3PLR – JULIUS BERGER NIGERIA PLC & ANOR V. MRS. PHILOMENA UGO

Published by Law Nigeria Admin at May 3, 2018

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

JULIUS BERGER NIGERIA PLC & ANOR

MRS. PHILOMENA UGO

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 5TH DAY OF FEBRUARY, 2015

CA/OW/146/2010

3PLR/2015/77 (CA)

OTHER CITATIONS

(2015) LPELR-24408(CA)

CHILDREN AND WOMEN LAW:- Women and Justice Administration – Highway security – Road vehicle accident – Determination of fault and damages – Relevant considerations

___________________________

BEFORE THEIR LORDSHIPS

RAPHAEL CHIKWE AGBO, JCA

PETER OLABISI IGE, JCA

FREDERICK O. OHO, JCA

BETWEEN

JULIUS BERGER NIGERIA PLC
GODWIN OBADO – Defendants/Appellants/Cross-Respondents – Appellant(s)

AND

MRS. PHILOMENA UGO – Claimant/Respondent/Cross-Appellant – Respondent(s)

REPRESENTATION

L.O. Karim Esq. for Defendant/Appellants/Cross Respondents with him, T. Orumor, Esq and O. Aireruor – For Appellant

AND

Emeka Ozoani Esq. for Claimant/Respondent/Cross Appellant with him G.W. Manufor, Esq. Miss Uche S. Chukwu, Mrs. F.I. Osudike-Eke and I.J. Nwaiwu (Miss). – For Respondent

OTHER ISSUES

TORT AND PERSONAL INJURY – NEGLIGENCE: – Duty of the plaintiff in an action for negligence to prove the origin of the defendant’s negligence and how it led to the accident – Doctrine of “Res-ipsa loquitur” – Occasions where no trace of negligence can be uncovered no matter how much the plaintiff tries to – Situations deemed as very frustrating leading to considerable hardship for the plaintiff where the true cause of the accident lies solely within the knowledge of the defendant who caused it – When the court has the duty to compel plaintiff to proceed with his case because the duty on the part of the defendant is so plain as to admit of no denial

TORT AND PERSONAL INJURY – CLAIMS FOR PAIN AND SUFFERING AND LOSS OF AMENITIES: – Meaning – Need for court to recognise awards in this category – How assessed – When a double claim arises – How treated

TRANSPORT AND LOGISTICS – MOTOR VEHICLE:- Motor vehicle road Accident – Determination of fault – Tortuous liability – Proof of negligence – Insurer’s liability – Validity of driver’s licence – Legal implications – Relevant considerations

PRACTICE AND PROCEDURE – ACTION – NOTICE OF PRELIMINARY OBJECTION: Purpose of a Notice of Preliminary Objection – whether a party can file a preliminary objection against some grounds of appeal where there are other grounds of appeal that can sustain the appeal

PRACTICE AND PROCEDURE – APPEAL – A REPLY BRIEF: – Role – Need not to use a reply brief re-argue the Appellant’s Appeal or to embellish or improve upon points already advanced but to address fresh points raised or substantial points arising from the Respondent’s brief of argument – Attitude of court to an inappropriate reply brief

PRACTICE AND PROCEDURE – APPEAL – APPEAL AGAINST A LOWER COURT’S FINDINGS OF FACT: – Failure to appeal against a Lower Court’s findings of fact on an issue – Whether defaulting party is estopped by their failures to Appeal against the lower Court’s numerous adverse findings of fact

PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL: – Basis of a ground of appeal – Effect of a ground of Appeal which does not relate to the decision Appealed against or which does not challenge the Ratio decidendi of the decision of the lower Court

PRACTICE AND PROCEDURE – APPEAL – INTERFERENCE WITH JUDGMENT OF A LOWER COURT: – When an Appellate Court will interfere with the judgment of a Lower Court – When judgment of the Court below is reached either upon erroneous inference drawn from finding of facts or that its application of the law to properly found facts is perverse and/or erroneous – Duty of Appellate Court to intervene to correct the injustice so caused

PRACTICE AND PROCEDURE – APPEAL – REVERSAL OF A QUESTION OF QUANTUM OR AN AMOUNT OF GENERAL DAMAGES AWARDED BY A TRIAL JUDGE: – Appellate Court – Relevant considerations that may justify the reversal of a trial Judge on the question of quantum or an amount of General Damages awarded – Whether Court of Appeal is in as good a position in the evaluation of the facts where the trial Court has failed to evaluate such facts – Settled principle to be applied in assessing General Damages – Duty of court where injury is to be compensated by damages, to as nearly as possible, get at that sum of money which will put the party who has been injured (or who has suffered) in the same position as he would have been in if he had not sustained or suffered the injury for which he is now to get compensation

PRACTICE AND PROCEDURE – COURT: – Duty of Court when it needs to rely on a new point or issue not argued before it – Whether highly irregular for the lower Court to have refused to ascribe probative value to Exhibits after admitting same into evidence without giving opportunity to Counsel to address it upon same before taking its decision

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – AGGRAVATED DAMAGES: – When awarded – As a species of compensatory damages in that their purpose is to compensate the plaintiff for the injury to his feelings of dignity and pride and not the injury sustained

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – ASSESSMENT OF DAMAGES: -General damages – Multiplier and multiplicand approaches – Whether approaches have been known to apply to Personal Injury cases and as well as Fatal Accident cases in Nigeria – Personal injuries cases – How the multiplicand is assessed – Fatal accident – Need to use a multiplicand which is an estimation of the annual value of the dependency – General and relevant considerations

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – AWARD OF DAMAGES: – Objects of an award of damages – Primary object and compensation of plaintiff for harm done to him – Secondary object to punish the defendant for his conduct in inflicting that harm – Exemplary damages, punitive damages, vindictive damages, even retributory damage as secondary object damages – When defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like – Primary purpose of exemplary or punitive damages

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – AWARD OF DAMAGES: – Personal injury cases – Principles to guide Courts in award of damages – Where negligence is pleaded and proved – “the practice is now established and cannot be gainsaid that in personal injury cases the award of damages is assessed under four main heads: FIRST, Special damages in the shape of money actually expended; SECOND, cost of further nursing the attendance and medical expenses; THIRD, pain and suffering and loss of amenities; FOURTH, Loss of further earnings’ – “two main factors have to be taken into consideration in assessing damages in cases of liability. These are (a.) Financial loss resulting from the injury and (b.) the personal injury involving not only pain and suffering but also of the loss of the pleasure of life…in assessing damages both the financial and personal loss factors should be taken into account and compensation given for both types of losses”

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – DAMAGES FOR LOSS OF SERVICE OF SPOUSE: – Common law doctrine of “Unity of Spouses” under which a husband and a wife are considered one – Applicability – Effect – Right of a spouse to recover for loss of consortium which encompasses recovery for lost services, such as companionship, sex, earnings outside the home and so on

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – DAMAGES IN CASES OF PERSONAL INJURIES: – Proof of damages in cases of personal injuries – Whether medical evidence/medical certificates are a sine qua non – What the law recognizes – Duty of trial Court seised of a personal injuries matter to form its own opinion from its own observations of the witnesses testifying before him and the nature of evidence paraded by the Claimant, and where the evidence possesses such probative value as preponderates the case in favour of the Claimant, to make an award as justified.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – EXEMPLARY OR PUNITIVE DAMAGES: – 3 Circumstances when exemplary damages may be awarded – Oppressive, arbitrary or unconstitutional action by a servant of the Government – Conduct calculated by defendant to make a profit for himself which may well exceed the compensation payable to the plaintiff – Where Statute so provides for exemplary or punitive damages

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – GENERAL DAMAGES: – Principles for assessment of general damages – Claims for money by victim of an injury classified as claims made in General Damages – ‘Matters held included for consideration in the assessment of General Damages in personal injury cases – Nature of claim for loss of amenities of life as a head of general damages

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – DAMAGES – SPECIAL DAMAGES: – Nature of special damages – Nature of special damages in actions for personal injuries – Need for each item to be specifically pleaded and proved – Examples – Whether a husband or father who incurs medical expenses on behalf of his injured wife or child, as the case may be, can himself recover those expenses from the tort-feasor

PRACTICE AND PROCEDURE – EVIDENCE – DOCUMENTARY EVIDENCE: – A person’s signature, written names or mark on a document – Effect of – Section 75 of the Evidence Act, 2004

PRACTICE AND PROCEDURE – EVIDENCE – HEARSAY EVIDENCE: – Meaning and effect of – Section 37 and 38 of the Evidence Act 2011

PRACTICE AND PROCEDURE – EVIDENCE – WITNESS: – Duty of a witness in a case – Investigating Police Officer – Witness about what he personally saw or discovered in the course of his investigation into the cause of accident – Whether hearsay evidence – Admissibility

INTERPRETATION OF STATUTE: – Section 108 of the Evidence Act 2004 with respect to ascertainment of the signatures, writings or impressions of persons on documents tendered before Court – Section 91(3) of the Evidence Act 2004 with respect to inadmissibility of a document prepared by an interested party in order to defeat through its clear wordings the course of justice – Section 91(3) of the Evidence Act 2004 with respect to admissibility of a statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish

WORDS AND PHRASES – “A RECEIPT”: – Meaning of

MAIN JUDGMENT

FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment):

In this Appeal and Cross Appeal, action was commenced at the High Court of Imo State Sitting at Owerri by writ of summons issued on the 1st day of November, 2007 at the instance of the Claimant, (who in this Appeal is the Respondent/Cross-Appellant) against the Defendants (who in this Appeal are the Appellants/Cross-Respondents). At paragraph 31 of the Claimant’s Statement of Claim, the Claimant claimed against the Defendants as follows:

“WHEREFORE the Claimant claims against the Defendants as follows:

A Declaration that the 2nd defendant’s negligent driving of the 1st defendant truck with Registration No. XA 493 BWR and fleet No. B 4690 on the 8th December, 2006 which collided with the Plaintiff’s car was unlawful, malicious, reckless and negligent.
A Declaration that the 1st defendant is vicariously liable for the reckless, malicious and negligent driving of the aforesaid truck by one Godwin Obado, its employee, servant and/or agent.
The sum of N3,000,000,000.00 (Three-Billion) Naira being special, exemplary, and aggravated damages against the 1st defendant.

For purposes of convenience in the rest of this judgment and up to the point of determination of the main Appeal, the parties hereby are hereinafter characterized as; “Claimant/Respondent” and “Defendants/Appellants’, simpliciter. Pleadings were ordered and duly filed. They consisted of an Amended Statement of Claim together with its front-loaded processes dated and filed on the 15th day of January, 2009;

A Further Amended Statement of Defense and Counter-Claim, together with its front-loaded documents filed on the 28th day of January, 2009.

The Claimant’s Reply and Defense to Counter Claim was dated and filed the 18th day of March, 2009. Thereafter, the matter went to trial.

It is important at this stage to set out the Reliefs sought by the Defendants as per their paragraph 46 of the Amended Statement of Defense and Counter-Claim thus:

“WHEREOF the Defendants/Counter-Claimants counter-claims against the Claimant as follows;

A Declaration that the 2nd Defendant had a valid driver’s license (issued on 15-09-2004, expired on 15-07-2007) as at the date of the accident (8-12-2006) forming the subject matter of this suit and also currently has a drivers license (issued on 15-08-2007 to expire on 15-07-2010)
AN ORDER deeming both the 2nd Defendant’s drivers license as at the date of the accident (8-12-2006) between the Defendant’s truck with Registration number XA 493 BWR and the Plaintiff’s Nissan Primera car with Registration number BJ 810 ENU (which driving license was issued by Federal Republic of Nigeria on 15-09-2004, expired on 15-7-2007) and also the 2nd Defendant’s current driver’s/driving license (issued on 15-08-2007 to expire on 15-07-2010) as valid and subsisting for all intent and purposes connected thereto.

The case of the Claimant/Respondent for which she testified and called ten (10) witnesses, while the 2nd Defendant/Appellant also testified, and called a witness, is that on the 8-12-2006, along the Okigwe-Owerri Highway at a spot somewhere within Onuimo-Okwelle Road section, a vehicular accident occurred between the Claimant/Respondent’s Nissan Primera Car with Registration no. BJ 810 ENU and the Defendants/Appellants’ articulated truck with Registration no. XA 493 BWR, driven by the Defendant/Appellant’s employee and driver, the 2nd Defendant/Appellant herein.

In the meantime, the 2nd Defendant/Appellant who had earlier on been arrested and charged was convicted on Wednesday, the 21st day of May, 2008 at the Magistrate Court, Onuimo, Imo State on a two count charge of driving without a driver’s license and for negligent/reckless driving in Charge No. MCO/64C/2007. At some point in time, the Defendants were said to have commenced a 3rd Party-Proceedings against Equity Assurance Plc, their Insurers but that they discontinued the action abruptly, without any reasons disclosed. It is the Claimant/Respondent’s position that the vehicular crash was as a result of the negligent/reckless driving of the 2nd Defendant/Appellant, employee and driver of the 1st Defendant/Appellant. The Defendants/Appellants on the other hand denied this claim, and insisted that the crash was the fault of the Claimant/Respondent.

In a considered judgment the learned trial Judge on the 26-10-2009 held the Defendants/Appellants liable to the Claimant/Respondent in Negligence, when the Court said at page 256 of the printed Records as follows:

“…Having said that much, the Court has found out that the Claimant has proved her claims in reliefs 1 and 2 of her Amended Statement of Claim. With respect to the specific damage, the Claimant has also succeeded upon the preponderance of evidence to the sum of =N=28,516,680.00 (Twenty-Eight Million, Five Hundred and Sixteen Thousand and Six Hundred and Eighty) Naira only as special damages for Nigerian treatment and the sum of 108,00.000 Lakh for her Overseas medical treatment”…

Dissatisfied with this Judgment, the Defendants/Appellants have appealed against the lower Court’s Judgment. The Claimant/Respondent on the other hand, dissatisfied with the issue of award of Damages only also Cross-Appealed against the decision of the lower Court. And in mentioning this in the passing, in what appears to be a show of an intense, hotly and fiercely contested legal ‘battle’ at the lower court, vestiges of which have been carried over to this Court, both sides also raised Notices of Preliminary Objections against the hearing of their respective Appeals. This Court, at the appropriate time in the course of this Judgment shall determine first, the Notices of Objections of the parties before the issues raised in their substantive Appeals shall be considered.

The Defendants/Appellant’s Original Notice of Appeal herein was dated the 18-1-2010. Subsequently, and after several amendments to this effect, and by an Order of this Court granted on the 17-11-2014 the Defendants/Appellants’ operational Notice of Appeal, referred to as its: “Further Amended Notice of Appeal (NO.2)” dated and filed the 21-6-2013, was deemed duly filed and served on the 17-11-2014. A total of ten (10) Grounds of Appeal were raised which, without their Particulars, are reproduced here as follows;

GROUNDS OF APPEAL:

The Learned trial Judge misdirected himself in law when he wrongly evaluated the evidence before him by holding in page 29 and 30 of her judgment that…”it is as of fact that the evidence of PW10 was the only eye witness account of what happened, PW10 in her evidence on oath told the court in her paragraph 7…” thereby arriving at the conclusion that the accident between the Respondent/Claimant and the 2nd Appellant/2nd Defendant on the 8th December, 2006 was cause by the 2nd Appellant which conclusion occasioned a miscarriage of Justice.
The Learned Trial Judge erred in law when he held that the accident between the Claimant/PW10 and the 2nd Defendant/DW1 on the 8th December, 2006, was caused by the 2nd Defendant, placing heavy reliance on the evidence of PW1, PC. Akaninyene Okon who did not witness the accident.
The Learned Trial Judge erred in law in failing to uphold or make a finding on the 2nd Appellants/Defendants clear and distinctive evidence which they successfully dislodged the Respondents/Claimants plea and reliance on the doctrine of Res Ipsa Loquitor.
The Learned Trial Judge erred in law when he awarded the Claimant/Respondent the sum of N27,106,500.00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred) Naira only as (part of) Special damages on the strength of Exhibits NN-NN43 (Receipts bearing Hilltop Clinic) which Exhibits were mostly un-pleaded and also inadmissible in law.
The Learned Trial Judge erred in law when he held in page 36 of her Judgment thus;”… PW10 tendered without objection Exhibits NN to NN3 all totaling N27,106,500.00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred) Naira only in arriving at his decision to award the Respondent/Claimant the aforesaid sum of N27,106,500.00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred) Naira only as (part of) Special damages sum of N28,516,680.00 (Twenty Eight Million, Five Hundred and Sixteen Thousand Naira, Six Hundred and Eighty) Naira.
The Learned Trial Judge erred in law when he placed undue and excessive weight on Exhibits NN-NN43 (Receipts bearing Hilltop Clinic) in awarding the Claimant/Respondent the sum of N27,106,500.00(Twenty Seven Million, One Hundred and Six Thousand, Five Hundred) Naira only as (part of) Special Damages (N28,516,680.00) in pages 36 and 37 of the judgment after she had held that she would not place any such weight on the Exhibits if the Claimant did not proof (sic) the authenticity of the said Exhibits.
The Learned Trial Judge misdirected himself in law when he relied on the evidence of PW6 (Dr. AMACHI UCHENA KACHI’S) to affirm Exhibits NN-NN43 (Receipts bearing Hilltop Clinic) in awarding the sum of N27,106,500.00 (Twenty Seven Million, One Hundred and Six Thousand, Five Hundred) Naira only as (part of) Special damages (N28,516,680.00) to the Respondent/Claimant.
The Learned Trial Judge erred in law when he awarded the sum of 108,00.000 Lakh to the Respondent/Claimant as part of Special damages.
The Learned Trial Judge erred in law when he awarded the Claimant/Respondent the sum of 108,00.000 Lakh as (part of) Special damages on the strength of Exhibits PP-PP3 (Hospital Bills) and QQ-QQ3 (interim medical Bills) after he had rejected the Respondent/Claimant’s medical reference report.
The Learned Trial Judge erred in law when he awarded the Respondent/Claimant the sum of 108,00.000 Lakh as part of Special Damages after she had duly acknowledged in page 38 of her Judgment thus; “However apart from the evidence on oath of PW10 and the tendering of documents relating to the said Claim, no expert in the knowledge of currency rate and exchange was called to give evidence as to the Naira rate equivalent of the Indian Lakh or Rupees. This is necessary arising from the fact that the defendants’ and Counsel contended that the claims were unduly exaggerated’…

Parties filed and exchanged their briefs of argument. In the Defendants/Appellants’ brief of argument settled by L. Olaseinde Karim Esq., the following five (5) issues were distilled for determination, to wit:

Whether hearsay evidence can prevail in the face of the existence of clear and direct oral evidence? (Grounds 1 and 2 of the Further Amended Notice of Appeal (2).
Whether the trial Judge was right in refusing to uphold or make a finding on the 2nd Appellant’s/Defendant clear and distinctive evidence which successfully dislodged the Respondent’s/Claimant’s plea and reliance on the doctrine of Res Ipsa Loquitor (Ground 3 of the Further Amended Notice of Appeal (2).
Whether the trial court was right in relying on un-pleaded and legally inadmissible documents and placing excessive weight on these documents? (Grounds 4, 5, 6 and 7 of the Further Amended Notice of Appeal (2).
Whether the trial court was right in placing reliance on Exhibits PP-PP3 and QQ-QQ3 having rejected the medical reference report of the Respondent (Ground 9 of the Further Amended Notice Appeal (2).
Whether the trial court was right in awarding 108,00.00 Lakh to the Respondent when there was no claim for such and any proof of same. (Grounds 8 and 10 of the Further Amended Notice Appeal (2).

