Ifeanyi Chukwu Osondu Co. Ltd. & Anor. V. Dr. Joseph Akhigbe (1999)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

Following a road accident which occurred along Agbor/Benin Road on 10 July, 1985, the plaintiff (now cross-appellant) was severely injured. He instituted an action for N500,000.00 special and general damages at the Benin High Court. On July 1, 1988, the learned trial judge, Akpomudjere, J., held the defendants (who were then 3rd and 4th defendants, but now 1st and 2nd appellants) liable to the 1st appellant being vicariously liable for the negligent driving of his servant, the 2nd appellant. The learned trial judge awarded N25,158.10 as special damages and N35,000.00 as general damages. There were appeal and cross-appeal against that decision.

The appellants contested the decision at the Court of Appeal on issues (a) whether the 2nd appellant was the servant of the 1st appellant and whether the vehicle in question was owned by the 1st appellant; (b) whether the 2nd appellant was negligent in the course of driving the vehicle; and (c) whether the trial judge was right to have awarded the cross-appellant medical expenses incurred in a private hospital instead of taking advantage of receiving free medical services in a government-owned hospital. The cross-appellant’s grievance was on whether general damages were assessed on the correct principle and whether N35,000.00 was not grossly inadequate.

In pressing the argument before the Court of Appeal that the award was grossly inadequate, the cross’97appellant in its brief contended that the value of the naira had fallen considerably both from the point of view of inflation and the devaluation of the naira. As at April, 1991, it was argued (without evidence) that one U.S. dollar was equal to N10 and 1 pound sterling (‘a31), N20. I think this was what influenced the lower court, per Ejiwunmi J.C.A in his leading judgment, with which the other two learned Justices concurred, to observe and find as follows:

….. I must now consider whether the sum of N45,000.00 claimed in 1985 is now valid or reasonable having regard to the state of our money today. In my view cognisance ought to be taken of the prevailing state of our money and for that reason that sum ought to be enhanced. After due consideration, at (sic) the relevant factors discussed above, an award in the sum of N150,000.00 is reasonable compensation as general damages for all his claims, apart from the sum of N25,158.10 already awarded to him as special damages. The sum of N35,000.00 awarded to him by the lower court as general damages is therefore set aside. In its place the respondent is awarded as general damages the sum of N150,000.00.”

The appellants in their complaint against that judgment have raised four issues for the determination of this court as follows:

“(i) Was the Court of Appeal right in interfering with the award of N35,000.00 general damages by the learned trial judge when it was not shown that the trial judge acted on the wrong principle of law in arriving at the sum

(ii) Was the Court of Appeal right in treating the respondent’s claim of N45,000.00 as an item of general damages without considering the appellants’ submission to the contrary

(iii) Was the Court of Appeal right in upholding the finding of the learned trial judge that the 1st appellant was vicariously liable for the negligent act of the 2nd appellant on the stage of the pleadings when there was no nexus between the two and without considering the appellants’ submission that on the evidence before the Court no negligence was established against the 2nd appellant

(iv) Was there any evidence in support of the appellants’ contention that the respondent under his contract of service was to have his medical expenses incurred underwritten by his employer and, if so, was the Court of Appeal right in failing to consider the fact that the respondent ought to have mitigated his loss by receiving treatment at a government hospital as opposed to a private one”

The cross-appellant submitted one issue for determination, namely: “Was it right for the learned Justices of the Court of Appeal to have awarded general damages to the (cross) appellant in the sum of N150,000.00 only out of the N474,841.90 claimed in 1986 in view of their finding that the damages caused to the (cross) appellant was forseable and due to the recklessness of the 2nd respondent and in view of the dwindling state of our money today as damages for pain and suffering and for prospective medical treatment abroad”

The appellants’ argument in respect of issue (iii) which I intend to consider first, is that the averment of the cross-appellant that the 2nd appellant drove the vehicle No. IM 3488 G belonging to the 1st appellant having been denied, the cross-appellant had the burden to prove that the said vehicle belonged to the 1st appellant. They submitted that the only proof of ownership being evidence of the registered township of the vehicle, the cross-appellant therefore failed to establish, prima facie, that the 2nd appellant was the servant or agent of the 1st appellant. What the cross-appellant pleaded in para.5 of his statement of claim was that the 2nd appellant drove the 1st appellant’s vehicle registered as No. IM 3488 G as the 1st appellant’s servant or agent. Perhaps, I ought to reproduce the averment as it is crucial as related to para. 4 of the statement of defence. As already indicated, the 1st appellant was the 3rd defendant and the 2nd appellant the 4th defendant at the trial. In para. 5 of the statement of claim, it was averred:

“(5) The fourth defendant is an agent/servant of the third defendant and was the driver of the third defendants bus with registration number IM 3488 G at all material time. (sic)”

The defence to this averment was pleaded in para.4 of the amended statement of defence as follows: