Mobil Producing Nigeria Unlimited & Anor. V. Chief Simeon Monokpo & Anor (2003)
LAWGLOBAL HUB Lead Judgment Report
C. PATS-ACHOLONU, J.S.C.
This is an appeal against the judgment of the Court of Appeal in respect of the claim by the respondent against the appellants for the injury he suffered as an employee in the course of his work and for which the trial court had refused or failed to find in the respondent’s favour. For this he appealed to the Court of Appeal, which gave him judgment.
The synopsis of the case is that the respondent while on duty which involved the servicing of the appellants’ crane sustained grievous injuries arising out of the 2nd appellants failure as switch operator to use due care as the respondent alleged in his working unit in that the switch operator caused the crane being serviced to be connected to the electricity from which it derives its power of mobility and functionality. Arising out of the negligent act of the appellants the crane became agitated and caused a drum of the crane to rollover violently over the respondent’s left foot and crushed that leg below the knee. For this he was under great pain and suffering for which he was hospitalized and this eventually led to the amputation of that leg. He issued a writ of summons claiming a considerable sum of money in the lower court. The appellants denied any liability insisting that what happened was an inevitable accident in that the crane energized itself. That court dismissed his claim whereupon he appealed to the Court of Appeal which found favour and merit in his appeal but appeared not to have considered it proved the claim in respect of pain and suffering even though it made an award for damages for negligence. The appellants appealed to this court and the respondent cross-appealed on the issue of damages.
The appellants in their appeal in this case are convinced that the respondent is not entitled to any award at all. They formulated four issues in their main brief for determination which are hereby set out down as follows:-
- Whether the Court of Appeal was right in setting aside the findings of the trial court which held that the appellants were not negligent as the defence of inevitable accident succeeded.
- Whether the Court of Appeal was not in error in holding that inevitable accident was neither pleaded nor facts established same at the trial court.
- Whether the Court of Appeal was right when it held that res ipsa loquitur applied in the circumstances of this case.
- Whether the Court of Appeal was right to have awarded N700,000.00 as general damages in view of the facts and circumstances of this case.
The respondent who also filed a cross-appeal in relation to the quantum of damages awarded to him framed just two issues. These are:
- Whether the respondent established a case of negligence against the appellants.
- Whether the award of N700,000.00 as general damages was justified.
The respondent in his cross appellant’s brief distilled only one issue (which to my mind is intended to elaborate and expatiate on the 2nd issue) in his respondent’s brief and it is thus:
“Whether the learned Justices of the Court of Appeal were right to dismiss the claim for damages resulting from pain and suffering on the ground that evidence was not led in support of that head of claim”.
The learned counsel for the appellants in his argument on issue 3 which I take first wondered how procedurally correct was the respondent’s pleadings by which he sought to combine the allegation of negligence and the principle of res ipsa loquitur without the respondent pleading the two in the alternative. The appellants tried to make a heavy weather of the claim on the question of res ipsa loquitur and cited some cases which I regard as elementary along this line. These include Sylvester Ifeanyi v. Sylvester Ike (1993) 7 SCNJ 50 at 59; Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179 at 191 and Ibeanu v. Ogbeide (1998) 12 NWLR (Pt.576) 1; (1998) 9 SCNJ 77 at P. 88.
It should be said straight-away that the kernel of the respondent’s case is built on negligence simpliciter and he in no way in his brief as well as in the evidence adduced, alluded even in the slightest manner that the accident was not the direct result of the explicable and therefore culpable act of the 2nd respondent who should have switched off the crane from the switch board. To my mind it will be idle to harp or dwell at length on the question of res ipsa loquitur when that does not form the fulcrum or the crux of the respondent’s case.
On issues 1 and 2 the appellants’ case is built on the premise that the crane energized itself even when it was no longer connected to the switchboard and for this they relied on their averments in the pleadings that the crane energized itself. The impression being given is that what the crane did was beyond human comprehension and flies against all scientific or technological analysis and explanation. With the greatest respect, this argument being canvassed sounds otiose, barren and I would equally add effete. It is even against the evidence of D.W.1. Let me recapitulate what he said in his testimony in court:
” … When I heard the coil of a contractor energize, and drum roled (sic) and we all fell from our various positions, myself, Ibrahim, Akpan and Samuel, I stood up and ran quickly to switch off the main panel”.
