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COURT OF APPEAL
KADUNA JUDICIAL DIVISION
8 NWLR (Pt. 667) 21.
BEFORE THEIR LORDSHIPS
ISA AYO SALAMI, JCA
VICTOR AIMEPOMO OYELEYE OMAGE, JCA
OLUDADE OLADAPO OBADINA, JCA
I.N. Buba, ESQ – for the Appellant
Charles Mafuas, ESQ. – for the Respondents
TORT AND PERSONAL INJURY – TORT- Damages – Measure of in an action for negligence- The measure of damages is founded on the principle of restitutio in integrum.
TORT AND PERSONAL INJURY – TORT- Damages – Proof of in personal injury
PRACTICE AND PROCEDURE– Expert opinion – When necessary
PRACTICE AND PROCEDURE– Unchallenged evidence – Treatment of law:
Obadina JCA (delivering the leading judgment)
This is an appeal against the judgement of Kaduna State High Court sitting at Kaduna. The appellant was the plaintiff at the trial court which respondent was the defendant.
In his amended statement of claim dated 17th of June, 1988, the plaintiff claimed against the defendant as follows: –
“(a) The sum of N20, 000 being the amount the plaintiff paid to Aminu A. Ribadu as the Current Market Value of his car. Peugeot 504 No. LA 6169 AG prior to the accident caused by the defendant which damaged the car.
(b) The sum of N17, 500.00 being general damages for bodily injuries sustained and mental and physical strains of pains and confinement, and permanent deformity of his right leg as well as special diet and expenses personal and specialized nursing care.”
The respondent as defendant filed an amended statement of defence, wherein he counter-claimed for the sum of (N13, 000) Thirteen Thousand Naira, being special damage for costs of repairs on Station Wagon 504 reg. No. KD 8878 AE, which was damage due to the accident. The case later went for trial and the trial court delivered is judgement on the 29th of October, 1990. The appellant was aggrieved and dissatisfied with the said judgement.
He therefore filed this appeal to this court. He filed three (3) grounds of appeal, from which he formulated two issues for determination, namely: –
“(1) Whether the learned trial judge was right in holding that the vehicle No. LA 6169 AG was not valued either before or after the accident, as to entitle d the appellant trial to the special damages claimed.
(2) Whether the learned trial Judge was right in his assessment of general damages in the light of the evidence before him and the principle guiding the award of general damages.”
The respondent filed respondent’s raised preliminary objection to ground 3 of the appellant’s notice and grounds of appeal. Ground 3 of the grounds of appeal reads as follows: –
“ERROR IN LAW
The lower court erred in law and misdirected itself in assessing general damages when he held: –
It was natural consequence of the accident that the plaintiff suffered the type of injury for which he was bedridden since his knee cap was fractured. The plaintiff’s right leg has been deformed. PW5 ruled out the probability that he could suffer arthritis as a result of the accident.”
Particulars of Error:
In Law and Misdirection
The guiding principles in assessing and awarding of general damages which includes inter-alia, the future expectation of the victim was not taken into consideration: whilst PW5 (the Doctor) did not rule out the possibility of the appellant suffering from an attack of arthritis, the lower court misdirected itself and found that
the Doctor ruled out the possibility and assessed general damages only at N5, 000.00 and without due regard to the expectation of the appellant and the current value of N5,000.00 thereby occasioning miscarriage of Justice.”
The Learned Counsel for the respondent argued that the said ground 3 of the grounds of appeal and the particulars thereof alleged both error in law and misdirection and submitted that the said ground is palpably incongruous .He urged the court to strike out the ground as being incompetent.
The law is settled that in determining whether a ground of appeal is a ground of law or not the test is not its christening or the appellation and the particulars given in support thereof before arriving at a view – Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718; Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484 at 494; Adili v. The
State (1989) 2 NWLR (Pt. 103) 305; Comex Ltd. v. Nigeria Arab Bank Ltd. (1999) 3 NWLR (Pt. 396) 643 and Akaaer Jov v. Kutuku Dom (1999) 7 SCNJ. 27 at 33; (1999) 9 NWLR (Pt. 620) 538.
The Locus Classicus in this case is the leading case of Nwadike v. Ibekwe (supra) at pages 744-745, where Nnaemeka-Agu. JSC very clearly stated the law as follows:
“When then is a ground of appeal that of law. I shall deal with five particular cases, although by its very nature the categories of error in law are not closed.
(a) It is an error in law if the adjudicating tribunal took into account some wrong standard of proof or if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors: – see O’Kelly v. Trusthouse Forts Plc. (1983) 3 ALL ER 456.
