Owena Mass Transportation Coy Ltd. V. Kehinde Imafidon (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A.A. ADUMEIN, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of OLUWOLE FAGBE, J. sitting at Akure Division of the High Court of Ondo State, delivered on the 16th day of January, 2006. The appellant was the defendant in the court below while the respondent was the plaintiff. In the court below, the plaintiff, now respondent, filed a statement of claim of 28 paragraphs. In paragraph 28 the respondent claimed thus:

“Whereof the plaintiff’s claims against the defendant are as follows:

a. An order directing the defendant to replace by purchasing another vehicle, a Toyota Carina Saloon Car 1982 model, which must be in good and serviceable condition, and deliver same to the plaintiff forthwith.

OR ALTERNATIVELY

An order directing the defendant to pay the sum of N500,000.00 (Five Hundred Thousand Naira) being the cost of the plaintiff’s Toyota Carina Saloon Car with registration No. BQ 654 KJA which the defendant’s vehicle crashed into on 25th of September, 2001 and thereby got damaged beyond reasonable repairs

b. The sum of N3,000.00 (Three Thousand Naira) per day from the 26th September, 2001 being the cost of hiring or effecting transportation by the plaintiff until the delivery of another vehicle to the plaintiff or payment of sum adjudged by this court.

c. The sum of N3,000,000.00 (Three Million Naira) as general damages for the inconvenience occasioned by the defendant’s damage of the plaintiff’s vehicle on 25th September, 2001 thereby putting the plaintiff into pain, suffering and disruption of the plaintiff’s way of life”.

The appellant, as defendant, contested the case with an amended statement of defence of 11 paragraphs (pages 11 – 14 of the record of appeal).

The parties and their witnesses were heard. Learned counsel for the contending parties addressed the trial court before it proceeded to deliver its judgment on the 16th day of January, 2006. The defendant/appellant was not satisfied with the judgment and filed a notice of appeal containing 4 (four) grounds (pages 44 – 47 of the record of appeal). The plaintiff/respondent was also dissatisfied and he filed a notice of cross appeal (pages 48 – 50 of the record of appeal)

The appellant filed its undated brief of argument on the 22nd day of July, 2007. The respondent filed his cross appellant’s brief on the 30th day of April, 2008. The appellant, as cross respondent, filed the cross respondent’s brief on the 18th day of June, 2008.

At the hearing of this appeal, Pius Olu Daodu, Esq. learned counsel for the appellant adopted and relied on both the appellant’s brief and the cross respondent’s brief and urged the Court to allow the appeal and dismiss the cross appeal. Wumi Fabuluje, Esq; learned counsel for the respondent/cross appellant adopted the cross appellant’s brief and urged the Court to dismiss the appeal and allow the cross appeal.

In his brief of argument, Mr. Daodu, learned for the appellant distilled the following 2 (two) issues for determination:

1. Whether or not if the trial court had considered all issues raised and evaluate (sic) the evidence led by the parties correctly it would not have arrived at a different conclusion.
2. Whether or not where the trial court found that the plaintiff did not prove special damages the court can still award general damages. (Page 3 of the appellant’s brief).

On Issues No. 1, learned counsel for the appellant referred to the amended statement of defence and the evidence adduced by the parties in the court below. Counsel contended that the trial court failed to consider and evaluate the evidence on the issue of contributory negligence and mitigation of losses. The counsel for the appellant argued that since the respondent parked his vehicle on the road, and admitted under cross- examination that the road was not dualized, he (the respondent) was contributorily negligent and the trial court ought to have made findings on contributory negligence and apportion blame accordingly. He referred the Court to the case of OLOLO V.AGIP (2001) 13 NWLR (Pt.729) 88 at 90.