Dalhatu Audu & Anor V. Ademola Alamo & Anor (2000)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal against a judgment of Umar, J. of the Bauchi State High Court, holden at Bauchi in suit No. BA/276/93 delivered on 20/12/95, wherein he entered judgment in favour of plaintiff in the sum of N518,000.00 being special and general damages for negligent driving against the three Defendants jointly and severally with costs of N3.000.00 in favour of plaintiff.

“The plaintiff’s claim at the trial Court was worded as follows:

“The plaintiff claims against the Defendants jointly and severally as follows:

(1) The sum of N340,000.00 being special damages on account of the plaintiff s Liteace Motor (Bus) which was smashed as a result of the Defendants’ negligence which culminated in the hitting and damaging of the plaintiff’s motor Vehicle beyond repairs at Buzaye Bishiki Town of Bauchi state.

(2) loss of earning at the rate of N1,000.00 per day from 29/10/93 till judgment is delivered”.

The evidence in support of plaintiff’s case was that on or about the 28th day of October, 1993 he was driving his Liteace Motor (Bus) a commercial vehicle with registration No. OD 8396 R along Jos-Bauchi Road, when on getting to a place known as Tashan Rijiya Mallam, he saw a trailer wrongly parked on the right hand side of the road in that half of the trailer was on the main road, while the remaining half was on the grass verge. At about the same time, plaintiff (who testified as P.W 1) said there was a heavy, long truck coming, from the opposite direction i.e. from Bauchi to Jos. The plaintiff therefore applied his brakes and stopped behind the parked trailer for the on-coming vehicle to pass before he could continue. While in that position, a Peugeot 504 station Wagon Vehicle, with Registration No. KN 3542 OF driven by the 1st defendant Ahmed Sa’ad came from behind and hit plaintiff’s bus with such force that it was pushed forward and collided with the wrongly parked trailer with registration No. BA 2003 BA driven by the 2nd defendant (Dalhatu Audu) and owned by one Alhaji Galoji (3rd defendant) The plaintiff’s bus was so severely damaged both from the rear and the front that it was incapable of repairs and so became a write off or total loss. The incident occurred around 7.30 pm. Plaintiff later testified that he bought his said bus at N340,000.00 in 1993, and also called a salesman Ibrahim Idris (P.W.2.) from the Motor Company from where he bought the car to testify and confirm. Purchase receipts were also tendered as exhibits. Plaintiff also testified that he had an average of N1,000.00 (One Thousand Naira) per day using his mini bus to carry passengers.

There were occasions he made even more.

The 1st Defendant in his defence admitted hitting plaintiff’s mini bus from behind as alleged on the date in question. He however contended that, the whole episode was caused by the wrongful parking of the trailer along the highway by the 2nd Defendant. Also was the fact that vehicles from the opposite direction had their full headlights on. He finally contended that plaintiffs bus had already hit 2nd Defendant’s trailer before he ran into plaintiff’s vehicle from the rear.

The 2nd Defendant in his defence testified that he had parked his trailer properly by the side of the road in question and went down to pray, as it was time for prayers. But soon after his prayer, he saw the plaintiff’s vehicle come and stop behind his vehicle instead of passing along like all others. But not long after that the 1st Defendant’s station wagon came along and hit plaintiffs vehicle from the rear. Without saying who hit his own trailer, he stated that the two left tyres of his trailer, and the left rear lights were damaged. He contended that his trailer was properly parked as all other vehicles before plaintiff’s bus were passing freely without any collision. He had also put on his parking light, so that all could see it from a distance. It was a straight piece of road, and not a bend. He said he had his triangular reflectors but did not put them down as he was only going to pray at about 6.30 pm, and not that his trailer was broken down. The L.P.O who came to measure the scene of the accident and drew,sketch, and the V.I.O. who came to examine the extent of damage of plaintiff’s vehicle were also called to testify for the plaintiff The rough sketch of the scene of accident was tendered and admitted as Exhibit ‘PLX’. It is also on record that at the conclusion of evidence, Ben Ogbuchi, the learned Counsel for plaintiff invited the trial Court to come and visit the Bauchi Motor Park to see the extent of damage to plaintiff’s minibus; but there was no indication in the record as to whether such inspection was ever undertaken, and what was observed by the Court.

At the end of the trial, the learned trial Judge, Umar, J, had no difficulty in holding that the two Defendants (1st and 2nd) were negligent, and therefore found them liable to plaintiff in damages. He however found that the plaintiff had not taken any steps to mitigate his losses or damages, rather he waited for over two years for the case to be heard and determined without taking any steps to either repair his damaged vehicle or buy a new one. He also adverted his mind to the case of Kerewi v. Odegbeson (1965) 1 All N.L.R. 95 and held that since the claim of plaintiff was on total loss basis, and not for cost of repairs the correct measure of damages was the value of the car 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 a car during the period reasonably required for procuring another car. He noted that in the instant case the plaintiff only gave the value of his bus at the time of purchase to be N340,000.00 and did not give the value at the time of the accident. However, having regard to the evidence of P.W.2 that a brand new bus of the type or plaintiff, then cost N400,000.00 and also having regard to ‘severe inflationary pressure’ in the economy of which he took judicial notice, he finally used his discretion to estimate the value of the minibus at time of the accident to be N340.000.00 (same as when it was new) and awarded same. He then went further and estimated a reasonable period for which the plaintiff could be without a car, while waiting to get a new car under the rule in Kerewi v. Odegbeson (supra) and came down to six months from 29/10/93. He accepted plaintiff’s evidence that he was making an average income of N 1000.00 per day. He therefore came to a total of N178,000.00, and awarded same for loss of use. So, for value of the car, and loss of use he awarded a total of N518,000.00 plus N3,000.00 for costs against the Defendants jointly and severally, with no mention of a Counter-claim.

Against the above judgment, the 2nd and 3rd Defendants were dissatisfied and so appealed to this court on live grounds. The 1st Defendant, apparently satisfied with the said judgment did not appeal.

In due course briefs of argument were filed and issues for determination formulated.

For the 2nd and 3rd Defendants, who will hereinafter be referred to as the ‘Appellants’ four issues for determination were formulated as follows: