the proceedings. Rather, it should be attacked during the trial by superior counter-evidence or by discrediting him in cross-examination by the opposite party. See Shell Dev. Co. Ltd. v. Otoko (1990) 6 NWLR (Pt.159) 693.

Even upon a minimal of proof, and where the opposite party fails to challenge the evidence given by his opponent, in spite of the opportunity to do so, as in this case, the trial Court is right to accept the unchallenged, unrebutted and undiscredited evidence. See Odulaja v. Haddad (1973) II SC 357; and Union Bank v. Ogboh (1995) 2 NWLR (Pt.380) 647.

Mr. Amupitan had also submitted that if Exhibit C is rejected, the oral evidence of PW3 and the plaintiff/respondent will, in line with Section 132 of the Evidence Act, not be admissible. According to him Section 132 requires that whenever a fact is contained in a document, the document itself must be the evidence and not any oral evidence. In the first instance, since the evidence in Exhibit C has now not been rejected as I have decided, Mr. Amupitan would I hope, accept that the oral evidence of PW3 and the plaintiff/respondent would be admissible.

Secondly, with respect, it seems to me that the learned Counsel has not clearly appreciated the purport of that section of the Evidence Act. Part VI of the Act under which Section 132 of the Evidence Act comes, though headed thus:

“The exclusion of oral by documentary evidence.” Section 132 specifically applies to evidence of contents of written judgment, judicial or official proceedings, contracts, grants or other disposition of property. It is the contents of these documents, not every document, which when reduced to writing, the section states, must be given in evidence rather than oral evidence thereof. This is clearly brought out by Sub-Section (2) of Section 132 as follows:-

Section 132(2) “Oral Evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, grant or disposition of property.

Surely Exhibit C, the Valuation Report is not a contract, grant or memorandum evidencing disposition of property. Section 132 is thus in-applicable to it. The submission lacks merit.

In conclusion, in the light of all the foregoing, Issue No.2 and 4 are answered in the affirmative. The sum of N45,750.00 special damages was rightly awarded by the learned trial Judge, and Exhibit C rightly admitted in evidence. In effect grounds 2 and 4 of the grounds of appeal fail.

In Issue No. 3, it was felt on the appellant’s side that the award of N45,750.00 as special damages and N180,000.00 as general damages, amounts to double compensation.

My decision in respect of issues 1 and 2, has virtually answered the questions, under issue 3, I will however further address the issue albeit as concisely as possible, to consider some fresh points in the submissions of Counsel for the parties.

It is correct that the law frowns against double compensation and would not ordinarily allow a party for a specific loss suffered, to claim general damages under that head (of special damages). See Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt.501) 533 at 561.

The reasoning behind this, is that it is wrong to adjudge an item of specific loss as general damages when indeed it is a special damage to be specifically pleaded particularized and strictly proved. To this extent learned counsel for the appellant is correct.

Mr. Amupitan had also submitted that in the present case, the plaintiff claimed N45,750.00 as full value of the cost item i.e. his Peugeot car. Having awarded this as special damages he stated, any further sum under general damages would amount to double compensation. According to him, at best, only nominal damages could be justified. He cited Artra Industries Ltd v NBCI (1997) 1 NWLR (pt.483) 574; (1998) 65/57 LRCN 3255.

In his brief of argument, learned Counsel for the respondent, Mr. Kwede countered appellant’s submission. In his view, when a party proves to the satisfaction of the court both special and general damages, he would be awarded both. He pointed out that in the case of Artra Industries (supra) (also reported in (1997) 1 NWLR (Pt.483) 574 at 578 (SC), the court clearly stated the principles guiding the award of both special and general damages and the guiding principles in double compensations. These do not apply to this case. For, paying the full value of the car cannot amount to general damages. He urged, that it will be wrong to hold that the value of the car will compensate all the hard, difficult and trying moments which the respondent was subjected to. He distinguished the case of Ezeani v. Ejidike (1964) 1 All NLR 402 cited by Mr. Amupitan, from the present case, pointing out that while in that case, the plaintiff was awarded full value of his materials but when he also sought to obtain damages for consequential loss of the same material, the court refused, but it is not so here.

I am in complete agreement with the submission of Mr. Akwede. There is no question of double compensation in the claim by the plaintiff or the award of double compensation by the trial court. In the first instance, as set out earlier in this judgment, in a claim in negligence, the plaintiff is entitled to special and general damages, where negligence is proved and items of special damages are fully pleaded with particulars and are strictly proved. In the case of general damages, evidence identifying the damage will suffice, not the quantum which is in the discretion of the court. See Elochin (Nig) Ltd v. Mbadiwe (1986) NWLR (Pt.14) 47; Sommer v. FHA (1992) 1 NWLR (Pt.219) 548; Obmiami Brick & Stones (Nig) Lid v. ACB (1992) NWLR (Pt.229) 260 at 312.