The Claimant/Respondent filed a brief of argument dated and filed 30-4-2013; settled by Emeka Ozoani Esq. He similarly filed a Notice of Preliminary Objection as disclosed earlier on, which he also incorporated in his brief anchored on four (4) Grounds of Objection thus:

Whether the Notice of Appeal filed by the Appellants is not incompetent having due regards to the law and the rules of the Court of Appeal.
Whether without the leave of the Court of Appeal, the Appellants could validly raise Grounds 3, 4 and 6 in the Notice of Appeal and if the answer is assuredly in the negative;
Whether issues 2 and 3 in the Appellants brief of arguments are not incompetent?
Whether it will not amount to a denial of fair hearing to the Respondent if this Honourable Court considers Grounds 8, 9 and 10 together with issues 4 and 5 on a mutilated, destroyed, removed and incompetent records of Appeal (i.e., page 38 of the Judgment of the trial High Court which ought to be page 252 of the records of Appeal. Ground 10 of the Appellants Notice of Appeal was couched from the missing page 38 of the judgment of the trial High Court.

In relationship to the issues for determination, the Claimant/Respondent distilled the following issues from what learned Counsel described as; “the valid Grounds of Appeal”, thus:

Whether the evidence of the PW1 was hearsay to warrant the Court of Appeal to impugn and reverse the specific findings of fact by the trial Court in favour of the Respondent as regards the liability of the Appellants for Negligence in the absence of an appeal by the Appellants against the parties formal admission on Exhibit A (rough sketch map of the accident scene) and the further findings of fact at pages 255 and 256 of the records of appeal (Grounds 1 & 2).
Whether the award by the trial Court of the sum of 108 Indian Lakh to the Respondent as Special damages for Overseas medical treatment was borne out of the pleadings and evidence on record (Grounds 8, 9 & 10).
Whether there was any evidence to support the findings of the trial Court when she held thus; “with respect to special damages, the Claimant has also succeeded upon the preponderance of evidence to the sum of N28,516,680.00 only as Special damages for Nigerian treatment…”(inclusive of Exhibits NN…NN44) (Grounds 4, 5, 6 & 7).
Whether the plea of Res Ipsa Loquitur is relevant to this appeal (Ground 3).

It is important to note that the issues distilled by the parties to this appeal from the Grounds are clearly identical in context and for this reason Court would rather determine this appeal on the basis of the issues formulated by the Defendants/Appellants herein. However, before considering the merit of the substantive appeal, the appropriate thing will be to begin by considering the Notice of Preliminary Objection raised by Claimant/Respondent.
DETERMINATION OF;

NOTICE OF PRELIMINARY OBJECTION OF CLAIMANT/RESPONDENT

The purpose of a Notice of Preliminary Objection, it has been said for the umpteenth time is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO vs. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418.

With this at the background, this Court has observed that the substance of the Notice of preliminary objection of the Claimant/Respondent herein against the hearing of the Defendants/Appellants’ Appeal is indeed an objection, not taken against the hearing of the Appeal as such, but one which primarily quarrels against some Grounds of Appeal, particularly the Grounds 3, 4 and 6 of the Defendants/Appellants Notice of Appeal, which learned Claimant/Respondent’s Counsel contends as containing issues not raised and argued at the Lower Court and for this reason would require the leave of Court to be raised for the first time on Appeal. Apart from these, learned Claimant/Respondent’s Counsel also picked holes with the Grounds 4, 5 and 6, this time of course, that the Grounds posed no challenges to any valid decisions of the Lower Court. It should be recalled that the Defendants/Appellants predicated their action before this Court on ten Grounds of Appeal and not just the Grounds 3, 4, 5 and 6 upon which the Claimant/Respondent has picked quarrels with.

The Supreme Court, in the case of GENERAL ELECTRIC CO. vs. HARRY AKANDE (2011) 4 NSCQR P.611 had this to say on the subject;

“…if I may add to the above, where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the court from hearing the appeal”…

See also the recent case of ADEJUMO vs. OLAWIYE (2014) 12 NWLR (PT.1421) 252 AT 265 RATIO 15, where the Supreme Court per BODE RHODES-VIVOUR, JSC had this to say on the issue;

“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”

On the strength of this and several decided authorities on the issue, I hereby find and do hold that the Notice of Preliminary Objection filed by the Claimant/Respondent same having not been filed against the hearing of the entire Appeal per se, but against a few Grounds of Appeal of the Defendants/Appellants, is therefore in appropriate in the circumstance in disturbing the hearing of this Appeal. On account of this development, this Court shall therefore go ahead and consider this Appeal on its merit while the Notice of Preliminary Objection is dismissed.

JUDGMENT IN THE MAIN APPEAL

ISSUE ONE;

“Whether hearsay evidence can prevail in the face of the existence of clear and direct oral evidence? (Grounds 1 and 2 of the Further Amended Notice of Appeal (2)”

In arguing this issue, Learned Defendants/Appellants’ Counsel, contended that the only eye witness to the accident was the 2nd Defendant/Appellant who gave a vivid account of what led to the accident on the said 8th day of December, 2006. According to learned Counsel, in comparison to the evidence of the Claimant/Respondent, the one led by the said 2nd Defendant/Appellant was more comprehensive and indeed largely unchallenged even as far as to the conclusion that the accident was caused by the negligent driving of the Claimant/Respondent.
Learned Defendants/Appellants’ Counsel further contended that the account of the accident contained in the written statement of oath of the Claimant/Respondent dated the 15th day of January, 2009 at paragraph 7 and which was adopted 7th April, 2009 referred to by learned trial Court at paragraph 30, page 244 of the printed records as an eye witness account, was in actual fact not an eye witness account. But a mere reference to a judgment of a Magistrate Court in Charge No. MCO/64C/2007.

Learned Defendants/Appellants’ Counsel expressed shock and disbelief at the fact that the lower court did not prefer the direct positive evidence of the 2nd Defendant/Appellant to that of a third party, one Police Constable Akaninyene Okon who testified as the PW1. Counsel was of the view that P.C. Akaninyene Okon did not witness the accident but rather gave Hearsay Evidence of what transpired at pages 244 and 245 of the printed records. It was submission of Counsel that Hearsay Evidence was inadmissible in the circumstance and with this, and on account of the unchallenged evidence of the 2nd Defendant/Appellant he referred Court to the following cases in support.

AGODA vs. ENAMUOTOR (1999) 7 NWLR (PT.612) 641 SC
MANAGEMENT ENTERPRISES LTD. vs. OTUSANYA (1987) 1 NWLR (PT.55) 179.
ADEKA vs. VASITA (1987) 1 NWLR (PT.48) 136.
YUSSUF vs. OBASANJO (2005) 18 NWLR (PT.956) 122.
BUHARI vs. OBASANJO (2005) 13 NWLR (PT.941)
TANAREWA (NIG) LTD. vs. ARZAI (2005) 5 NWLR (PT.919) 593.
HARUNA vs. UNIAGRIC, MAKURDI (2005) 3 NWLR (PT.912) 241
SARHUNA vs. LAGGA (2002) 3 NWLR (PT.754) 329.

Learned Counsel urged the Court to resolve this issue in favour of the Defendants/Appellants.

In his response, Learned Claimant/Respondent’s Counsel drew Courts’ attention to the following issues as providing the necessary background to his response on the issue;

The evidence of the PW1-the said PC. Akaninyene Okon,
The Exhibit ‘A’ which was the sketch map of the accident scene,
The state of the pleadings and
The findings of the trial court on Negligence against the 2nd Defendant/Appellant.

In addition, Learned Counsel queried whether the evidence of the PW1 was Hearsay to warrant the Court of Appeal impugning and reversing the specific findings of fact by the trial Court in favour of the Claimant/Respondent as regards the liability of the Defendants/Appellants for Negligence in the absence of an Appeal by the Appellants against the parties formal admission on Exhibit ‘A’ (the rough sketch map of the accident scene) and the further findings of fact at pages 255 and 256 of the records of appeal?

On account of the evidence of PC Akaninyene Okon, Counsel told Court that it was with the aid PC Akaninyene Okon as Police Constable who investigated the accident which has given rise to this Appeal and that his evidence is at pages 172 – 177 of the printed records. At page 173 of the records, the witness said in-chief; “I marked a spot considered to aid my investigation. The next day, the 2nd Defendant (Appellant) was brought to our office. We then moved down to the scene to take the sketch of the accident which was done” (Page 173 of the record of Appeal). According to Counsel, the PW1 also said in-Chief, that the dotted lines on the sketch map means skid marks and the skid marks show where the Appellants truck veered off its lane to the plaintiff’s lane (see page 174, lines 19-21 of the records of Appeal).

Learned Counsel further drew attention to the PW1’s evidence at page 175 of the records where he said that the Claimant and the 2nd Defendant signed the sketch map. The said sketch map was admitted into evidence as Exhibit ‘A’ in the course of trial and the PW1 testified that from what he investigated, even though the road was clear, the surface of the road on the side of the lane driven by 2nd Defendant’s truck was undulating. It was learned Counsels submission on this issue that the evidence of the PW1 herein is direct and positive assertion of the facts within his personal knowledge resulting from his investigation of the cause of accident and at the scene.

Learned Counsel further contended that these material pieces of evidence contained in the testimonies of the PW1 were not Hearsay and that the result of this issue is the Learned trial Court’s evaluation of the PW1’s evidence at page 244, lines 12-15 of the printed records wherein the Court said; “it is trite that the evidence of Hearsay is not usually admissible, but the evidence of the IPO giving the report of his findings in an investigation is usually accepted as a departure to the rule”. See section 4 of the Police Act Cap. 19 LFN 2004. It was the contention of Learned Counsel that Learned Defendants/Appellants Counsel had merely said in his submissions that the evidence of the PW1, the said PC Akaninyene Okon before the lower Court was Hearsay evidence but did not state which part of the PW1’s evidence was Hearsay and which part was not. He urged the Court to discountenance Defendants/Appellant’s contentions on the issue.
Learned Counsel next picked holes with the plethora of authorities cited by learned Counsel to the Defendants/Appellants in support of their contention and submitted that the authorities were not applicable to the facts and circumstances of this case as they were either cases relevant to electoral matters or to Breach of contract cases and termination of employment cases. Counsel also decried the spate of wrong citations supplied on these cases by Defendants/Appellants and urged the Court to discountenance these cases.

Arising from this position, Learned Counsel to the Claimant/Respondent contended that the principles in motor accident cases as a branch of the law of tort is different from the law of contact and other related actions on the law of tort notorious for its shifting blame game whenever it occurs, when no party readily accepts responsibility such that it attracted the comments of the Supreme Court in the case of ABUBAKAR vs. JOSEPH (2008) 5-6 SC (PT.II) 146 AT 178 where the Court said of Motor Accident cases;

“… in cases of motor accidents arising from negligence of drivers, there is the tendency, (I think it is probably beyond tendency to reality) that the driver, if alive, shifts blame to his colleague. Even if one of them dies or two of them die, the shifting process does not stop. After all, nobody wants to accept responsibility for an accident….”

It is against the backdrop of the Supreme Court’s observation herein that Counsel contended that the importance of the evidence of the PW1 at the lower Court as a veritable proof of the events that transpired on the said 8th day December, 2006 at the accident scene cannot be over emphasized. Learned Counsel cited the following authorities to buttress his points on the issue;

R. vs. LAWANI (1959) L.L.R. 97,
ARMEL’S TRANSPORT LTD. vs. MADAM ATINUKE MARTINS (1970) 1 ALL NLR, 27,
JOLAYEMI vs. ALAOYE (2004) 12 NWLR (PT.887) 322.

On account of EXHIBIT ‘A’, that is, the sketch map of the scene of accident, learned Counsel referred court to pages 315 – 316 of the Additional records of Appeal. Counsel contended that the Exhibit was prepared by PW1, the said PC Akaninyene Okon and was signed by the 2nd Defendant/Appellant, the Claimant/Respondent and the PW1 and that it was tendered at the lower court without an objection and marked as Exhibit ‘A’ in the trial before the Court, (See page 174 line 11 – 15 of the records of Appeal.)

In respect of the findings of fact of the lower trial Court with regards to Exhibit ‘A’, learned Counsel referred Court to page 254 lines 4 -19 of the printed records, thus;

“…..one could also observe that from Exhibit ‘A’, that as soon as the collision occurred, DW1 in trying to swerve back to his side of the lane, lost control and ran into the bush thereby pulling down the electric pole. DW1 also in his deposition admitted that if he had not swerved his truck to his right hand side, he would have completely crushed PW10.”

On the effect of Exhibit ‘A’ herein, learned Counsel contended that if practically and for all purposes of this action constituted a formal admission of culpability on the part of the Defendants/Appellants, whose 2nd Defendant/Appellant not only voluntarily signed the said Exhibit, but who also failed to Appeal against the finding of fact of the trial Court as it relates to the Exhibit. On this proposition Counsel cited the case of ADEYEMI vs. OLAKURIN (1991) 14 NWLR (PT.638) where the Supreme Court per KALGO, JSC had this to say on the subject;

“…where there is no Appeal against a finding of the trial Court by either party to the action, the Appeal Court would have no power to delve into the issue and pronounce on it”…

In a related submission, learned Claimant/Respondent’s Counsel said that where a party as in this case has limited itself by appealing against a part only of the decision of the Court, he may not validly complain of failure to weigh the evidence, since this calls for the consideration of the whole case and Counsel referred Court to the case of NIGER CONSTRUCTION LTD. vs. OKUGBEMI (1987) 4 NWLR (PT.670) 787.

In what appears to be yet another crucial finding of fact of the lower trial Court in support of Negligence against the Defendants/Appellants which was not also appealed against, learned Counsel drew attention of Court to page 255 lines 26-33 and page 256 lines 1-3 of the records of Appeal, where the learned trial Judge, in evaluation of the lower Court’s evidence had this to say;

“…one or two issues were raised by both Counsel in their submissions. The 1st issue bothered on the weight of the truck. Claimant’s Counsel contended that a truck weighing more than 32 tons should not ply a High-Way without a written authority from the Federal Road Safety Commission. The Claimant also averred to that in her deposition. In answer to questions put to him during cross examination, DW1 told Court that he is not aware of such regulation.
Ignorance of the law is no excuse. However, it was because of this act of the 2nd Defendant among others that he was made liable in relief (1) Negligence…”

On the state of the Claimant/Respondent’s pleading, Learned Counsel contended that her case is straight forward and the crucial aspects of which are contained at pages 7-14 of the printed records of Appeal. According to Counsel, the Respondent’s case is that at the point of the accident, the 2nd Defendant/Appellant drove the 1st Defendant/Appellant’s truck in such a manner that it veered off its own lane unto the Claimant/Respondent’s lane and crashed into her car. Learned Counsel also drew attention to paragraph 15 of page 9 of the records containing the particulars of Negligence in this regard.

