Cappa And D’alberto Ltd V. Deji Akintilo (2003)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

Saloon motor car Citroen XM with registration number LA 2202. As was owned by the respondent, Deji Akintilo. He is the plaintiff. He lawfully parked the vehicle in the compound of Lagos State Development and Property Corporation Flats at Adeola Odeku Street, Victoria Island. Respondent occupied Flat No. 10D and the car was parked in the appropriate parking lot attached to his residence. On 19th October, 1990, the workmen of the appellant negligently allowed flying stones to drop on the rear windscreen of the car and shattered same and caused damage to the car. The car which was imported from France was the newest and latest model.

On 22nd October, 1990, the solicitors of the respondent in exhibit B wrote to the appellant asking that the “damage be made good within 7 days.” The letter also claimed the sum of N2,000.00 “per day for loss of use for as long as he is prevented from making use of his car.” On 29th October, 1990, Messrs Glanville Enthoven and Co. (Nigeria) United Insurance Brokers wrote a letter to the respondent asking him to forward the cost of repair of the vehicle to enable them process the claim. This was on 4th December. The following day, 5th December, 1990, the Insurance Company, by a letter offered to pay the sum of N5,000.00 as reparation for the damage to the car. On 6th December, 1990, the solicitors of the respondent wrote to the Insurance Company that the offer was not only grossly inadequate but was very unreasonable in view of the quoted cost of repairs.

There was no further progress. As a matter of fact, there was a stalemate. The respondent as plaintiff sued. He claimed special damages in respect of the replacement of the broken windscreen in fr. Which amounted to N16,304.06 at the official currency exchange rate at the material time, cost of repairs of the car in Nigeria at N2,000.00 daily as loss of use of the damaged car from the 19th day of October, 1990 to the date the car was finally repaired. Plaintiff also claimed N50,000.00 general damages. In sum the plaintiff claimed N67,000.00.

The matter suffered a couple of adjournments to pave way for settlement. That came on 9th May, 1991 in court. In reply to Mr. Idemudia, counsel to the plaintiff in respect of the amount acceptable to the plaintiff as settlement, Miss Okoroma, counsel for the defendant/appellant said: “My Lord, we are prepared to pay N12,399.17k and for cost of repairs of N1,569.00 plus N150.00 per day from the date of the accident to the time the vehicle was finally repaired making a total of N15,000.00k for loss of use. The totality being N29,568.17kobo as full and final payment in this case we admitted.”

The learned trial Judge, Kessington, J. gave judgment accordingly to the admission of Miss Okoroma. He said:

“Although when quantified the applicant is claiming N67,000.00 while the respondent admitted only N29,568.17k as added up vide the submission of the respondent’s counsel. Judgment to the applicant on the admitted portion of the claim, i.e. N29,568.17k without prejudice to the applicant to go on trial and prove the difference. Parties agreed to 16th July 1991, for trial on the balance.”

The respondent gave evidence in proof of his case. The learned trial Judge gave judgment to the respondent as per his claim of N2,000.00 as loss of use. The learned trial Judge said:

“In proving the N2,000.00 per day as loss of use of the damaged car, the defendant did not dispute the fact that the car was damaged and that the plaintiff is entitled to claim but that the N2,000.00 per day is excessive. The plaintiff brought in evidence of how he came about the disputed N2,000.00 by producing identity A-A2 and these identifications were nowhere discredited by defendant. The law is that where a relevant document is produced by whatever means even by stealing provided it is relevant it is admissible. Kuruma v. Rex (1955) AC 197 or (1955) 2 WLR 223.”

Admitting identifications A-A2 as evidence, the learned trial Judge awarded the respondent the claimed amount of N2,000.00 loss of use per day from 19th October, 1990 to 1st February,1991.

Dissatisfied, the appellant appealed to the Court of Appeal. That court affirmed the decision of the trial Judge. The court however rejected identification A-A2. Delivering the leading judgment of the court, Musdapher, JCA (as he then was) said at page 139 of the record:

“I have exhaustively recited above what transpired in court about the disputed documents. It is manifest from the record that learned trial Judge declined to admit the documents when tendered as evidence, but rather than reject them in toto, he admitted them to be marked for identification only.”

The Court of Appeal rejected identified A-A2 but relied on oral evidence of the respondent in vindication of his claim of N2,000.00 per day as loss of use. The court accordingly affirmed the award.

Dissatisfied with the judgment of the Court of Appeal, the appellant has come to this court. Briefs were filed and duly exchanged. Respondent was not represented when the appeal was argued. The court invoked Order 6, Rule 8(7) of the Supreme Court Rules as amended in 1999 and regarded the respondent’s brief as having been argued. The appellant formulated the following issues for determination: