Yetunde Oni & Ors v. L.C.C. Caretaker Committee & Ors (1974) LLJR-SC

Yetunde Oni & Ors v. L.C.C. Caretaker Committee & Ors (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, C.J.N.

In suit No.LD.626/71 Dosunmu J. in the High Court of Lagos delivered judgment in favour of the Plaintiffs on October 30, 1972 in which he made the following awards:

1st Plaintiff 204(pounds)

2nd Plaintiff 180(pounds)

3rd Plaintiff 1,014(pounds)

6th Plaintiff 432(pounds)

7th Plaintiff 288(pounds)

He thereby dismissed the claims of the other Plaintiffs. The writ of summons was endorsed as follows:

“The Plaintiffs’ claim against the Defendants jointly and severally is for10,000(pounds)

special and general damages suffered by the Plaintiffs from the negligence of the 2nd Defendant in the driving and management of the 1st Defendants’ Bus No. L.C. 4719 under scope and authority of his employment as servant and/or agent of the said 1st Defendants whereby the late Esther Oni was killed along Apapa Road Ebute-Metta on the 29th day of May, 1971. The Defendants have failed and/or neglected to pay in spite of repeated demands.”

From this judgment, the plaintiffs/appellants, appealed to this Court on 8 grounds all of which are, however, in respect of the quantum of damages, the defendants having accepted liability for the negligence of the 2nd defendant, their driver, in consequence of which the deceased, Esther Oni, aged 29, was killed along Apapa Road, Ebute-Metta on May 29, 1971.

The learned counsel for the appellants argued that the main complaint is that the damages awarded by the learned trial judge are inadequate and manifestly too small having regard to the evidence, especially in the light of the financial loss proved to have been suffered by the plaintiffs. He cited Zik’s Press Limited vs. Alvan Ikoku 13 WACA 188 in support of his contention that the court will interfere in the award of damages made by the trial judge if the appellants can show that the trial judge had either proceeded upon a wrong principle of assessment or that the award was an erroneous estimate of the loss suffered by the plaintiffs. He pointed out that the learned trial judge made a parsimonious assessment of the financial worth and activities of the deceased as described by the various plaintiffs and their witnesses. For example, the learned trial judge had said:

“For all these all the witnesses who gave evidence for the plaintiffs were unanimous that she was making a net profit of 250(pounds) per month. She owned no house of her own. She had no bank account of any kind, and it was said that at her death, an amount less than 300(pounds)

was all she had left too small for letters of administration. But it was suggested that all this happened because the deceased was discharging heavy financial obligations to her family, I would rather think it happened because she did not have the lot now being claimed for her. The husband testified to this her private business activity. Her aunt, Alhadja Jose also testified But no one with whom she engaged in this business either as a buyer or seller came forward. No documentary evidence was available to substantiate this extra business activity. For my part, I think the evidence as to the business activity of the deceased and the earnings is exaggerated.”

It was the learned counsel’s contention that the trial judge was wrong to have disregarded the evidence of the payment of 40(pounds) allegedly made by the deceased for each of her father and mother; the judge should have awarded at least an amount of 30(pounds)to each of them instead of the 5(pounds)

he allowed Again, counsel submitted that the trial judge was wrong to have disregarded altogether the claim made on behalf of the 1st plaintiff in respect of the 11(pounds) per term paid as her nursery fees, because the plaintiff gave evidence that it was the deceased who was paying the 1st plaintiff’s nursery fee of 11(pounds)

per term. Under this head, therefore, counsel submitted that 11(pounds) per tenn which is 33(pounds)

per annum for three terms should have been multiplied by 12 since the learned trial judge accepted the multiplier of 12 and that the total sum awarded to the 1st plaintiff should have been 600(pounds) and not 204(pounds)

as awarded by the learned trial judge. Also, there was acceptable evidence that the 5th plaintiff was in receipt of an allowance of 2(pounds) per month from the deceased, and that the judge should have awarded this sum which should amount to 288(pounds) for the 12 year period. The 5th plaintiff, be it noted, was the deceased’s brother.

The evidence that the grandmother of the deceased had been in receipt of 5(pounds) per month was given by the 5th plaintiff witness who is the 6th plaintiff in the case, and that evidence was never challenged at the trial by the defendants.

We think that, while the evidence of the 5(pounds) per month to the grandmother was acceptable, it would be wrong to use the multiplier of 12 in this case since no evidence was given as to the age of the grandmother at the material time. We, therefore, are of the opinion that instead of 720 which the grandmother would have been entitled to by the 12 year calculation, there should be the round figure of 100(pounds)which we regard as adequate under this head.

Counsel finally submitted that the coun should allow the appeal as regards appellants 1,5,6 & 7 for the respective amounts of 600(pounds), 288(pounds) and 4,320(pounds) in two places. The 3rd plaintiff was satisfied with the 1,014(pounds) awarded by the learned trial judge and so was the second plaintiff to whom 180(pounds) was awarded. The total sum, therefore, being claimed by the appellants is 6,602(pounds).

Mr. Bashua, counsel for the defendants, referred us to our decision in Nwaifor and anor. VS. Nduka and anor. 19724 SC. 59 in support of his submission that the Supreme Court has ruled that sentiment should not enter into the award of damages, and that clean evidence must be produced by plaintiffs in proof of each item of claim under a Fatal Accident Law action by the dependents of a deceased person. The learned counsel also cited Halsbury’s Laws of England Third Edition, paragraph 110, to the same effect. He referred us to the writ of summons in which the plaintiffs’ claim is stated to be for 10,000(pounds) “for special and general damages”. He also referred us to the statement of claim in which several claims were set out without the specific amounts being claimed in respect of the several plaintiffs as required by law. We are, however, of the view that, while in normal cases, special damages should be specified in the writ in Fatal Accident cases this is unnecessary, although the quantification of damages by the trial judge should contain particulars of amount awarded under each head of claim. We also observe that the defence did not raise this point at the trial and that there is no cross-appeal.

Counsel for the respondents, however, urged us not to accept the 15(pounds)

per grandparent suggested before by the learned counsel for the appellants, and urged that 10(pounds)

per grandparent should be adequate, so that the total payable to the two grandparents would be 2,880(pounds) instead of the 4,320(pounds) claimed by the appellants. The learned counsel finally submitted that the 6th plaintiff should not be awarded more than 100(pounds)

, as she should not be entitled to the 200(pounds) claimed by counsel for the appellant.

In the result, we, therefore, confirm the judgment of Dosunmu J. sin suit No. LD. 626/71 as regards the 2nd and 3rd plaintiffs and we do substitute for the awards made to the 1st, 6th, 7th and 8th plaintiffs the sums of (pounds)

600, 288(pounds),;100(pounds) and 2,880(pounds)

respectively. The award which we now make is 5,162(pounds), made up as follows:

1st Plaintiff 600(pounds)

2nd Plaintiff 180(pounds)

3rd Plaintiff 1,014(pounds)

5th Plaintiff 288(pounds)

6th Plaintiff 100 (pounds)

7th Plaintiff 288(pounds)

8th Plaintiff 288(pounds)

Since the appellants have succeeded partially on this appeal, we award costs assessed at N105 in the court below and N45 in this court in favour of the appellants against the respondents.

Other Citation: (1974) LCN/1875(SC)