Alphonsus Ibeanu & Anor V. Peter A. Ogbeide & Anor (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDERE, J.C.A.

Before Gbemudu J. at the then Bendel State High Court holden at Agbor, the plaintiffs now respondents filed a claim against the defendants in the tort of negligence arising from the collision of the Plaintiff’s Steyr Diesel Petrol Tanker BD2426BF loaded with petrol, with the 1st defendant appellant’s Luxury Bus AN 7298 G driven by the second defendant. The plaintiffs’ case was that on the 4th January, 1988 the Luxury Bus on the Benin Onitsha Road left its side of the road and without notice signals collided with the petrol tanker which was travelling properly on its right side of the Road. The Petrol Tanker burst into inflames and was completely destroyed. The plaintiffs relied on the doctrine of “res ipsa loquitur”

The plaintiffs in paragraph 13 of the Statement of Claim averred as follows:”

The plaintiffs say that the second defendant was negligent in the driving and management of the Motor Vehicle Number BD2426BF on the 4th day of January, 1988 at the time and place aforesaid in the following respect of particulars Viz:-

(i) Driving at a dangerous, improper or excessive speed.

(ii) Failing to keep to the right or proper side of the road.

(iii) Failing to keep any or proper lookout and to give any or timely warning of approach of the said Vehicle.

(iv) Failing to manoeuvre or sufficiently, the said Vehicle, so as to avoid running into, or colliding, and destroying the Vehicle number BD2426B.

(v) Failed to slow down or to stop in order to avoid the accident.

(vi) Failed to apply the brakes of the Motor Vehicle, in order to avoid the accident.

(vii) Failing to exercise good care, caution and skill to avoid the accident.

In the alternative, the plaintiffs will rely on the doctrine of Res Ipsa Loquitur.

PARTICULARS OF LOSS AND DAMAGE

(a) Pre-accident value of the plaintiff’s said vehicle .. N400,000.00

(b) Cost of contents of the Vehicle

damaged burnt beyond recognition 11,455.00

(c) Loss of earning for 60 days at the rate

of N2,000 (Two Thousand Naira) per day that is,

from 4th January, 1988 to 4th March, 1988 120,000.00

(d) General Damage 168,545.00

= = = = = = =

Total = N700,000.00

= = = = = = =

AND the plaintiffs claim against the defendants jointly and severally the sum of N700,000.00 (Seven Hundred Thousand Naira) being special and general damages.

In paragraph 4 to 14 of the amended Statement of Defence pleaded thus:

“4. Somewhere about Alifekide Village Agbor, along a curve on the road, a white Peugeot 504 Saloon Car with registration number BD 8463 GB attempted to overtake the 2nd defendant.

5. Being a blind curve, the driver of the white Peugeot 504 Saloon Car with registration number BD8463 GB was unaware that the plaintiffs’ vehicle BD 2426 BF was approaching en route Asaba direction; i.e. from the opposite direction.
6. That at the last moment, the driver of the white Peugeot 504 Saloon Car BD 4863 GB and the plaintiff vehicle BD2426 BF realised that a head on collision between them was imminent.
7. That the driver of the Peugeot 504 Saloon Car BD 8463 GB swerved sharply in front of the 2nd Defendant in an attempt to get back onto his correct lane.
8. That the 2nd defendant ran into the rear part of the white Peugeot 504 Saloon Car BD 8463 GB as a result of this violent manoeuvre, but luckily the 504 Saloon Car BD 8463 GB was able to veer off the road without much damage.
9. That the plaintiff’s Vehicle, being a tanker/trailer, was less maneuverable and easy to control.
10. That at the time the plaintiff vehicle sighted the imminency of a head on collision with the white 504 BD 8463 GB, the driver applied his brakes and swerved to the right to avert the accident.
11. That the cab portion of the Tanker/Trailer did in fact veer to the right, but the main body remained on the road and brushed with the white Peugeot 504 BD 8463 GB and the 2nd defendant.
12. That owning to his inability to control the vehicle, and the explosive nature of the goods he was carrying, the Tanker/Trailer went off the road and burst into flames.
13. The defendants shall rely upon the Police Accident Report and sketches of the accident signed by all the parties involved in the accident.
14. The defendants aver that the cause of the accident was the reckless driving exhibited by the driver of the white Peugeot Saloon Car with Registration number BD 8463 GB, the unwieldy nature of the plaintiff’s vehicle and misadventure.
15. The defendants shall also contend at the trial of this action that the plaintiff vehicle was not covered by the statutory vehicle particulars required of all law- abiding users of a public highway; including a current vehicle insurance policy at the time of the accident.”