The law has been clearly stated by our courts in a number of cases to the effect that where a vehicle is involved in an accident through the negligence of another and the same is a total loss, the plaintiff is entitled to damages, being the value of the car at the time of the loss plus loss of earnings and inconveniences of being without a car for a reasonable period capable of acquiring another car. See Ibeanu v. Ogbeide (1998) 12 NWLR (pt. 576)1 at 4; Kerewi v. Odegbesan (1965) 1 All ALR 95 at 99; Ishola v. Kebbi & Kerean (1971)1 NWLR 330; Ubani Ukoma v. Nicon (1962)1 All NLR 105.

In the present case, the plaintiff had lumped certain items which should have been claimed as special damages with those of general damages as I earlier decided. These were claims for loss of use and medicals.

Had the items been placed under the correct head of claim, viz special damages with their particulars and were strictly proved, the plaintiff would have been entitled to compensation on them, in addition to the compensation for the value of his car at the time of the accident, less the value of the scrap and to general damages. In personal injury cases, damages for pain and suffering are claims to which a plaintiff is also entitled as general damages. See The Mediana 1900 AC 113 at 116 – 117; Okpan v. Ogarekpe (1991)1 NWLR (pt.170) 773.

Payment for each of all the above does not ever amount to double compensation. I am referring to value of the lost vehicle at the time of the accident, damages for loss of use, medical expenses, general damages for pain and suffering.

My answer to Issue No.3 is therefore in the negative.

Issue No.4; I reiterate that this issue has been fully addressed along with issue No. 2. The result is that the learned trial judge was right in relying on the evidence of PW3 and Exhibit C for the reasons set out above. Ground 4 of the appeal therefore fails.

Issue No.5 asks whether the trial judge was right in holding that the vehicle in question belonged to the plaintiff. Appellant’s counsel pointed out that the onus of proving ownership of the vehicle lies on the respondent and without proving this with credible evidence, there would be no basis for any award in his favour. He submitted that the oral evidence that the particulars and receipt of the vehicle were burnt with the vehicle was not pleaded. Therefore, according to him, it goes to no issue and should be expunged. Further, in his view, these documents were public documents and must be proved by certified true copy in accordance with Section 97(1) (e) and 2(c) of the Evidence Act, not by the oral evidence of the plaintiff. Certified copies of the documents he said, were not obtained from the Plateau State Motor Licencing Authority and the oral evidence was inadmissible.

Learned respondent’s Counsel replied that the respondent pleaded the burning of the vehicle and other items in paragraph 8 of the statement of claim and reiterated that in his evidence in court on page 22 of the records. It was not in dispute that the respondent was driving the vehicle and all the plaintiff’s and defence witnesses testified to that. It is not shown anywhere in the records that there was any rival claimant to the ownership of the vehicle. He urged this court to hold that the respondent need not present any certified copy or secondary evidence of ownership of the vehicle before being recognised as the owner of the vehicle he was driving and using before it got burnt in the accident in issue, citing Maduga v Bai (1987) 3 NWLR (Pt.62) 635, 636 where the court expressed the view that, though the presumption of law in accident cases were refutable, the court was entitled to draw the inference that the vehicle was being driven by the owner, his servant or agent at the material time.

The first thing that would strike one about this issue No.5 after going through the Record of Proceedings, is that the question of ownership of the vehicle driven by the respondent was not seriously in issue at the trial of this suit at the lower court. The plaintiff pleaded ownership, the defendant pleaded in reply that he was not in a position to say the owner. When the plaintiff led evidence of his ownership, and spoke of “my car” right through the trial, he was not challenged by cross-examination.

The court was bound to believe him on minimal of proof. There was evidence also that at the time of the accident, the plaintiff was the driver of the car. The rebuttable presumption referred to by the respondent’s counsel that a vehicle involved in an accident while being driven, was driven by its owner or his servant or agent at the time of the accident (in Maduga’s case, (supra) stands in favour of the claim of ownership by the plaintiff. That is so, until this presumption is rebutted. It was not rebutted.

As rightly submitted by learned respondent’s counsel, there was no counterclaimant and the court below was bound to recognise the only claimant of the vehicle who was in possession and driving it at the material time. On the submission that the receipt and particulars which were burnt were not pleaded, it is my view that it was enough to plead that the vehicle was burnt and that items in the vehicle were burnt. In paragraph 8 of the statement of claim the plaintiff averred:

“By reason of the matters aforesaid the plaintiff was unconscious, ….and his vehicle got burnt completely …and plaintiff suffered loss and damage. He set out particulars of damage to include:-

(ii) Cost of items burnt in the vehicle”

The learned trial Judge in his review of plaintiffs evidence noted that the plaintiff testified that he had items in the car worth N00.00 (sic) and also that all receipts and particulars of the car were burnt along with the car. He was right. The essence of pleadings in court practice, is to save the opposite party from surprise and embarrassment. In my view, the defence had sufficient facts from the pleadings of the plaintiff not to be taken by surprise by the subsequent details of loss or damages following the complete destruction of the car by fire. Was the respondent not expected to have the particulars of his vehicle in the vehicle while driving it? Any reasonable person would expect him to.

