Benjamin Obasuyi & Anor V. Business Ventures Ltd (2000)
LAWGLOBAL HUB Lead Judgment Report
M. A. BELGORE, J.S.C.
The appellants were defendants at the trial High Court of former Bendel State. The case now on appeal from Court of Appeal, Benin Division arose out of an accident involving a trailer tipper of Mercedes Benz make of the appellants and a Mercedes Benz make trailer tanker of the respondent. That was on 29th day of December 1988 along Benin – Auchi highway. The Police visited the scene of the accident on 30th day of December 1988 to investigate the accident. Thereafter the respondent’s trailer tanker was towed to the Police post at Auchi. The Respondent’s vehicle, travelling along Benin-Auchi road, on its right side of the road, was suddenly ran into by appellants’ vehicle that left its own lane. At trial Court the appellants were found liable. Court of Appeal never disturbed the issue of negligence leading to the acident as found by the trial Court. However, the contention of the appellants is that the lower Court which upheld the trial Court’s award of damages was in error just as the trial Court was. Thus the issue of liability for the accident is not contested before the Supreme Court. In the statement of claim the respondent claimed under “Particulars of Special Damage” as follows:-
(i)Estimated cost of Damaged spare parts……… 362,578.00
(ii)Estimated cost of labour and sundry charges 10,200.06
(iii)Loss of use from 29/12/88 to 31/10/89 – 306 days less 44 Sundays =262
x N2,000.00 =…….. 524,000.06
(iv) Loss of use at the rate of N2000.00 per day from 1st November 1989 up to the date of repairs or date of judgment to be calculated.And the Plaintiff claims from the defendants special damages limited to N1,500,000.00″
The respondent made two subsequent amendments to the statement of claim under “Particulars of Special Damages” for “loss of use from 29/12/88 to 31/3/90 less Sundays and Public Holiday, 387 days at the rate of N2000.00 per day = N774,000.00”. At the trial, PW7 gave evidence; the only evidence of loss of use was inter alia, as follows:-
“I claim N2000.00 per day from 29/12/88 to the date of judgment. I also claim N372,578.06 cost of repairs etc. as per Exhibit ‘A’”.
In its judgment, trial Court found for the respondent and awarded him:
(a) Cost of spare parts and Labour N372,778.06
(b) Loss of use of vehicle from 29/12/88 to 31/5/90 Less Sundays and Public Holidays, 439 days at N2000 per day = N878,000.00
Total = N1,250,778.06
Against the decision of the trial Court an appeal was lodged at the Court of Appeal, Benin Division, which dismissed the appeal on all the issues. Thus the appeal to this Court.
Before this Court, on the grounds of appeal filed the following issues were raised by the appellant:-
(a) “Can explanation given by counsel in his brief which explanation do (sic) not form part of the evidence and/or pleading be sufficient to explain why a Plaintiff has not mitigated his loss or was the Court of Appeal right to hold that the explanation contained in the brief of the Respondents’s counsel on why the Plaintiff did not mitigate her loss the same as oral evidence to show that the plaintiff mitigated her loss
(b) Was the Court of Appeal right to have affirmed the award of N2,000.00 per day from 29/12/88 to 31/5/90 in view of the pleading and evidence in the printed record of Appeal
(c) Was the use of Exhibit “D” by the Lower Court which was affirmed by the Court of Appeal in calculating the loss of use proper in view of the various dates of preparation ascribed to Exhibit “D” and the evidence of P.W. 4 who entered the said Exhibit “D”
(d) From a calm view of the entire evidence contained in the printed records of Appeal, was the Plaintiff entitled to the damages awarded her loss of use.
From a calm view of the entire evidence in the printed record of Appeal, has the Respondent succeeded in proving her case to entitle her to the amount awarded her which amount was affirmed by the Court of Appeal
(e) Did the Plaintiff/Respondent mitigate her loss.
It must be pointed out that the issues before this Court are as to award of damages; not as to liability for negligence which is conceded. The vehicle in the accident belonging to the Respondent, Business Ventures Limited, was extensively damaged as a result of the accident caused by negligence of 1st Defendants. The evidence of Vehicle Inspection Officer (PW3) and of the Engineer from Leventis Limited (PW2) who valued cost of repairs is clear as to what was necessary to restore the vehicle to its mechanical state as of before the accident. To put the vehicle back on the road as roadworthy vehicle the Leventis Limited need N372,778.06 as pleaded and testified upon. This will be cost of spare parts, sundry supplies and labour. There was evidence that costs of materials and labour escalated due to the general inflationary trend in Nigeria’s economy. But has the Respondent done anything to mitigate its loss Why has the Company left the vehicle unrepaired If the vehicle has been repaired promptly there would have been no loss of earnings claimed and cost of repairs would not escalate. Learned Justice of Appeal in the Court below held as follows in affirming the decision of the trial High Court decision:-
“I have carefully considered the two arguments and the explanation given on behalf of Respondent for failing to repair the vehicle immediately after the accident on a reasonable time thereafter, and that there is no doubt that the Plaintiff is under duty to minimise or mitigate his loss. I must confess that after first reading the Appellants’ brief, I was minded to hold that the Respondents had failed to minimise their loss. But after reading the explanation given by the Respondent in their brief it appears that a reasonable explanation has been given why the vehicle could not be repaired before the matter went for trial at the High Court.”
Learned Justice of Appeal never set out the explanation for not considering failure to mitigate loss. It was clearly in evidence in the printed record that the Respondent had at the time of the accident sixteen other vehicles in the same business of carrying petroleum products from Pipelines and Product Marketing Company Ltd, and could easily have adjusted or even raised the funds for immediate repair to the vehicle. From evidence it is also clear that the entire Exhibit “D” is a spurious document and the courts below never adverted to it. We pointed out this to the parties and there was no reply. The witness who tendered the document, PW.4, an accountant, testified that he prepared Exhibit “D” on 15/3/90, the very day he was testifying, but at page 7 of the Exhibit where he appended his signature the date is “2nd April 1990”. Those discrepancies have not been explained. PW.4’s report, Exhibit “D” is based on the alleged loss of income as in Exhibits B-B1 -B58 being alleged earnings from October to December 1988. Exhibit “D” is therefore unreliable and is of no use in this matter.
In cases of this nature, it is always expected of Plaintiff to mitigate the loss suffered due to negligence of the Defendant. It is incumbent upon him to get such damaged vehicle repaired at the earliest opportunity. This is the requirement of the law all over the world. It is not confined to Common Law, and it is based on common sense and reasonableness. To allow a party that is a victim of negligence time almost in perpetuity to leave his damaged object unrepaired and expect damages to be calculated against years rather than few days is giving a blank cheque to rake in undeserved compensation. The Respondent had got many vehicles, sixteen of them, there was no evidence that these vehicles were not running at profit or that the company had no access to bank to raise money for prompt repairs so as to mitigate loss. (See Linus Onwuka & Anor vs. R.I. Omogui (1992) SCNJ 98, 124). The claim for 262 days of loss of use is most unreasonable and the award of damages for that is unjustified. (See for persuasive effect the cases of British Westinghonee Electric Company Ltd vs. Underground Railways Company of London Ltd,(1912) AC. 673, Dredger Liestosch Company vs. Owners of Steamship Edizon (1933) AC 449).
It is therefore clear that the only claim of damages maintainable is that of cost of repairs as submitted by Messrs. A.G. Leventis Ltd for N372,778.06.
I award the Appellant N10,000.00 as costs in this appeal against the Respondent.