Contrary to claims of the Defendants/Appellants that the 2nd Defendant/Appellant’s account of the crash on the said 8th day of December, 2006, was more believable and ought to have been preferred by the lower Court to that of any other in connection with this case, learned Counsel drew attention of Court to page 75 lines 2-4 of the records of Appeal, where the Claimant/Respondent had this to say in her evidence under oath;

“…Further, it is while the 2nd Defendant (Appellant) was trying to avoid an undulating surface on the side of his lane that he veered off and crashed on my car…”

All said and done, in its findings of fact on the Appellant’s Negligence in this case the Court had this to say at page 244-245 of the printed records as follows;

“…the court therefore found out that it is the failure of the DW1 in keeping to his own side of the lane that caused the accident. This fact even corroborated the evidence of the DW1 in answer to questions put to him during cross examination that where there is a pot-hole, a driver should either slow down and pass through the pot hole or in the alternative slow down and then swerve to avoid the pot hole. It is therefore my finding that the inability of the truck driver to slow down and pass through the pot hole or wait for the PW10 to pass before swerving to the Claimant’s side of the road that caused the accident. One could also observe that from Exhibit ‘A’, that as soon as the collision occurred, DW1 in trying to swerve back to his side of the lane, lost control and ran into the bush thereby pulling down the electric pole. DW1 also in his deposition admitted that if he had not swerved his truck to his right hand side, he would have completely crushed PW10″…

Learned Counsel referred to a number of decided cases to buttress his arguments as follows;

ESEIGBE vs. AGHOLOR (1990) 7 NWLR (PT.161) 234 AT 244
ABDULAHI vs. THE STATE (1985) 1 NWLR (PT. 3) 523
ILUYOMADE vs. OGUNSAKIN (2001) 8 NWLR (PT.71) 559 AT 570
RICHLEY vs. FAUL (1965) 1 WLR 1454
THOMAS vs. ADEFOPE (1969) 1 ALL NLR 322 AT 325
DIM vs. ENEMUO (2009) 4-5 SC (PT.III) 48 AT 91.
ODUNEYE vs. THE STATE (2001) 1 SC. (PT.1) 1

Learned Claimant/Respondent’s Counsel urged the Court to resolve this issue in favour of the Claimant/Respondent.

The Defendants/Appellants Reply brief to the Claimant/Respondents Brief of argument is dated and filed 21-6-2013. The role of a Reply Brief in an Appeal is not meant to re-argue the Appellant’s Appeal or to embellish or improve upon points already advanced but to address fresh points raised or substantial points arising from the Respondent’s brief of argument. I have carefully read through the Appellants’ Reply brief herein and same having been caught by the anomalous traits of an inappropriate Reply Brief, it is hereby discountenanced.
See the case of RAYMOND D. OGOLO vs. PAUL D. FUBARA (2003) FWLR (PT.169) 1285 AT 1308.

The evidence of the PW1, the said P. C. Akaninyene Okon is contained at page 172 to 175 of the records of Appeal. The witness gave his evidence on the 17-7-2008. It was through this witness that Exhibit ‘A’, which is the sketch map of the accident scene, was admitted into evidence. The Exhibit was signed by all the Parties and was produced based on the investigations conducted by the PW1 as to cause of accident, taking into consideration the positioning of the Vehicles shortly after collision at the scene. According to the PW1, on 8-12-2006, at about 1800 hours while in his office, he heard a distress call that an accident occurred along Okigwe/Owerri Road under Onuimo Local Government under the jurisdiction of his Office, In his own words, he said;

….”considering the nature of the accident, I had to mobilize my other team members and we rushed to the scene. On getting to the scene, I noticed that it involved a Nissan Primera Car with Registration No. BJ 810 ENU and a Mercedes Truck belonging to Julius Berger with Registration No. XA 493 BWR. I started asking questions and tried to find a clue to the cause of the accident. I marked a spot considered to aid my investigation. From the information I gathered, I was told that the driver of the Primera Car, the Plaintiff was seriously wounded and had been rushed to a nearby Hospital…that Truck was coming from Okigwe towards Owerri. The Primera was going to Okigwe from Owerri…. the 2nd Defendant was reckless in his driving. He left his lane to another lane thereby causing the accident. The weather condition of that day was dry and clear because it was during the dry season. The Road was clear. There were undulating surface of the Road at the Truck side of the Road…”

It would be recalled that in his testimony earlier on in-Chief, the PW1 said that the sketch map contained in Exhibit ‘A’ was signed by the Parties including the 2nd Defendant/Appellant who drove the Truck on the fateful day.

Under cross examination, by learned Defendant/Appellants’ Counsel, the PW1 said;

“…I am familiar with the scene of the accident. There is a sharp bend at the scene of the accident. I found the Truck on the right side of the bush coming from Okigwe to Owerri. I also found out that the Truck felled a NEPA Pole. The Primera Car was seen on the right side of the Road going to Okigwe from Owerri. When I got to the scene, the Driver of the Truck was nowhere to be found. I took the sketch of the accident the next day…”

The grouse of Learned Counsel for the Defendants/Appellants under this issue, is that the trial Court should not have preferred and relied on the evidence of the PW1, which he had dubbed Hearsay Evidence, to that of the 2nd Defendant/Appellant which Counsel said was the only eye-witness account of what actually happened at the accident scene on that fateful day. Hearsay Evidence is defined by Section 37 of the Evidence Act 2011 as follows;
“Hearsay means a Statement;

Oral or written made otherwise than by a witness in a proceedings; or
Contained or recorded in a book, document or and record whatsoever, proof of which is not admissible under any provision, of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”

Section 38 of the Act in very clear terms provides categorically as follows;
“Hearsay Evidence is not admissible except as provided by or under any other Act.” But the question that begs to be answered here is; whether the evidence of the PW1 in this matter is Hearsay? Of course if the evidence of the PW1 is found to be hearsay the proper cause of action will be to order the evidence of the PW1 expunged from the records. The PW1 was the Police Officer who investigated the cause of accident after the collision. He told Court what he did in the course of his investigations. On reaching the scene of the collision, he saw the Vehicles before they were removed from the crash scene. He marked a spot considered to aid his investigations. He asked questions and produced a sketch map based on the investigations he conducted as to the cause of accident, taking into consideration the positioning of the Vehicles shortly after collision. The sketch map was signed by all the parties involved in the crash. There was no evidence of coercion on the part of anyone as the said Exhibit ‘A’ was freely signed by all. There was also no objection as to the admissibility of the said Exhibit ‘A’.

What a witness in a case is expected to do is give evidence of what he or she said or did personally or discovered and not what he or she heard or was told by someone else. The evidence of the PW1, therefore as an Investigating Police Officer about what he personally saw or discovered in the course of his investigation into the cause of accident is not hearsay evidence and is admissible. At the trial before the lower Court, the PW1 gave evidence of the positioning of the Vehicles shortly after the crash and every step he took thereafter which included the production of a sketch map which was freely signed by all the parties and all these are relevant to the case of the Claimant/Respondent. See the case of BRAWAL SHIPPING NIG. LTD. vs. OMETRACO INTERNATIONAL LTD (2011) LPELR- 9258. See also the case of OTO-OBONG SUNDAY EDET vs. THE STATE (2014) LPELR- 23124, on the subject.

Here lies a situation where the 2nd Defendant/Appellant and Truck driver of the 1st Defendant/Appellant did not hesitate in appending his signatures to Exhibit ‘A’, apparently in admission of its contents thereof. In the case of ADEFARASIN vs. DAYEKH (2007) ALL FWLR (PT.348) 911, this Court held that; “A person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds as bound or responsible for the contents of such a document…” see the case of OSADARE ORS. vs. LIQUIDATOR NIGERIA PAPER MILL LTD. & ANOR (2011) LPELR- 9269. The attitude of Court where a person freely signs a document or places his mark on it is that he owns up on the contents thereof and agrees to be bound by its contents. That indeed, is the hallmark of Section 75 of the Evidence Act, 2004 which provides as follows;

“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by pleadings:
provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

See the case of PRINCE HASSAN OYEDELE & ANOR. Vs. BAALE SIDIKU BAMGBOYE JIMOH (2012) LPELR -8536 on the subject.
Apart from all of these, on the question of the Defendants/Appellants’ Negligence, the lower Court indeed made several findings of fact on the issue, such as has been stated here above and for which the Defendants/Appellants did not bother to Appeal against. I am unable to disagree with learned Claimant/Respondent’s Counsel on the issue as the Defendants/Appellants’ are estopped by their failures to Appeal against the lower Court’s numerous adverse findings of fact on the issue of the 2nd Defendant/Appellant’s Negligence, said to have been the sole cause of crash between the Defendants/Appellants’ Truck and the Claimant/Respondent’s Nissan Primera Car on the said 8-12-2006, See the cases of JOE IGA & ORS. vs. CHIEF EZEKIEL AMAKIRI & ORS (1976) 11 SC AT 12-13 and ABUBAKAR vs. BEBEJI OIL & ALLIED PRODUCTS LTD & ORS. (2007) 18 NWLR (PT.1066) 319 AT 381 on the issue.

I am in further agreement with learned Claimant/Respondent’s Counsel on the assertion made that Motor Accident cases arising from the Negligence of vehicle drivers are usually notorious for their blame shifting game as no party truthfully and readily admits liability. The typical Nigerian driver most often than not, attributes fault of the crash to the other driver. This is even so where his own side of the story is susceptible to contradictions like in the case of the 2nd Defendant/Appellant in the instant case. Having freely appended his signature to the sketch map and cause of accident he probably forgot he did that and still found it expedient in the blame shifting game to skillfully formulate an entirely different version of the cause of accident in which he laid the blames for the cause of crash at the door steps of the Claimant/Respondent.

This issue is simply resolved against the Defendants/Appellants.
ISSUE TWO;

Whether the trial Judge was right in refusing to uphold or make a finding on the 2nd Appellant’s/Defendant clear and distinctive evidence which successfully dislodged the Respondent’s/Claimant’s plea and reliance on the doctrine of Res Ipsa Loquitor (Ground 3 of the Further Amended Notice of Appeal (2).

By paragraph 18 of the Claimants/Respondent’s Amended Statement of Claim, filed on the 15th day of January, 2009 and which is at page 10 of the Records of Appeal, Learned Defendants/Appellants Counsel drew Court’s attention to the fact that Claimant/Respondent pleaded and relied on the doctrine of Res Ipsa loquitor and as a result of which Exhibits ‘C’ and ‘D’ were tendered in evidence. Learned Counsel posited that where there is direct evidence as to the cause of an accident, as distinctly shown by 2nd Defendant/Appellant in his version of the story, the doctrine of Res Ipsa loquita will no longer apply. For this Counsel referred the Court to the case of JULIUS BERGER NIG. PLC. vs. NWAGWU (2006) 12 NWLR (PT.995) 527.

As a result of this position, Counsel submitted that for having successfully given its own version of the story in which he sufficiently explained the cause of the accident and which also dislodged the doctrine of Res Ipsa loquitor, as pleaded by the Claimant/Respondent, that the trial Court should not have still gone ahead to rely on the doctrine as it did in this matter. Counsel urged the Court to resolve this issue in favour of the Defendants/Appellants.

The Claimant/Respondent, in its response, did not deny its plea of the doctrine of Res Ipsa loquitor contained at paragraph 18, page 10 of the records of Appeal, but was quick to say in reply that although pleaded, the doctrine was never relied upon in establishing its case before the lower Court. Learned Claimant’s Counsel in this connection referred to the case of SHONEKAN vs. SMITH (1964) 1 ALL NLR 163 and challenged the Defendants/Appellants to point out from the records where the doctrine of Res ipsa loquitor was either submitted for adjudication or made a part of the decision of the lower Court between the parties. In this regard, learned counsel further submitted that a ground of appeal against a decision of Court must not only relate to the decision appealed against, but must also challenge its Ratio decidendi. Counsel cited the authority of SARAKI vs. KOTOYE (1992) 9 NWLR (PT.984) 50 in support and urged the Court to resolve this issue in favour of the Claimant/Respondent.

In an action for negligence, it is the duty of the plaintiff to prove that which he assets and not for the defendant to disprove it. There are many occasions, however, where no trace of negligence can be uncovered no matter how much the plaintiff tries to. Yet, it is fairly certain from the very nature of whatever may have occurred that some fault may have preceded the occurrence of what the cause of complaint was. The situation could sometimes be very frustrating and does lead to considerable hardship for the plaintiff where the true cause of the accident lies solely within the knowledge of the defendant who caused it. The best the plaintiff may be able to do in the circumstance is prove the accident. But the law still requires not only a proof of the accident but how exactly it happened, so that at least, the origin of the defendant’s negligence and how it led to the accident can be shown.

The hardship posed to the plaintiff where he cannot prove the true cause of the accident is ameliorated to a considerable extent by the doctrine of “Res-ipsa loquitur”. This literally translated means; “the thing speaks for itself”. The plaintiff under this doctrine is compelled to proceed with his case where the duty on the part of the defendant is so plain as to admit of no denial. See the case of ODEBUNMI vs. ABDULAHI (1997) LPELR-2201 (SC); See also the case of IBEKENDU vs. IKE (1993) LPELR-1390 (SC); See also the case of MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR -1834 (SC) and a host of other decisions on the subject. But the question that begs for an answer here is; whether the Claimant/Respondent, having pleaded the doctrine at paragraph 18 of its Amended Statement of Claim, can it really be said that the Claimant/Respondent relied on the doctrine in establishing its claims before the lower Court? Having carefully gone through the entire pages of the records of Appeal, I am unable to find anywhere in which the doctrine was either submitted for adjudication or made part of the decision of the lower Court between the parties.

A ground of Appeal which does not relate to the decision Appealed against or which does not challenge the Ratio decidendi of the decision of the lower Court is to say least, incompetent and is liable to be struck out on the orders of Court. See the case of IKWEKI & ORS vs. EBELE & ANOR. (2005) LPELR-1490 (SC), where the Supreme Court per NIKI TOBI, JSC had this to say on the subject;

“Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However meritorious the ground of Appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between the parties.”

In the words of EJIWUNMI, JSC on the same issue, he said;

“…it is well settled proposition of law in respect of which there can hardly be a departure that the grounds of Appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”

To this end Ground (3) three of the Further Amended Notice of Appeal (No. 2) not having been formulated from any decision challenging the ratio decidendi of the lower Court’s decision, same is discountenanced and issue two is resolved against the Defendants/Appellants.

ISSUE THREE;

Whether the trial court was right in relying on un-pleaded and legally inadmissible documents and placing excessive weight on these documents? (Grounds 4, 5, 6 and 7 of the Further Amended Notice of Appeal (2).

The contention of Defendants/Appellants herein is that the lower Court acted on legally inadmissible evidence when the Court wrongly admitted Exhibits NN43 (receipts bearing Hilltop Clinic admitted by the trial Court as “Exhibits NN44” at page 201 of the records of Appeal but referred to as Exhibits “NN-NN43” in the body of the judgment) despite the objections of the Defendants/Appellants’ Counsel. Learned Counsel contended that on the 8th day of April, 2009 when in the course of trial, the Claimant/Respondent sought to tender the documents, that the Defendants/Appellants’ Counsel objected to their being admitted as Exhibits on the ground that the documents were all produced while the matter was pending in Court. Counsel said that the lower Court in its ruling on the issue went ahead and admitted the documents, despite the fact that the Claimant/Respondent called no evidence in substantiation or proof of the authenticity of the documents.

Learned Counsel further contended that apart from attaching undue weight to the said Exhibits, the lower Court wrongfully placed reliance on the Exhibits which were receipts produced in anticipation of and/or during the pendency of the suit before the lower Court, contrary to section 91(3) of the Evidence Act 2004. Learned Counsel also had issues with the fact that some of the receipts did not bear the pleaded names of the Claimant/Respondent in the action, which is “MRS. PHILOMENA UGO”. Counsel referred to the following authorities to buttress his arguments on the issue;

BUHARI vs. OBASANJO (2005) 13 NWLR (PT.941) 87 Ratio 79
b. SHITTU vs. FASHAWE (2005) 14 NWLR (PT.946) 675
c. ALAO vs. AKANO (2005) 11 NWLR (PT. 935) 166
d. FASINA vs. OGUNKAYODE (2005) 12 NWLR (PT.938) 152.

Learned Defendants/Appellants’ Counsel urged the Court to resolve this issue in favour of Defendants/Appellants.

In the reaction of the Claimant/Respondent, learned Counsel contended that the Exhibits NN-NN44 were not only pleaded but also that evidence was led in support of their admissibility. Counsel said that these were medical receipts issued to the Claimant/Respondent at the Hilltop Orthopedic Clinic, Enugu; Hilltop Ultra Sound Center, Enugu (receipts of scan and x-rays.) Learned Counsel referred Court to paragraph 21 of the Claimant’s Amended Statement of Claim contained at page 10 of the records of appeal and also paragraph 24(c)(i)(j) and (k) of the Amended Statement of Claim where the Claimant pleaded that she shall rely at the trial on receipts of various payments made from various sources and went ahead and mentioned a number of Hospitals and Clinics, four in all, from whence the said Exhibits NN-NN44 were obtained.

Learned Counsel further drew attention to the viva voce evidence of the Claimant/Respondent on oath, contained at page 32 paragraph 8 lines 4 – 7 of the records of Appeal, where she gave evidence of her ordeal and travails as she kept on being treated in one Hospital after another and transferred back and forth in the course of her treatments as a result of injuries sustained from the accident. See also the Claimant/Respondent’s evidence at page 32 paragraph 10 of the records in this regard and also page 73 lines 17 -27. Learned Counsel saw the need and indeed drew attention of Court to the evidence of the PW6, one Dr. A. U. KATCHY, a Medical Doctor, Medical Director of Hilltop Orthopedic Clinic Enugu and an Orthopedic Consultant Surgeon in Nigeria whose evidence is at pages 20-21 of the records of Appeal who testified giving the extent of injuries suffered by the Claimant/Respondent as a result of the accident. The evidence of Dr. N. C. NWAGBARA, a Consultant Orthopedic Surgeon with the Imo State University Teaching Hospital who testified as the PW5 and whose evidence corroborated the claims of the Claimant was referred to in this regard.

Learned Counsel in his further reply, still saw the need to and drew Court’s attention to what transpired before the lower Court on the said 8th day of April, 2009 in the course of trial shortly before the lower Court’s decision admitting the documents as Exhibits was taken. Counsel reproduced in brief, the dialogue of all concerned as contained in the records of Appeal and demonstrated that the nature of the Defendants/Appellants’ objection in this regard, dwelt on the fact that the documents sought to be tendered, were not specifically pleaded in the Statement of Claim. But that upon being satisfied that particulars of special damages from four different Hospitals were pleaded at paragraph 18 of the Reply to the Further Amended Statement of Defense, that the Court subsequently delivered its ruling admitting the documents as Exhibits. See page 200 of the records of Appeal in this regard.