It is to be noted that the plaintiff did not attempt to give oral evidence or details of the receipts or the particulars of the vehicle lost as would invoke Section 95 or 97 of the Evidence Act. Even if he had, by section 97(1) (c) of the Act, he was entitled to give oral evidence since it was clear that the original was destroyed with the vehicle by fire. For by Section 97(2)(a) of the Act, any secondary evidence of the content of such documents so destroyed, is admissible in evidence.

The question whether a receipt of purchase is a public document under Section 109 of the Act, as submitted by Counsel for the appellant, to my mind, is a matter of evidence. It cannot be declared in an address, nor can it be merely presumed by counsel. Without that evidence, the appellant cannot invoke its application.

In the light of above, I am unable to uphold the appellant’s Counsel’s submission that the plaintiff’s evidence relating to the destruction of the receipt and particulars should be expunged from the records. In Issue No.6, learned Counsel for the appellant urged us to hold that the judgment was against the weight of evidence, In this regard. Counsel did not point out any other evidence not evaluated except PW3’s. He only repeated his grouse against the evidence of PW3 which formed the subject of his issues 2 and 4. He said that PW3 saw ashes and assessed and imagined what the vehicle would have been in 1988. In his view, had the trial Court properly evaluated the evidence of PW3, he would have discovered that he contradicted himself when he said that anything not iron, was burnt down and in another breath, that some detachable parts of the vehicle were removed. “By whom,” he asked. Then he complained that the trial court did not bother about these before accepting the evidence and using it to assess the award of special damages. He urged the court to reject the award and the entire judgment.

For the respondent, his Counsel, Mr. Akwede argued that the learned trial Judge painstakingly evaluated the evidence of both parties. He pointed out that the defence never said anything relating to damages claimed by the plaintiff. PW3’s evidence was not shaken and the court was entitled to rely on the uncontradicted evidence. He said the expert valuer need not have seen the vehicle before the accident to be able to give a correct value.

I have in addressing issues 2 and 4 fully taken care of the evidence of PW3 and need not repeat what has been said. The same is adopted for this issue. It was for the appellant to have cross-examined the expert witness with a view to discrediting him. See Shell Dev. Company Ltd v Otoka (1990) 6 NWLR (Pt. 159) 693. He did not do so.

The matters raised by the appellant arose from the failure of the appellant to attack with relevant questions and cross-examination the evidence of PW3 and his conclusions or to lead counter-evidence at the trial. He cannot complain now. For example, let me further address the appellant’s complaint that the trial court failed to evaluate the evidence of PW3. That cannot be correct. For, the learned trial Judge reviewed at length the evidence of the plaintiff and his witness, PW3 in relation to the claim of N45,750.00 special damages. (See page 53 of the records from line 6).

In the course of the review, referring to the evidence of the plaintiff, His Lordship noted that the evidence of the plaintiff was not contradicted in any way. Then further down the page,-after further comments on the evidence of PW3, “the expert witness,” the learned trial Judge stated: “The evidence also was not contradicted in any way.” (See line 30 also on page 53). He then concluded, awarding the sum proved and not challenged.

Also, I see no material contradiction in the evidence of PW3 to persuade me to disregard it. If considered relevant the question as to what were detachable parts of the car, or who removed them, ought to have agitated the mind of Counsel for the appellant during his cross-examination of PW3. It did not appear to do so. I see no merit in the appellant’s complaint in this issue.

Issue No.6 is therefore answered in the negative, in the respondent’s favour. In the final analysis, this appeal succeeds in part and fails in part. It succeeds partly with respect to ground 1, dealt with under issue No.1 only and fails in part of ground 1, and in grounds 2, 3, 4, 5 and 6 treated under issues 1, 2, 3, 4, 5 and 6.

The result is that under issue No.1, the award by the learned Judge of N180,000.00 general damages is hereby set aside. In its place, I award the sum of N40,000.00 general damages against the defendant/appellant in favour of the plaintiff/respondent.

The award by the learned trial Judge of N45,750.00 as special damages is upheld. It therefore stands. On the whole, the respondent shall have a total of N85,750.00 special and general damages. Judgment is therefore entered in that sum in substitution for the judgment of the High Court.

Taking into account all the circumstances of this matter and the fact that the appellant has been partly successful, I hereby award only N4,000.00 costs in favour of the respondent.

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Other Citations: (2000)LCN/0909(CA)