The learned trial Judge after taking the evidence of the parties and the address by their Counsel made the following findings:-

“The most reliable evidence was that the Peugeot was in front of the luxury bus. It was the luxury bus that was overtaking the Peugeot when the accident occurred. It was reckless to overtake at a sharp bend and close to a market. Recklessness was defined as an attitude of mental indifference to obvious risk as per Ev. J in Hudson v. Viney (1921) 1 CH 98. 104.

There is overwhelming evidence that the bus driven by second defendant was the cause of the accident.”

The learned trial Judge found that the petrol tanker was licensed.

As regards the liability of the defendants in negligence and damages claimed the learned trial Judge found as follows:-

“That it was not proved that the defendant was negligent. I have shown that to overtake in a sharp bend and near a market was not only negligent but reckless. Second defendant was very negligent.

That the vehicle was registered on 25th August, 1983 as per Exhibit 6 and the accident was on 4th January, 1988. This was not put to first or second plaintiff. In any case in Exhibit 1, P.W.5 showed that the pre-accident value of the vehicle was N400,000.00

That first plaintiff could not say the price of one litre of petrol. Exhibit 5 was the way bill and the value of 29000 litre of petrol was shown as N11,455.00. No other price was suggested to first plaintiff by the defence Counsel. In paragraph one of the statement of defence the defendants merely denied paragraph 13 of the Statement of Claim.

That between 4th January, 1988 and 4th March, 1988 the vehicle would not be in use for 11 days and that the claim would be for 49 days. This was defence counsel’s address and not evidence. Paragraph 1 of the Statement of Defence merely denied paragraph 13 of the Statement of Claim.

That special damages was not proved. It was proved by the evidence of first plaintiff and P.W.5. Special Damage consists of out of pocket expenses and loss of earnings incurred down to date of trial, and is generally capable of substantially exact calculation.

General damage is the one implied by law and is not specially pleaded. It includes compensation for pain and suffering and the like. British Transport Commission v. Gourley (1956) A.C. 185. 206.

In this case special damages were proved by P.W.1 and P.W.5. See also Exhibit 1. The plaintiffs have proved the Case conclusively. I find the defendants jointly and severally liable to the Plaintiffs in the sum of N698,000.00 (N531,455.00 less N2,000.00 for scrap that is N529,455.00 general damages). The plaintiffs are entitled to the cost of this suit which I assess at N1,000.00 (One Thousand Naira)”.

The defendants have appealed against that judgment to this Honourable Court on five grounds of appeal. Both parties filed and exchanged briefs of arguments. In the appellant’s brief of arguments, the following issues for determination was raised:-

“2.1 Whether the issuance of the Writ of Summons and the entire proceeding in the High Court are a nullity, leave to issue the Writ of Summons endorsed for service out of jurisdiction of the High Court of then Bendel State, not having been first sought and obtained.

2.2. Whether the service of the Summons on the 1st defendant is a nullity and ought to be set aside because personal service on the 1st defendant was not effected, the Writ of Summons for service on the 1st defendant having been served on one Mr. Augustine Osuji.

2.3 Whether the plaintiff/respondents on the preponderance of evidence proved ownership of vehicle No.BD 2426 BF and whether the duty of care placed on the defendants/appellants was owed to the plaintiffs or to the owners of vehicle. No. BD 2426 BF.

2.4 Whether on the pleadings and on the preponderance of evidence it was the negligence of the 2nd defendant that caused the accident on the 4th of January, 1988.

2.5 Whether the award of total damages in the sum of N698,000.00 (Six Hundred and Ninety-Eight thousand Naira) only was justified having regard to the evidence proferred in support of the claim for damages and whether the award of N168,545.00 as general damages is not double compensation on the claim for loss of earning which was also granted.”

