Emmanuel Okonkwo V. Kano Agricultural Supply Co. Ltd. & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE J.C.A. (Delivering the lead judgment)

This is an appeal against the judgment of the High Court of Justice, Edo State, sitting in Auchi in Suit No. HAU/38 /96 delivered on 10th day of June, 1999.

The brief background facts of this appeal are that, on 18th March, 1996, along the Auchi/Benin highway in Ariele, the Appellant’s vehicle, a Mercedes Benz 911 lorry with registration no. AN 459A parked around a restaurant by its driver PW2 was hit and completely shattered into pieces by the 1st Respondent’s Fiat Iveco Trailer with registration No. 2 KNSG 367 driven by the Respondents’ agent Abdulahi Sabo, who later died from injuries sustained in the accident, On the 10th of July, 1996, the Appellant took a writ and claimed damages against the Respondents jointly and severally as follows:

i. The sum of N3,000,000.00 (Three Million Naira) special damages being the current market value/purchase price of the said plaintiff’s Mercedes Benz 911 lorry, damaged beyond repairs through the negligent driving of the 1st and/or 2nd defendants’ servant or agent while in control, operation and management of the said FIAT IVECO Trailer No. 2 KNSG 367 on 18/3/96 along the Auchi/Benin Highway, Aviele.

ii. N210,000. (Two hundred and ten thousand Naira) special damages being the monetary cost/market value of the new 7 (seven) Michelin 11.00 tyres at N30,000 per tyre and tube.

iii, Loss of Use/Earnings of the said Mercedes Benz 911 lorry as a commercial vehicle from 19.3.96 at N10,000 per day (net of all outgoings) till the matter is finally determined.

iv. N150,000 miscellaneous expenses occasioned by the said accident such as cost of towing the Mercedes 911 lorry to the Police station, cost of transportation to and from Auchi etc.

v. Interest at the rate of 21% on the said amount claimed until the final determination of the suit.

In proof of his claim, the Appellant called seven witnesses and tendered while the Respondents called two witnesses in their defence. At the trial, the learned trial Judge found partly in favour of Appellant. The Appellant was not satisfied with the judgment of the trial Court, hence, he filed this appeal against it to this Court vide a notice and grounds of appeal dated 31st of July, 2000 which was filed on the 1st of August, 2000. The notice and grounds of appeal contained four grounds of appeal. The four grounds of appeal, without their particulars are hereunder reproduced as follows:

1. The learned trial Judge erred in law and in fact when he held that the plaintiff did not establish the pre-accident value of his vehicle by positive evidence to his satisfaction.
2. The learned trial Judge erred in law and in fact when he awarded the plaintiff the sum of N200,039.80 as the pre-accident value of his Lorry Reg. No. AN 459 A.
3. The learned trial Judge erred in law and in fact when he held that “I do not accept 310 days as a reasonable period required for procuring another vehicle. In my view 90 days (3 months) is quite adequate and reasonable. I therefore award the plaintiff N540,000.00 for loss of earnings (i.e N6,000 x 90 days)”.
4. The learned trial Judge erred in law when he failed to award interest of 21% claimed by the plaintiff on the successful heads of claims.

In the Appellant’s brief of argument dated 21st of July, 2004 filed on 27th of July, 2004 by his counsel, Mr. Frank O. Ezekwueche, three issues were distilled from the four grounds of appeal for determination, these state thus:

(i) Whether the learned trial Judge was correct to have awarded the sum of N200,036.80 as the pre-accident value of the Appellant’s Mercedes 911 Lorry Registration No. AN 459 A?

(ii) Whether the learned trial Judge was right to have raised the issue of 20% per annum depreciation of the Mercedes lorry suo motu?

(iii) Whether the learned trial Judge was correct in refusing to award interest on the awards made by the court in favour of the Appellant?

On the other side, Mr. Suraj Sa’eda, learned Solicitor-General of Kano State prepared the Respondents’ brief of argument dated 16th of December, 2010 which was filed on 20th of December, 2010. In it, the three issues formulated by the Appellant for determination were adopted by the Respondents, save for issue two which was recouched as follows: