3PLR – ENGINEER MOMOH BELLO V. ALHAJI HARUNA S. RINGIM
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ENGINEER MOMOH BELLO
V.
ALHAJI HARUNA S. RINGIM
COURT OF APPEAL
(KADUNA DIVISION)
WEDNESDAY, 3RD JULY, 1991.
SUIT NO. CA/K/65/90
3PLR/1991/65 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
JOSEPH DIEKOLA OGUNDERE, J.C.A. (Presided)
OKAY ACHIKE, J.C.A. (Read the Leading Judgment)
MURITALA AREMU OKUNOLA, J.C.A.
REPRESENTATION
Not recorded in the Judgment.
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Award of damages by trial court – When and how appellate court may interfere therewith.
PRACTICE AND PROCEDURE – APPEAL – Findings of facts by trial court – Attitude of appellate court thereto.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – Omnibus ground of appeal – Ambit of.
PRACTICE AND PROCEDURE – APPEAL – Ground of appeal – Omnibus ground of appeal – Raising issue of law thereunder – Propriety of
PRACTICE AND PROCEDURE – DAMAGES – Award of damages by trial court-Attitude of appellate court thereto.
PRACTICE AND PROCEDURE – EVIDENCE – Admissibility – Documentary evidence – Documents tendered in absence of maker – Whether admissible.
PRACTICE AND PROCEDURE – EVIDENCE – Documentary evidence – Documents tendered for identification and marked ID – Whether evidence in law.
PRACTICE AND PROCEDURE – EVIDENCE – Documentary evidence – Documents tendered in absence of maker – Admissibility of and weight to be attached thereto.
PRACTICE AND PROCEDURE – EVIDENCE – Evidence Act, Section 90 – Evidence admissible pursuant thereto – Nature of.
PRACTICE AND PROCEDURE – EVIDENCE – Expert evidence – Admissibility of expert evidence – Principles applicable.
PRACTICE AND PROCEDURE – EVIDENCE – Expert evidence – Testimony of IPO and VIO – Whether necessary in civil cases of negligent driving.
NEGLIGENCE – Negligent driving – Testimony of IPO and VIO – Whether necessary.
INTERPRETATION OF STATUTE – STATUTE – Evidence Act, Section 90 – Attitude q/’ court towards evidence admissible thereunder.
PRACTICE AND PROCEDURE – Findings of facts by trial court – Attitude q( appellate court thereto.
MAIN JUDGEMENT
ACHIKE, J.C.A. (Delivering the Leading Judgment):
Both by the writ of summons and paragraph 15 of the statement of claim the plaintiff, herein respondent, claimed a total sum of N220,000.00 jointly and severally against the defendant, herein appellant, and RAG construction Co. Ltd. as special and general damages for negligently damaging his vehicle and causing him bodily injury, pains, suffering and inconvenience. The claim for special and general damages was particularised in paragraph 15 of the statement of claim as follows:
“PARTICULARS OF SPECIAL DAMAGE
(a) Estimated cost of Repairs of the HONDA ACCORD
CAR = N35,000.00
(b) Bodily injuries and Medical
Expenses = N100,000.00
PARTICULARS OF GENERAL DAMAGES
(a) pain, sufferings and inconveniences caused to the
plaintiff = N30,000.00
(b) GENERAL DAMAGES FOR
NEGLIGENCE = N55,000.00″
After due hearing, Saleh, Chief Judge, signed judgment for the total sum of N60,000.00 in favour of the respondent against the appellant only.
Dissatisfied with the said judgment the appellant has appealed to this Court and tiled only one ground of appeal – the omnibus ground.
The appellant in his brief identified five issues for determination, while the respondent postulated two issues.
At the hearing before us each counsel simply adopted his brief of argument and made no further oral submission.
There are some curious observations that deserve to be made with regard to the only ground of appeal filed. The ground of appeal, shorn of its particulars. states:
“The decision as regards the 2nd Defendant/Appellant is with due respect unreasonable and cannot be supported having regard to the facts pleaded, evidence and the circumstances of the case before the court.”
This general ground is inelegantly couched as if it is an omnibus ground of appeal in a criminal appeal but I say no more about it in this regard. It is however curious that the appellant identified five issues for determination yet he went on at paragraph 3 at pages 4 to 11 to argue what he termed five. grounds of appeal. A closer look at the apparent grounds of appeal appears.–to show, however, that counsel intended to submit on the five issues earlier identified by him. Three broad issues were addressed by the appellant’s counsel, namely, (a) the use of Exhibit 4 – sketch plan prepared by the Investigation Police Officer (IPO) without the assistance of expert explanation by the IPO: this is Issue No. I; (b) the various attacks on the quantum of damages: these complaints are covered by Issues Nos. 2, 3 and 4; while in (c) the 5th issue in the appellant’s brief of argument, the propriety of the trial judge referring to a document, tendered identification (ID) in his judgment is queried. It is convenient to deal with (a) and (c) first and (b) next.