Later below he testified thus:
“As we were positioned, and no one was in control of the panel when it energized itself … If the main switch is off it will never energize … I was climbing out of the cabin to its top where Ibrahim was when I heard the coil of the contactor energizing itself.”
Now was there a continuous and therefore partial contact caused by bridging. The appellants who raised this point did not give evidence along that line. The 2nd appellant in his testimony said:
“I came to know of bridging wire only after the incident when I discovered we have avometer to detect bridging. I did not use avometer to detect bridging. The machine was working before the problem.”
A proper examination of the evidence of the 2nd appellant portrays him as speaking in double or triple tongues characterized by his equivocation and quibbling testimony, to wit, “the machine energized itself, the machine cannot energize itself if the switch is off.” It must be observed that this piece of evidence is against the background of what the 2nd appellant did after the incident which was to immediately switch off the power. The testimony of the appellants is full of patently clear contradictions laced with hyperboles and exaggerations.
To my mind, when the testimony of a witness has reached or attained the height of insipid or impotent exaggerations it should be disregarded as mere petulance and treated with ignominy. It is manifestly evident that it was when the crushing damage was done that it occurred to the appellants that the switch was still on hence the haste to switch it off.
The appellants had equally stated that the respondent having averred that:
“It was mechanically and scientifically impossible for the crane to energize itself.”
did not adduce any mechanical or scientific evidence to prove his averment. With greatest respect to this uncanny type of submission, it is mind boggling to expect the respondent to prove this. The averment of the equipment energizing itself was made by the appellants. It is therefore their onerous responsibility to prove that such a situation could occur or has occurred before and they had in the course of their work and experiences witnessed this sort of phenomenon. It is invidious and I dare say quizzical for the appellants to indulge in this type of reasoning and expect the court to take them seriously when they mired their argument by shifting the onus of proof of a particular assertion which they raised to the respondent. That frame of mind appears to me as an affront to reason, intelligence and of course law.
It is instructive at this juncture to refer to a portion of the judgment of the court below in respect of what the appellants as respondents in the court below have been harping on in regarding what happened as inevitable accident. Commassie, J.C.A. said in the leading judgment:
“It was contended by the learned counsel for the appellant in the 2nd issue that parties are bound by their pleadings and consequently a defence can only avail when properly raised in the pleadings. He further contended that throughout the length and breath of the joint statement of defence. there is nowhere the defence of “inevitable accident” was specifically pleaded or raised at all. Again he argued that no evidence was given as to the inevitability of the accident. I agree that the defence of inevitable accident was neither specifically pleaded nor proved. The facts and defence of the respondents did not tally with any inevitable accident. The learned trial Chief Judge, with tremendous respect, was wrong when he made a finding of fact that ‘I hold this to be proper case for success of doctrine of inevitability of accident.’”
In one of the paragraphs of the appellants pleading (as defendants) they averred as follows:-
“The defendants averred that the events of 6th July, 1993 which culminated to the injury sustained by the plaintiff were purely an accident as no human diligence or ingenuity would reasonably have foreseen or prevented same”.
A careful reading of this averment does not necessarily show that what happened was an inevitable accident – a situation if there was one which should have been specifically pleaded with clarity. It was not so pleaded as to leave no doubt. The expression inevitable accident is not the same thing as “An Act of God.”
The appellants have sought to explain that what happened was an inevitable accident. The inevitability of an act or incident postulates the occurrence or happening of a thing over which no one could have foreseen or satisfactorily explained the occurrence which in the circumstances is so inexplicable that no blame can be attributable to the act or omission of anyone. Is that the situation here The respondent in his brief argued against this nature of defence and referred to the meaning of “Inevitable accident” at 766 of the 6th Edition of Black’s Law Dictionary and cited Lord Esher M.R. Albano (1983) 419. The respondent submitted that it has been shown conclusively that it was the negligent act of 2nd appellant who owed a duty of care to his fellow workers but who did not do what he should do that caused the havoc. No one should therefore rely on the hackneyed defence of inevitable accident. The appellants’ counsel had posited that in the circumstances of what happened, all precautionary measures were taken. I see it differently just as the respondent stated. The blame lies squarely at the feet of the appellants who apparently were not foresighted enough to reckon with the probable damage an unsecured crane could cause. Issues 1, 2 and 3 have therefore fallen on their face.