On question 2.1 it was submitted that the address for service of the writ on the defendant was, 49. Martins Street, Lagos, outside the jurisdiction of the High Court of the then Bendel State. As leave to serve the said writ out of the jurisdiction of Bendel State was neither sought nor obtained under both Order 4 Rules 1, 2 and 4 of the High Court of Justice, Bendel State (Civil Procedure) Rules 1976 and the Supreme Court of England Order 2 Rule 4, 1960, then applicable in Bendel State, the court lacked jurisdiction on the case and the entire proceedings in the lower court was a nullity: Nwabueze v. Obi-Okoye (1988) 4 NWLR (Pt.91) 664; Skenconsult v. Ukey (1981) 1 SC 6, 26. The appellants challenged the validity of the Writ of Summons by motions dated 3rd September, 1988 which was withdrawn on 11th April, 1989; that of 30th September 1988 was withdrawn on 29th January, 1989, whilst that 11th April, 1989 was struck out on 11th May, 1989.

Admittedly, it was submitted, that the withdrawal of the motions is a mistake. However the question of the competence of a court to hear and determine a matter can be raised at any time, even on appeal. I. T. T. (Nigeria) Limited v. Okpon. (1989) 2 NWLR (Pt.1 03) 337. It was then submitted that a party who enters an appearance in order to challenge the jurisdiction of the court does not thereby submit to the court’s jurisdiction. Re Dulles Settlement Trust (1951) 2 All E.R 69. A fortiori the Writ of Summons did not contain the endorsement stipulated under Sections 97 and 99 of the Sheriff and Civil Process Act, Cap. 189 Laws of the Federation 1958. The Writ was therefore incurably bad.

On question 2.2 it was submitted that Order 3 Rule 3 of the Bendel State (Civil Procedure) Rules provides that service of process shall be effected on the person named in the process unless the Court directs otherwise. The affidavit of Service of the Writ at page 30 of the record of proceedings shows that the Writ was served on Martins Nzekwe at Agbor. Another affidavit of service deposed that the Gist defendants writ was served on his manager at the Chief Magistrates Court Agbor. Therefore, the lower court lacked competence to entertain the matter and any defect in competence is fatal to the case. National Bank Limited v. Shoyoye & Anor. (1977)5 SC 181; Umaru Lanni v. Ezeadua (1983) 1 All NLR 250; Madukolu and Ors. v. Nkemdilim (1962) I All NLR 587; (1962) 2 SCNLR 341.

In the respondent’s brief the question of competence or jurisdiction of the lower court was raised in issues (a) and (b) thus:-

(a) Whether having withdrawn the challenge to the Writ of Summons and having defended the action until judgment and having not made the validity of the Writ an issue at the trial, the appellants can now canvass same on appeal.

(b) Whether there was service on the first defendant.

It was submitted that Nwabueze v. Okoye (1988) 10-11 SCNJ 60; (1988) 4 NWLR (Pt.91) 664 is the authority for the proposition that courts exercise jurisdiction only over persons within the territorial limits of their jurisdiction, except where there is a submission to the jurisdiction of the court. The jurisdiction of a State High Court covers that State. See the opinion of Agbaje J.S.C. at page 630 of that reported case. As the appellants only questioned the service of the process on them by a motion which was later withdrawn, and later proceeded with the case of judgment, one-third of which judgment debt has been paid, the principles of effectiveness and submission enunciated in the same Nwabueze Case per Karibi-Whyte, J.S.C. at page 709 were thereby fulfilled. Besides, the appellants did question the service of, not the issuing out of the process on them timeously, and they thereafter proceeded with the Case until judgment was delivered.

It was further submitted as pointed out by Oputa, J.S.C. in Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250, 266 that in citing Nwabueze’s Case, the appellant must show that the facts in this case are similar to Nwabueze’s Case and that he took necessary steps to question the validity of the Writ or the validity of service or both. In Nwabueze’s case, the appellant applied to the High Court that issued that Writ for Orders:-

(i) Setting aside the Writ of Summons

(ii) Setting aside the Order of substituted service

(iii) Setting aside the purported issue and service of the Writ of Summons on each of the defendants.

As the appellants abandoned their attack on the Writ and submitted to the jurisdiction of the Court, they could not on appeal resuscitate the objection they had abandoned and must be deemed to have waived their rights having proceeded with the case up to judgment. Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257 per Uche Omo. It was also submitted that the defendants now appellants in the Courts below did not make an issue out of the service of the writ out of the jurisdiction. The alleged defective writ was not tendered in evidence nor was evidence led on it. They abandoned their motion. To constitute an issue in this appeal, it should have been argued in the court below and the court should have given a ruling on it as was done in Nwabueze and Skenconsult cases. See the dictum of Oputa, J.S.C. in Adegoke Motor’s case at page 272. It was then submitted that this court should follow Adegoke Motor’s case.