Under Issue (a), the question is whether the trial judge could reach a conclusion on a document prepared by an expert without the expert testifying as a witness, particularly having regard to the ipse di.tit of the trial judge in that regard. At p.43 of the record an excerpt of the judgment reads as follows:
“The case is not concluded. This court has not been given the better opportunity of appreciating the V IO Report and the sketch by the V IO and IPO who drew the sketch coming to court to explain. This court is not trying 2nd defendant for dangerous driving. The evidence before this court is that of plaintiff and 2nd defendant and it did not listen to VIO or the police to have benefit of their expert advice. Two vehicles are involved i n the accident and V IO report is only on one and not the other. Looking at the sketch it appears that the story of the plaintiff is more probable, 1 say this having regard to point of impact and the positions of vehicles and the directions this were going one on main road and the other from the side road. And I am not unmindful of the conflicting testimonies of the plaintiff and 2nd defendant on the issues. On balance of probabilities I will say the story of the plaintiff is mere probable than that of the 2nd defendant. Exhibit has been adduced to establish that 2nd defendant was driving his own vehicle and was not at the time of the accident on official assignment of 1stdefendant that being the case there is no way 1st defendant will be in this case as I see it be held vicariously liable for the conduct of 2nd defendant.”
It i s true that neither the V IO nor the I PO testified as witnesses for the parties. By their absence, no doubt, the trial judge was denied the assistance of these experts in construing the sketch plan, Exhibit 4. It may well be that this resulted in some handicap. But the above excerpt shows clearly that the trial judge, however, embarked on the evaluation of the entire evidence adduced – both oral and documentary, including Exhibit 4, the sketch plan by the IPO – before reaching a conclusion on the preponderance of evidence that the appellant has been proved liable in negligence. First, there is no rule of evidence which stipulates that a V IO or even an IPO must testify in civil proceedings of collision between two vehicles before the judge can be satisfied that the driver of either vehicle was liable for negligence. Afterall, these experts (VIO and IPO were not eye-witnesses to the collision and cannot in fact assist the court with any direct and positive evidence leading to the collision. Strictly, their testimonies rest more on what they were told by the parties and such other observations they may personally make. It may be observed from the records (p.20) that in fact two subpoenas at the instance of the respondent were applied to be issued for the attendance of the V IO and the IPO at the civil proceedings instituted by the respondent against the appellant and the two officers failed to show up. It was under that state of affairs that the learned trial judge invoked, and rightly in my view, the extensive and beneficient provisions of section 90 of the Evidence Act which permit the admissibility of documents in special circumstances where the maker is absent. It is also important to note that Exhibit 4 was tendered and admitted in evidence without demur from the appellant. What should be noted further is that even if witnesses testified at the hearing, this will not derogate from or alter the primary duty of the trial judge to appraise their evidence because the oral or documentary evidence of an expert witness must be subjected to the same acid test of admissibility, and having been admitted it must also be subjected to the same scrutiny in deciding the weight to be attached to its content. In any event, it must be borne in mind that the evidence of an expert is not sacrosanct. Like the evidence of other witnesses as we have said earlier on the trial judge has a duty to evaluate the evidence of experts and thereafter he has a responsibility to accept or refuse to accept their testimonies in reaching a conclusion on whether or not the negligence of the appellant has been proved or not. In other words, a lot depends on the weight the court ultimately attaches to such expert evidence. The Supreme Court per Agbaje, J.S.C. in A-G. Oyo State v. Fairlakes Hotels (1989) 5 NWLR (Pt. 121) 255 at p.283 explained the relative treatment to be given to oral and documentary evidence admitted by consent of both counsel (or parties) or which the maker is absent. This is how His Lordship put it:
……Oral evidence and a document put in evidence under S.90 of the Evidence Act cannot on the authorities receive the same treatment when it comes to the matter of evaluating such evidence. The former if unchallenged must be accepted as establishing the facts therein stated. As regards the latter documents admitted by consent or by the court in the absence of their maker under S.90 of the Evidence Act, the court still has on the authorities a duty to consider the weight to be attached to such documentary evidence before coming to the conclusions as to whether or not it establishes facts stated therein, in any case short of that in which there is an admission by the opposing side that it does.”
