Godwin Chukwu & Ors V. Gabriel Makinde & Anor (2007)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the judgment of Ondo State High Court, Akure Division in Suit NO.AK/173/88. The respondents, as plaintiffs before the lower court, claim for general and special damages against the appellants for negligence and recklessness. The case of the plaintiffs at the lower court was that the 1st appellant, as a driver of a Trailer vehicle belonging to the 2nd appellant parked the vehicle negligently and recklessly at a bend and on the main highway between Ilesha and Akure. As a result of this wrong or improper parking of vehicle, a Mercedes Benz car collided with the rear of the Trailer. The Mercedes Benz car was on its way to Igbara-Oke in Ondo State and it was driven by the 1st respondent in company of the 2nd respondent who was his wife. The respondents suffered some injuries as a result of the collision. They were treated at various hospitals. The 2nd respondent suffered more injuries as she lost some teeth and has since remained with a scarred and disfigured face.

In a well considered judgment, the learned trial judge found the appellants jointly liable and awarded special and general damages under various headings. To the 1st respondent, he was awarded the sum of N15,000 (Fifteen Thousand Naira) both for damage to his Mercedes Benz car and for trauma, pain and suffering. For the 2nd respondent, she was awarded a total sum of N154,0.84.64 (One Hundred and Fifty four Thousand, Eighty four Naira, Sixty four kobo) for cost of medical treatment, pain, suffering, permanent disability, loss of expectancy of life and earnings etc. So judgment was given for the respondents for a total sum of N169,084.64. It was also the judgment of the lower court that the judgment sum was to have an 8% interest per annum from the date of judgment (8th June, 1995) till the final liquidation of the entire judgment sum.

The appellants were dissatisfied with the decision of the lower court on the quantum of damages. Consequent upon this, the appellants filed a notice of appeal dated 4th September, 1995, incorporating 3 grounds of appeal. The appellants brief is dated and filed on 3rd November, 1997, while the respondents’ brief is dated 13th December, 1999 and was deemed filed on 18th January, 2000.

From the grounds of appeal, the appellants formulated 3 issues for determination in this appeal. They are:

“ISSUES FOR DETERMINATION:

1. Whether or not the trial court was right in awarding damages for pain and suffering and of the answer is yes, whether he was right in awarding different heads of damage for pain and suffering to the 2nd Plaintiff?
2. Whether or not the evidence proferred by the 2nd plaintiff in proof of permanent disability and loss of expectation in life was sufficient to ground an award? And if the answer to question NO. 2 is positive;

(a) whether the evidence was sufficient to justify the award of such a huge sum of money?

3. Whether or not the award of N10,000.00 damages for loss of earnings to the 2nd plaintiff by the trial court was proved by legal evidence?

The respondents adopted the 3 issues for determination as formulated by the, appellants.

On the 1st issue for determination, learned counsel to the appellants, Chief Nwadike referred to the amended statement of claim and pointed out that the respondents did not plead any general damages under the heading of ‘pain and suffering. He added that because parties are bound by their pleadings, the award of general damages by the lower court under the heading -pain and suffering has remained unsustainable. He submitted that the failure of the 1st plaintiff/respondent to specifically plead for an award for pain and suffering did not entitle him to lead evidence on that head of damages. Learned counsel referred, to REGISTERED TRUSTEES APOSTOLIC CHURCH V. OLOWALENI (1990) 6 NWLR (PT. 158) 534, and GEORGE V. DOMINION FLOUR NULLS (1963) 1 ALL NLR 71. He highlighted the decision of Agu, JSC in OLOWALENI (supra) that where a plaintiff s pleading is defective, it could constitute a definite guarantee for his failure as he cannot lead evidence on any fact which is not pleaded and any evidence on a fact which was not ‘pleaded goes to no issue. Turning to the case of the 2nd respondent, Chief Nwaclike, pointed out that what was pleaded on her behalf was shock but instead of the trial Court awarding her damages for shock, she was awarded damages for pain and suffering which was not pleaded. Further to this, learned counsel submitted that pain and suffering from the same head of damage, but the lower court made pain and suffering as separate individual heads of damage.