Besides, the first appellant was described as carrying on business under the name and style of De Royal Transport Service. Its Manager Augustine Osuji was served personally which service was also service on the first defendant under Order 3 Rule 13 Bendel State High Court (Civil Procedure) Rules 1976.

What then is the law in this regard. The parties to this appeal have sometimes interchangeably used the term “jurisdiction” and “competence” of a court. The jurisdiction of a court is the definitive pre-requisite before it can be seized of any cause or matter; without it any proceedings before such a court is a nullity ab initio.

Jurisdiction means the authority which a court has to decide matters that are litigated before it. In essence it encompasses the constitutional, statutory and conventional basis for the exercises of a Court’s jurisdiction within a prescribed geographical area or territory. Madukolu v. Nkemdilim (1962) 1 All NLR 587, 589, 595; (1962) 2 SCNLR 341. Halsbury’s Laws of England 4th Ed. Vol. 10 paragraph 715, page 323. Re Busfield (1886) 32 Ch.D 131. This as regards the territorial element.

Sections 6(1) (2), (3) and 5 of the 1979 Constitution delimits the entire Federation within which superior courts of record, to wit, the Supreme Court, the Court of Appeal and the Federal High Court can operate; and a State constitutes the territorial limits of a State High Court, Sharia Court of Appeal and a Customary Court of Appeal and other courts created by the legislature of a State. As to the essence or authority of a court’s jurisdiction, see the 1979 Constitution Sections 212, 213 for the Supreme Court, Sections 219, 220, 221 for the Court of Appeal and Section 230 of the Federal High Court Act 1973 for Federal High Court. As to subject matter Section 236 covers the unlimited jurisdiction of a State High Court. A court has a duty, be it a trial or appellate Court to put an end to any proceedings before it on discovery that it lacks jurisdiction, and an objection to jurisdiction can be taken at any stage of the proceedings; Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt.51) 506; (1987) 2 SCNJ 76, 81.

If a Court has no jurisdiction to entertain a Suit it cannot acquire jurisdiction by acquiescence or submission of the parties. Onyema & Ors v. Oputa & ors. (1987) 3 NWLR (Pt.60) 259; A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646, 665.

As regards this appeal, under Section 236 of the 1979 Constitution, the High Court of a State, Bendel State High Court in this appeal, has unlimited jurisdiction to determine, inter alia, any civil proceedings like the one in hand over tortious liability in negligence as between the parties herein.

Now, competence of a court is the hand maiden of the jurisdiction of a court. There is sometime some tendency to equate jurisdiction of a court with its competence as if the two mean one and the same thing. That is not so. A court must have both jurisdiction and competence to be properly seized of a cause or matter.

Madukolu v. Nkemdilin is the authority for the following propositions:

A court is competent when:-

(i) It is properly constituted with respect to the number and qualification of members;

(ii) The subject matter of the action is within its jurisdiction; and there is no feature in the case which prevents the court from exercising its jurisdiction;

(iii) The action is initiated by due process of law; and

(iv) Any condition precedent to the exercise of its jurisdiction has been fulfilled.

As to the constitution or quorum of a court, see the 1979 Constitution, Section 214 for the Supreme Court, Section 226 for the Court of Appeal, Section 232 for a Federal High Court, and Section 238 for a State High Court. As to qualifications of a member as examples, see Section 21 1 for the Supreme Court and Sections 218(3) and 252(1) for the Court of Appeal.

As the proposition (i) above where the composition of the court is unconstitutional that is there is no proper quorum or a member lacks qualification, the proceedings whether challenged in the trial court or not is a nullity. Thus in Ogbunyiya v. Okudo (1979) 6 SC 32, a judgment read by a judge after he had ceased to be a member of the State High was declared a nullity. That could be characterised as basic of jurisdiction. In contrast in Oloriogbe v. Omotosho (1993) 1 NWLR (Pt. 270) 386, 402, 419 where a Kadi of the Sharia Court of Appeal sat with the Kwara State High Court, in its appellate jurisdiction even though the parties did not raise that issue in the High Court or in the Court of Appeal, the Supreme Court raised it suo motu and ordered that the proceedings in the two lower Courts were a nullity as under Section 238 of the 1979 Constitution the Kadi in the panel lacked qualification or competence to sit in the Appellate Panel of the High Court, or in the High Court at all. The appellant successfully raised that question in Mallam Ado and Anor v. Hajia Dije (1984) 5 NCLR 260, 277.