On the question of weight to be attached to documentary evidence admitted in evidence in the absence of the maker but in compliance with the strict provisions of Section 90 of the Evidence Act, the burden placed on the trial court is clearly set out under section 90(I) of the same Act as follows:
“In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to call the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously, with the occurrence or existence of the facts stated, and to the question ‘ whether or not the maker of the statement had any incentive to conceal or misrepresent facts.”
In the instant case, as may be gathered from the excerpt of the judgment earlier reproduced, it is clear that the trial judge evaluated the evidence in relation to the sketch plan, Exhibit 4. He found the testimonies of the appellant and the respondent, the dramatis personae, were in conflict with regard to the point of impact and the relative positions of their vehicles. But after due consideration of their testimonies he held that the testimony of the respondent more probable and accordingly resolved the conflict against the appellant.
I have perused all the evidence of witnesses fielded by both parties to this case. 1 am satisfied that the learned trial judge complied assiduously with the provisions of section 90 before the sketch plan was tendered and admitted in evidence as Exhibit 4. And having admitted it in evidence, the record also clearly demonstrates that Exhibit 4 was subjected to the acid test regarding the weight to be attached thereto before holding that the respondent’s case was more probable than the appellant’s. In short, the learned judge correctly followed the principle laid down by the Supreme Court in the locus classicus of Mogaji v. Odofin (1978) 4 S.C. 91 at 93-95. In my view, there was ample evidence for the trial judge to hold that the appellant’s was negligent and it was his negligence that resulted in the accident. The decision is eminently correct. This Court has no competence to interfere with the findings of fact of the trial judge which are clear and fair and supported by evidence on the printed record. Nor does this Court assume the function of assessing and evaluating the evidence afresh to see whether it can come to a different conclusion. See Okoto v. U-oka (1978) 4 S.C. 77. Balogun v. Agboola (1974) 10 S.C. 111, Emarieru v. Omoyouzou (1977) 2 S.C. 31, Ebba v. Ogodo (1984) 1 SCNLR 372, (1984) 4 S.C. 84 at pages 98-100 and U.B.A. Ltd. r. Ae horu (1990) 6 NWLR (Pt. 156) 254.
I therefore hold that the complaint with regard to Exhibit 4 is utterly misconceived.
The 5th Issue in the appellant’s brief questions the propriety of the trial judge’s reference to a document. ID 3 which was not formally received in evidence. It is true that in passing the trial judge made an isolated reference to the content of the ID.3 as follows:
“Plaintiff is asking for N35,000.00 for car but he produced an estimate of N 16,703.00 dated 16/12/88.”
Learned appellant’s counsel submitted that “it is trite law that the trial court should not give weight to any piece of evidence not before the court’ and accordingly that the appeal should be allowed. He relied on several authorities including Alade v. Olukade (1976) 2 S.C. 183 in support of his contention.
Learned respondent’s counsel submitted that appellant’s counsel having cross-examined on ID.3 the same would be deemed to have been admitted in evidence by the trial judge, particularly as the document is not one of those that is inadmissible in any event but is rendered admissible upon the fulfillment of certain conditions.
I do not find the authorities cited helpful because whilst they deal with evidence wrongfully admitted by the trial court, we are here currently concerned with a reference by the trial judge in his judgment to a document tendered for identification. Again, it is not correct that ID.3 was used to cross-examine the respondent. Apart from this passing or casual observation set out above it is clear that no further use or mention of the content of ID.3 was made by the trial judge. This reference to ID.3 was not used to ascertain the quantum of damages for which there was direct evidence and to which I shall return in the course of this judgment. The reference to ID.3 was a neutral and indeed was no more than stating the obvious. The position would certainly be different if the appellant has succeeded in showing that ID.3 was used in any way, directly or indirectly, to quantify the damages claimed by the respondent. In any event, DW I, Alhaji Ja’afaru Ahmed Bala. appellant’s witness, gave a direct evidence on the estimate for repairs as follows:
“He (i.e. Managing Director of Tripoli Kano) his assessment of repairs and he sent the bill to me through the Chairman. The bill is for about N27,000.00 or N28,000.00.”
But as 1 had already said, no positive use was made of the estimate as one can gather from perusing the entire judgment. It was surely not the appellant’s case that such oblique and inconsequential mention of ID.3 was unfair to the appellant and has occasioned a miscarriage of justice. ID.3 was a lethal weapon at the disposal of the appellant to question the difference between the estimate for repairs and the amount of damages actually awarded to the respondent. In the circumstances of this case it is certainly not true that the learned trial judge made a reference to ID.3 and utilised the reference in quantifying damages in favour of the respondent. The converse is true: the learned trial judge alluded casually to the estimate for repairs but totally ignored it for fixing the damages he finally awarded. Indeed. nowhere in the proceedings and in the judgment was any weight attached to ID.3.