After a lengthy quotation from the judgment of the lower court at lines 33-46 on page 117 and lines 1-3 at page 118 of the record of appeal, learned counsel faulted the evaluation of the evidence before the court to support the separation of an award for damages for pain on the one hand and suffering on the other hand. He contended that the analysis and consideration used by the learned trial judge in arriving at the award of damages for pain is the same as the one used, in arriving at the award for suffering. Learned counsel referred to the case of STRABAG CONSTRUCTION CO. LTD. V. OGAREKPO (1991) 1 NWLR (PT.179) 733 where it was held that in an action for personal injury, the damages are always divided into two main parts, namely, special damages and general damages. According to this decision, special damages has to be specifically pleaded and proved and includes out of pocket expenses, loss of earnings etc. This is generally capable of exact substantial calculation. With respect, to general damages they are such which the law implies and need not be specifically pleaded. This includes compensation for pain and suffering and the like, and if the injuries suffered were such as to lead to continuing of permanent disability; compensation for loss of future earnings. Upon this decision, Chief Nwadike maintained that awards are confined to pain and suffering as a single entity and not otherwise. He submitted that the award of separate heads of damage for pain and for suffering amounts to double compensation. Calling in support, the case of UBA V. ACHORU (1990) 6 NWLR (PT.156) 254, learned counsel maintained that “pain and suffering” is a single wholesome entity for the purpose of award of damages in personal injury actions. He submitted that separate heads of awards for pain and suffering were made on wrong principles.

On the effect of an award of damages on wrong principles, Chief Nwadike pointed out that an appellate court can interfere with an awards made under general damages if it was made on wrong principles of law or the amount awarded was so high or so low as to make it entirely an erroneous estimate. In support of this observation he referred to EDIAGBONYA v. DUMEZ (1986) 3NWLR (PT.31) 753 and SOLEH BONER V. AYODELE (1989) 1 NWLR (Pt.99) 549.

On the 2nd issue for determination, Chief Nwadike extensively referred to the oral evidence of PW2 and PW6 while undergoing cross-examination and the review and evaluation of same by the learned trial judge and submitted that the award of the sum of N50,000 to the 2nd respondent for permanent disability, loss of life expectancy etc was excessive. He submitted further that a loss of 10% efficiency in the performance of the 2nd respondent’s jaw should not attract the huge award for damages made by the lower court. He contended that the learned trial judge ought not to have placed any reliance on the evidence of PW6 who was a dentist and not an expert on facial surgery. He also added that since PW2 did not give any evidence on the effect of the injury on the 2nd respondent, no damages ought to have been awarded on the head of damage. He concluded this leg of his submissions by referring to the cases of AGABA V. OTUBOSIN (1961) 1 NLR (PT. 11) 299 and UBA V. ACHORD (supra) where it was held that damages in personal injury cases are awarded by courts by reference to awards made in similar cases.

Learned counsel continued to criticize and attack the evidence of PW2 and PW6. He quoted extensively from their respective evidence in-chief and isolated some areas which he considered contradictory. He maintained that the learned trial judge ought not to have placed undue reliance on the evidence of PW6 on the psychological effect of the accident on the 2nd respondent as he was not a psychologist. He submitted that the failure of the learned trial judge to put reliance only on what he chose to call legal evidence led to an award on a head of damages which was too high and also based on an erroneous estimate of the injury suffered by the respondents.

He submitted further that if the lower court had adverted its mind to the fact, that the 2nd respondent lost 2 teeth only and not three and also the fact that she underwent one surgical operation and not two, the award would have been much lower than it was. Learned counsel concluded arguments on the 2nd issue by referring to UBA V. ACHORD (supra) as per Karibi- Whyte, JSC at page 281 and submitted that on the evidenced before the court, the award of damages was too high and based on erroneous estimate of the injury suffered by the 2nd respondent so same ought not to be allowed to stand.