Impresit Bakolori Plc & Anor V. Elder Emmanuel F. Ikpeme Anor (2009)

LawGlobal-Hub Lead Judgment Report

KUMAL BAYANA AKAAHS, J.C.A.

On 7/5/2000, the respondents as plaintiffs took out a writ of summons in the High Court of Cross River State, Calabar Judicial Division in Suit No. C/23S/2000 claiming against the Defendants now Appellants jointly and severally a total sum of Five Million Naira (N5, 000, 000.00) as special and general damages arising from the incidence of 2nd April, 2000 caused by the 1st Defendant for which the 2nd Defendant is vicariously liable.

In the Amended Statement of Claim dated 10th November, 2004 but filed on 11/11/04 in which Leadway Assurance was joined as the 3rd Defendants, the plaintiffs claimed against the defendants jointly and severally special and general damages In paragraphs 26, 27 and 28 as follows:

“26. Special Damages incurred by the Plaintiffs are:

(a) Cost of treatment of 2nd Plaintiff N7, 953.50. Prescription notes and receipts for the purchase of drugs are hereby pleaded and will be relied upon at the trial.

(b) Cost of hiring of vehicle at the rate of N1, 500.00 (One Thousand, Five Hundred Naira) per day from 3rd April, 2000 till judgment in this case and therefore after Interest on the judgment at the rate of 10% per annum.

(c) Cost of replacement of dilapidated vehicle abandoned at the Police Station by the Defendants N1 Million (One Million Naira).

27. The Plaintiff also claim General Damages for the shock, embarrassment, hardship and Inconveniences caused to the 1st Plaintiff and members of the family.
28. The Plaintiffs have suffered damages arising form (sic) the incidence of 2nd April, 2000 caused by the 1st Defendant for which the 2nd defendant is vicariously liable.

WHEREFORE, the Plaintiffs claim against the Defendants jointly and severally, the Special Damages above and General Damages in the total sum of N5 Million (Five Million Naira)”.

The facts of the case may be briefly stated as follows:

On Sunday, 2nd April, 2000, one Luccini Geordano, an Italian expatriate working for Impresit Bakoiori Plc drove the company’s vehicle, a Toyota Hilux with Registration No. XC 517 ABC and collided with the 2nd Plaintiff who was driving his father’s vehicle a Peugeot Saloon Car with Reg. No. AE 747 CAL along Anansa (MCC) Road by Nsemo Street, Calabar and damaged the latter’s vehicle from behind.

The matter was reported to the police who visited the scene of the accident and drew a sketch map. The damaged vehicle was towed to the Police Station at the instance of the Defendants who admitted liability. The Plaintiffs prepared an estimate of N642, 100.00 (Six Hundred and Forty-Two Thousand, One Hundred Naira for the repairs of the damaged vehicle but Leadway Assurance Co. Ltd., the Insurers of vehicle No. XC 517 ABC offered the sum of N67, 300.00 (Sixty- Seven Thousand, Three Hundred Naira) only for the repairs, of the vehicle but the plaintiffs rejected it and Instituted the action in the High Court claiming the sum of N5 Million of special and general damages for vicarious liability against the defendants.

Judgment was delivered on 29/6/2007. The learned trial Judge held that the plaintiffs did not prove their claim for special damages which was N642, 100.00 for spare parts but found that the plaintiffs specially proved the claim on hire services of N635,000.00 and awarded them N500, 000.00 special damages and another N500, 000 as general damages with interest of 10% per annum from 3/4/2000 till judgment. Being dissatisfied with the judgment, the defendants filed their Notice of Appeal on 2/8/2007 containing six grounds of appeal and in the Appellants’ Brief only one issue was formulated as follows:-

“Whether, taking into consideration the facts and circumstances of the case, the state of the pleadings and the evidence before him, the learned trial Judge’s award of ‘special and general damages and a pre-dated judgment Interest is proper In law?

The Respondents’ counsel on the other hand formulated the following two issues for determination namely-