We are now on proposition (ii) and (iv) that the subject matter is within the jurisdiction of the Court. The question of a matter being within the jurisdiction of a court is exemplified by G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552, 567, 596 where the Supreme Court overruled the decision of the Court of Appeal and held that by virtue of Section 6(6)(d) of the 1979 Constitution a court of law lacks jurisdiction to determine the competence of a Military Governor to make an Edict. As to whether any condition precedent to the exercise of the Courts jurisdiction has been fulfilled, such is the requirement of three months notice to sue the Nigeria Railways, under Section 83 of the Nigeria Railway Corporation Act.

See Nigeria Cement Company Ltd. v. Nigeria Railway Corporation (1992) 1 NWLR (Pt.220) 747, 761. Such also is the limitation of three months within which an action can be brought against a Public Officer under Section 2(a) of the Public Officers (Protection) Act, Cap. 379 Laws of the Federation. Agboola & Ors. v. Saibu & Ors. (1991) 2 NWLR (Pt.175) 566. In either event, breach of the requirements render the whole proceedings a nullity.

We now come to the proposition (iii) which is the issue under consideration in this appeal, that the action is initiated by due process of law, or that any condition precedent to the exercise of the court’s jurisdiction had been fulfilled. This calls for the consideration of the parties’ arguments in relation to the following cases: Westminster Bank Ltd v. Edward (1942) A.C. 529 t 536; (1942) 1 All E.R. 470, 474 considered by the Supreme Court in Skenconsult (Nigeria) Limited and Anor v. Ukey (1981) 1 SC 6, 26; Craig v. Kanseen (1943) 256, 262, 263 considered by the Supreme Court in Ohimonure v. Erinosho & Anor (1966) 1 All NLR 250, 252, 253; Nwabueze & Anor v. Obi-Okoye (1988) 10-11 SCNJ 60. See also my lead opinion in F.C.M.B. v. Abiola & Ors. (1991) 1 NWLR (Pt.165) 14, 27-31.

In Nwabueze & Anor v. Obi-Okoye the plaintiff now respondent sued the defendants now appellants in the High Court of Anambra State in libel and damages. Both defendants resided outside the jurisdiction, to wit, Lagos State. Leave to issue the writ for service outside the jurisdiction was not sought or obtained. The plaintiff immediately applied for substituted service by sending the processes by registered post to the defendants. The appellants applied to the court to set aside the issue of the writ and it service as incompetent. The learned trial Judge held that the writ was in order, but asked the Registrar to endorse it for service outside the jurisdiction. The defendants appealed to the Court of appeal which dismissed the appeal. On a further appeal to the Supreme Court, it was held that the plaintiff’s writ did not comply with Section 16 of the High Court Edict 1987 and R.S.C. Order 2 Rule 5. The Order for service outside the jurisdiction also violated Section 97 of the Sheriffs and Civil Process Act which requires such a writ to be specially endorsed, and Section 99 of the Act which required that the return date of such writ, when duly served, should be at least 30 days after service. The appeal was allowed, the orders of the two Lower Courts were set aside; and the writ was struck out for want of competence of the trial Court.

It is clear, therefore, that it is not every challenge to the jurisdiction of a court or its competence that renders the proceedings a nullity, contrary to the arguments in that regard in the appellants brief. Nwabueze’s case clearly demonstrates that a defendant must successfully bring motions to avoid that issue of a writ or to declare its service as incompetent, before trial court can declare them incompetent and strike out the case. In this appeal, there was evidence that a defendant was served within the jurisdiction. The defendants withdrew the motion challenging the regularity of the issue of the writ and its service. They cannot therefore, complain in that regard after losing the case after a full hearing and judgment. The defendants were therefore deemed to have waived their rights. Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257. This should be distinguished from a case where the defendants were not served the writ at all where judgments were obtained and court orders made in their absence. Such was the case of Westminster Bank Ltd. v. Edwards cited by the Supreme Court in the Case of Skenconsult (Nigeria) Limited. That is not a mere irregularity; the entire proceedings must be set aside.