Counsel further contended that the lower Court gave cogent reasons in its Judgment delivered on the 26th day of October, 2009 for its ruling on the 8th day of April, 2009 admitting the documents as Exhibits NN-NN44. Counsel referred to the printed records at page 249 line 25 in this regard. According to Counsel, the Court rightly evaluated the Exhibits before ascribing probative value to same. And in what looked like an attempt at plugging all holes, Counsel assumed but did not concede, and queried whether it would be sufficient reason to set aside the judgment of the lower Court, simply because it is found not to have given sufficient reasons for its decision admitting as Exhibits, the Exhibits NN-NN44? Counsel gave a categorical ‘No’ for an answer and cited the case of AGBANELO vs. UNION BANK NIG. LTD (2000) 7 NWLR (PT.666) 534 to the effect that the Judgment of a Court would not be set aside merely because it failed to have stated reasons, especially where the primary facts are not in dispute and the trial Court had to draw inferences from established facts before applying the law. As a corollary the Supreme Court in the same case decided that a judgment will not be set aside merely because the reasons given were bad if the judgment itself is right. Learned Counsel further cited the following cases in this connection;

UNITED BANK FOR AFRICA LTD vs. ACHORU (1990) 6 NWLR (PT.156) 254.
SOLEH BONEH OVERSEAS NIG. LTD. vs. AYODELE (1989) 1 NWLR (PT.99) 549.
USONG vs. HANSEATIC INT’L LTD. (2009) 5-6 SC (PT.1) 2

Learned Counsel urged the Court to resolve this issue in favour of the Claimant/Respondent.

The objection raised by learned Defendants/Appellants’ Counsel before the lower Court concerning the admissibility of Exhibits NN-NN44 was that the documents were legally inadmissible under section 91(3) of the Evidence Act having been made by a person who is an interested person and also prepared when proceedings were pending or anticipated.

Section 91(3) of the Evidence Act 2004 was actually enacted to render inadmissible a document prepared by an interested party in order to defeat through its clear wordings the course of justice. Such a document is clearly inadmissible where the maker is shown to have knowledge about the pendency of the suit or he anticipated that a dispute might be in the offing. The rationale for having the section is to forestall the need to entrench falsehood as exemplified in the falsification of documents to score cheap shots in the trial process against opponents in the dispute.

The Exhibits NN-NN44 whose admissibility the Defendants/Appellants saw the need to kick against were said to be Medical Receipts issued to the Claimant/Respondent at the Hilltop Orthopedic Clinic, Enugu; Hilltop Ultra Sound Center, Enugu (receipts of scan and x-rays). The receipts were not only pleaded but evidence was also led in support of their admissibility. In addition to this, the evidence of the PW6, Dr. A.U. KATCHY, a Medical Doctor and Medical Director of Hilltop Orthopedic Clinic Enugu and an Orthopedic Consultant Surgeon is contained at pages 20-21 of the records of Appeal and while testifying, he gave the extent of injuries suffered by the Claimant/Respondent as a result of the accident. There was also the evidence of the PW5, Dr. N. C. NWAGBARA, a Consultant Orthopedic Surgeon with the Imo State University Teaching Hospital who testified and whose evidence also corroborated the claims of the Claimant.

In its judgment delivered on the 26th day of October, 2009 it would be recalled that the lower Court gave fuller reasons for its ruling on the 8th day of April, 2009 admitting the documents as Exhibits NN-NN44. At page 249 line 25 of the printed records, the lower Court had this to say on the issue;

“…I have seen the receipts from Hilltop Clinic. PW6 one Dr. Katchy testified that he was the Doctor who operated on PW10 and inserted the first angular metal plate in PW10’s left femur adjoining her left hip. That PW10 was later transferred to Imo State University Teaching Hospital for the second operation when the angular metal plate he inserted failed but later came back to his Hospital. There is also evidence to show that when PW10 returned from India, she was again taken back to the said Hilltop Clinic for further…PW10 tendered without objection, Exhibits NN-NN43 all totaling N27,106,500 (Twenty-Seven Million, One Hundred and Six Thousand and Five Hundred) Naira”…

Section 91(3) of the Evidence Act 2004 provides as follows;

“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” (Under line, mine for emphasis)

The word; “interested” as used in Section 91(3) of the Evidence Act, it has been held, must be given a narrow rather than a broad interpretation. See the case of ANYAEBOSI vs. R.T. BRISCOE NIG. LTD (1987) 3 NWLR (PT.59) 84; See also the case of APENA vs. AIYETOBI (1989) 1 NWLR (PT.95) 85. In connection with this position and probably before proceeding any further, it may be appropriate to pose the following questions;

Who made Exhibits NN-NN44?
Were the Exhibits made by persons interested or by the Medical Institutions, manned by experienced professional Doctors and Consultants with/under whom the Claimant/Respondent received treatments?
And if found to have been made by the Medical Institutions where Claimant received treatments, what then is the implication for the Defendants/Appellants’ objections raised under Section 91(3) of the Evidence Act 2004?

From the findings of the lower Court, Exhibits NN-NN44 were receipts issued by Hilltop Clinic where the PW6, one Dr. A. U. Kathy was Medical Director and who performed surgical operations on the Claimant/Respondent. A receipt is simply a written or printed acknowledgment that things such as sums of money have been given to the person who issues the acknowledgment. In the case of ETAJATA & ORS vs. OLOGBO & ANOR (2007) LPELR-1171 (SC), the Supreme Court per MUHAMMAD, JSC defined a receipt generally as that;

“‘..document or a piece of paper which signifies that goods or services have been paid for. It is an evidence of payment. In BOWES vs. FOSTER (1858) 27 L.J. EX. 262 at 266) MARTIN B. held that; ‘To constitute a receipt of anything there must be a person to receive and a person from whom he receives, and something received by the former from the latter and that something must be a sum of money’. Equally, in the case of GENERAL COUNCIL OF THE BAR (ENGLAND) vs. INLAND REVENUE COMMISSIONERS (1907) 1 KB 462 at 471, 472, 476 and 478, it was held that for a document to be a receipt; ‘it must be, a document whereby the receipt or deposit or payment of money is acknowledged or expressed’. See also A.G. vs. NORTHWOOD ELECTRIC LIGHT AND POWER CO. LTD. (1947) KB 511 at 517, 518 per LORD GREEN MR.”

From the forgoing, it would of course be wrong to suggest that Exhibits NN-NN44 were made by the Claimant/Respondent. There is no disputing the fact that all the Claimant/Respondent did in the entire transaction was to have merely surrendered herself to be attended to by Hilltop Clinic and her Doctors and also paid her Medical Bills as a result of which she was issued Exhibits NN – NN44. Having therefore established that the Exhibits were indeed made and issued not by the Claimant/Respondent but by Hilltop clinic where the PW6 holds sway as its Medical Director and Chief Orthopedic Surgeon, can it therefore in any way be rightly suggested that Hilltop Clinic and its Medical Director, the PW6 are now persons “interested” in the context of the definition of that term as used under Section 91(3) of the Evidence Act 2004?

To suggest that once a suit is filed in court, no other steps should be taken to bring material evidence before the Court, which would be of assistance to its deliberations would be to most unfairly accord Section 91(3) of the Evidence Act 2004 the most underserved narrow interpretation there can ever be. The PW6 and all other Medical personnel either at Hilltop Clinic or elsewhere who issued Exhibits NN-NN44 cannot be said to be persons “interested” in the outcome of the proceedings as they merely performed their professional duties and no more. Theirs would be to render medical services get paid for the services rendered and issue receipts as the case may be.

In trying to determine whether or not a maker of a document sought to be tendered is a “person interested” in the litigation, the usual thing to do is to examine and then ascertain the circumstances surrounding the making of the document and whether the maker can be said to have an interest of a personal nature in the transaction. Having therefore, established that Exhibits NN-NN44 were made not by the claimant/Respondent, but by the Medical Institutions she attended in the course of her treatments, I am unable to see the relevance of Section 91(3) of the Evidence Act 2004 in these proceedings and have therefore come to the conclusion that Exhibits NN-NN44 were properly admitted into evidence before the lower Court and I so hold.

On the issue of the names on Exhibits NN-NN44 which Learned Defendants/Appellants’ Counsel say did not all bear the full pleaded names of the Claimant/Respondent in the action, which is “MRS. PHILOMENA UGO”, I simply hold the view that as long as they bear her abbreviated names and that no one has complained of being misled thereby and so long as they refer to one and the same person who happens to be the Claimant/Respondent, I simply fail to see the merit in that leg of objection. Besides this, these set of Exhibits were tendered and freely admitted into evidence at the lower Court where no objection was taken against their admissibility. Why they must now become an issue of contention at this rather belated stage is simply difficult to understand. This issue, once again is resolved against the Defendants/Appellants.

ISSUES FOUR & FIVE;

Whether the trial court was right in placing reliance on Exhibits PP-PP3 and QQ-QQ3 having rejected the medical reference report of the Respondent (Ground 9 of the Further Amended Notice Appeal (2).

Whether the trial court was right in awarding 108,00.000 Lakh to the Respondent when there was no claim for such and any proof of same (Grounds 8 and 10 of the Further Amended Notice Appeal (2).

The Defendants/Appellants’ disagreements as borne out by these issues are that the lower court had no reasons to have gone ahead to award the sum of 108,00.00 Lakh to the Claimant/Respondent on the strength of Exhibits PP-PP3 and QQ-QQ3. Counsel told court that these Exhibits are purported receipts presented from one Grant Medical Foundation and Rubys Hall Clinic, Pune, India. Counsel submitted that the Medical Reference Report, which represented the substratum upon which medical evidence were sought to be tendered before the lower Court, were rejected and marked rejected by the lower Court on the 11th day of March, 2009 in the course of the evidence of the PW5, the said Dr. Nwagbara on the strength of the objection taken against their admissibility by learned Defendants/Appellants’ Counsel.

It was contention by Counsel in this regard that if the Medical Reference Reports, were admitted and not rejected, they would have provided the necessary background for the reception of any medical evidence provided by the Claimant. But that by their rejection, the lower Court had no basis for any subsequent award of damages on medical grounds when there was nothing to anchor the Exhibits PP-PP3 and QQ-QQ3, which were not even certified receipts. Learned Counsel referred Court to the case of JULIUS BERGER NIG. PLC. vs. NWAGWU (Supra) in support of his contention that the lower Court had made an award of the sum of 108,00.000 Lakhs when the purported treatment of the Claimant/Respondent at the Hospital was not supported by any medical certificates.

Learned Counsel further contended that the lower Court’s award of the sum of 108,00.00 Lakhs was wrong when same was not predicated on any such reliefs claimed by the Claimant/Respondent. Learned Counsel referred to pages 1 and 2 of the records of Appeal and the Judgment of the lower Court contained at pages 215 to 216 of the records of Appeal. It was his further submission in this regard that for a claim to be awarded in Foreign Currency, it must have been claimed in Foreign Currency and evidence led as to its value. Having not made any such Claim before Court, learned counsel submitted that the learned trial Court was wrong to have gone ahead to award the sum of 108,00.000 Lakhs to the Claimant/Respondent. Leaned Counsel finally urged this court to resolve these issues in favour of the Defendants/Appellants, and allow this Appeal and set aside the Judgment of the lower Court delivered on the 26th day of October, 2009.

In his response, learned Claimant/Respondent’s Counsel told Court that Exhibits PP-PP3 are payment receipts from Ruby Hall Clinic Pune, India, while Exhibits QQ-QQ3 are interim medical bills from the same Clinic in India. Counsel said in addition that Ruby Hall Clinic Pune, India is a Private Hospital/Clinic and therefore, that all documents emanating from the Clinic are private documents. Learned Counsel disclosed that the Claimant/Respondent pleaded that the 2nd metal plate in her body collapsed and she had to be flown overseas to Grant Medical Foundation Ruby Hall Clinic Pune, India on the 14th day of August, 2008. Counsel referred Court to paragraph 22 of the Amended Statement of Claim at page 11 of the printed records where the Claimant/Respondent pleaded medical receipts of payments from Ruby Hall Clinic Pune, India.

Learned Counsel further drew attention to paragraph 30 of the Amended Statement of Claim where the Claimant/Respondent averred that since the injuries she had been hospitalized at four different Hospitals which included the names of St. Joseph Hospital Okwell, Imo State and Grant Medical Foundation-Ruby Hall Clinic, India. For this Counsel referred to page 13 of the records of Appeal. Counsel further told Court that under Special Damages for Overseas medical treatment, the Claimant/Respondent claimed thus; “Cost of Hospital/medical expenses at 200 lakh or 12, 120,000 rupees or its equivalent naira value of N36,000,000 @ a rupee equal to N3.00 or dollar equal to 40.4 rupees or dollar equal to N120.00, as at the 13th/14th day of August, 2008, the prevailing exchange rate”. To substantiate this claim, Counsel referred Court to page 14 of the records of Appeal. Learned Counsel in addition said that Exhibits PP-PP3 are among the documents listed as those to be relied upon at the trial and referred Court to page 18, item 19(f) of the records of Appeal in this regard.

Learned Counsel also referred to page 71 of the records of Appeal where the Claimant/Respondent gave evidence of how she traveled to India on the 13th day of August, 2008 on an Ethiopian Airline with an International Passport no A00486862 and how she testified that on arrival in India, she was admitted at Ruby Hall Clinic India. In her testimony, Counsel said that she gave evidence of the exchange rate of one Indian Lakh which equals to 100,000 rupees and while a rupee equals to N3.00 only, Counsel referred Court to paragraphs 20, 21 and 22 of page 74 of the records of Appeal, where the Claimant/Respondent also testified that in the course of that trip, she exchanged a total sum of $370,000 United States Dollars to Indian currency. Counsel informed Court that copies of the International Passport and Indian Medical Visas of Claimant/Respondent are contained at pages 336-337 of the additional records of Appeal while copies of her Ethiopian Airline ticket, her registration as a Foreigner in India and resident permit are all at pages 347, 348 and 349 of the additional records of Appeal, respectively.

It was also learned Counsel’s submission that Exhibits QQ – QQ3 were received in evidence without an objection at the trial Court in the course of trial and he referred Court to page 227 of the records of Appeal. With regards to the lower Court’s findings of facts on account of Exhibits PP-PP3 as Medical Bills for Overseas treatment, Learned Counsel referred Court to pages 251-253 of the records of Appeal. But Counsel quickly drew attention to the fact that page 252 of the records was missing from the compiled records together with its contents, but that the contents of the missing page 252 is what the Learned trial Judge reproduced at page 38 of the Court’s Judgment, where the lower Court, in addition to page 256 of the records dealt with its findings on Foreign Monetary award.

In learned Counsel’s further submission, he said that “Lakh” as a unit of Currency is one of the National Currencies of the State of India and that the Central Bank of Nigeria, Owerri Branch pursuant to the Ruling of the trial Court dated the 21-7-2010, converted the Judgment sum of 108,00.000 Lakh into Nigerian Currency and he referred Court to page 272 of the records of Appeal for the Court’s Ruling at line 10. See also page 314 of the additional records of Appeal. Counsel also submitted that from the position taken by the trial Court on the issue of the Claimant/Respondent’s Medical treatments, that it could be seen that the basis for the award made on Exhibits PP-PP3 was not predicated on any Medical Reference Report or on the Evidence of PW5, one Dr. I. C. Nwagbara. Rather, that Exhibits PP-PP3 represents a species of Special Damages. In connection thereof, Counsel contended that a claim for Medical treatment is an item of specific loss which must be strictly proved. Counsel cited the case of MUSA YA’U vs. DIKWA (2004) FWLR (PT.62) 1987 in support. Counsel further contended that where the findings of fact of a trial Court are supported by evidence there is no basis for the interference of the Appellate Court with such findings of fact. He cited the case of ELF (NIG.) LTD. vs. SILLO (1994) 6 NWLR (PT.350) 258. Counsel finally told Court that the lower Court’s award of 108,00.000 Lakh to the Claimant/Respondent was based on evidence adduced at the trial and he urged Court to resolve this issue in favour of Claimant/Respondent, dismiss this Appeal and affirm the part of the decision of the lower Court not Appealed against by the Claimant/Respondent/Cross-Appellant.

When the lower Court made an award of 108,00.000 Lakh, for overseas Medical treatment, what in essence the Court awarded was Special Damages. Special damages, along with its counterpart, General damages are usually classified as compensatory damages and are both designed to return persons to the position they were prior to the alleged injury. Where for example a person was injured in a Car accident, the victim could seek damages that would cover medical expenses/damage to the vehicle. Each of these would be classified as special damages. Thus, special damages are based on measurable Naira amounts of actual loss, and it is for this reason that they are expected to be specially pleaded and strictly proved.

In actual fact special damages are damages that are reduced to a “sum certain”. See the case of NGILARI vs. MOTHERCAT LTD (1999) LPELR-1988(SC); See also the case of KOSILE vs. FOLARIN (1989) LPELR-1705 (SC) and a host of other decisions of Court on the subject. In the case of OSHIJINRIN & ORS. vs. ALHAJI ELIAS & ORS. (1970) LPELR -2799 (SC), the Supreme Court per COKER, JSC, had this to say on the subject;

…”A Court trying a case should give adequate consideration to the evidence offered in support of a claim for Special damages and if the accepted evidence possesses such a probative value as preponderates the case in favour of the person claiming, then an award would certainly be justified.”

