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S.C. 363/1964.

11TH FEBRUARY, 1966.

3PLR/1966/32 (SC)





CHUKWUNWEIKE IDIGBE, J.S.C. (Read the Judgment of the Court)









  1. A. Cole – for the Appellants
  2. Efueye (with him, Pessu) – for the Respondent



PRACTICE AND PROCEDURE – APPEAL – Inadmissible evidence admitted by a trial court sitting without a jury – Duty of appellate court.

PRACTICE AND PROCEDURE – DAMAGES- Party claiming damages – Duty to minimize loss.

PRACTICE AND PROCEDURE – DAMAGES – Where damaged property was on hire- Owner of property can­not claim damages through hire.

PRACTICE AND PROCEDURE – EVIDENCE – Admission of inadmissible evidence by trial Judge – Judge is sitting without a jury – Duty of appellate court.

PRACTICE AND PROCEDURE – EVIDENCE – Plaintiff tendering document without calling the maker- Effect under S.90 of the Evidence Act.



IDIGBE, J.S.C. (Delivering the Judgment of the Court):

The complaint of the appellants is against the quantum of damages awarded in the High Court of Lagos (Adefarasin, Ag. J). The respondents’ claim against the appellants jointly and severally is for the sum of £1,750. 17s. 9d. for damages caused to their motor vehicle as a result of the negligent driving by the first appellant of a lorry in the course of his employment as the servant of the second appel­lant. Paragraph (4) of the Statement of claim filed by the respondents, which is denied by the appellants in their statement of defence reads in part – “Particulars of plaintiffs’ damage.

Costs of repairs of the said lorry £210. 17. 9d. Consequential loss of use for 154 days (July 18th 1962-Dec. 31st 1962 inclusive) at £10 a day . . . . . . . . . . . . . . . . £1,540.” When the case came up for hearing on the 21st January, 1964, learned Coun­sel for the appellants informed the Court that the appellants admit liability for negligence, but dispute the amount of damages claimed; the respondents then called two witnesses but the appellants rested their case on the evidence called by the respondents.

Briefly, the evidence adduced in support of the case for the respondents is as follows: The incident which occasioned some damage to the respon­dents’ lorry (LE 3372) occurred on 18th July, 1962, and this was caused by the negligent driving of appellants’ lorry (LC 1027). Lorry No LE 3372 is in fact the property of one Onafeko (PW 2) who had given it on hire to the re­spondents. The exact terms of the contract of hire were never given in evident but PW (1), the chief clerk of the respondents, told the court that the lorry (LE 3372) was used in the transportation of timber and that the respo­ndent paid the owner of the lorry (PW 2) in return for its use some percentage of the fees or charges collected in respect of timber transportation. PW (1) also told the court that after the accident on 18/7/62 lorry LE 3372 did no more work because it was “towed away” by Matzen & Timm engineers for repairs”; he added that the respondents paid for the repairs and produced in evidence a document, Exh. 2, which he described as a “Job card and bill of costs.” Further, he told the court under cross-examination that he could not say whether or not Matzen & Timm did all the repairs which they claimed to have done on the lorry (i.e. LE 3372) and that he could neither give the ac­tual date when the lorry was “towed away” from the scene of accident and left in the custody of Matzen & Timm, nor the exact date when it was re­turned to the respondents, by the engineers (i.e. Matzen & Timm). Finally, this witness (PW (1) ) said that no hire-charges were payable, nor were any in fact paid, by the respondents to the owner of the lorry (PW 2) for the period when the lorry was undergoing repairs. In his evidence PW 2 (the owner of the lorry) said that the lorry (LE 3372) was returned to him on 18th December, 1962 and that he put it into personal use as from the 22nd De­cember, 1962. According to PW 2 there was no written hire-agreement in re­gard to the vehicle between the respondents and the owner; and, indeed, there was no prior agreement between them that the sum of E10 per day was to be paid to him by respondents for use of the lorry. He did say, however, that they had agreed that the respondents were to be responsible for any re­pairs (whenever necessary) on the lorry. Finally, PW 2 referred to Exh. (1) and told the Court that the payments made to him, for use of the lorry, by the respondents for the months of May, June and July, 1962, were £167. 5s., £196. 4s., and £65. 14/- respectively.