It is undoubted that a document tendered for mere identification and marked as an ID is yet to be regarded as having been admitted in evidence. To put it into any use is clearly an error. ID.3 not having been put into any use whatsoever, it is a mere technical error which cannot affect the validity of the judgment of the trial court. It is needful to remind learned appellant’s counsel that a court of law is also a court of justice. Reliance on mere technicality to defeat the cause of justice will be rebuffed by the courts because they are today enjoined to do substantial justice. The hey-day of reliance on technicality is a matter of remote past. See Nneji v. Chukwu (1988) 6 SCNJ 132, (1988) 3 NWLR (Pt.81) 184 and Bello & ors v. Attorney-General Oyo State (1986) 12S.C.1, 11 1, 112, (1986) 5 NWLR(Pt.45) 828.
Finally, we now turn to Issues Nos. 2, 3 and 4 as identified in the appellants brief which relate to the quantum of damages awarded by the learned trial judge. The discussion of these three issues lies comparatively within a narrow compass. The complaint of learned appellant’s counsel ranges from failure of the respondent to particularise the figures making up the special damages, making an award based on quantum merit, a special principle unsuited for a suit in Tort and finally to the award of general damages.
Replying on this complaint. learned respondent’s counsel underlines the fact that there is no specific ground of appeal against the sums awarded as damages. Basically, the appellant’s only ground of appeal, as earlier noted, is apparently couched as an omnibus or general ground of appeal with three sets of particulars attached to it. Except for the first set of particulars that is, (a), it is cleat’ that particulars under (b) and (c) (these had earlier been set out in the judgment) ‘ relate respectively to Exhibit 4 (which at best involves issue of mixed law and facts) and the award of special damages (which is a complaint of application of erroneous principle of law).
It is clear to me that the learned counsel’s submission relying on the general or omnibus ground cannot avail him the right and opportunity to raise errors-in law. And this is so in spite of my reservations on the propriety of the learned trial judge’s effort to impart the well-known principle of quasi-contract i.e. the doctrine of award based on quantum meruit to a situation which, unquestionably arises under the law of Tort. 1 am clearly of the view that submission on the general ground cannot be at large and used to question every error of omission or commission that arises in an appeal. On the contrary, the appellant ought to have an independent ground of appeal stating distinctly that the trial judge acted upon a wrong principle of law and then go further to furnish full particulars of misdirection or error of law in the award. In this wise, the appellant can complain of award of excessive damages if he also shows that the amount awarded was so extravagant as to make it an entirely erroneous estimate of the damages. Not having specified aground of appeal showing that the learned trial judge either (a) misdirected himself or erred in law in applying a wrong principle of law in making the award or (b) that the amount awarded is extremely high or very small resulting in an entirely erroneous estimate of the damage the claimant is entitled to (be it the plaintiff or the counterclaimant) the appellate court is powerless to interfere with the award made by the trial court. The reason for non-intereference by the appellate court was lucidly stated by Lord Wright in Daries v. Pan ell Duffyn Collieries (1942) A.C. 601 at pp.616-617 as follows:
“Where however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues. but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act or decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J. in Flint v. Lovell (i). In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”
Thus dictum found favour in the erstwhile West African Court of Appeal in Zik’s Press Ltd. v. Alvan Ikoku (1951) 13 W ACA 188 at pp. 199-190, and also followed by the Supreme Court in His Highness Uvo 1 v. Eguvare (1974) 1 ALL NLR 293 at 295. See also United Geophesical Company (Nig.) Ltd. & anor v. Obanor (1978),4 FCA 125.
In conclusion, 1 hold that since there is no specific appeal against the sums awarded as damages, this Court is powerless to vary or set them aside.
For all the reasons stated above the appeal fails and it is hereby dismissed. The respondent is awarded the costs of this appeal assessed and fixed at N500.00.
OGUNDERE, J.C.A.: I had the opportunity of a preview of the lead judgment of my learned brother Achike, J.C.A. 1 perfectly agree with him that the appeal lacks merit. It is accordingly dismissed with N500 costs to the respondent.
OKUNOLA, J.C.A.: I have had the privilege of reading in advance the lead judgment just delivered by my learned brother, Achike, J.C.A. and I agree with his reasoning and conclusions. 1 also award N500.00 costs to the respondent.
Appeal dismissed.