Adegoke Motors Ltd. v. Adesanya & Anor (1989) 3 NWLR (Pt.109) 250, 226-273 is almost on all fours with this appeal. In that Case, the plaintiff respondents claimed against the defendant appellant N60,280.00 being damages for negligence. The writ of Summons specially endorsed with the Statement of Claim issued from Lagos High Court and were served on the defendant out of jurisdiction in Ibadan, Oyo State. The defendant through his Solicitor entered an appearance. On the return date for the Summons for judgment there was no appearance for the defendant and judgment was finally entered against it. The appellant unsuccessfully moved the Court to set aside the default judgment. The appellant, however, at the High Court did not challenge the writ as being served in violation of Section 97 and 99 of the Sheriffs and Civil Process Act.

The defendant appealed to the Court of Appeal which held by a majority that the entry of appearance constituted a waiver of the irregularities. On a further appeal to the Supreme Court that non-compliance with Sections 97 and 99 of the Act rendered the whole proceedings in the lower court void, the appeal was dismissed.

It was held that the defendant appellant at the lower Court should have moved the trial Court first, to set aside the writ which will now be an exhibit in the Case; secondly to set aside service of the writ which violated Sections 97 and 99 of the Act. As these were not done as was done in Nwabueze & Anorv. Ohi-Oboye, the Supreme Court dismissed the appeal.

In the circumstances as the appellants herein abandoned their motions challenging the service of the writ outside the jurisdiction, the appeal must fail on this score.

In the appellants brief issue of question 2.3 it was submitted that the pleadings of the plaintiffs as to Ownership of the Tanker was not supported by the evidence led at the trial, accordingly the trial court, it was submitted should have rejected that evidence. Cited in support of that argument were, Amoresun v. Tinko (1929) 9 NLR 8; African Continental Seaways v. Nigerian Dredging Co. (1977) 5 SC 235; A.C.B. v. Egbunike (1988) 4 NWLR (Pt.88) 350; Morohunfolu v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506. Therefore the plaintiffs did not show that the defendants appellants owed them a duty of care which was breached by their negligence with consequential damages. Doneghue v. Stevenson (1932) A.C. 562.

In the respondents’ brief it was submitted that Ownership, was pleaded by the plaintiff which the defendant denied in a general traverse. The defendant did not specifically deny the issues of Ownership of the Vehicle but in that brief there was no submission on the relevant evidence. The evidence of the 1st plaintiff that he was the owner of the vehicle was not challenged. He tendered the Vehicle licence Exhibit 2, Third Party Insurance Exhibit 3 and the sale Agreement between 1st and 2nd Plaintiff Exhibit – 4. The finding of the trial court at page 68 of the Record would seem to answer that question. He said:

“First plaintiff was Peter Ogbeide. His business name was Konkon Petrol Nigeria Limited. Steyr Tanker Trailer Registration Number BD 2426 BF was sold to him by second plaintiff for N40,000.00 (Four hundred thousand Naira) on 15th June, 1987. He paid N300,000.00 (Three hundred thousand Naira) and had N100,000.00 (One hundred thousand Naira) to pay.

It was agreed that the Vehicle would pass to him when the accident happened. The Vehicle had Vehicle Licence Exhibit 2 and Third Party insurance Exhibit 3. The Agreement was Exhibit 4. P.W.4 was his driver.”

This issue in the appeal also fails.

The appellant’s brief raised issue or question 2.04 on the proof of negligence and that the pleadings were at variance with the evidence led. Aderemi v. Adedire (1966) NMLR 398.

In the respondent’s brief, it was submitted that the facts of negligence were averred in paragraphs 8, 10, 11, 12 and 13 of the Statement of Claim and were denied in paragraphs 3 to 14 of the Statement of Defence in which it was averred that it was the driver of Peugeot 504 Saloon Car number BD8463 GB that caused the accident. The said Driver as P.W.2 testified to establish the plaintiff’s Case as to the condition of the road, the negligent manner of driving by the second defendant and the resultant damage. Also Gabriel Aneke P.W.3, a passenger in the Luxurious Bus driven by the 2nd defendant gave vivid evidence of how the accident happened. The two witnesses were not shaken under cross-examination, and there were no material contradiction in their evidence Kalla v. Jarmakani Transport Ltd (1961) All NLR 747. Also the defendants neither pleaded that the driver of plaintiff vehicle was negligent nor testified to that effect. The plaintiff as respondents are entitled to benefit from those facts. Bamboye v. Olarewaju (1991) 4 NWLR (Pt.184) 132; Onuwaje v. Ogheide (1991) 3 NWLR (Pt.178) 147, 163. Issue No. 2.4 is therefore also resolved in favour of Respondents.