I now consider the 4th issue of the appellants’ brief. The court below found the defendants liable and strove to consider the issue of damages, which ought generally to follow on the finding of liability. After the computation done by the lower court it awarded a total sum of N700,000.00 made up as follows:-
Negligence N50,000.00
Loss of Earning Capacity N150.000.00
Future loss N500,000.00
The appellants submitted that as the court below did not make any assessment of the damages, the only course the Appeal Court should have taken was to remit the case for retrial. Attractive as this argument being canvassed may sound on the surface, it fails to take cognizance of the fact that by section 16 of the Court of Appeal, Cap. 75, Vol. V of the Laws of the Federation of Nigeria analogous to section 22 of the Supreme Court Act, 1960 that Court exercised the power which it undoubtedly has, and which obliges it or gives it the same power to do or exercise a function that would or should have primarily been exercised by the trial court. Advancing their arguments further, the appellants’ counsel in his brief referred us to this court’s judgments in Okedare v. Adebara (1994) 6 NWLR (Pt.349) 157; (1994) 6 SCNJ 254 at 288-9 and Linus Onwuka v. Omogui (1992) 3 NWLR (Pt.230) 393; (1992) 3 SCNJ 98 at 127, where he stated that this court had held in these cases that where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of the material issues depends on the credibility of witnesses the proper order to make is an order for retrial. The Okebara v. Adebara supra case was a land dispute in which there was evidence that other people apart from the combatants had land there, but the trial court made no finding. That case cannot support the appellants’ submissions.
In this case, the evidence before the trial court was glaringly clear so much so that even the weird nature of the evidence of the appellants as defendants was so bizarre in its contents that it even inferentially tended to support the case of the respondents. That case cannot apply.
Also in Linus Onwuka v. Omogui supra which was based on the negligent driving of the defendants, the trial court dismissed the suit on the ground that there was failure to prove negligence and did not make any assessment. The Court of Appeal allowed the appeal but remitted the case to be tried on the issue of damages. On further appeal to the Supreme Court Nnaemeka Agu, J.S.C. in his concurring judgment held as follows:-
“The question whether the Court of Appeal itself had the power to have assessed and awarded the damages claimed ought also to have been answered in the affirmative. Section 16 of the Court of Appeal Act, 1976, as indeed section 22 of the Supreme Court Act 1960, has given to the court full jurisdiction and powers over such matters as if it were a court of trial. See on this Ediagbonya v. Dumez (Nig.) Ltd. (1986) 3 NWLR (Pt. 31) 761 and Soleh Boneh (Nig.) Ltd. v. Ayodele & Anor. (1989) 1 NWLR (pt.99) 549, P. 559. As such is the position, there is now no need for this court or the Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the court of trial. The correct approach ought to be that unless an issue of credibility of witnesses as to damages arises in the proceedings, the appellate court ought, on entering or affirming a judgment in favour of the plaintiff, to assess and award damages to which he is entitled. This was in fact the attitude adopted by Court of Appeal in England, per Denning, L.J. in Ward v. James (1966) 1 QB 273, pp. 301-303.”
In the case of Maersk line and Anor. v. Addide Investments Ltd. & Anor. (2002) 11 NWLR (Pt 778) 317 at 383, Ayoola, JSC, stated as follows in the leading judgment on the nagging issue of over reliance on technicality or being seemingly weighed down with such a consideration:
“The judicial process malfunctions and is discredited when it is bogged down by technicalities and is manipulated to go from technicality to technicality and thrive on technicalities. That is why at all times the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our judicial system”.
I do not subscribe to the vaunted view that the court should or ought to have sent back the case for retrial. The purpose of trials in the court is essentially to establish the justice of a case based primarily on the weight and substantiality of the matter as soon as possible. I fail to see how a court imbued with all responsibility to administer justice should assume a toga of reactionary attitude in respect of a matter that was instituted in 1984 – i.e. 19 years ago and to seek refuge or solace in the situational premise that presented itself by wringing its hand in desperation and laconically send such a case for trial anew to the High Court. What if the aggrieved person is to die before then during the 2nd journey of the case. I believe that such recourse would amount to justice being hoisted on its head and thereby causing a blight in the course of the development of progressive jurisprudence. The Court of Appeal did the right thing in the circumstance.
