B.J. Ngilari V. Motehrcat Limited (1999)

LAWGLOBAL HUB Lead Judgment Report

O. ONU, J.S.C

In the High Court of Borno State holden at Maiduguri in suit No. M.396/1989, the plaintiff, now the appellant (a legal practitioner by profession) claimed as per his paragraph 10 of the Statement of Claim against the defendant, the respondent herein, special and general damages suffered by him in an accident that involved his car with a third party’s vehicle. This was stated to be as a result of the respondent’s obstruction and diversion of the highway without putting up notice to the road users as follows:-

“10. Whereof the plaintiff claims from the defendant as follows:

(a) As special damages the sum of N35.050.00 being cost of the repairs paid by the plaintiff as a result of the accident as per Bill No. 000073 dated 24/11/89, issued to the plaintiff by Denjoe Panel Beating and Spraying Works for the sum of N14,600.00 (Fourteen thousand, Six hundred Naira), and Delivery Note No. 000068 dated 24/11/89 for the sum of N20,450.00 (Twenty thousand. four hundred and fifty Naira) also issued to the plaintiff by Adirika Gaddy Enterprises Nigeria, both documents covering the cost of materials and labour charges paid by the plaintiff

in effecting repairs to his said car.

(b) Thirty five thousand Naira (N35,000.00) as general damages for pain and suffering and mental anguish caused as a result of the accident.

(c) Interest at the court’s rate of 10% on the above total sum of N70,050.00 with effect from the date of judgment until final liquidation thereof.

(d) Costs of this suit.”

Pleadings having been filed, delivered and exchanged as ordered, the case went to trial, at the close of which the learned trial judge Kuyatsemi J. in a considered judgment, (having earlier visited the locus in quo) dismissed the appellant’s claims in their entirety.

An appeal was lodged at the Court of Appeal, Jos which also in a well considered judgment on the 17th day of May, 1993, affirmed the decision of the High Court. It is that judgment of the court below which is now the subject matter of this present appeal wherein, in place of the original Notice of Appeal containing three grounds and dated 16th August, 1993, there was by leave of this court,

. substituted an amended Notice of Appeal containing five grounds dated 14th June, 1994, and filed on 15th June, 1994.

The parties exchanged Briefs of argument in accordance with the rules of court. The four issues formulated by the learned counsel for the appellant which necessitated the amendment of his brief and which learned counsel for the respondent adopted for the determination of this appeal, are as follows:-

“1. Whether the Court of Appeal was right in dismissing the nine grounds of appeal out of ten before it and refusing to consider most part of the argument in the appellant’s brief before it

2. Was the Court of Appeal right when it held that mere failure to put up any warning sign by the defendant is not sufficient to hold it liable to the plaintiff’
3. Having regard to all the circumstances of this case, the pleadings and evidence on Record, could it be right to say that the plaintiff failed to establish his case
4. Is the Appellant entitled to the reliefs claimed”

Before I proceed to consider these issues, I deem it pertinent to state briefly the facts of this case which, by and large, are undisputed save the inferences drawn by the two courts below from the evidence placed at their disposal and to which I shall later advert in the course of this judgment.