As to question 2.5 on the award of damages, the appellants in their brief submitted that the Special Damages claimed were not proved neither by the evidence of P.W.1 nor P.W.5. The plaintiffs claimed loss of earning for 60 days at N2,000 a day from 4th January to 4th March, 1988, but the evidence disclosed that it was on the road 6 days a week i.e. minus eight Sundays. Also that the vehicle was serviced every week, that amounts to 8 days, total 16 days when the vehicle was not operational. No evidence was given on cost of repair and maintenance to enable equivalent deduction from them. It was then submitted that the lower Court should have deducted 16 days from days claimed for loss of earning, and that the award of N120,000.00 as loss of earning for sixty days, unreasonable. Incar Nigeria Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453; Sommer v. FHA. (1992) 1 NWLR (Pt.219) 548.

As to the Cost of fuel in the tanker, Exhibit 5, the waybill is not sufficient proof of the volume of fuel lost or its cost. It was also submitted that the general damages of N168,545.00 was excessive. It was then submitted that a plaintiff who claims specific items and claim in general damages to round up the figure may be claiming double compensation and the Court must scrutinizes the two heads of claim closely. Ezeani v. Ejidike (1964) 1 All NLR 402. It was then submitted that this is a Case where a Court of Appeal should interfere in the award of damages by the lower Court. Onaga v. Micho & Co. (1961) All NLR 101, 1324; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt.156) 254; Durabo v. Idughoe (1982) 2 SC. 24, 93. It was then finally submitted that the appeal be allowed as per appellants’ brief of arguments.

In response, the respondents, in their brief, submitted that there was no question that the Driver of the Bus, the second defendant/appellant was negligent. The next question is whether there was resultant damages. P.W.1, the Vehicle Inspection Officer and P.W.5 the Automobile Engineer testified that the tanker BD 2426 BF was burnt beyond recognition. In proving the special damages the first plaintiff testified and tendered Exhibit 1 to 5. It was then submitted that whenever special damages are awarded, general damages follow as a matter of course and it is incapable of exact calculation. Although P.W.5 could not tell the age of the Vehicle as it was burnt beyond recognition, there was evidence that the pre-accident value was N400,000.00. It is only the scrap value that was deductable from it. It was further submitted that there was receipt of the fuel. It could not have been obtained as the delivery was aborted and receipt only obtainable after delivery. All that was obtainable at that point of transit was Exhibit 5. It was then submitted that only credible evidence to establish Special Damages or preponderance of evidence was required. A-G Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt.121) 255; Odumosu v. ACB (1976) II SC 58. It was finally submitted that general damages may be awarded as a matter of inference of law and need not be proved by evidence Omonuwa v. Wahabi (1976) 4 SC 37; Incar v. Benson Transport Ltd (1975) 3 SC 117; and finally it was submitted that the appeal be dismissed.

Having considered with close attention the submissions of the parties on the issue of negligence, and consequential damages as to whether the Special or General damages were excessive, my opinion is as hereunder. As to proof of negligence, the evidence adduced by the plaintiffs especially P.W.2 the driver of the 404 Peugeot Car. P.W.3 an on looker in the Luxury Bus, and the driver of the Tanker, a clear Case of res ipsa loquitur was established. The learned trial Judge as quoted above correctly found the second defendant not only negligent but reckless. The lower Courts finding is unimpeachable. The more so as the appellants neither pleaded contributory negligence nor testified in that regard.

Rather the driver of the Tanker was impliedly praised for swerving to the right to avoid the collision with a Luxury Bus driving straight at the Tanker on its right lane. The issue of negligence is accordingly resolved in the respondents’ favour.

Now, to damages. It is remarkable that the defendant led no evidence on the State of the Tanker or its value nor on the daily taking’s of Tanker running that route. Learned Counsel for the defendants was also perfunctory in his cross examination of the plaintiff on the question of damages. No specific sum was put to the plaintiff as the correct assessment of any of the damages. He only established that the loss of use should be less 8 days for Sunday and less for a further 8 days for weekly service, although the plaintiff testified to 3 weekly service of the tanker.