(b) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases and inference drawn therefrom are grounds of law.
(c) Whether a ground deals merely with matter of inference, even if it be inference of fact, a ground framed on it is a ground of law: provided it is limited to admitted or proved and accepted fact.
(d) Where a tribunal states the law on a point wrongly, it commits an error in law:
(e) Lastly, I should mention one class of grounds of law which have the deceptive appearance of grounds of fact, id est, where the complaint is that there was no evidence of no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury.
Before a judge sitting with a jury could have left a case to the jury there ought to have been more than a scintilla of evidence, upon which a decision or finding was based has always been regarded as a ground of law – see Odgers On pleading and practice (20th Ed.) page 375; also the decision of the House of Lords in Edwards (Inspector of Taxes) v. Beirstow (supra) at page 53; Ogbechie v. Onochie (No. 1) (supra) at 419; parag. 14, My Lord, Eso J.S.C citing with approval an article by C.T. Emery in Vol. 100. L.D.R. held; –
“If the tribunal purports to find that a particular event Occurred, although it is seised of no admissible evidence that the event did in fact Occur, it is a question of law.”
Before deciding whether Ground 3 of the grounds of appeal in this appeal is palpably incongruous as alleged it is necessary to identify the principles that should guide a Court in its determination of that question. It has been held by the Supreme Court that where in effect the Court is being invited under the ground of appeal to investigate the existence or otherwise of certain facts upon which the award of damages was allegedly based, such a ground of appeal, without doubt, is a ground of mixed land fact, see Maigoro v. Garba (1999) 7 SCNJ 270 AT 280, (1999) 10 NWLR (Pt.624) 555.
Applying the principles outlined in Nwadike v. Ibekwe (supra) and other leading cases, to the consideration of the said ground 3 of the grounds of appeal in this case, a careful reading together of the said ground 3 and the particulars thereof seems to show that the ground is complaining that Learned trial Court did not take into consideration the guiding principles in assessment and award of damages. That ground is of law, pure and simple – see O ‘ Kelly v. Trusthouse Forts Plc (1983) 3 ALL ER 456.
The said ground 3 of the grounds of appeal as shown in the particulars, also invites the Court of Appeal to investigate the existence or otherwise of certain facts upon which the award of damages was based, that is, whether or not the P.W.5 (the doctor) ruled out the possibility of the appellant suffering from attack of arthritis in
future. From the particulars of errors in law and misdirection filed by the appellant, the error of law being complained of being complained of is discernable and indeed the misdirection complained of by the appellant can be identified and severed.
It is the law that where, in effect the court is being invited under a ground of appeal to investigate the existence or otherwise of certain facts upon which the award of damages is based, such a ground of appeal is a ground of mixed law and fact; – see Maigoro v. Garba (1999) 7 SCNJ. 270 at 280; (1990) 10 NWLR (Pt.624) 555.
From the particulars of ground 3 of the grounds of appeal, the said ground is inviting the court of appeal to investigate the existence or non-existence of the facts upon which the award of (N5, 000) five Thousand naira as general damages was based. Since the appeal is against a final judgement, the ground of appeal is competent; –
See 220 of the 1979 Constitution.
Under Order 3 rule 2(2) of the Court of Appeal Rules, if a ground of appeal alleges error in law or misdirection, the particular and the nature of the misdirection, or error shall be clearly stated: in other words, the appellant who in his ground of appeal alleges error in law and misdirection must, in the particulars of error and misdirection specify the nature of the error or misdirection and give substantial particulars of the alleged error and the misdirection. Once the above conditions are satisfied the ground of appeal is competent -see Anadi v. Okoli (1977) SC57 at 63, Mba Nta & Ors v. Anigbo & Ors (1972)5 SC.156 at 164: Okorie & Ors v. Udom & Ors (1960) 5 FSC. 162 at 164, (1960) SCNLR 326: Agbaka v. Amadi (1998) 61. LRCN 4493 at4506: (1998) 11 NWLR (Pt. 572) 16.
I have myself critically examined ground 3 of the grounds of appeal and the particulars there under and I found that the ground clearly states or shows sufficient particulars of the error in law and the nature of the misdirection alleged by the appellant. In that regard, I think the said ground 3 of the grounds of appeal is not incongruous. The objection is accordingly overruled.
I will now go to the consideration of the issue raised by the appellant. Issue No. 1 of the issues reads as follows:-
“(1) Whether the learned trial judge was right in holding that the vehicle No. LA 6169 AG was not valued either before or after the accident as to entitle the appellant to the special damages claimed”.
