Alhaji Otaru & Sons Limited V. Audu Idris & Anor (1999)
LAWGLOBAL HUB Lead Judgment Report
U. ONU, J.S.C.
This appeal is sequel to the majority judgment of the Court of Appeal, Kaduna Division (Coram: Mohammed, J.C.A. as he then was, Akpabio J.C.A. vis-‘a-vis the minority judgment of Ogundere, J.C.A.) which on 24th July, 1989, set aside the judgment of the Kwara State High Court (Olagunju, J. as he then was) holden in Okene dated the 14th day of May, 1987.
The plaintiff/appellant’s claim, founded in negligence as against the defendants/respondents jointly and severally and as contained in paragraph 21 of its statement of claim was as follows:-
“21. By reasons of the above premises the plaintiff claims as per
the writ of summons and as follows:
Special damages
Value of vehicle – N30,000.00
Loss of income and use
Income/loss of income per day at N 120.00 – N20,000.00
Loss of use for construction work
(Cost of hire of alternative vehicle) -N 12,000.00
General damages -N 4,000.00
TOTAL – N 66,400.00
Pleadings were ordered, filed and exchanged by the parties with the defendants/respondents amending their statement of defence. The case subsequently went to trial with the plaintiff/appellant (hereinafter referred to as appellant) calling six witnesses while the defendants/respondents (in the rest of this judgment referred to as respondent referred to as respondents) for their part, called five witnesses.
Prior to the commencement of trial, the trial court had raised the possibility of consolidating this suit with suit No. KWS/OKHC/l3/82 filed by the 2nd respondent against the appellant, being an off-shoot thereof for N304,500, the same being founded on the same facts on the issue of negligence or to stay the second action pending the determination of this suit. The High Court having opted in its ruling to stay the other action and to proceed with the one in hand, it so ordered accordingly.
The facts of this case briefly stated are as follows:-
On 20th June, 1981, two vehicles were being driven along the Okene-Auchi road, in the direction of Auchi. The first, a Mercedes 911 tipper lorry with registration No. KWA.58 D belonging to the appellant, was being driven by one Lamidi Lani (alias Lamidi Lawani) i.e., PW5, while the second vehicle, a M.A.N. articulate trailer with registration No. LAA.7641 A was being driven by one Audu Idris, servant of the 2nd respondent. It was the appellant’s case that the trailer was negligently driven along the road from behind the tipper which was being driven in the same direction to hit the tipper on the right hand side apparently in an attempt to overtake it. That after hitting the tipper which came to a halt on being hit, the trailer went several yards ahead and fell down, caught fire and got burnt. The case went to trial and in a considered judgment, the learned trial Judge found for the appellant to whom he awarded the sum of N22,000.00 for the pre-accident value of its damaged vehicle; N12,000.00 for loss of use, while disallowing the claims for cost of hiring alternative vehicle and for general damages.
The respondent being dissatisfied with the trial court’s decision appealed to the court below which reversed it; hence the appellant’s appeal to this court on six grounds.
Briefs of argument including appellant’s reply brief were exchanged by the parties in accordance with the rules of this court. The appellant proffered fifteen issues for the determination of this court while the respondents for their part, equally raised three issues for determination.
In his approach to the formulation of issues for determination in this appeal, judgment therein which learned counsel for the appellant said was well considered as against the reversal verdict of the court below, learned counsel for the appellant commenced the appellant’s brief by stating in solemn language as follows:-
“In view of the clear judgment of the trial court and it’s unequivocal pronouncement and having regard to the confused and unsatisfactory handling of the appeal brought before it by the Court of Appeal and more particularly in view of the apparent confusion of issues in the majority decision of the said Court of Appeal, the following issues seem to stand out for determination of the Supreme Court and are suggested for the court’s consideration in all its (sic) ramifications especially as this court is the final appellate one. The issues are…:’
Learned counsel then proceeded to submit fifteen such issues (i) – (xv) which he set out (to these I will come shortly in this judgment) and concluded his comments before arguing them as follows:-
“The arguments will follow the line of issues as set out above as enjoined by the Supreme Court in the case of Finnih v. Imade (1992) 1 SCNJ 87 and D.O. Orji v. Zaria Industries Ltd. & Anor. (1992) 1 SCNJ 29, and subsidiary issues will be considered in the course of the arguments of the above that are regarded as the principal issues for determination. For clarity they are tied to the ground {sic} of appeals {sic} filed.”
