Julius Berger Nigeria. Ltd. & Anor V. O. O. Ede (2002)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The respondent, who was the plaintiff in the court below, claimed against the appellants, who were the defendants in the court below, the sum of N100,000.00(One hundred thousand Naira) as special and general damages occasioned by the negligence of the defendants (now appellants) when, on the 30th of June, 1979, they piled up and left unlighted and unprotected heaps of soil across 2 (two) out of the 3 (three) lanes of the major lanes on the Isolo/Apapa Express Way in Lagos and thereby caused the plaintiff/respondent who was driving his saloon car No. LAC6080A to collide with one of the said heaps of soil whereby he (plaintiff/respondent) suffered severe injuries, loss, agony and inconvenience. The final pleadings filed and exchanged between the parties, with the leave of court, are the further amended statement of claim, amended statement of defence. The case proceeded to trial at the end of which, in a reserved judgment delivered on the 4th of December, 1987, the court found for the plaintiff/respondent and awarded him N30,910.00 (Thirty thousand nine hundred and ten Naira) as special and general damages.

Dissatisfied with the said judgment, the defendants appealed to this court upon three grounds. The issues distilled for determination as set out in their brief of argument are:

1. Whether upon a proper appraisal of the evidence on behalf of both parties to this action, the findings of fact, to wit, that:

(a) there was a gallant saloon car with Registration No. LAC 6080A can be sustained?.

(b) if the answer to (a) is affirmative, whether the plaintiff was the owner of the car?.

(c) whether there was a heap of soil five feet high that submerged the said car.

(d) whether there was, indeed, an accident, in the circumstances pleaded by the plaintiff?.

(e) assuming that all the answers to (a) to (d), supra, are in the affirmative, who was negligent?

(f) whether in the absence of admissible evidence as to ownership, possession of a car that the plaintiff admits is not registered in his name raises a presumption of ownership in that possessor so as to shift evidential burden on a defendant or disputing that ownership?

(g) whether the plaintiff discharged the burden of proving his items of special damages and whether in that absence the learned trial Judge could substitute his own estimate?

(h) whether the award on general damages was not excessive given yardstick of our judiciary coupled with the testimony of PW5, Dr. Godwin C. known on behalf of the plaintiff.

The plaintiff/respondent, however, contended through his brief of argument, that issues 1(a) to (h) identified by the appellants in their brief for determination. —are not relevant to this appeal as well as, — according to them, they are not related —to the grounds of appeal formulated by them — (appellants).

He, however, raised four issues for determination, and as couched in his brief of argument, they are as follows:-

(1) whether the plaintiff/respondent proved his case and as such was entitled to judgment?.