Learned Defendants/Appellants’ Counsel had complained about the award of 108,00.000 Lakhs simply because the Medical Referral Reports produced by Claimant/Respondent and sought to be tendered before the Lower Court were not admitted into evidence. The contention of learned Counsel was that the said Medical Referral Reports formed the basis upon which the lower Court’s award was to have been made. Counsel cited the case of JULIUS BERGER NIGERIA PLC vs. NWAGWU (Supra) in support on the issue of the rejected referral reports and on the failure to produce a Medical certificate on the part of the Claimant/Responder. But the facts of the JULIUS BERGER NIGERIA vs. NWAGWU case (Supra) are kilometers at variance with the facts of the case under consideration. They are indeed clearly distinguishable.

Here was a case in the JULIUS BERGER NIGERIA vs. NWAGWU (Supra) in which the trial judge came to the conclusion that the Plaintiff was unable to prove that the defendant was negligent or that the defendant’s negligence was the cause of accident as the Plaintiff did not lead evidence to show that the prescribed safety gear required to be worn was indeed in use shortly before the accident. The trial Court, now considering the inadequacy of N43,000.00 paid to the Plaintiff as terminal benefits, now decided on its own to make an award of N135,000.00 as “general damages” for injuries suffered when there was a complete lack of nexus between the alleged injury and the termination of Plaintiff’s employment.

The issue of Medical Certificate came into the picture when the Court discovered that the Plaintiff had received medical treatments in several Hospitals and Clinics but had decided not to tender any ostensibly to conceal actual cause of his injuries from the trial Court. This Court, in considering the matter on Appeal, was of the view that a Medical Certificate in such a situation would have been of some guide to the trial Court, which impulsively had to make an award for injuries simply because the Court considered the Plaintiff’s terminal benefits of N43,000.00 grossly inadequate and not because any injuries was established to the satisfaction of the Court before the award of the sum of N135,000.00 was made.

These facts are of course clearly distinguishable to say the least from the facts of the present case.

In cases of personal injuries, Medical Evidence and indeed Medical certificates are never a sine qua non to prove or establish damages even though their presence would serve to enhance the consideration of an award like any other concrete piece of evidence. See S.S.C. (NIG) LTD. & ORS. vs. MRS. IGUERINIOVO (2004) FWLR (PT.189) 1133 AT 1150 – 1156-7 on the issue. What the law recognizes are circumstances when a person put under pain by another can recover damages. Even in such serious cases as in where death had occurred, the acceptable principle of law is that where the cause of death is obvious Medical Certificate or Medical Evidence as to cause of death ceases to be of any practical necessity. See ENEWOH vs. STATE (1989) 5 NWLR (PT.119) 98. See also the case of AIGUOREGHIAN & ANOR. vs. STATE (2004) LPELR -270 (SC).

The most important thing to bear in mind in a claim for Special damages is that the claim must be specifically pleaded and strictly proved. Anything short of that is bound to create an entirely different dimension into the whole process. For the purpose of arriving at its conclusions in a trial involving a claim for special damages in personal injury cases the Court ordinarily is not expected to allow itself to be bound by the certificate of a Medical Doctor, even though adequate weight ought to be attached to it if and when it is tendered. A trial Court that is completely seised of a matter is expected to form its own opinion from its own observations of the witnesses testifying before him and the nature of evidence paraded by the Claimant, and where the evidence possesses such probative value as preponderates the case in favour of the Claimant, then an award will be justified. The issue of the possession of, or the production of a Medical Certificate does not come into the picture, It has been held, for instance in the case of C. & C. CONSTRUCTION LTD. vs. OKHAI (2003) 18 NWLR (PT. 851) 79, that no Medical evidence can demonstrate pain and suffering beyond seeing a contorted face thereby holding that pain and suffering does not require any medical proof beyond what is obvious in the instance of a person with crushed limb that was amputated. This decision of Court was followed by this Court in the case of MALLAM NALADO & ANOR vs. ALHAJI ALI & ANOR (2006) ALL FWLR (PT.293) 220 per NZEAKO, JCA.

On the question of whether the trial Court was right in awarding the sum of 108,00.000 Lakh to the Claimant/Respondent when, in the opinion of Learned Counsel for Defendants/Appellants; “there was no claim for such and any proof of same”, I would set out here by first disagreeing with learned Counsel on this issue. Having taken into consideration the submissions of Learned Counsel on the issue and after carefully examining the records, I am simply unable to agree with counsel for the Defendants/Appellants, that the records are not replete with Claimant/Respondents’ averments in its Amended Statement of Claim in support of her claims of 108,00.000 Lakh. To this end paragraphs 22, 23, 25 and 31 where the Particulars of special damages for overseas Medical Treatment and at pages 11, 12, 13 and 14 of the records of Appeal are clearly instructive on the issue.

In addition to this, page 71 at paragraphs 10, 11 and 12 of the records of Appeal contain the evidence of the Claimant/Respondent about her trip to India on the 13th day of August, 2008 on an Ethiopian Airline with an International Passport number A00486862 and how she was admitted at Ruby Hall Clinic upon her arrival in India. At paragraphs 20, 21 and 22 she gave evidence of the exchange rate of one Indian Lakh which equals to 100,000 rupees and while a rupee equals to N3.00 only. At page 74 of the records, she also testified that in the course of that trip, she exchanged a total sum of $370,000 United States Dollars to Indian currency. Having copiously pleaded these sums of money and her viva voce evidence of the Medical treatment she received overseas, having culminated in her pleadings on the issue, I am simply unable to agree with Defendants/Appellants on the issue and the issues four and five resolved against the Defendants/Appellants.

To this end, this Appeal fails and it is accordingly dismissed with cost assessed at N50,000.00 against the Defendants/Appellants/Cross Respondents.

JUDGMENT IN THE CROSS APPEAL;

The Claimant/Respondent, as disclosed in the preceding sections of this Judgment was also dissatisfied with the issue of award of Damages only and for this reason also she cross-Appealed against the decision of the lower Court. The Claimant/Respondent’s Notice of Cross-Appeal was dated and filed the 8-3-2010.
Even though filed out of time, its late filing was regularized by an Order of this Court granted on the 12-5-2014 but not before Learned Counsel for the Defendants/Appellants had raised a Notice of Preliminary Objection on account of that lateness. The issue of late filling of the Cross Appeal, having therefore been regularized, same shall therefore not be allowed to take valuable time of Court. A total of sixteen (16) Grounds were raised which, without their Particulars, are reproduced here as follows;

GROUNDS OF CROSS-APPEAL;

The learned trial judge erred in law when she failed to evaluate and make a finding on the validity or otherwise of the class of the 2nd Respondent’s drivers license Exhibit ‘UU’.
The learned trial judge erred in law when she held that Exhibit ‘UU’ is not a public document and was therefore admissible in law.
The learned trial judge erred in law when she failed to make an award on exhibits RR-RR3.
The learned trial judge erred in law when she failed to evaluate and make an award on exhibit ‘M’.
The learned trial judge erred in law when she failed to evaluate evidence and make an award on exhibit ‘O’.
The learned trial judge erred in law when she failed to evaluate the evidence of PW2, PW4, PW5, PW6, PW7 and PW10 and failed to make an award on non-pecuniary damages (i.e.) Future on-going inevitable medical expenses.
The learned trial judge erred in law when she failed to evaluate evidence and apply the legal principles in the award of exemplary damages.
The learned trial judge erred in law when she refused to make an award on Aggravated damages.
The learned trial judge erred in law when she held that the Claimant’s husband who entered into the contractual agreement with PW7 did not come to testify.
The learned trial judge erred in law when she failed to apply the principles of multiplier and multiplicand in the award of future on-going inevitable medical treatment/expenses.
The learned trial judge erred in law when she failed to apply the principles of law in the award of damages for pain and suffering in tort (i.e.) motor accident cases.
The learned trial judge erred in law when she failed to apply the principles of law in the award of damages for loss of amenities and enjoyment of life.
The learned trial judge erred in law when she failed to apply the principles of law in the award of damages for expectations of life.
The learned trial judge erred in law when she failed to make an award on the 12% interest claimed by the Claimant/Cross Appellant.
The learned trial judge erred in law when she failed to make an award on exhibits ‘MM-MM19’.
The part of the judgment of the trial Court complained of herein is against the weight of evidence.

Parties filed and exchanged their briefs of arguments on account of the Claimant/Respondents Cross Appeal. In the Claimant/Respondent/Cross-Appellant’s brief of argument settled by Emeka Ozoani Esq., the following Nine (9) issues were distilled for determination, to wit;

Whether there is evidence upon which the trial judge could have made an award on exhibits RR-RR3 (Ground 3 of the Cross-Appeal).
Whether having awarded special damages, the learned trial judge could in law have proceeded to award general damages for pain, suffering, loss of amenities, loss of expectations and enjoyment of life. (Grounds 11, 12 and 13 of the Cross Appeal).
Whether there was evidence before the trial Court to warrant an award for future, on-going inevitable medical expenses. (Grounds 6 and 10 of the Cross Appeal.)
Whether exhibits MM-MM19 having been admitted in evidence without objection the learned trial judge could rightly reject same in her judgment, (Ground 15 of the Cross Appeal).
Whether from the circumstances of the case and evidence before the trial Court an award for exemplary and aggravated damages would have been justified. (Grounds 7 and 8 of the Cross Appeal).
Whether the refusal by the learned trial judge to make an award on exhibit ‘O’ was justified. (Ground 5 of the Cross Appeal).
Whether the refusal by the learned trial judge to make an award on exhibit ‘M’ was justified. (Ground 4 of the Cross Appeal).
Whether exhibit ‘UU’ is the valid class of license required in law to drive an articulated truck of the 1st Appellant/Cross Respondent. (Ground 1 of the Cross Appeal)
Whether exhibit ‘UU’ is a private document which does not require certification for admissibility. (Ground 2 of the Cross Appeal).

The Defendant/Appellant/Cross-Respondents’ (who shall hereinafter be called; the “Cross-Respondent”) brief in this Cross-Appeal was dated and filed on the 21-6-2010; settled by L. Olaseinde Karim Esq., who adopted the issues nominated by the Claimant/Respondent/Cross-Appellant (who is to be henceforth called; “the Cross-Appellant”) and upon which he addressed Court in reply to the Cross-Appeal.

ISSUE ONE;

Whether there is evidence upon which the trial judge could have made an award on exhibits RR-RR3 (Ground 3 of the Cross-Appeal).

Learned Cross Appellant’s Counsel contended that there was sufficient evidence upon which the learned trial judge could have made awards of damages based on Exhibits RR-RR3, which Counsel told Court are the walking aids purchased by the Cross Appellant in India from life line distributors in India. Counsel referred Court to pages 394 – 397 of the additional records of Appeal. According to Counsel the Cross Appellant spent a total sum of 151,000 rupees in the purchase of the following items;

Commode wheel chair, amount in rupees 45,000 (page 394 additional record of Appeal),
A pair of tripod stick, amount in rupees 24,000 (page 395 additional record of Appeal).
Folding walker and bed pan, amount in rupees 57,000 (page 396 additional record of Appeal).
CPM Machine, amount in rupees 25,000 (page 397 additional records of Appeal),

This gives a total of 151,000 (One Hundred and Fifty One Thousand) Rupees. Counsel contended that Cross Appellant pleaded these items of special damages at paragraph 24(m) of her Amended Statement of Claim. He referred Court to pages 11 – 12 of the records of Appeal. Counsel also referred to paragraph 21 of page 74 of the records of Appeal where in her evidence on Oath, the Cross Appellant said;

“…I bought and paid for various walking appliances and recovery aids equipment from life line distributors, Pune, India. The equipment are CPM Machine, folding walker tripod stick and commode wheel Chair…”

According to learned Counsel, the receipt of these items were tendered in evidence as Exhibits RR-RR3 without objection but disagreed with learned trial judge who, after acknowledging that the total amount on the said Exhibits RR-RR3 was 151,000 however, went ahead and expressed misgivings concerning whether the 151,000 was denominated in India Rupees or Lakhs and that the Court was not going to embark on a voyage of discovery to ascertain whether the 151,000 was denominated in rupees or lakhs. On account of this, learned Counsel submitted that a piece of evidence tendered in Court and which was neither challenged nor contradicted will be accepted as proof of a fact it seeks to prove, Counsel cited the case of AIKI vs. IDOWU (2006) 9 NWLR (PT.984) 50 on documents tendered and admitted in Court which are like words uttered and which speak for themselves. He buttressed his arguments with the case of AIGBEDION vs. THE STATE (2000) 7 NWLR (PT.56) 686 on the proof of facts contained in documents when not challenged.

In a related submission Counsel contended that a trial Court cannot reject a piece of evidence which has been admitted in law as long as the piece of evidence was pleaded, relevant and legally admissible, Counsel cited in support, the observation of KARIBI-WHYTE, JSC in SARAKI vs. KOTOYE (1992) 9 NWLR (PT.246) 156 AT 201 -202 where the Supreme Court said that such an action, where a trial Court after full arguments admits or rejects a piece of evidence cannot later on in the course of his judgment, reverse himself without first hearing the parties, as that would amount to sitting on Appeal over his own decision. In this connection learned Cross Appellant’s Counsel submitted that the findings of the learned trial judge on Exhibits RR-RR3 were perverse and urged this Court to reject same. Counsel also referred court to the case of C & C CONSTRUCTION CO. LTD. vs. OKHAI (Supra) and the observations of PATS ACHOLONU, JSC (of Blessed Memory), who was of the view that the Court of Appeal under Section 16 of the Court of Appeal Act of 1976 was empowered, where the trial Court fails to make an assessment of damages, to make the assessment itself if there exists on record enough evidence on which the assessment can be based. Counsel cited the case of OBERE vs. BOARD OF MANAGEMENT OF EKU BAPTIST HOSPITAL (1978) 1 LRCN 246 in this connection.

In addition, learned Cross Appellant’s Counsel urged the Court to set aside the perverse findings of the learned trial Court on exhibits RR-RR3 as the total sum of 151,000 being the cost of walking aids as special damages were denominated in rupees, which is the National Currency of India. Counsel also urged the Court to take advantage of its powers under section 15 of the Court of Appeal Act to make an award of the sum of 151,000 Rupees in favour of the Cross Appellant. Counsel added that the receipt, on its face, bore “Amount in Rupees” which ordinarily was sufficient enough reason to eliminate any controversies about whether the amount was denominated in Rupees or Lakhs. Counsel referred Court to pages 394 to 397 of the additional records of Appeal.

Responding under this issue, learned Cross Respondents’ Counsel contended that there was no evidence upon which the trial Court could have made any award on exhibits RR-RR3. According to Counsel, the Cross Respondents contention is based on the fact that no medical evidence was tendered to establish that the Cross Appellant actually received medical treatment. Counsel cited the authority of FIRST AFRICAN TRUST BANK LTD VS. PARTNERSHIP INVESTMENT COMPANY LTD (2003) 12 SC (PT.1) 90 AT 120. Counsel urged the Court not to disturb the findings of the lower Court on the issue as the assessing of the weight to be placed on an admitted document is within the purview of the trial Court who witnessed the demeanor of the witnesses who tendered the exhibits.

The principle involved in all compensation trials is to restore the victim to the position that he or she would have been in if the defendant’s Negligence had not occurred. The claim for the cost of the items in Exhibit RR-RR3 is yet another item in the claim for Special Damages, pleaded at paragraph 24m of the Cross Appellant’s Amended Statement of Claim. The viva voce evidence given in support of these averments are at page 74 paragraphs 20, 21 and 22 of the records of Appeal. The learned trial judge declined the grant of these claims because he was not sure of whether the total sum of 151,000 for which the items were purchased was denominated in rupees or in Lakh. Learned Cross Respondent’s Counsel cited the case of FIRST AFRICAN TRUST BANK LTD vs. PARTNERSHIP INVESTMENT COMPANY LTD (Supra) in support of his contention that the lower Court’s decision on the issue should not be disturbed. But that authority does not support the position of Cross Appellants. Apart from the fact that it practically has nothing to do with the non-production of Medical Evidence, it is authority for this Court to disturb the findings of the trial Court on the issue especially when it is already knowledge to this Court that Exhibits RR – RR3 were neither challenged nor contradicted at the time they were tendered before the lower Court. The position of the law as far as that situation is concerned is clear. The Exhibits must be taken as proof of the facts they seek to establish and I so hold.

In the case of FIRST AFRICAN TRUST BANK LTD vs. PARTNERSHIP INVESTMENT COMPANY LTD (Supra) cited by Cross Respondents the Supreme Court per EJIWUNMI, JSC on the need for the intervention of the Appellate Court, had this to say on the subject;

“…Now, it is settled law that an Appellate Court would not ordinarily interfere with the judgment of the Court, but where the judgment of the Court below was reached either upon erroneous inference drawn from finding of facts or that its application of the law to properly found facts is perverse and/or erroneous, then the Appellate Court has a duty to intervene to correct the injustice so caused”…

The pages 394 to 397 of the Additional records of Appeal has the Exhibits RR-RR3 and in each column where money was required to be stated in words, it is clearly written; “Rupees in word”. This should have suggested to the trial Court that the issuers of the receipts were alive to their responsibilities and had sufficiently done all that was required of them to avoid the sort of confusion that the trial Court unnecessarily got itself entangled with. This Court, therefore having found the Cross Appellant’s claims sought to be proved through Exhibits RR-RR3 established, I hereby invoke the powers of this Court under Section 15 of the Court of Appeal Act in ordering the award of the sum of 151,000 Rupees in favour of Cross Appellant. In essence therefore, this issue is decided in favour of the Cross Appellant.
ISSUE TWO;

Whether having awarded Special Damages, the learned trial judge could in law have proceeded to award General Damages for pain, suffering, loss of amenities, loss of expectations and enjoyment of life. (Grounds 11, 12 and 13 of the Cross Appeal).