It is here necessary to comment on the above approach adopted by learned counsel as follows:-
This court has said times without number that a proliferation of issues ought to be discouraged in the course of brief-writing by counsel. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 401 and Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523.
Thus, in the instant case, the submission of fifteen issues where three as postulated by the respondents would have been enough to dispose of the entire appeal should have been a more prudent course of action to adopt. Be that as it may, since this court has before now taken the stance that a bad, faulty or inelegant brief or one which is procedurally irregular though may attract some adverse comments from the appellate court, is still a brief and such shortcomings displayed e.g. in poorly written briefs are liable to be over looked in this court’s quest to do substantial justice to the parties before it. See Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279 at 300; Ojikutu v. Odeh (1954) 14 WACA 640 at 641; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 453; Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565 at 571 and Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 at 205. In the brief before us the learned counsel for the appellant contracted the issues broadly under three heads when he eventually argued them but as can be deciphered; its reply brief has virtually outstripped the brief itself in volume.
Now, the issues posed by the appellant are whether:
(i) On the facts before the trial court about the accident, negligence has been proved;
(ii) the Court of Appeal applied extent (sic) legal principles of law of negligence to the case in hand;
(iii) the Court of Appeal applied the correct test of proof in connection with the negligence
(iv) the standard of proof in a case of negligence is on the balance of probabilities or beyond reasonable doubt;
(v) the Court of Appeal applied the correct standard of proof to the case before it;
(vi) the standard of proof in this case is affected by the absence of a sketch map of the accident;
(vii) the Court of Appeal was right in considering a discharge in a criminal prosecution as a ground of proving the absence of negligence;
(viii) the alleged discharge of the first defendant/respondent in a criminal trial goes to issue in a case of claim for damages;
(ix) the introduction of a hypothetical case is extraneous to the matter before the appeal court and whether it led to a confusion which led it to a wrong conclusion;
(x) there was proof of the pre-accident value of the plaintiff’s vehicle in view of the data provided before the trial court;
(xi) the case has to be on all fours with the Ubani Ukoma v. Nicol case in order for the principles used in it to apply;
(xii) the principle of res ipsa loquitur applied in the circumstances of this case;
(xiii) the Court of Appeal considered the rule in res ipsa loquitur along with negligence before coming to its decision;
(xiv) a miscarriage of justice is occasioned by the overall stance of the majority judgment;
(xv) in the Court of Appeal’s decision, count (sic) is taken of the weight of evidence before the court.
Learned counsel for the appellants, on their behalf, while identifying three issues for determination, in an apt preview, commented as follows:-
Shorn of the unwarranted aspersion on the integrity of the Justices of the Court of Appeal who allowed the appeal against the judgment of Olagunju, J., shorn of all verbiage which featured prominently in the appellant’s brief, the issues for determination would with respect, appear to be:”
- Did the plaintiff/appellant make out a case of negligence on its pleading and in evidence in proof thereof at the trial Or, whether there was sufficient evidence adduced by the appellant at the trial to support a case of negligence against the respondents as formulated in the statement of claim
- Whether the judgment of the Court of Appeal reversing the order by the High Court of N22,000.00 as the pre-accident value of the appellant’s vehicle ought to be disturbed having regard to the pleadings and evidence adduced at the trial as well as further evidence Exhibits CAA and CAB admitted after judgment concerning the sale of the damaged vehicle as scrap
- Whether on the evidence at the trial, the Court of Appeal was right in upholding award for loss of income and of use especially as the particulars of the gross income and of the expenses deducted therefrom were neither pleaded nor proved.
I take the firm view that a consideration of the three issues formulated by the respondents would be enough to dispose of the main points in this appeal in that by and large, these three issues overlap and amply cover what the fifteen issues contain irrespective of its (appellant’s) criticism of them in its reply brief. I shall now proceed to consider the three issues seriatim thus:
Issue No. 1
The appellant’s main grouse in the argument of its learned counsel is that the learned Justices in their majority judgment erred in law and on the facts in holding that the appellant did not make out a case in negligence in the trial court. After referring us to extracts in the judgments of Mohammed. J.C.A. as he then was and Akpabio, J.C.A. respectively, it is submitted that in order to have an insight into the error complained of, it is necessary to set out briefly the extent and acceptable principles of the law of negligence as a tort. to wit:
That negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. Further, negligence consists of failure to exercise due care in the circumstances in which a duty of care exists. It was further submitted that a duty of care, namely that which is owed to persons of closely and directly affected by the act of another and who ought to be in his contemplation existed vide Donoghue v. Stevenson (1932) AC 562 at 580-581. Such that in final analysis the tort of negligence involves (i) a careless act or omission and (ii) a duty to the person injured.
