Seven-up Bottling Company Plc. V. Nkanga Udo Nkanga & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of Hon. Justice Eno Otu of the High Court of Akwa Ibom State, sitting at Etinan, delivered on the 20th of March, 2006, wherein, the court awarded the sum of N37.7 million being special and general damages against the appellant.

The facts of this case culminating to this appeal were that on the 12th day of June, 1991, the present respondents were all returning from a fish market at Ibeno, Akwa Ibom State, in a pick-up van belonging to the 1st respondent. As they reached the village of Ikot Obio Inyang, along Etinan – Uyo Road, the appellant’s truck collided with the respondent’s vehicle, completely damaged same and caused various injuries to all the passengers. One of the passengers, Affiong Etim Inyang died instantly. Others were admitted and treated in the government hospital for various degrees of injuries and trauma sustained.

The respondents thereafter filed two separate suits against the appellant jointly and severally with the 6th respondent, the husband of the deceased passenger, Affiong Etim Inyang, suing on her behalf. The two suits were subsequently consolidated. The respondents called 6 witnesses and tendered Exhibits 1 – 27(C) in evidence. The appellant, apart from filing a statement of defence, neither called witnesses to testify nor tendered any exhibits in defence. Thereafter, the court gave judgment for the respondents in the total sum of N37.7 million.

Dissatisfied with the judgment, the appellant appealed to this court on one ground. From the lone ground of appeal filed the appellant in his brief of argument dated 22/1/2008 and filed on 24/1/08, identified and formulated a sole issue for determination as follows:

“In the light of the Lower Court’s failure to make a prior appraisal/assessment thereof, whether the award of the full claim of N37.7 million as damages was justified as to preclude an interference therewith by the Court of Appeal.”

Upon being served with the appellant’s brief of argument, the respondents filed their brief of argument dated 2/4/08 and filed on 3/4/08. On the same 3/4/08, the respondents also filed a notice of preliminary objection containing 3 grounds of objection. The 3 grounds of objection were fully argued in pages 3 – 8 of the respondents’ brief. The respondents in their brief also formulated one issue for determination at page 9. The issue is as follows:

“Whether the learned trial Judge was right in entering judgment for the plaintiffs (now respondents in this appeal), when there was absolutely no defence to the suit, and the amount claimed was never contested at the trial court.”

The appellant submitted on the sole issue formulated, that the primary duty of evaluation and appraising evidence for the purpose of considering a claim for whatever specie of damages is indisputably that of the trial court and it is after a proper assessment of the evidence that the trial court may award what in its view constitutes a just and fair amount as damages to the successful litigant. Learned counsel for the appellant, Mr. Oduwobi relied on Kareem & Ors. vs. Ogunde & Anor (1972) All NLR 75 at 80 and Oyerogba vs. Ido Local Govt. (2001) FWLR (Pt.36)928 at 948. On this point, learned counsel submitted that where the trial court made no assessment of damages, an appellate court can make the assessment if on the record enough evidence on which assessment can be based exist. See Nicon Hotels Ltd. vs. NDC Ltd. (2007) 13 NWLR (Pt.1051); Bhojsons Pic. vs. Daniel-Kalio (2006) All FWLR (Pt. 312) 2038 at 2062 and Udo vs. L.R.S.N.C. (2002) FWLR (Pt.104) 665 at 707.

Mr. Oduwobi submitted also that the award of damages by the trial court was not the end product of any form of a just and fair assessment of the pecuniary aspects of the respondents’ claim. He further submitted that the learned trial Judge completely abdicated his primary duty of evaluation of damages and that is a just and sufficient reason in this case to warrant the interference of this court. Learned counsel for the appellant pointed out that the respondents’ claim is for the sum of N37.7 million as special and general damages but they failed to distinguish between what items of the claims were special damages and what claims were general damages. He then referred to the case of Ya’u vs. Dikwa (2001) FWLR (Pt. 62) 1987, where Nzeako, JCA, held that:

“Where a trial court in its award of damages, lumps items which should be items of special damages with those of general damages, it seems to me that the prudent approach is to separate the items and deal with each set of items as appropriate, awarding what may be found due for each, and not to set aside the whole award…”

Learned counsel at pages 7 – 10 of the appellant’s brief of argument carefully and meticulously examined the items of the claims of the 1st to the 6th respondents. He pointed out that whilst items I, V, VI and VII are acceptable, items II, III and IV are objectionable. He argued that whilst the 1st respondent tendered the receipts for the purchase of fish for the 2nd, 3rd, 4th and 5th respondents, he tendered none in respect of his own purchase of fish. Therefore, the claims under items (II) and (III) were not proved. He also argued in respect of item (IV) that there was no evidence in support of the claim. In respect of 2nd, 3rd, 4th and 5th respondents, counsel submitted that item (II) of their claims are unsupported by any evidence. He adopted the same argument in respect of item (III) of the 6th respondent. Lastly, Mr. Oduwobi referred to the respondents’ pleadings where they stated that their solicitor wrote to the defendant demanding the sum of N5million as compensation and that 1st respondent in his oral testimony stated that it was N5.2 million, and submitted that the respondents were not entitled to anything more than that. He then concluded that the award of general damages is purely at the discretion of the court, and that this court should take the above matters into consideration.

Learned counsel for the respondents, Mr. I. A. Inyang, on the preliminary objection, submitted under ground 1, that this appeal is incompetent by reason of total non-compliance with the requirement of Order 8 Rule 7(b) and Order 8 Rule 11(a) of the Court of Appeal Rules, 2007, which are conditions precedent to the hearing and prosecution of this appeal, namely that the appellant failed to deposit any sum for the prosecution of the appeal as required by the rules. He argued that Order 8 Rule 7 is mandatory and that non-compliance with the said rule touch on the competence of the appeal. Relying on Afribank Nig. Plc. vs. Akwara (2006) 5 NWLR (Pt. 974) 619 at 646, counsel submitted that rules of court are to be obeyed.

In ground 2 of the objection, counsel for the respondents’ submitted that the sole ground of appeal filed by the appellant does not disclose any reasonable ground. He contended that though the sole ground of appeal was titled “Error in Law”, it is a ground of mixed law and facts. Counsel relied on Onifade vs. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Akwiwu Motors Ltd. vs. Babatunde Sangonuga (1984) 5 SC 184 at 185; Mark vs. Eke ,(2004) All FWLR (Pt. 200) 1455, and urged this court to dismiss the appeal on this ground of objection.