Learned Counsel drew attention to page 10 of the records of Appeal, and paragraph 19 of the Cross Appellants Amended Statement of Claim where she averred that she sustained fatal injuries, has been put to great loss and expenses, shock, pains, sufferings, inconveniences and discomfort and has suffered special, general and exemplary damages and contended that the gravity of the injuries suffered by the Cross Appellant and the various hospitals and treatments received is heart breaking, enormous and compelling. He next referred Court to the evidence of Dr. Felix Onyebuchi Iwudibia who testified as the PW2 at pages 178 – 180 of the records of Appeal; the evidence of Dr. Eugene Udebuani, who testified as the PW4 at pages 184 – 185 of the printed records; the evidence of Dr. Ifeanyi Charles Nwagbara, who testified as the PW5 at pages 187 – 189 of the records of Appeal and the evidence of Dr. Amaechi Uchenna Katchy, who testified as the PW6 at pages 190 – 191 of the records of Appeal. According to Counsel, these were enough to reveal the nature of the treatments received by the Cross Appellant and the attendant pains, sufferings, inconveniences and discomfort associated with the operations which she underwent. Learned Counsel said that the Cross Appellant at paragraph 31(3)(g) of the Amended Statement of Claim, claimed the sum of N2 Billion Naira against the 1st Defendant/Cross Respondent as General Damages.

But Counsel disagreed with the learned trial Court’s treatment of the issue of General Damages at page 253 of the records as Counsel contended that the lower Court misunderstood the principles of law in the award of General Damages in motor accident cases as a branch of the law of tort different from other related branches of tort. Learned Counsel contended that the law in motor accident cases is that the claim on General Damages for pain, suffering, inconveniences, loss of amenities and enjoyment of life are claims which a plaintiff is entitled to not withstanding that an award has been made for Special Damages. According to Counsel, even where the plaintiff was unable to prove his claim for Special Damages, he is still entitled to the award for pains and sufferings and that this does not amount to double compensation. Counsel cited in support, the cases of;

C & C CONST. CO. LTD vs. OKHAI (2003) 18 NWLR (PT.851) 79.
MUSA YA’U vs. DIKWA (2001) FWLR (PT. 62) 1987
OKAFOR vs. OKITIAKPE (1973) ALL NCLR 47 AT 53
EDIAGBONYA vs. DUMEZ NIG. LTD (1986) 6 SC. 149 @ 164
ADIM vs. N.B.C. LTD (2010) 3-5 SC. (PT.111) 155 @ 181
OSHE vs. OKIN BISCUITS

It was learned Counsel’s further contention that an Appellate Court will interfere against the quantum of damages made by a trial Court where the trial Court acted upon some wrong principle of law and Counsel referred Court to the English decision of FLINT vs. LOVELL (1935) 1 K.B. 354 @ 360. Also to the case of NEWBREED ORGANIZATION LTD vs. ERHOMOSELE (2006) 2 SC. (PT.1) 136 @ 153 and MUSA YA’U vs. DIKWA (Supra). Counsel urged the Court to treat this as a proper matter in which the Court can interfere and make awards under this head.

On the measure of damages, learned Cross Appellant’s Counsel contended that it is impossible to measure severe pain and suffering, loss of amenities and of life and injury to health in terms of monetary compensation as no amount of money can adequately compensate for these losses and severe pain inflicted; yet, money must be awarded because it is the only remedy which is in the power of the law to give. Counsel referred to the Learned Authors, Charlesworth & Percy on Negligence, 7th Edition page 4-61 on the issue and especially the Observations of the House of Lords In the MEDIANA case (1900) AC. P.113 @ 116 -117. In this connection Counsel urged the Court to award the sum of N3 Billion under this head.

Responding learned Cross Respondents’ Counsel contended that the cases cited by Cross Appellant’s Counsel do not apply to this case as the Supreme Court laid down the conditions to be followed before making such awards if at all.
Counsel further said that the Court must consider what compensation should be, going by the evidence that gives an insight into the intensity of the pain and suffering. Counsel said that the Court condemned in strong terms, the practice of giving exaggerated testimonies, which should be disregarded without more. Counsel cited the case of C & C CONST. CO. LTD vs. OKHAI (Supra) and also the case of FATUMBI vs. OLAOLOYE (2004) 6- 7 SC. 78 on the issue of exaggerated testimonies of persons before Court and which Counsel told Court should be ignored. Still on this issue, Counsel said that the trial Court was in the best position to assess the intensity of the pain or suffering alleged by the Cross Appellant as there was no evidence of any physical disability or permanent physical disability on the part of the Cross Appellant.

Where a victim of an injury makes a claim for money award for pain and suffering, mental anguish, inconvenience, and loss of consortium, for future on-going inevitable medical expenses, these of course would be classified as claims made in General Damages. In the recent decision of this court in the case of JULIUS BERGER PLC. & ANOR vs. MR. DOLAPO OGUNDEHIN (2013) LPELR – 20421 (CA), this Court, per NDUKWE-ANYANWU, JCA on the general principles for assessment of General Damages or the various heads of General Damages, had this to say on the subject;

“…the general principle of the assessment’ of General Damages was re-emphasized in the case of HANSEATIC INTERNATIONAL LTD. vs. USANG (2002) 13 NWLR (PT. 784) 376 as follows; ‘Matters for consideration in the assessment of General Damages in personal injury cases have been held to include (1) the bodily pain and suffering that the Plaintiff underwent and that which may occur in the future, (2) whether or not such a Plaintiff sustained permanent disability or disfigurement, (3) the loss of earning caused by any such disability or disfigurement, (4) the length of time the Plaintiff spent in the Hospital receiving treatment, (5) the age, status and expectation of life of the Plaintiff”.

At paragraph 31(3)(g) of the Amended Statement of Claim, it is clear that the Cross Appellant pleaded and claimed the sum of N3 Billion Naira against the 1st Defendant/Cross Respondent as General Damages. The Court is informed of her reliance on the evidence at paragraph 19 of the Amended Statement of Claim in which she averred as follow;

“…19. By reason of the matters aforesaid, the Plaintiff sustained fatal injuries has been put to great loss and expense, shock, pain sufferings, inconveniences and discomfort and has suffered special general and exemplary damages”.

In her proof of these averments, the Cross Appellant had relied on the various testimonies of the Medical Doctors who administered one form of treatments or procedure on her and who gave evidence in support of her case. These were; Dr. Felix Onyebuchi Iwudibia who testified as the PW2 at pages 178 -180 of the records of Appeal; the evidence of Dr. Eugene Udebuani, who testified as the PW4 at pages 184 – 185 of the printed records; the evidence of Dr. Ifeanyi Charles Nwagbara, who testified as the PW5 at pages 187 – 189 of the records of Appeal and the evidence of Dr. Amaechi Uchenna Katchy, who testified as the PW6 at pages 190 – 191 of the records of Appeal.

However, in the lower Court’s handling of the issue of General Damages at page 253 of the records of Appeal, the Court had this to say;

“…I have seen the Claim of the Claimant as to General Damages. In her claim for General Damages the Claimant is claiming the sum of two million Naira (sic). It is the law that General Damages are damages which may be given when the Court cannot point out any measure of by which they are assessed. I have seen the subheads under which the Claimant’s Counsel came to the sum of N2 Billion. Most of these subheads have been treated under special damages. It is indeed incompetent for a Claimant to claim General Damages always when his claims should have been for special damages. Since the claim for special damages have been awarded, I am of the humble view that the claimant is not entitled to the General Damages. See XTOUDOS SERVICES NIG. LTD vs. TAISAL (W.A.) LTD (2006) ALL FWLR (PT 333) 1640 (SC)”…

From the foregoing, it is of course clear that the lower Court proceeded on a wrong principle in its consideration of the issue. The lower Court did not give any details as to which heads of damages it accommodated; Pain and Suffering; Loss of Amenities; Loss of Expectations and Enjoyment of Life under Special Damages.

As it relates to the question of pain and suffering, this head of claim or head of damages cover past, present and future; pain, physical and mental anguish including fear of future treatment or anguish caused by life expectancy being shortened. See the case of WISE vs. KAYE (1963) 1 QB. 639. In the case of loss of Amenities of life, it will be important to note that as a head of general damages this relates to the curtailment of a plaintiff’s enjoyment of life and the inability to pursue hobbies. Usually any injury which prevents the Claimant from pursuing the activities, such as leisure, sports and pastimes, or natural function, which he or she was pursuing before or prevents or impairs the use of his or her natural faculties or senses or any part of his or her body- can all be compensated for as loss of amenities. See the case of WEST vs. SHEPARD (1964) AC 326.

The lower Court did not say whether any awards had been made in any head or subhead which fitted the descriptions just made concerning these claims. Loss of amenities also includes inability to pursue an enjoyment occupation. See case of UBA LTD & ANOR. vs. MRS. NGOZI ACHORU (1990) SC.33/1988, where the Supreme Court cited with approval, the English cases of; MANLEY vs. RUGBY PORTLAND CO. (1951) C. A. NO.286; COOK vs. J.L. KIER & CO. (1970)1 W.L.R. 774 and MORRIS vs. JOHNSON MAUHEY & CO. (1968) 112 S.J. 32. It is well settled that the heads of claim for pain and suffering, and for loss of amenities of life are two distinct and separate claims arising from the same damage and injury. To therefore suggest as his reason for turning down the Cross Appellant’s claims for General Damages because these “claims had been dealt with under Special Damages”, is nothing but a clear and eloquent testimony to the fact the lower Court no doubt proceeded on a wrong principle of law in arriving at its conclusion on the issue.

Whilst conceding that the trial Court, in all appropriate cases is entitled to reject a claim for double compensation where claims are made in respect of the same head of claim, it must be clarified in this case that there were no double claims in the claim of the Cross Appellant in this case. For there to be double claims the Claimant must be clearly seen to have made a double claim from substantially under the same head of claims. The claims for “pain and suffering” on the one hand and that for “loss of amenities” on the other hand, as claims in tort are generally separate and distinct heads of claims. The cases of BRITISH TRANSPORT COMMISSION VS. GOURLEY (1955) ALL E.R.796, AT P.804; ODULAJA vs. HADDAD (1973) 11 S.C. 357 AT P.361 are clearly instructive.
The lower Court relied on the decision of XTOUDOS SERVICES NIG. LTD. vs. TAISAL (W.A.) LTD (supra) in reaching its decision on the subject. In that case, the Plaintiff claimed a mandatory order that the un-serviced scrap properties they purchased but were not delivered to them should be returned and alternatively lumped a claim for special and general damages together. The defendant denied and alleged that the Plaintiffs had removed the scrap. The trial Court held that the Plaintiffs had abandoned their claim for mandatory order and awarded special and general damages together. The Supreme Court held this to be a clear case of double award of compensation from a single head of claim. This is hardly the situation in this case.

Apart from the evidence of the PW2, PW4, PW5 and PW6 who all gave evidence in support of the Cross Appellant’s state of Health as a result of the accident, the Cross Appellant at pages 31 to 34 of the records of Appeal in her written deposition on oath deposed to the fact that she was an acting Director of Sports of the Imo State University, a Board member of the Imo State Sports Council and who was also at the verge of completing her Doctoral studies with the University shortly before the accident. It is clear from the evidence of the Cross Appellant that she already lost the prospects of completing her studies. It is also clear from her evidence that as a result of the accident, she could no longer be an active member of the sporting bodies to which she belonged as she presently carries a 3rd Metal Angular plate in her left femur adjoining her left hip. The Medical Doctors who testified in support of Claimant’s case all confirmed these claims and these testimonies remain unchallenged.

It is usually not the place of the Appellate Court to reverse the findings and verdict of a trial Judge as to the amount of damages merely because it thinks that if it had tried the case at first instance it might have arrived at a different conclusion. In order to justify the reversal of a trial Judge on the question of quantum or an amount of General Damages awarded, the Appellate Court ought to satisfy itself either that the trial Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the opinion of the Appellate Court, an entirely erroneous estimate of the damages to which the Claimant is entitled. There had been an overwhelming amount of facts in this case from which the lower Court could have gone ahead to make its award for General Damages in favour of the Cross Appellant, but the lower Court declined to do this. It is well settled that the primary responsibility for finding of facts in a matter is entirely that of the Court of trial. – See BALOGUN vs. AGBOOLA (1974) 1 ALL N.L.R, (PT.2) 66. Where such facts have not been challenged they are conclusive. See OMOREGBE vs. LAWANI (Supra). It is, however, true that the Court of Appeal is in as good a position in the evaluation of the facts where the trial Court has failed to evaluate such facts. In assessing General Damages the settled principle to be applied is that where injury is to be compensated by damages, the Court should, as nearly as possible, get at that sum of money which will put the party who has been injured (or who has suffered) in the same position as he would have been in if he had not sustained or suffered the injury for which he is now to get compensation.

In the case in hand, I ought to take into account the pain that the Cross Appellant has suffered, the injury to her leg and entire hip region, and the handicap which she now suffers, in calculating the damages which, she should be paid for the loss she has suffered as the natural consequence of the wrong which has been done to her. In this connection, I have considered the fact that the Claimant suffered a fracture of the left femur, and as a result of which she now has a Metal Angular plate fixed to her hips and which had collapsed for a record third time resulting in her seeking Overseas Specialist Medical attention in India. She had attended a good number of Hospitals and Clinics as well, and during which period she suffered pain. I have also taken into consideration the fact that the Claimant still suffers pain and may never be in a position to drive a car again. The burden now rests on the Claimant to procure the services of a professional driver. The Claimant had been an active sports person by virtue of her position as acting Director of Sports of the Imo State University and a member of the Imo State Sports Council.

The Claimant must be given compensation as far as money can do it which will make up for her loss proportionate to her injuries and such as will be fair assessment in the opinion of a reasonable man. I hereby make an award of the sum of N500,000,000.00 (Five-Hundred Million) Naira as General Damages for pain, suffering, loss of amenities, loss of expectations and enjoyment of life.
ISSUE THREE;

Whether there was evidence before the trial Court to warrant an award for future, on-going inevitable medical expenses. (Grounds 6 and 10 of the Cross Appeal.)

The Cross Appellant has claimed award of damages for future inevitable on-going medical expenses and this head of claim according to Cross Appellant’s Counsel is based on the evidence of medical Doctors/Experts who gave evidence before the lower Court. The Cross Appellant had claimed the sum of One Hundred and Twenty-Two Million, Five Hundred and Eighty Nine Naira and Eighty Four Kobos (N122,580,084) in this regard and referred to the testimonies of the following Medical Doctors;

Dr. Felix Onyebuchi Iwudubia, a Radiologist of 36 years of professional experience who said at page 179, lines 2-4 of the records of Appeal that he too had recommended that the Cross Appellant goes abroad for further medical attention;
Dr. A.U. Katchy, the Medical Director at Hilltop Orthopedic Clinic, Enugu who testified at page 21 paragraph 10 of the records of Appeal, that he knew that the Cross Appellant would remain in the Clinic for 3 – 4 years in the minimum before she could start rehabilitation;
Dr. I. C. Nwagbara, a Consultant Orthopedic Surgeon who testified at page 25 of the records of Appeal and said in the process that he knew as a fact that the second metal plate would collapse in the body of the Cross Appellant and that she ought to carry it for a period of 3 years and that it would constantly require overseas trip for medical treatment, post surgical observation and stability.

According to Counsel the Cross Respondents’ called no medical evidence in rebuttal and that the lower Court cited no judicial authority for refusing to make the awards for future on-going medical expenses. Counsel submitted that in assessing general damages for personal injuries there may be items of need which should be taken into consideration, for example, future needs for special treatment or for transport. Counsel cited the case of STRABAG CONSTRUCTION CO. LTD. vs. OGAREKPE (1991) 1 NWLR (PT.170) 733 @ 755. Learned Counsel also referred to the cases of MITCHELL vs. MULHOLLAND [No. 2] (1971) 2 WLR 1271 @ 1274 and CROKE vs. WISEMAN (1982) 1 WLR 71 @ 78 on the concepts of MULTIPLICAND and MULTIPLIER propounded by EDMOND DAVIES L.J. on the methods of assessing or calculating future nursing or medical expenses of an injured victim. In applying these methods, learned Counsel calculated and arrived at the sum of N94,375,020 which he urged this Court to award to the Cross Appellant as future ongoing medical expenses.

The Cross Respondents’ reaction was rather simple and that is to the effect that Cross Appellant’s Counsel’s submissions and calculations on the issue are not backed by evidence led at the trial. Counsel contended that a Counsel’s address does not take the place of evidence and cited the case of IBIKUNLE vs. LAWANI (2007) 3 NWLR (PT.1022) 585 and further contended that no evidence of Cross Appellant’s physical disability or permanent disability was led in Court. He cited the case of CHUKWU vs. MAKINDE (2007) 9 NWLR (PT.1038) 195 in support.

This head of claim is yet another item of General Damages. See the case of JULIUS BERGER PLC. & ANOR. vs. MR. DOLAPO OGUNDEHIN (Supra) in this regard and also the case of HANSEATIC INTERNATIONAL LTD. vs. USANG (supra) on the issue. This head of damages represents the loss to the plaintiff which cannot be precisely quantified. It includes all non-financial or future financial losses. Items of this head of general damages need not and should not be specifically pleaded, but some evidence of such damages is required. A claim for future expenses, whether for on-going Medical expenses or not, is a claim for general damages for which the ‘Multiplier’ and ‘Multiplicand’ approaches have been employed in the assessment of damages where future ongoing medical expenses have been claimed by the injured party. These approaches have been known to apply to Personal Injury cases and as well as Fatal Accident cases in Nigeria. See OSHOLAKE vs. LAGOS CITY COUNCIL (1972) 12 CCHCH 56. See also IBOLUKWU vs. ONOHARIGHO (1964) 1 ALL N.L.R. 215, AT P.217. See also OWOLO vs. OLISE (1967) F.N.L.R. 179.