Applying the principles of law enunciated above, it is contended, it can be seen that the respondents’ driver was driving behind the appellant’s driver. That he had a duty of care to the vehicle ahead of it to ensure that there was no careless act that could affect that vehicle in front. It is further argued that he failed in the exercise of that duty of care, side-brushed the appellant’s vehicle on the right side and damaged it, adding that the hitting of the vehicle on the right side is a careless act – all of which totalled in negligence. Collision between the two vehicles, it is maintained, raises an inference of negligence which rested on the respondents.
The learned Justice who read the majority judgment, it is maintained, never pondered over this part of the record but merely glossed over it by forgetting to pin-point it for closer scrutiny and so failed to test it against the respondents’ account of the incident. After our attention was adverted to the evidence of witnesses for respondents and that of the appellant, it is contended that there is obvious conflict between the story the appellant told and those of the respondents, adding that 2 DW’s account is entirely different from that of 3 DW because the tipper cannot cross in front of the trailer suddenly from a bush, make a u-turn and then hit the trailer on the right side. Thus, neither 2DW nor 3DW with different accounts was believed by the trial court. it was pointed out, adding that it was right to hold the 1st respondent liable for negligence and 2nd respondent vicariously liable.
The testimony of 4DW, the Vehicle Inspection Officer, it is asserted, showed positive evidence of the side brush and he went on to demonstrate that if there were a head-on collision between the two vehicles, the damages to KW 58 D would be more extensive. This piece of evidence, it is further pointed out, gave the lie to the evidence of 2DW and 3DW who said that there was a collision with the trailer on the right side by a tipper which emerged from the bush on a side road by the right. It further contended that if the tipper collided with the trailer after or in the course of a u-turn, its left side would have been affected. The foregoing evidence, it is maintained, is also buttressed by the evidence of 5DW who stated that the front part of the tipper, on the right got damaged and that the accident could not have been described as a collision.
One more important point, it was further contended, is the variance between the pleadings of the respondents and their evidence before the court but outside the pleadings, namely following a comprehensive amendment particularly in paragraph 5 of their respondents’ amended statement of defence alleging that the appellant’s driver drove negligently without explaining how. The case of Olumuyiwa Faloye & 2 Ors. v. Abraham Olaniyan & 1 Or. 14 WACA 608 was called in aid for the proposition that the nature of the accident raised a presumption and this the driver in that case failed to rebut. adding that where a thing is shown to be under the management of the defendant or his agent and where an accident in the ordinary course of events does not happen when the business is properly conducted, the accident itself if it happens raises a presumption of negligence. From the above, it is pointed out, it will be clear that the failure of the 1st respondent to manage the thing that has been shown to be under his management in such a way as not to cause an accident, raises a presumption of negligence which has not been rebutted, respondents should be found liable to the appellant. Not only that. it is stressed, it having been amply shown in the trial court that the 1st respondent was a servant of the 2nd respondent and so the latter is vicariously liable for the negligence of the former, the reason being, it is maintained, that the 1st respondent as a servant of the 2nd respondent was driving the 2nd respondent’s vehicle No/LAA 7641A at the time of the collision and that he was driving as such in the normal course of his employment. The case of Alhaji Rotimi v. Adegunle & 1 Or. (1959) 4 FSC 19; (1959) SCNLR 35 was cited to buttress the proposition. We were accordingly urged to uphold the finding of the trial court and to reject the stance of the court below, particularly the end of the first paragraph of page 228 of the record herein and in the concurring judgment of Akpabio, J.C.A. at page 237, first paragraph on the page 238 last paragraph.
We were finally urged to find that the trial Judge was correct in finding negligence proved by upholding its decision the reason being that that court made findings of fact on all issues canvassed before it and there was evidence which it accepted to support such findings. Negligence, it is concluded, is a fact on which the trial Judge made findings of fact which are matters especially reserved for the trial court while the court below is wrong to substitute its own views for those of the trial Judge who heard the case and saw the witnesses.
