Dortmund Company (Nig.) Limited & Anor V. MR. Abugu Elias (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Justice sitting at Ado-Ekiti in the Ekiti State of Nigeria in Suit No.:- HAD/69/2010 – MR. ABUGU ELIAS VS DORTMUND COMPANY LIMITED & 1 OTHER; delivered on the 15th day of December, 2011.

Briefly the facts of the case are that the Plaintiff now Respondent instituted an action against the 1st and 2nd Defendants now Appellants at the lower Court in which he claimed as follows: –

“The sum of Thirty Million Naira (N30,000,000.00) only, being General Damages caused on the Plaintiff by the 1st and 2nd Defendants in that on the 18th day of December 2008 at about 14:30 hours, at Ilawe Roundabout, the 2nd Defendant drove recklessly a tanker with Registration Number AK 725 KSF belonging to the 1st Defendant and ran into the Plaintiff’s shop and damaged goods and properties belonging to the Plaintiff and also caused the Plaintiff bodily injury.”

At the conclusion of hearing, the lower court gave Judgment in favour of the Plaintiff and granted the reliefs sought.

The Appellants dissatisfied with the Judgment of the lower court appealed to this Court.

The Learned Senior Counsel for the Appellants formulated four issues for determination of the appeal. The issues are reproduced as follows: –

“1. Whether having regard to the Judgment of the trial court which awarded the sum of Three Hundred and Thirty Thousand Naira only (N330,000.00); special damages in favour of the respondent, the trial Judge could be said not to have made a different case for the Respondent. (Grounds 3 & 5)

2. Whether the trial court was right in placing the burden of proof of negligence on the 2nd Appellant, (Ground 4)
3. Whether the trial court was right in awarding specific damages neither pleaded nor proved by the Respondent. (Ground 1)
4. Whether having regard to the nature of items of general damages awarded in favour of the Respondent, the trial court did not fail to follow the principles relating to the award of damages. (Grounds 2 and 5).”

The Learned Counsel for the Respondent in his own case formulated three issues for the determination of the appeal. The issues are reproduced as follows:-

“a. Whether the brief of argument in this appeal is not incompetent.

b. Whether the record of appeal in this appeal is not incompetent.

c. Whether the entire appeal is not incompetent by virtue of the incompetency of the brief of argument and the Record of Appeal.”

At the hearing, the Learned Counsel for the Appellants referred to the Appellants’ brief of argument and Appellants’ reply brief of argument. He adopted the two briefs of argument as his argument in urging that the appeal be allowed.

On the other hand, the Learned Counsel for the Respondent referred to the Respondent’s brief of argument filed on 18th December, 2012 but deemed filed on 21st January, 2013. He adopted the said brief as his argument in urging that the appeal be dismissed.