In personal injuries cases, the multiplicand is an estimation of the plaintiff’s annual loss or earnings whereas in fatal accident claims it is an estimation of the annual value of the dependency. See OSHOLAKE vs. LAGOS CITY COUNCIL (1972) 12 CCHCH 56. In other words it is usually that sum which represents the amount which the deceased would have spent on his family if he were to have been alive. See IBOLUKWU vs. ONOHARIGHO (1964) 1 ALL N.L.R. 215, AT P.217 where the Supreme Court reduced the multiplicand because the trial judge had erroneously calculated it by reference to the total income of the deceased, whereas “the evidence led in the case did not support the view that the deceased spent her whole income on maintaining her husband and children, and spent nothing on herself”.

Generally, the multiplicand in fatal accident claims is usually lower than in personal injury claims. Furthermore, in choosing the appropriate multiplicand in fatal accident claims, the age and health of the dependants and the uncertainties as to their future should be taken into account in addition to the age, health and future prospects of the deceased. See OWOLO vs. OLISE (1967) F.N.L.R. 179. The multiplier also is therefore likely to be lower than in personal injury cases.
In the instant case, what the Cross Appellant claims from the Cross Respondents under this head of damages is a claim for future Medical Expenses including cost adaptations or aids and travel expenses where applicable. The usual components of any such calculations will involve what was available to Court in terms of financial figures (pre-trial) easily totaled and awarded as Special damages on the one hand, and what would be the annual cost of treatment. That is; (multiplicand) x multiplied by the number of years of treatment (multiplier) will be required and awarded as General damages. See the case of IFEANYICHUKWU OSONDU CO. LTD vs. AKHIGBE (1999) 11 NWLR (Pt.625) 1, where the Supreme Court, per UWAIFO, JSC had this to say on the subject;

“…Money actually spent before the time of hearing a claim for damages for injuries suffered comes under special damages, while prospective expenditure is money which has not yet crystallized in actual disbursement. The latter does not qualify as special damages but is claimable as part of General damages. In this case the trial Court erred in rejecting the Respondent’s claim of N45,000 for future treatment oversea as too remote and the Court of Appeal rightly overruled the trial Court on that point”….

Perhaps, what the Great Denning had to say on the subject in the English case of CROKE vs. WISEMAN (1982) 1 WLR 71 AT 78 may serve as the required icing on the cake as far as the Cross Appellant’s claim under this head of Claim is concerned. He said;

“…there should be ample provision for the cost of keeping this boy (sic) the Respondent in the future so that he should have the best possible care for the rest of his expected life. This is always done by finding first the multiplicand and afterwards the multiplier”.

The trial Court, in the instant case made an award of the sum of N62,916,680.00 as medical expenses in two (2) years beginning from the 8-12-2006 to 8-12-2008. This figure, that is the sum of N62,916,680.00 represents what was available to Court (pre-trial), totaled and awarded as Special damages in the case. To now find what the annual cost of treatment would be, (multiplicand), the figure of N62,916,680.00 will have to be divided by two (2) since it represents medical expenses for two years. Therefore, 62,916,680 divided by 2 = 31,458,340. The multiplicand therefore, will be the sum of N31,458,340.00.

To arrive at the multiplier, Medical evidence would have to be relied upon. The PW6, in the trial Dr. A. U. Katchy, Medical Director of Hilltop Orthopedic Clinic Enugu, in his evidence before the lower Court, at page 21 of the records of Appeal said that the Cross Appellant would remain in clinic for up to 3 to 4 years in the minimum before she could start rehabilitation. The PW5, Dr. L C. Nwagbara, Consultant Orthopedic Surgeon at page 25 of the records of Appeal, testified that the Cross Appellant would carry the metal plate in her body for a period of 3 years and would require overseas trips for medical attention and post surgical observations. Learned Cross Appellant’s Counsel had opted for a multiplier of 3 years. This, this Court would be in a position to give. Therefore, 3 years x N31,458,340.00 = N94,375,020.00.

From the foregoing, this issue is resolved in favour of Cross Appellant and the sum of N94,375,020.00 is awarded as General Damages for future ongoing medical expenses.
ISSUE FOUR;

Whether Exhibits MM-MM19 having been admitted in evidence without objection the learned trial judge could rightly reject same in her judgment. (Grounds 15 of the Cross Appeal).

Learned Cross Appellant’s Counsel told this court that Exhibits MM-MM19 were payment receipts from Divine Medical complex pharmacy Enugu and that the receipts totaled the sum of N5,797,540.00. He further informed Court that the Cross Appellant pleaded these receipts at paragraph 24(d) of the Amended Statement of Claim contained at page 11 of the records of Appeal. Learned Counsel in this connection referred Court to page 73 of the records where the Cross Appellant gave evidence under oath about how she bought various prescription drugs and appliances from Divine Medical Complex Pharmacy Enugu and which totaled about 20 such receipts which she said she signed for at various dates. According to Cross Appellant’s Counsel, the Cross Respondents did not controvert the Cross Appellant on this issue neither did they raise any issues as to who signed the attached Medical prescriptions which gave rise to the purchases and the subsequent issuance of the receipts. Counsel referred Court to page 200 of the records of Appeal in this connection.

Counsel contended that the refusal to make use of the said exhibits MM-MM19 or the reason for rejecting same by the trial Court contained at page 250 where the Court for no just reasons refused to attach any weights, thus raising suo motu and resolving same, which is the question of weights to be attached on the receipts, without giving the Counsel of the Cross Appellant the opportunity of addressing Court on it. Counsel referred to the case of UBA. Vs. ACHORU (Supra) and also the case of SARAKI vs. KOTOYE (Supra). Learned Counsel on the issue urged the Court to set aside the Lower Court’s decision on the issue and make an award of the sum of N5,797,840.00 based on exhibits MM-MM19 to the Cross Appellant as claimed.

In their response, Learned Cross Respondents’ Counsel contended that the learned trial Court was right in rejecting the exhibits MM-MM19 in view of the obvious deceits inherent in the said exhibits. According to Counsel, a careful perusal of the exhibits would reveal that they were signed by the PW7 whose signature is contained in her witness statement on oath dated 15th January, 2009, who is not a Doctor and who did not state in her evidence that she writes prescriptions. Counsel further contended that having spotted these obvious deceits he urged the lower Court not to ascribe any probative values to the said exhibits under section 108 of the Evidence Act 2004 even though already admitted in evidence. Learned Counsel finally urged the Court not to disturb the findings of the lower Court on the issue.

The claim for the sum of N5,797,540.00. representing payments receipts from Divine Medical Complex Pharmacy Enugu in Exhibits MM-MM19 is yet another claim made in Special Damages. Special damages in actions for personal injuries include loss and expenses incurred between the date of the accident and the date of judgment. Each item must be specifically pleaded and proved. Examples of special damages are: damage to clothing, damage to a vehicle, medical expenses, nursing fees, taxi fares to and from hospital, and loss of earnings during the period.

These receipts were pleaded at paragraph 24(d) of the Amended Statement of Claim, at page 11 of the records of Appeal. The Cross Appellant gave evidence under oath in support of these Exhibits at page 73 of the records. She told Court how she bought various prescription drugs and appliances from Divine Medical complex Pharmacy Enugu and which totalled about 20 such receipts which she signed for at various dates. According to Cross Appellant’s Counsel, the Cross Respondents did not controvert the Cross Appellant on this issue neither did they raise any issues as to who signed the attached Medical prescriptions which gave rise to the purchases and the subsequent issuance of the receipts. Counsel referred Court to page 200 of the records of Appeal in this connection.
The objection of Cross Respondents’ Counsel to the grant of the sum of N5,797,540.00 representing payments receipts from Divine Medical Complex Pharmacy Enugu as encapsulated in Exhibits MM-MM19 is the question of his quarrels with the signatures on the said Exhibits and that he had asked the lower Court not to ascribe any probative value on the said Exhibits under Section 108 of the Evidence Act 2004 even though admitted into evidence. His opposition to the award of the said item of special damages was not borne out of the fact that the Cross Appellant did not establish that claim before the lower Court by credible evidence as required of her. In getting round to resolving this issue, it became necessary to quickly examine Section 108 of the Evidence Act 2004 which I have equally taken the time to reproduce here as follows for the avoidance of doubt:

SECTION 108;

“(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.

(2) The court may direct any person present in court to write any words or figures or to make finger impressions for the purpose of enabling the court to compare the words, figures or finger impressions so written with any words, figures or finger impressions alleged to have been written or made by such person:

Provided that where an accused person does not give evidence he may not be so directed to write any words or figures or to make finger impressions.

(3) After the final termination of the proceedings in which the court required any person to make his finger impressions such impressions shall be destroyed.”

After carefully examining the section it is at once clear that it is not relevant under the scheme of things. The section is meant for the ascertainment of the signatures, writings or impressions of persons on documents tendered before Court and not meant for the ascription of probative values on documentary Exhibits already admitted into evidence. The situation before the Court was not one of a dispute as to who signed the Exhibits or who did not. In any case, it is equally highly irregular for the lower Court to have refused to ascribe probative value to Exhibits MM-MM19 after admitting same into evidence without giving opportunity to Learned Counsel to address it upon same before taking its decision. See the case of UBA LTD. & ANOR vs. ACHORU (Supra) on the issue where the Supreme Court had this say on the issue;

“…it is well settled practice that where the court is likely in its consideration of the case before it to rely on a new point or issue not argued before it, Counsel should be invited to address it on such issue. The rationale for this is the need to avoid a circumstance where the Court suo motu makes a case for either of the parties thereby resulting in a situation amounting to lack of fair hearing”…

This issue is once again resolved in favour of the Cross Appellant and the sum of N5,797,540.00 representing payments for prescribed drugs purchased by Cross Appellant from Divine Medical Complex Pharmacy Enugu as encapsulated in Exhibits MM-MM19 is awarded in favour of Cross-Appellant.
ISSUE FIVE;

Whether from the circumstances of the case and evidence before the trial Court an award for exemplary and aggravated damages would have been justified. (Grounds 7 and 8 of the Cross Appeal).

Learned Cross Appellant’s counsel contended that for a claim of exemplary damages to be successful, it has to be specifically pleaded and claimed and that this the Cross Appellant did at paragraph 15 of her Amended Statement of Claim, (see page 9 of the records of Appeal) where she averred as follows;

“the plaintiff further states that since the said date of the accident no delegation of the defendants has visited plaintiff in the Hospital either at Hilltop Clinic Enugu or at the Imo State University Teaching Hospital Orlu, Imo State or at St. Joseph Hospital Okwelle, Imo State”.

Learned Counsel further drew attention to Cross Appellant’s evidence on Oath at page 34 paragraph 19 of the records of Appeal where she said that since the accident, no delegation of the defendants visited on her sick bed and that no efforts were made to replace her car or contribute towards her Hospital Bills or any of such friendly or kind gestures from them. According to Cross Appellant’s Counsel, even though the Cross Respondents at their paragraph 16 of their further Amended Statement of Defense averred that a delegation of the 1st Cross Respondent from their insurance Company visited the plaintiff while she was hospitalized that no witnesses were called or evidence led in support of that averment. The consequence of this, Counsel submitted is that that averment goes to no issue as it deemed abandoned. Counsel cited the case of YUSUF vs. OYETUNDE (1998) 12 NWLR 9 (PT. 579) 483 SC.

It was the contention of Cross Appellant’s Counsel that to justify an award for exemplary or aggravated damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of, but that his conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s right or disregarding every principle which actuates the conduct of civilized men. Counsel cited the case of ODIBA vs. AZEGE (1998) 9 NWLR (PT.566) 370. See also the case of ELIOCHIN (NIG.) LTD. vs. MBADIWE (1986) 1 SC. 99. Counsel added that exemplary or aggravated damages, which are solely compensatory, can be awarded in any class of action and not restricted to tort of trespass or assault only. He said that the learned trial Court refused to make the award for aggravated damages and held that most of these heads have been treated under special damages and furthermore, that the Court was of the view that the Cross Appellant was not entitled to general damages. Learned Counsel urged the Court to make an award of N800,000,000 to the Cross Appellant as exemplary and aggravated damages.

In their reaction, Learned Cross Respondents’ Counsel conceded that the conditions for the award of exemplary or aggravated damages are conduct which is high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s right or disregarding every principle which actuates the conduct of civilized men and referred to the case of GFK INVESTMENT NIG LTD vs. NITEL PLC. (2006) ALL FWLR (PT.299) 1402 @ 1418. However, Counsel in this connection, submitted that the above conditions are only provable by facts elicited from evidence before a trial Court and not in a written address of Counsel. It was his further submission that the Cross Respondents since this matter are everything but any of the descriptions given here above as they have remained calm and law abiding even in the face of the Cross Appellant’s wanton exaggerations. He urged the Court to resolve this issue in favour of the Cross Respondents.

Exemplary (or punitive) Damages are intended not primarily to compensate the plaintiff but rather to punish the defendant and to deter him from similar behaviour in the future. Exemplary damages are punitive damages and it is awarded where a party to the suit can show or establish by evidence that the injury or loss suffered is due to the malicious act of the party against whom he is claiming damages. In order to justify the award of exemplary damages, it is not sufficient to show merely that the defendant has committed a wrongful act. The conduct of the defendant must be high-handed, insolent, vindictive or malicious showing contempt of the plaintiff’s right or disregard of every principle which actuates the conduct of a gentleman. See J.M. JOHNSON vs. MOBIL (1959) WNLR 128 AT 134 and F.R.A. WILLIAMS vs. DAILY TIMES (1990) 1 NWLR PART 124 AT 31.

It is now established that exemplary damages may be awarded only in the following three circumstances, namely:

Where the plaintiff has suffered from oppressive, arbitrary or unconstitutional action by a servant of the Government. See ROOKES vs. BARNARD (1964) A.C. 1129 AT 1226; GARBA vs. LAGOS CITY COUNCIL (1974) 3 CCHCH 297, AT P.309; OGUCHE vs. ILIYASU (1971) N.N.L.R. 157, AT P.167;
Where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and
Where Statute so provides. See DRANE vs. EVANGELOU (1978) 1 W.L.R. 455; CASSELL & CO. LTD. vs. BROOME (1972) A.C. 1027.

Aggravated Damages, on the other hand, may be awarded where the defendant’s motives and conduct were such as to aggravate the injury to the plaintiff. They are a species of compensatory damages in that their purpose is to compensate the plaintiff for the injury to his feelings of dignity and pride and not the injury sustained. In the case of ODIBA vs. AZEGE (1998) LPELR-2215 (SC), the Supreme Court, per IGUH, JSC had this to say on the issue;
“Exemplary damages, in particular, also known as punitive or vindictive damages can apply where the conduct of the defendant is wanton, as where it discloses fraud, malice, cruelty’ insolence or the tike, where he acts in contumelious disregard of the plaintiff’s rights. But exemplary damages, to some extent, are distinct from aggravated damages whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken in to consideration in the assessment of compensatory damages.”

At paragraph 15 of her Amended Statement of Claim, (see page 9 of the records of Appeal) Cross Appellant averred as follows;

“the plaintiff further states that since the said date of the accident no delegation of the defendants has visited the plaintiff in the Hospital either at Hilltop Clinic Enugu or at the Imo State University Teaching Hospital Orlu, Imo State or at St. Joseph’s Hospital Okwelle, Imo State”.

In proof of this averment, Cross Appellant’s evidence on Oath is at page 34 paragraph 19 of the records of Appeal where she said that since the accident, no delegation of the defendants visited her while on her sick bed and that no efforts were made to replace her car or contribute towards her Hospital Bills or any of such friendly or kind gestures. Cross Respondents’ answer to this issue is at their paragraph 16 of their further Amended statement of Defense where they averred that a delegation of the 1st Cross Respondent from their insurance Company visited the plaintiff while she was hospitalized. But it is noted by this Court, that no witnesses were called or evidence led in support of that averment. The consequence of this, is that that averment goes to no issue as it deemed abandoned. Counsel cited the case of YUSUF vs. OYETUNDE (1998) 12 NWLR 9 (PT.579) 483 SC. In essence therefore, there does not seem to be on record any answers proffered by the Cross Respondents on the issue. It would be recalled that the learned trial Court declined/refused to make the award for Exemplary/Aggravated damages on the ground that most of “these heads have been treated under special damages and furthermore, that the Court was of the view that the Cross Appellant was not entitled to general damages”.

In the case of ODIBA vs. AZEGE (supra), this was what the Supreme Court per OBASEKI, JSC had to say on the subject;

“…the primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages, vindictive damages, even retributory damage and comes into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like”.

By its officials not paying a visit on the Cross Appellant on her sick bed, I do not think that in my mind, ought to qualify as a good reason for making a claim for Exemplary/and or Aggravated damages for which reason the Cross Respondents should be punished. The antecedent of this matter before it got to this stage must be taken into consideration when considering a matter of this nature. It is proper to recall that shortly after the accident, the Police was called in and the 2nd Cross Respondent was arraigned before the Magistrates Court where he was tried and convicted for negligent and reckless driving. In Africa Communities and particularly in Nigeria, judicial notice must be taken of the fact that when once persons have dragged themselves to Court for any reasons at all, that in itself leaves no room for any acts of friendly gestures. Consequently, I do not agree that simply because the Cross Respondents did not pay visits to the Cross Appellant in her sick bed that qualifies them as high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the Cross Appellant’s right. This issue is resolved in against the Cross Appellant.

ISSUES SIX and SEVEN;

Whether the refusal by the learned trial judge to make an award on exhibit ‘O’ was justified (Ground 5 of the Cross Appeal).

Whether the refusal by the learned trial judge to make an award on exhibit ‘M’ was justified (Ground 4 of the Cross Appeal).