I am not satisfied and I agree with learned counsel for the respondents that on the main issue which arose in this case both on the pleadings and evidence that the appellant made out a case of negligence against the 1st respondent. In establishing its claim, it must be borne in mind constantly that the burden of proof lies with the plaintiff (the appellant herein), for he who asserts must prove. See Imana v. Robinson (1979) 3-4 SC.1 at 9. Odunukwe v. Administrator-General of East -Central State (1978) 1 SC.25 at 31 and Arane v. Amu (1970) 10 SC.237 at 243 244. The learned trial Judge was therefore, in my view, in error when he said:-
“I am left with no choice but to rely on the evidence of the parties which are mutually contradictory but which I must sieve in order to weave together what can be the truth as regards the cause of the accident about which neither of the parties gave any chronological and detailed account of how it happened.”
From the above extract, what the learned trial Judge was doing and he was saying so unequivocally, is that the burden of proof in this case of negligence is on both parties to discharge by sifting their evidence to seek the truth. What the law requires is that the burden of proof of negligence falls upon the plaintiff who alleges negligence. See Donoghue v. Stevenson (1932) A.C. 562 at 622 per Lord Macmillan; Duclard v. Ginour & Ahnor. (1969) All NLR 26 at 34 and Imana v. Robinson (supra). See also Anichebe v. Onyejekue (1965) NMLR 108: Okeke v. Obidife (1965) NMLR 113 and Mercantile Bank v. Abusomwan (1986) 2 NWLR (Pt. 22) 270,
As pointed out in the lead judgment of Mohammed. J.C.A., as he then was, the appellant’s case for negligence on the pleadings is based on paragraphs 9, 10, 11 and 12 of the statement of claim. Paragraph 9 alleges that the 1st respondent drove the 2nd respondent’s trailer” with great force” against the appellant’s tipper lorry. Paragraph 10 simply states that the 1st respondent drove the trailer “negligently”, while paragraph 11 further states that the 1st respondent in driving the vehicle reg, No LAA 7641 A:-
“(i) failed to keep a proper look out for any other vehicle on the road:
(ii) failed to keep the vehicle under proper control:
(iii) failed to apply his brakes:
(iv) drove on the wrong side of the road:
(v) drove too fast at an excessive speed;
(vi) drove without reasonable care and attention;
(vii) failed to stop when necessary’”
Paragraph 12, on the other hand, pleads in the alternative the doctrine of “res ipsa loquitur”. During trial and in his address, learned counsel for the appellant never raised this issue of “res ipsa loquitur, ” and appellant would therefore appear clearly to have abandoned it. In any case, Mohammed, J.C.A., as he then was, laid the ghost of the doctrine to rest when he observed in his judgment as follows: –
“It cannot be possible to apply the doctrine of ‘res ipsa Ioquitur because there is evidence of how the accident happened.” Vide Management Enterprises Ltd v. Otusanya (1987) 2 NWLR (Pt. 55) 179 at 185.”Apart from the two drivers and 3DW, none of those who testified was an eyewitness to the accident i.e, 1st appellant (1PW), While 1 PW was told of the accident by the driver. 2PW had “no idea of the closeness of the two vehicles”, this was what he said under cross-examination:-
“I have no idea which of the vehicles, was trying to branch in any direction as I was in my house.”
That there was no strong evidence in support of the appellant’s claim for negligence can he gleaned from the following finding by the learned trial Judge who apparently frustrated by evidence of 3PW, said:-
“However, what appears to be a simple issue for decision is complicated by the inconclusive evidence of the police who inspected the scene of the accident, took measurements and drew up sketch of the accident but who neither produced the sketch nor came out with any positive evidence of the position of the two vehicles at the time of the accident and the probable driving style of the two drivers that could yield a clue about the responsibility for the accident between either of them. The evidence of the leader of the police investigation team, Cpt. Sumaila Audi, who testified for the plaintiff as the 3PW and was recalled by the defence for whom he also testified as 5DW was shifty, defensive and not particularly straightforward.”
The learned trial Judge continued:-
“However that be, apart from what one may consider to be the corroborative evidence of the police who claimed to have investigated the accident such evidence as the police offered are (sic) insufficient to determine the crucial issue of negligence between the two drivers which was not investigated by them. Therefore, I am left with no choice but to rely on the evidence of the parties which are (sic) mutually contradictory but which I must sieve in order to weave together what can be the truth as regards the cause of the accident about which neither of the parties gave any chronological and detailed account of how it happened. ”
(Italics is mine for emphasis).