On the issue, the learned counsel for the appellant referred to the evidence of PW5, the owner of the vehicle in question, where the PW5 stated that the car was valued before the accident at (N30, 000) thirty thousand naira and submitted that the valuation of a car like any other item did not mean more than the price or market value of it when put for sale at a particular point in time. He argued that the evidence of the PW5 was not rebutted, and therefore urged the court to allow the appeal and grant the appellant the special damages of (N20, 000) twenty
thousand Naira as claimed.
In his own submission, the learned counsel for the respondent submitted that where a plaintiff/ appellant as in this case, has suffered financial loss as a result of negligence of the defendant/respondent, the onus lies on the plaintiff/appellant to adduce credible evidence that would make it possible for him to be compensated, so as to be in that position he was, had the accident, wrong or event not taken place. He submitted that where the evidence adduced before the trial court is insufficient to warrant such compensation, the trial court cannot make an
assessment of damages of loss. He cited S.G.E (Nig.) Ltd. v. Okpamum (1989) 4 NWLR (Pt.115) 373 at 379 – 380. He submitted that in order to compensated the plaintiff to be in the position he was before the accident; there must be credible evidence of the pre accident market value of the car (i.e. What the car was actually or reasonably worth on the date of the accident.) and where the car amounted to a total loss, then the value of the scrap would need to be determined.
He said from the state of evidence there was no credible evidence of the pre-accident market value of the vehicle, except the evidence of PW5 was not challenged, the evidence was not credible enough to be acted upon by the trial court. He urged the court to dismiss the appeal.
It is not in dispute that it was the negligence of the respondent that caused the accident, At page 63 of the record of appeal, the learned trial judge held inter-alia as follows: –
“In the absence of a mechanical default on the part of the defendant’s vehicle that made for the control of the vehicle by the defendant difficult, I hold that it was the negligence of the defendant that caused the accident”.
The learned trial judge went on to say:
“I therefore hold that the defendant was responsible for the accident”.
It is also not in dispute that the vehicle in question was a total loss or write-off. At page 66 of the record of appeal, the learned trial judge stated:
“Apparently, from the evidence given by the plaintiff and the inspection which was carried out by the court, the said vehicle has been dumped in Unguwar Kanawa and nobody is thinking about what to do with the scarp”
In the circumstance it is not in dispute that the vehicle is a total loss, as a result of the negligence of the defendant. The question arises; what is the measure of damages in cases of total loss.
The answer is contained in the Supreme Court judgement of Lagos City Council Caretakers Committee & others v. Benjamin O. Unachukwu & Others (1978) 3 SC. 199 at 202 where Bello JSC (as he then was) stated the law as follows: –
“The measure of damages in an action for negligence is founded on the principle of restitutio in integrum.
That principle was re-echoed by Lord Wright in Dredger Liesbosch v. S. S. Edison (1933) AC 449 at 459, wherein he said: –
‘The substantial issue is what in such a case as the present is the true measure of damages. It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrong-doing vessel the owners of the former vessel are entitled to what is called restitutio in integrum, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money, in the
same position as if the loss has not been inflicted on them, subject to the rule of law as to remoteness of damages’.
The above statement of law was cited with approval and followed by the Supreme Court in Thomas Kerewi v. Bisiriya Odegbesan (1965) 1 All NLR 95 page p98. In stating the same principle on Lord Citrin (onwers) v. Herridean Coast (onwers)
(1961) AC 545. Devlin, L.J. had this to say at page 562: –
“The only principle of law that can be laid down is the familiar one that the plaintiff is entitled to be awarded such sum as will fairly compensate him for the loss that he has actually sustained ”
In the application of the above mentioned principle to cases where chattels were destroyed or damaged, the following rules have been evolved for compensating the party dignified: – where goods are destroyed by wrongful act of defendants, the measure of damages is the value of the goods at the time of their destruction and,
in proper case, plus such further sum as would compensate the owner for the loss of use or earnings and the inconvenience of being without the goods during the period reasonably required for their replacement. In the case of damage to goods the measure of damages is the cost of their repairs or the difference between their
market value at the time of their damage and their value as damaged and, in a proper case, plus loss of use or earnings and the inconvenience of being without the goods during the period reasonably required for their replacement.” See Thomas Kerewi v. Bisiriyu Odegbesan (1965) 1 All NLR 95.”