The learned trial Judge made award in favour of respondents of a total of £875. 17s. 9d., whereof £210. 17s. 9d., was said to be the amount paid in respect of repairs, to Matzen & Timm by the respondents and £665., was meant to represent respondents’ claim for loss of use of the lorry for the period of 18th July, 1962 to 10th December, inclusive at £5 per day. Learned Counsel for the appellants contended before us that the learned trial Judge erred in law when he made use of Exh. 2 (the job card) in arriving at his judgment. Although he drew our attention to the fact that no objection was raised to the admissibility in evidence of Exh 2 at the trial, by counsel who appeared for the appellants when that document was tendered in evidence, he submitted that it was wrong for the learned trial Judge to have made use of its contents. He also attacked the award made in respect of claims for loss of use of the lorry (LE 3372) for the period between the 18th of July, 1962 and the 10th of December, 1962, on the grounds that (1) there was no evidence of the actual date when the lorry was “towed away” by the engineers of Matzen & Timm, (2) that there was no evidence of any attempt by the respondents to minimize their loss, nor was it explained why the re­pairs took so long to be put in hand; and (3) there was no admissible evi­dence upon which the learned trial Judge. could properly assess the daily loss (if any) of the respondents.

We think it is desirable at this stage to set out in detail parts of the judg­ment of the learned trial Judge, and they read –

………… I am satisfied upon the evidence of the 1st plaintiffs’ witness that the plaintiffs whose responsibility it was to pay the cost of repairs on the vehicle actually paid a sum of £210. 17s. 9d. to Matzen & Timm which stun represented the cost of repairs done to the vehicle a~ a result of the accident; 1 will allow plaintiffs’ claim under this head. Learned Counsel for the defendants con­tend that nothing was recoverable by the plaintiffs in this case for the loss of use of the vehicle. I take a contrary view. There is no doubt that neither the plaintiffs nor the actual owner of the veh­icle was able to make any use of the vehicle for the reason that it was damaged ……………………………. as a result of the acci­dent. The actual owner of the vehicle can recover from the defen­dants for the loss of the use of the vehicle. He claims through the plaintiffs in this case………………….. 1 am of opinion that the plaintiffs are entitled to recover from the defendants for the loss of the use of the vehicle, for the period covered by the repairs ……………………… the plaintiffs claim £10 a day for the loss of use and they tendered a statement showing payments they made to owner of the vehicle in three months (May, June and July 1962) ……………………. this statement (Exh (I) ) shows that the plaintiffs paid at the rate of £2. 10s. per ton of timber carried by the vehicle. In the month of May 1962, £167. Ss. was paid. In June, 1962, a sum of £196. 4s. was paid. In the first half of July, 1962, a sum £65. 14s ………………………………….. In that case, the average for three months would be about £5. 6s. per day……………. / consider the start of £5 per day is a reasonable sum to allow for loss of use. The plaintiffs “claim that the vehicle was not available for use for 154 days from 18th July 1962 to 31st December, 1962 ……………………………… The plaintiffs’ 1st witness could not say the actual date the vehicle was returned by the engineers. The job card Exh. 2, which the plaintiffs tendered shows that the repairs were completed on the 10th December, 1962 ……………………………………………… I would allow plaintiffs claim for loss of the period 18th July 1962 to 10th De­cember, 1962 inclusive. This would be 133 days. The loss of use for 133 days at the rate of £5 per day is £665 .. (Italics ours)

There is no doubt that, apart from Ex 2, no evidence was produced in proof of the actual date of delivery of the lorry to respondents by the firm of Mat­zen & Timm. Equally, there was no evidence of the actual damage to the lorry occasioned by the accident which occurred on 18th July, 1962; nor, apart from Exh. 2, was there any evidence of the actual repairs effected on the vehicle by Matzen & Timm. In those circumstances it is difficult to say with any degree of certainty that all the repairs, which according to Exh. 2 were carried out on the vehicle, were in respect of the damage caused by the accident of the 18th day of July, 1962. As against the appellants, the entries in Exh. 2 were, without any doubt, hearsay and, as the maker of Exh. 2 was never called to give evidence at the trial, the entries therein were inadmissi­ble in evidence; Sec. 90 Evidence Act Cap. 62 Vol. 2, 1958 Ed. Laws of the Federation of Nigeria. Dealing with a similar situation in which the lower court in the Islands of Fiji relied on entries made on produce bags by some­one other than the appellant in a criminal case, Lord Hodson (in the Privy Council) observed –