Even though appellant failed to tender the sketch of the scene of accident the learned trial Judge had this to say of that scene:-
“I must accept the opinion of that expert during re-examination that the collision was one of a brush, a view which is consistent with the plaintiff’s version that the trailer ran into the tipper from the rear and presumably swerving to the right in panic brushed the right side of the tipper.”
It is pertinent to note that the driver (5PW) said nothing as enacted above by the trial Judge. What indeed he said in his testimony is as follows:-
“On 20/6/84 as I was going towards Auchi road from Okene, there was a trailer coming behind me and it hit me on the right hand side. After the trailer hit me it swerved forward and fell off the road on the left of the road after it had tumbled following the impart (sic) with my vehicle.” Clearly therefore, it was the learned trial Judge’s imagination or “presumption” that the trailer “swerved to the right in panic before it brushed the right side of the tipper.” The law is trite that dangerous driving ought not to be inferred. See R. v. Tatimu 20 NLR 60. For as Mohammed, J.C.A. (as he then was) said:-
“It is pertinent to mention that none of the witnesses testified to the fact that the trailer hit the tipper from the rear. But the learned trial Judge said so in his judgment. This is what he said: “the trailer ran into the tipper from the rear and presumably swerving to the right in panic brushed the right side of the tipper’. “(Italics is also mine for emphasis).
It was this scenario that the learned writer of the leading judgment. Mohammed, J.C.A. (as he then was) definitely refused to accept when he said:.
“My difficulty in agreeing with the learned trial Judge that the 1st appellant was the driver who negligently drove the trailer and thereby causing the accident is based on the incongruous picture of the accident scene. If it is correct that the trailer was being driven behind the tipper how come it managed to hit the tipper on its right side There is no evidence that it was about to overtake the tipper on the right, instead or on the left. And if it was not a head on collision or rear it ,why were the headlights of the tipper broken. A witness for the respondent, PW4, included the radiator, the bumper, the windscreen in the items that got damaged. Can all these get {sic} damaged through only a side brush”
The question which I too will pose here is, can they Thus, the picture which Mohammed, J.C.A. (as he then was), tried to reconstruct was well thought out and based on the findings or the trial Judge that the 2nd respondent’s trailer “brushed the right hand side: of the tipper’”,contrary to the assertion of the appellant who argued in his brief that the majority Judges “never read and ponder over…or merely glossed over” the record. It ought to be noted in this regard, that most of the parts of the tipper allegedly damaged were in front of the vehicle, and not at the right hand side. Contrast paragraph 14(i) to (x) of the statement of claim at page 7 of the record. From the foregoing, it is my firm view that it would be more consistent with a head on collision while negotiating a u-turn from the right hand side of the road than a side brush. Be it noted that the appellant did not plead a side brush and a hit on the right hand side of the tipper as the point of impact – a most vital fact which ought to be pleaded but the appellant failed to so plead – is more consistent with what transpired. Thus, any evidence adduced to the contrary goes to no issue. See NIPC,v. Thompson Organization (1969) 1 NMLR 99 at 104; Uredi v. Dada (1988) 1 NWLR (Pt. (9) 237 at 246; Chief Abah Ogboda v. Daniel Adulugba (1971) 1 All NLR 68 at 72-73; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511, and Olarewaju v. Bangboye (1987) 3 NWLR (Pt. 60) 353 at 359. Moreover, it has not been suggested that the evidence of 5PW that the trailer hit the tipper “on the right hand side” coming from behind was in proof of paragraph 9 of the statement of claim wherein it is pleaded:-
“The plaintiff pleads that on or about the 20th of June. 1981, at a point along Okene-Auchi road, the first defendant negligently drove the said vehicle reg. No, LAA 7641 A with great force against the plaintiff’s Mercedes Benz tipper reg. No. KW 58 D.”‘
It must not be overlooked that both vehicles were going along the same side of the road and there was no evidence of overtaking. Beside, no iota of evidence was adduced in proof of the particulars of negligence, or any of them pleaded in paragraph 11 of the statement of claim. It’s failure to do so is fatal to the appellant’s case and I so hold. Issue I is accordingly resolved against the appellant.
Issue No.2.