In arguing these issues together, Learned Counsel for the Cross Appellant began by telling the Court that Exhibit ‘M’ in the trial was admitted as letter of employment of Mrs. Blessing Ezeh, a Staff Nurse and Midwife who testified as PW7 in the trial before the lower Court as Care-Assistant to the Cross Appellant. The Exhibit ‘O’ on the other hand, is the letter of employment of Mr. Jonah Kwusi, who testified as the PW8 employed as Cab Driver who does “school run” for the Cross Appellant.

According to Counsel, in the case of the PW7, her appointment was done on 11-12-2006 in writing in the form of a Contract agreement which contained her conditions of service, salary, allowances, termination, nature and hours of service which the court admitted as Exhibit ‘M’. Counsel said that Exhibit ‘M’ was offered by the Husband of Cross Appellant and that even though the Exhibit was frontloaded to the Cross Respondents as required under the rules of Court of Imo State, the Cross Respondents raised no issues in their pleadings as to the fact that it was the Husband of the Cross Appellant who issued the said letter of employment. Counsel added that the Cross Appellant pleaded the appointment and employment letter of the PW7 in her Amended Statement of Claim and referred Court to paragraph, 27 page 12 of the records of Appeal, while the evidence on Oath of the PW7 is contained at page 22 of the records of Appeal where she testified that from December, 2006 to December, 2008 her wages amounted to the sum of N1,808,000.00.

It was the contention of Learned Counsel that by stating at page 248 lines 6 – 10 of the records that the Claimant’s Husband who entered into the Contractual Agreement with PW7 did not come to testify and that payment vouchers for receipts of payments were not tendered, that the learned trial Court raised suo motu the issues relating to the Cross Appellant’s Husband and payment vouchers/receipts without affording the Cross Appellant the opportunity to address her on it. Counsel cited the case of MOROHUNFOLA vs. KWARA STRATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR [PT.145] 506 and submitted that by the tests enunciated by the Supreme Court in the said case, the letter of employment of the PW7 was properly admitted in evidence. On the issue of the Cross Appellant’s Husband’s involvements which the lower Court seem not to have approved off, Counsel said that English Judicial authorities are agreed that a Husband can recover, without being a party to a suit damages arising out of a wife’s accident. Counsel said that the Husband can also claim damages for engaging a housekeeper to manage his household during his wife’s accident. This, according to Counsel is because of the Husband’s obligation to maintain her and provide her with necessaries and proper medical aids.

In support of this proposition, Counsel cited the case of ALLEN vs. WATERS & CO. (1935) 1 KB 200. See also the case of DENNIS vs. LPTB (1948) 1 ALL E.R.779 on the issue. Counsel further said that the learned trial Judge after admitting Exhibit ‘M’ in evidence without objection could not in law sit on Appeal over the said exhibit and cited the case of SARAKI vs. KOTOYE (supra) on the issue. Counsel urged the Court to set aside the decision of the lower Court on the issue and award the sum of N1,808,000.00 based on Exhibit ‘M’.
As it relates to the case of the PWB, Learned Counsel told Court that the Cross Appellant averred the services of a Cab Driver and that his duties as contained at paragraph 20 of the Amended Statement of Claim is that he does “school run” for the Cross Appellant. See page 34 of the records of Appeal. As for the evidence of the PW8 Counsel referred court to page 193-194 of the records of Appeal.

According to learned Counsel, the lower Court also rejected Exhibit ‘O’ after admitting same in evidence. Counsel in this regard, submitted that the legal arguments canvassed in respect of Exhibit ‘M’ as above applies herein in the case of Exhibit ‘O’ and urged the Court to award the Cross Appellant the sum of N1,200,000 being the sum of money received by the PW8 from December, 2006 to December, 2008.

In their response, learned Counsel for the Cross Respondents contended that the learned trial Court did not raise any issues suo motu concerning the import of Exhibits ‘O’ and ‘M’ as the Cross Appellant’s Counsel at page 104 of the records of Appeal addressed the lower Court on the issue, Counsel further contended that the Exhibits were claims by persons who were not parties before the lower Court. More over Counsel said that the Exhibits were inadmissible as they offend section 91(3) of the Evidence Act 2011. Counsel further said that it was the duty of the trial court not to place weight on any Exhibit of which it cannot attach probative value. In respect of the case of MOROHUNFOLA vs. KWARA STATE COLLEGE OF TECHNOLOGY (Supra) cited by Cross Appellant’s Counsel, he said that the case has no bearing with this case as it is a case of employer and employee relationship. He urged this Court to resolve this issue in favour of Cross Respondents.

This head of claim is another one brought under Special damages. I have earlier on said that special damage in actions for personal injuries include losses and expenses incurred between the date of the accident and the date of judgment. Each item, as usual must be specifically pleaded and proved. They are usually assessed separately from other awards since they must be pleaded and strictly proved. See the case of JULIUS BERGER NIG. PLC. & ANOR vs. OGUNDEHIN (supra). These would include such damages as to vehicle, medical expenses, Nursing fees, Taxi or Car Hire services to and from hospital, and loss of earnings during the period.

Under Nursing expenses, the plaintiff is entitled to claim the cost of care which he or she reasonably incurs as a result of his/her injuries. Where the victim is nursed by a member of his/her family or a friend, he/she is entitled to the reasonable cost of such nursing services, even though he is not under any legal or moral obligation to pay the person who gives the services. In addition, a Husband or Father who incurs medical expenses on behalf of his injured wife or child, as the case may be, can himself recover those expenses from the tort-feasor. See the case of DONNELLY vs. JOYCE (1974) Q.B. 454 where the basis for such recovery was the English Court of Appeals decision, where the Court held that the existence of moral or legal obligation to reimburse the third party was irrelevant so long as it was incorrect to think of this as someone else’s loss and not the Claimant’s loss. According to the Court it was the existence of the Claimant’s loss that created the need for Nursing services or special equipment.

See also the case of CUNNINGHAM vs. HARRISON (1975) Q.B. 942.

In establishing this head of Claim the Cross Appellant pleaded the appointment and employment letter of the PW7 in her Amended Statement of Claim, See paragraph, 27 page 12 of the records of Appeal. The evidence on Oath of the PW7 is at page 22 of the records of Appeal where she testified that from December, 2006 to December, 2008 her wages amounted to the sum of N1,808,000.00, at page 142 paragraph H of the records of Appeal. On the issue of the lower Court’s decision declining to make an award simply because it was the Husband of the Cross Appellant who entered into the contract to engage the services of the PW7, English jurisprudence is replete with authorities allowing spouses to claim on behalf of spouses, damages for loss of service of the spouse who is a victim of the Negligence of a third party. In any case, whatever happened to the age-old Common law doctrine of “Unity of Spouses” under which a husband and a wife are considered one? Therefore, if the wife were injured the husband could recover for loss of consortium which encompasses recovery for lost services, such as companionship, sex, earnings outside the home and so on.

In the case of the PW8, the Cross Appellant averred at paragraph 20, of the Amended Statement of Claim, the services of a Cab Driver and whose duties is to do “school run” for the Cross Appellant. See page 34 of the records of Appeal. The evidence on Oath of the PW8 wherein he testified in support of this averment is at page 193-194 of the records of Appeal. Once again the lower Court declined suo motu the use of Exhibit ‘O’ after admitting same in evidence without inviting Learned Counsel to the parties to address Court before doing so.

On the part of learned Counsel to the Cross Respondent, the lower Court’s decision rejecting the duo of Exhibits ‘ O’ and ‘M’ were justified more so when he claimed that their admission as Exhibits were against the letters and spirit of Section 91(3) of the Evidence Act. I have earlier on dealt with this section and the prescription that it ought to be narrowly construed especially as it relates to the expression; “persons interested”. See the case of ANYAEBOSI vs. R.T. BRISCOE NIG. LTD. (Supra). See also the case of APENA vs. AIYETOBI (1989) 1 NWLR (Supra).

Arising from the above, can it now be truly suggested that due to the accident and the state of the injuries sustained by the Cross Appellant, she would not require the services of a Nurse and a Cab Driver? And if this question is answered in the affirmative, can it now be suggested that because of the presence of section 91(3) of the Evidence Act, the Nurse and the Cab Driver whose contracts of engagement are captured in Exhibits ‘O’ and ‘M’ are now “persons interested” in this transaction? I am simply in disagreement with the lower Court on its refusal to grant the claims for Nursing service and Cab services the respective amounts claimed in the sum of N1,808,000.00 and N1,200,000.00 are hereby granted. These issues are resolved in favour of cross Appellant.

ISSUES EIGHT and NINE;

Whether Exhibit ‘UU’ the valid class of license required in law to drive an articulated truck of the 1st Appellant/Cross Respondent. (Ground 1 of the Cross Appeal)

Whether Exhibit ‘UU’ is a private document which does not require certification for admissibility. (Ground 2 of the Cross Appeal)

Learned Cross Appellants’ Counsel drew attention of this Court to the
Cross Appellant’s averments in her Amended Statement of Claim to the effect that the 2nd Cross Respondent at the time of the accident on the 8th day of December, 2006 had no valid Driver’s license. Counsel said that at the trial 2nd Cross Respondent at page 53 of the records of Appeal tendered his driver’s license which turned out to be a Class E license and which was admitted as Exhibit ‘UU’.

As it relates to the nature of the truck owned by 1st Cross Respondents, the 2nd Cross Respondent described the vehicle as a Mercedes Benz Agam Tipping Bucket. And that under cross examination, he admitted that the back of the truck he drove can be detached from the front and that when this is done, the back is heavier than the front. The PW3 (the VIO) in this case Counsel further submitted, testified that the Cross Respondent’s vehicle is an articulated vehicle and that the head is joined to the body. As it relates to the question of the Class of license required to drive an articulated Vehicle of the type involved in the accident, Counsel referred Court to page 102 of the Federal Road Safety Commissions Act Cap. F19 LFN, 2004 on the issue, which prescribes a Class ‘G’ license.

In the Judgment of the lower Court, Counsel contended that the lower Court went on a voyage of her own discovery when she ignored what had been canvassed against the 2nd Cross Respondent’s license and began to dwell on the issue of time of expiry of an inappropriate class E License. Counsel for this reason contended that the findings of the lower Court on the issue was perverse, the Court having failed to resolve whether a holder of a class E license and not a class G could in law drive an articulated truck, in view of the fact that the Cross Appellant’s case on the issue was not predicated on when the 2nd Cross Respondent’s license was issued and when it ought to expire. Counsel referred to Section 23 of the Federal Road Safety Commission Act which prohibits the driving of a vehicle by a person unless he is holder of a valid Driver’s License. Counsel cited the case of ATTN-GEN ADAMAWA STATE vs. WARE (2006) 1 SC (PT.11) 107 @ 112.

On the question of whether Exhibit ‘UU’ is a private document, Counsel contended that as an Original it was tendered in evidence without objection and was later substituted by an uncertified photocopy yet without objection. But that to resolve the question of its admissibility it is important to determine the nature of the issuing authority and the form in which it can be before it could be rendered admissible in law. Against this background, Counsel contended that the issuing Authority of the Exhibit is the Federal Road Safety Commission, a public establishment by virtue of section 17(1) of the Act of No. 22 of 2007. Consequently, Counsel argued, that by virtues of section 102(a)(i), (ii) (iii) of the Evidence Act 2011 all Official documents emanating from the Commission are public documents and that where such document is sought is to be used in a judicial proceedings, it must be in the form prescribed by law. Counsel submitted as a result, that Exhibit ‘UU’ having been established to be a public document under section 102 of the Evidence Act, the only form in which it can be in order to be admissible in law is a certified true copy and no other kind.

In their response, the Cross Respondents’ Counsel contended that the Cross Appellant led no credible evidence in proof of her Statement of Claim on the issue and especially whether the 2nd Cross Respondent had a valid license or not. Counsel said that the Cross Appellant merely pleaded this in her Statement of Claim but led no evidence on the issue. He added that pleadings on which no evidence is led goes to no issue. In addition Counsel contended that Cross Appellant was bringing in the issue for the first time on Appeal and that no leave was granted to enable the Cross Appellant so argue these issues for the first time on Appeal.

On the question of the reference to the Federal Road Safety Commission Act of 2007, Counsel contended that it does not apply to this case as the law was not made to apply retrospectively. Counsel said that the accident occurred in 2006 and not in 2007 and that the law applicable for the determination of an action is the law for all intents and purposes existing at the time the cause of action arose and that a change in the law will not affect existing rights and obligations unless the change was specifically made retrospective. Counsel cited the case of UNILORIN vs. ADENIRAN (2007) 6 NWLR (PT.1031) 504 in support.

I am in agreement with learned Cross Respondent’s Counsel on the issue. The accident in this matter was said to have occurred in the 8th day of December, 2006 and the Federal Road Safety Commission Act which learned Cross Appellant’s Counsel had copiously referred and had sought to have apply to this case did not come into effect until 2007. In agreement with learned Cross Respondent’s Counsel the Federal Road Safety Commission Act was not made to apply with retroactive effect. This issue is resolved in favour of Cross Respondent.

In the final analysis this Cross Appeal succeeds in part but before giving a synopsis of the decision of this Court in this matter, it may be apposite to draw attention to the observations of this Court, per ONALAJA, JCA in the case of TECHNO MECHANICAL (NIG.) LTD vs. OGUNDAYO (1990) LPELR-6760 where he said;

“the Supreme Court through KARIBI WHYTE JSC, dealt exhaustively with the award of damages for personal injuries in the UNITED BANK FOR AFRICA vs. MRS. ACHORU (1990) 6 NWLR (PT.156) page 254 and per OPUTA, JSC in NBC vs. NGONADI (1985) 1 NWLR (PT.4) page 739 SC all applied, adopted, and followed loyally by the Court of Appeal wherein it dealt comprehensively and exhaustively with the principles to guide Courts in award of damages in personal injury cases in the case of involuntary castrated man resulting from automobile accident in PAUL S. EBE vs. ALBERT NNAMANI, (2) TOISEI (WEST AFRICA LTD, (1977) 7 NWLR (PT. 513) page 479 at 506, 507, 508 wherein it was stated as follows; the award of damages in personal injuries in negligence cases has not been clear as to whether to award for each of the head of claim or set out the heads of claim and award a lump sum. The approach in modern times was made by Lord DENNING MR. in the case of LIMPOH CHOO vs. CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY (1979) 1 ALL ER 332 AT 342, (1979) 1 QB 195 AT 216, thus: ‘the practice is now established and cannot be gainsaid that in personal injury cases the award of damages is assessed under four main heads; FIRST; Special damages in the shape of money actually expended. SECOND, cost of further nursing the attendance and medical expenses. THIRD; pain and suffering and loss of amenities. FOURTH; Loss of further earnings’…In SAMSON EDIAGONYA vs. DUMEZ NIGERIA LTD & ANOR (1986) 6 SC 149 AT 164 , KARIBI WHYTE, JSC Observed as follows; ‘it seems to have been established by judicial authority that in personal injury cases two main factors have to be taken into consideration in assessing damages in cases of liability. These are (a.) Financial loss resulting from the injury and (b.) the personal injury involving not only pain and suffering but also of the loss of the pleasure of life…in assessing damages both the financial and personal loss factors should be taken into account and compensation given for both types of losses”.

That precisely is what this Court has done in the determination of this case and as a result of which we have arrived at the following conclusions as it affects the Cross Appeal; The Cross Appeal succeeds in part. For the avoidance of doubt, issues 1, 2, 3, 4, 6 and 7 are resolved in favour of Claimant/Respondent/Cross-Appellant, while issues 5, 8 and 9 are resolved in favour of Defendants/Appellants/Cross- Respondents.

It is Further Ordered as FOLLOWS;

The powers of this Court are hereby invoked under Section 15 of the Court of Appeal Act in ordering the award of the sum of 151,000 (One Hundred and Fifty-One Thousand) Rupees in favour of Cross Appellant for the purchase of walking aids, tripod sticks et. Al. (Issue One).
The sum of =N=500,000,000.00 (Five-Hundred Million) Naira is hereby awarded as General Damages for pain, suffering, loss of amenities, loss of expectations and enjoyment of life. (Issue two).
The sum of =N=94,375,020.00 (Ninety-Four Million, Three Hundred and Seventy-Five Thousand and Twenty) Naira is awarded as General Damages for future ongoing medical expenses. (Issue three).
The sum of =N=5,797,540.00 (Five-Million, Seven Hundred and Ninety Seven Thousand, Five Hundred and Forty) Naira is hereby awarded as an item of Special Damages representing payments for prescribed drugs purchased by Cross-Appellant (Issue four).
The sum of =N=1,808,000.00 and =N=1,200,000,00 are hereby awarded for expenses incurred as Nursing and Cab Services respectively (Issues six and seven).

The sums stated here-above, are Ordered to be awarded to the Claimant/Respondent/Cross-Appellant in addition to the sum of =N=28,516,680.00 (Twenty-Eight Million, Five Hundred and Sixteen Thousand and Six Hundred and Eighty) Naira only already awarded by the lower Court as Special Damages for Nigerian treatment and the sum of 108,00.000 Lakh as part of her Overseas medical treatment respectively.
Parties to bear their respective costs
RAPHAEL CHIKWE AGBO, J.C.A.:

I agree.

PETER OLABISI IGE, J.C.A.:

Having been given the opportunity to read in advance the judgment delivered by my learned brother, OHO, JCA, I agree with the reasoning therein contained.

I also agree with the consequential orders made therein.

3PLR – JULIUS BERGER NIGERIA PLC & ANOR V. MRS. PHILOMENA UGO

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

Law Nigeria Admin

Related posts

MAFULUL AND OTHERS V. BITRUS TAKWEN & OTHERS