In its award of damages, the court below had given a sum of N50,000.00 which the respondent feels is paltry hence the cross appeal that it is too small having regard to the pain and suffering of the respondent. It is not in doubt that the respondent cross appellant has laid great emphasis on the pain and suffering he endured and this was more or less a thread that runs through the whole gamut of his case. In their judgments, the learned Justices of the Court of Appeal have commented as follows per Coomassie, JCA.
“I could have awarded damages for pain and suffering but for fact that nowhere the appellants produced the medical evidence to support his pleadings”.
I must confess that I am at a loss to understand what sort of medical evidence would demonstrably show proof of pain and suffering. Beyond seeing a sufferer wince by the contorted nature of his face in agony, I do not know the type of evidence being sought for. Any one who has his leg crushed by a machine and stayed many months in the hospital in great pain and suffering and had his crushed leg amputated has definitely suffered pain and suffering. Pain is an intangible agonizing traumatic experience deeply internalized in the sufferer. To the best of my knowledge there has not yet been devised, invented or developed a method of medically or scientifically B assessing the pain of a sufferer in such a way that the device can be tendered in evidence. The word “pains” along with the twin term of “suffering” is a malaise which could be debilitating in its ferociousness if the pang is excruciating as in someone whose leg is crushed and had to have the leg amputated, or it could be a mild pain which the victim may bear with fortitude; but, the common characteristic is discomfort and sometimes misery leading to depression and anguishness of the body and even of the mind leading even to a state of unhappiness and distressfulness. The respondent is not happy that no award was made for pains and suffering. There was evidence that is easily discernible of great pain and suffering. In their submission, the appellants stated “pain and suffering cannot just be proved by the ipse dixit of the witness of the cross appellant in this case but was to be proved through judicial evidence such as expert evidence of the medical doctor who treated the patient”. I wonder how the doctor would be able to give such evidence. Two people suffering the same kind of injury may exhibit different and divergent behavioural patterns in their response to the pains. How can a doctor or anybody for that matter make assessment of pain scientifically
In the American case of Warfield Natural Gas Co. v. Wright 54 SW 2nd it was held that where pain is claimed as an element of damages the impossibility of definitely measuring the damages by a money standard is no ground for denying pecuniary relief. In response to the argument of the appellants, the respondent cited the case of Strabag Construction (Nig.) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt. 170) 733. In that case Uwaifo, JCA (as he was then) referred to the observation of Sellers, L. J. in Wise v. Kaye (1962) 1 All ER 257 and which states thus:
“It has always been accepted that physical injury and the personal experience of pain, and also of suffering, including worry and anxiety for the future and apprehension of an operation, or of nursing or deprivation of activity owing to disablement or embarrassment or limitation felt by reason of disfigurement, cannot in any true sense be measured in money… Damages for such injuries, originally almost invariably assessed by juries, were said to be ‘at large’, and had to be assessed on a reasonable and fair basis between party and party. There can be no restitution for the loss of a limb or loss of faculty but the law requires adequate compensation to be assessed”.
The respondent’s counsel argued further that the greater the injury the greater the pain and suffering. It should be assumed or inferred or deduced that damages under pain and suffering would be subsumed in the claim for general damages for the bodily injury suffered. It cannot be independently claimed. Damages for pain and suffering can only be susceptible to approximated monetary evaluation by the court. The measure of such damages can only be determined by what an enlightened conscience of tribunal of justice can reasonably determine as the amount that would compensate for pain and suffering of the plaintiff. It should be based or premised on a sound judgment of the court taking into consideration the circumstances of the case and the dynamics of the social milieu prevailing at the time.
It is my view that the sum of N50,000.00 described as “damages for negligence” in the judgment of the lower court is based on no known head of claim. It is therefore disallowed. In response to the cross appeal I award N500,000.00 as general damages for the pain and suffering the respondent went through.
In the final result, the appeal succeeds in part as regards the N50,000.00 erroneously awarded as “damages for negligence”. The cross appeal succeeds with the award of N500, 000.00 as general damages for pain and suffering. The award the respondent is entitled is as follows:-
- Loss of earning capacity N150,000.00
- Future loss N500,000.00
- Damages for pain and suffering N500,000.00
Total N1,150,000.00
SC.8/1999