The complaint here is whether the judgment of the court below reversing the order by the High Court of N22,000 as the pre-accident value of the appellant’s vehicle ought to be disturbed having regard to the pleadings and evidence adduced at the trial as well as further evidence Exhibits CAA and CAB admitted after judgment concerning the sale of the damaged vehicle as scrap.
I wish to commence my consideration of this issue by first adverting to what the learned trial Judge said about the condition of the tipper after the accident. Said he:
‘Therefore, I find as a fact that the tipper is a complete wreck and, consequently, it cannot be restored into use by diligent mechanical repairs.”
He then concluded by saying:
“In the result, I give judgment for the plaintiff in the sum of N22,000.00 for the pre-accident value of it damaged vehicle … ”
(Italics above is mine for comments).
With due respect to the learned trial Judge, the appellant did not plead the pre-accident value of its car and as there was no such claim before the court; neither was any iota of evidence led to establish the pre-accident value at the trial. What in fact the appellant claimed was the sum of N30,000.00 as the value of the vehicle vide paragraph 21 of the statement of claim and the evidence in proof of that claim was in form of documents tendered as Exhibits 2 and 3, to wit: the invoice and the delivery note tendered by 6PW. I am therefore of the firm view that it was wrong of the trial Judge to make out a case which was not before him since what indeed was before him was a claim of N30,000.00 being the value of the vehicle for which a purchase receipt for N25,000 and the delivery note depicting N30,000.00 were tendered. It is therefore wrong in law for the learned trial Judge to make out a case which was not before him. See Ejike v. Nwankwoala (1984) 12 SC 301 at 311-312, Orizu v. Anyaegbunam (1978) LRN 216 at 222. See also Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt.13) 407. In further expatiation in the instant case, what was before the learned trial Judge was a claim for N30,000 being value of the vehicle for which a purchase receipt for N25,000.00 and the delivery note showing N30,000.00 were tendered. A claim for the pre-accident value was given during the trial in the trial court. 1 PW, Alhaji Ibrahim Otaru, said:
‘I bought the vehicle at N30,000.00. I ask the court to help me recover that amount from the defendant.’”
Although 1 PW testified that he bought the vehicle for N30,000.00, the invoice (Exhibit 2) shows that N25,000.00 was what was paid. Also, although Exhibit 3 shows N30,000.00, no evidence was led to prove that the balance of N5,000 was ever paid. Be that as it may, 6 PW who tendered Exhibits 2 and 3 was described by the learned trial Judge as “a very untruthful witness.”
It is trite law that special damages must be proved strictly. Thus, in Dumez Nigeria Ltd. v. Patrick Nwaka Ogbo/i (1972) 1 All NLR 241; (1972) 3 SC 196 at 204-205 Lewis, J.S.C said:
“It is axiomatic that special damages must be strictly proved … so far as special damages are concerned, a trial Judge cannot make his individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded …”
See also WAEC v. Kuroye (1977) 2 SC 45 at 54; LCC v. Unachukwu (1978) 3 SC 199 at 203 – 204; and F. O. Akintunde v. Chief E. A. Ojeikere (1971) 1 NMLR 91. In the case in hand, since there was no evidence of pre-accident value of the damaged vehicle and the learned trial Judge used the figure N30,000.00 pleaded as the purchase price of the vehicle for his assessment of the pre-accident value which was not pleaded, the award he made of N22,000.00 to the appellant as the pre-accident value, ought in law and in good sense, to be set aside. The court below (per Mohammed, J.C.A. as the then was) after setting out how the trial Judge made up his pre-accident value of the tipper conceded that 1 PW’s evidence being devoid of the evidence of the vehicle model, age and the mileage it had covered, was parsimonious of any helpful details about the vehicle before the accident. It is in this regard that the case of Ubani Ukoma v. Nicol (1962) 1 All NLR(Pt.1) 105 relied on by the learned trial Judge is distinguishable from the case in hand in that in the learned Justice’s own view:-
“In that case the plaintiff/appellant adduced evidence of (a) the original value of the car, (b) the age of the car (c) the mileage it had covered and (d) the amount claimed by the plaintiff, less depreciation.