……………………. From an evidentiary point of view the words (i.e. entries on the bags) are hearsay and cannot assist the pro­secution. The matter need not be elaborated in view of the deci­sion of the House of Lords in Myers vs. Director of Public Pro­secutions (1964) 2 A.E.R. 881, given after the Fiji Courts had considered the case. The decision of the House of Lords however makes clear beyond doubt that the list of exceptions to hearsay rule cannot be extended judicially to include such things as labels or markings. Nothing is to be gained by comparing the legend in this case with the records considered in Myers. Nothing here is known of when and by whom the markings on the bags were af­fixed ………………………………………….. See PATEL v. Comptroller of Customs (1965) 3 A.E.R. 593 at 597.

There is no doubt that Exh 2 was received in evidence without any ob­jection by counsel for the appellants but it is settled law that where, in a trial by a Judge sitting without a jury, inadmissible evidence has been improperly received by him, even when no objection to its admissibility was raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence or evidence properly received – See JACKER vs. The International Cable Company (1888-89) 5 T. L. R. 13 per Lord Esher E. R; See also de Les­tang, F. J. in Ajayi v. Olu Fisher (1956) F.S.C. 90 at 91; [19561 S.C.N.L.R. 279. In the case in hand, it was incumbent on the learned trial Judge sitting as the Judge of facts to have disregarded the contents of Exh. 2, and in our view he erred in law when he failed to do so. That being so, it is our view that the learned trial Judge erred in law in assuming from the en­tries in Exh. 2 without further evidence that (1) all the items of repairs men­tioned in Exh. 2 were in respect of damages occasioned to lorry LE 3372 by the accident of the 18th day of July, 1962 and (2) that the respondents were entitled to the entire sum of £210. 17s. 9d.

With regard to the award made by the learned trial Judge in respect of the respondents’ claim for use of the vehicle for the period between 18th July, 1962, to 31st December, 1962, it is difficult, with all respect to the learned trial Judge, to understand the basis for this award. This is indeed a curious case in which the respondents based their claim for loss occasioned by their inability to use the vehicle, not on any financial loss arising from fai­lure to use the same but on their financial liability to a third party (in this case, the owner of the vehicle P. W. 2 arising from an alleged contract of hire. The learned trial Judge made a finding that on the average the respondents had paid to the third party (P. W. 2) a sum of £5.6s. per day for the hire of the lorry and thereafter he calculated the loss due to the respondents for a period of 133 days on the basis of £5 per day. No doubt this is based on the reasoning which appears in a passage in the portion of his judgment set out earlier on: and it reads –

……………………….The actual owner of the vehicle can re­cover from the defendants for loss of use of the vehicle. He claims through the plaintiffs in this case. . . . . . . . . . . . . . . .. Again, with all respect to the learned trial Judge, we find ourselves unable to adopt the view of the trial court set out in the passage above; as a proposition of law, we are unable to agree that the owner could in the circumstances of this case claim through the plaintiffs (i.e. respondents) from the appellants for loss (if any) which he sustained as a result of the accident which occurred on the 18th day of July, 1962; the measure of damages is the loss suffered by the plaintiffs not by any third party. Finally, we think it is desirable to point out that a plaintiff who claims damages in tort has a duty to diminish or minimize his loss and the defendant can always show that the damages sus­tained by the plaintiff has been increased or affected by his (plaintiffs’) con­duct.

In the final analysis, it is our view that the court below failed to direct its mind on the correct principles of law which apply in the assessment of dam­ages in tort and that it erred in the use it made of inadmissible evidence in Exh. 2 in arriving at its decision; and that there was not enough evidence, after rejecting the inadmissible evidence, to sustain the award made by the Court below. This appeal must be allowed and the judgment and order of the learned trial Judge made on the 3rd day of February, 1964 in Suit LD/ 421/63 are hereby set aside. In view of the fact that the appellants admitted liability for negligence, we think that this is a proper case which we should send back to the High Court for trial de novo on the quantum of damages. Accordingly we order that Suit LD/421/64 be, and is hereby, remitted for trial de novo only on the quantum of damages (if any) due from the appel­lants to the respondents. The appellants will have costs of this appeal which we assess at 40 guineas, and costs in the lower court which is fixed at 30 guineas.

BRETT, J.S.C.: I concur.

COKER, J.S.C.: I concur.

Appeal allowed.


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