The learned trial Judge also found that according to Exhibit 5, the waybill, the Cost of 29,000 litre of petrol in the tanker was N11,455.00, no other figure were suggested during cross examination of the plaintiff.

What then are the principles for the award of damages in the law of tort of negligence arising from collision of vehicles. Generally, in civil cases, a Court can only award damages as pleaded and proved. Ehimare v. Emhonyen (1985) 1 NWLR (Pt.2) 177, 184. In short a Judge should not award damages that are not pleaded or proved. Bakare v. ACB Ltd (1985) 3 NWLR (Pt.26) 47, 60; George & Ors. II. Dominion Flour Mills Ltd (1963) 1 All NLR 71.

The Supreme Court in Ezeani v. Egidike (1964) 1 All NLR 402 at 405 gave guidelines in this regard. Briefly, a Judge in awarding any category of damages: contemptuous, nominal, general, special, punitive or exemplary damages should give reasons for his award. Where as in that Case, a plaintiff asking for damages began by settling out specify items of damages and then adds a claim under the heading of General Damages for a sum which will bring the total claimed to a round figure, his claim should always be carefully scrutinised both by the defendant and by the Court in order to see whether he is in fact seeking compensation more than once for the same cause of action.

The principle of avoidance of double compensation applies in tort or contract although the measure of damages are not the same in the two. The defendants/appellants did not challenge effectively or at all under cross examination of the plaintiff or by their own independent witnesses the items of damages claimed by the plaintiffs. The evidence remained unchallenged. Thus in Adisa v. Afuye (Nig.) Ltd (1994) 1 NWLR (Pt.318) 75, 89 where, as in this Case, the plaintiff’s unchallenged evidence in support of his pleadings on damages as to the daily takings of a tipper which was destroyed completely in an accident was appealed to this Court, the appeal was dismissed.

Further an appeal Court can only interfere with an award of damages based on wrong principles. Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623. An example is where the award of damages was manifestly so high or unreasonable as to make it an erroneous estimate of the damage suffered by the plaintiff. Rewani v. Okotieboh (1965) 1 All NLR 336, 341, 342. Also where a Vehicle is a total loss in a collision accident, the damages as pointed out in Uhani-Ukoma II. Nicol (1962) 1 All NLR 105, is the value of the vehicle at the time of the accident plus such further sum as would compensate the owner for loss of earnings and the inconvenience of being without the Vehicle during the period reasonably required for procuring another Car. Thomas Kerewi v. Ogbegbesan (1965) 1 All NLR 95, 99. NEPA v. Alli (1992) 8 NWLR (Pt.259) 279, 298, 304 is the authority for the proposition that when there is a total destruction of a chattel, damages to be awarded need not be based on the value of the chattel at the time of destruction as used equipment may be sold more than their purchase price.

With these principles in view, I will now review the damages awarded.

Value of the Tanker before the accident was given as N400,000.00, as the defendant did not suggest any other value, it was rightly awarded less the scrap value of N2,000.00 i.e. N398,000.00 by the lower Court.

The value of the petrol lost, 29,000 litres costing N11,455.00 was also not disproved. It is accordingly allowed.

The claim of loss of use for Sixty days at N2,000.00 per day was allowed by the lower Court as general damages and that it was not proved as a special damages. Defence Counsel in cross-examination elicited that the Tanker was in use for 6 days a week but not on Sundays, that is less 8 days. Also that the Vehicle was serviced every three weeks, say 3 days in 8 weeks. Thus 60 days less 11 days is 49 days which the lower Court allowed, that is N2,000.00 times 49 i.e N98,000.00. Defence Counsel at the lower Court did not cross-examine the plaintiff on the Cost of maintenance and service of the vehicle per day, the arguments in the brief in that regard were not based on any evidence. I agree with the submission of the appellants that no sum should otherwise be awarded for general damages. In sum, the total damage are:-

N398,000.00

11,455.00

98,000.00

= = = = = = =

Total = N507.455.00

= = = = = = =

There is no appeal on Costs.

The appeal on the issue of damages succeeds in part, the appellant having failed on two other issues. The appellant shall therefore pay a Total of N507,455.00 as damages to the respondent with N750.00 Costs.

Other Citations: (1994)LCN/0177(CA)