In this case the only evidence given was to its date of purchase and value. There is no mileage it had covered before the accident or the pre-accident value, even estimated. “(Italics supplied by me for emphasis)
Returning to Dumez v. Ogboli (supra), this court held that so far as special damages are concerned, a trial Judge cannot make his own individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded. Thus, in the instant case where the appellant had failed to strictly prove the claim for the value of his tipper that got damaged as a result of the accident, he is not entitled to an award of damages in respect of that head of claim. In paragraph 7.5 at page 25 of the appellant’s brief, it was contended infer alia that “absence of the model and the consequence of its not being any longer available is sufficient basis for a trial Judge to make a reasonable estimate of the value of the tipper.” With utmost due respect, that on the authorities, is not the law. The proposition is rejected out of hand.
The matter does not end there. There is yet another fatal law to appellant’s case. The 4PW under cross-examination asserted that he had “no idea of what the scrap value of the vehicle would be because there are specialists whose business is to buy some vehicles,” During his address on the 18th February. 1987, the appellant’s counsel, Mr. Folaranmi, said:
“We were unable, however, to give evidence or the value of the scrap. I leave this to the court to determine this on principles,”
As later transpired, known to learned counsel, the scrap had long before then been disposed of. He therefore deliberately failed to disclose this fact before the trial High Court delivered its judgment on 14th May, 1987 and information had to be squeezed out of him on 22nd June, 1987 through a letter and a reply thereto (Exhibits CAB and CAA) followed by a counter-affidavit wherein it was deposed to the effect “that when it was deteriorating and parts where still being pilfered from it, … I had to sell it… at N2.500. The true pre-accident value, assuming N22,000.00 was genuine and correct, would be N19,500.00 less the cost of “the parts which were still being pilfered from it” before the sale of the scrap. As it would appear clear that it was not all the other parts given in evidence that were damaged and evidence proffered in respect thereof goes to no issue, the pre-accident value would naturally be greatly diminished. It therefore follows, in my view that the learned trial Judge was in error in accepting the bulk of the evidence of 4PW and a fortiori in the conclusion he reached that “the plaintiff’s tipper was totally damaged and cannot be repaired at a reasonable or affordable cost. Therefore, I find as a fact that the tipper is a complete wreck and, consequently, it cannot be restored into use by diligent mechanical repairs. In consequence, I hold that the plaintiff is entitled to the value of that vehicle.” In the premises, I hold that appellant failed to prove the value of it’s vehicle as claimed and issue 2 is accordingly resolved against.
Issue No.3
My consideration of this issue necessarily involves a consideration of paragraph 21 of the statement of claim as an item of special damages. When in it, the appellant pleaded inter alia as to loss of income and use as follows:”
However, the plaintiff did not state either in its statement of claim or in evidence offered on its behalf the period over which the sum of N20,000.00 claim as loss of use relates:’
he proceeded to help the appellant calculate that period for it and the sum of money derived from his arithmetical figure-juggling.
This applies with equal force to the claim for N12,400.00. However, in his evidence-in-chief, 1 PW simply said:-
“After expenses are deducted I make at least N120.00 a day from the running of the tipper.”
What constitute these expenses were not pleaded and set out with particulars and any evidence given thereon goes to no issue. See Uredi v. Dada (supra) and NIPC v. Thompson Organization Ltd. (supra).
The court below having disallowed the appellant’s entire claim for failing to plead and prove special damages, for negligence, I am at a loss that the selfsame court turned round to affirm the trial court’s award for loss of income and use of the vehicle to the appellant. The court below was therefore palpably wrong when it arrived at what I regard as irrelevant conclusions, to wit:-
“The last award made by the learned trial Judge was for the loss of income and use of the vehicle. The respondent in this claim said that he was earning N120 per day from the running of the tipper after the expenses were deducted which included payment of food money to the driver and 6 loaders. Mr. Okunnu argued that this claim had not been pleaded. I do not agree. It has been pleaded in paragraph 16 of the statement of claim and when the respondent gave evidence before the court, he described how he was earning about N120 a day from his business of carrying gravels, sand and other materials with the tipper. The learned trial Judge considered the claim because the appellant threw no challenge to the evidence adduced by the respondent…”
The act of the court below is to be likened to the throwing away of the child with the water in the tub after bathing it.
The grant of the N12,000 to the appellant ought therefore to be disallowed and it is accordingly disallowed by me. My answer to issue three is accordingly rendered in the negative.
The result of all I have been saying is that the appeal fails and it is accordingly dismissed with N10,000.00 costs to the respondents.
SC.166/1992