Accordingly, where the vehicle is a total loss or write-off the plaintiff/appellant is entitled as damages only to the pre-accident market value of the vehicle, less the value of vehicle after the accident, (that is the scrap) (if any) plus damages for loss of earnings apart from any specific items of special damages proved – see Armel’s
Transport Ltd. v. Martins (1970) 1 All NLR 27 at 32.
In his judgment the learned trial judge stated that the vehicle was not valued either before or after the accident at (N30, 000) thirty thousand naira. He stated as follows:
“The real value of the car is (N30, 000) thirty thousand naira at the time I left for France. Before I left for France I completely overhauled the car and was put for sale in the market and was priced a minimum of (N30, 000) thirty thousand naira”.
See page 38, lines 11-14 of the record of appeal.
The evidence of PW5 quoted above was not rebutted; indeed, the learned counsel for the respondent conceded in his brief that the evidence was not challenged. The question arises; what constitutes market value of a used chattel?
The answer is copiously given by the Supreme Court in Ubani-Ukoma v. G.E. NICOL 1 (1962) 1 SCNLR 176 as follows: –
“The market value of a used chattel is the sum the chattel would fetch under the state of things which opinions often differ. It could be more or less than the purchase price depending on the state of things for the time being existing.”
See Alao & Ors. v. Inaolaji Builders Ltd. (1990) 7 NWLR (Pt. 160) 36 at 53.
Since the market value of a used chattel is the sum it would fetch under the state of things for the time being existing and a matter of estimation in which opinions often differ, it seems to me the decision in S.G.E (Nig) Ltd. v. Okpanum (supra) did not lay a strict and rigid rule to the effect that once negligence is proved against the defendant, damages should not be awarded unless an expert was called to give evidence of the value of the chattel, especially in view of the decisions of the Supreme Court in Ubani-Ukoma v. G.E NICOL (supra), and Alao v. Inaolaji & Ors (supra).
In the event, an expert opinions is only necessary where the expert can furnish the court with scientific or other information of a technical nature that is likely to be outside the experience and knowledge of a judge of fact:- See Shell Development Company Ltd. v. Chief Graham Otoko (1990) 6 NWLR (Pt.159) 693 at 713.
The evidence of PW5 with respect to the value of the car when he left for France after he has completely overhauled the car was disbelieved and rejected by the learned trial judge. The law is well settled that in the absence of rebutting evidence from the defendant as to the value of the car, the learned judge was entitle to
accept the evidence – See Gregoire Agbaje v. National Motors (Nig) Ltd. and National Motors (Nig) v. Gregoire Agbaje (1971) 1, UILR 119 at 123.
In Gregoire Agbaje’s case (supra), the learned trial judge refused to award the plaintiff special damages, as in the case, for the value of his car which was damaged as a result of the negligence of the defendant on the ground, according to the judgment, that, he, the trial judge, could not only rely on the mere ipse dixit of the plaintiff in order to assess the value of the car; the Supreme Court, in the judgment delivered by Lewis JSC, stated inter alia as follows: –
“Mr. Cole then argued the cross-appeal of the plaintiff against the dismissal of the learned trial judge of the claim for No 1,300 special damages for ‘value of plaintiff’s car now in custody of the defendant’. It was his submission on that the learned trial Judge was in error when he said – ‘On the question of damages, the plaintiff in order to assess the value of the car; as he was entitled to rely on the evidence of the plaintiff when he said not an expert, in the absence of rebutting evidence from the defendant as the value of the car, the judge was entitled to accept his evidence. He could have rejected it because he did not believe him, but in our view the learned trial judge was in error I thinking he ‘cannot rely on the mere ipse dixit of the plaintiff in order to assess the value of the car. He could do so if he believed the plaintiff, the question being whether the uncontradicted evidence was credible.”
See also Ubani-Ukoma v. Nicol (1962) 1 All NLR 105, (1962) 1 SCNLR 176 Where Taylor F.J. (as he then was) at page 107 said: –
“The sole issue before us is whether the trial judge should, as he did, have disallowed this head of damage or have made a reasonable assessment based on the facts placed before him. It is not disputed that the appellant was entitled to an award on this head. In an action sounding in negligence actual damage must be proved, but the value of a used article or exactly quantified like the cost of repairs or the expenses of hospital treatment. It is open to either party to call evidence and the court must do the best in can on the material before it. The evidence adduced by the appellant that his car was valued at #1,503 in January, 1955 was unchallenged”.
Applying all the above authorities to the facts in the case, I am of the view that the learned trial judge was in error when he said no valuation was shown to uncontradicted evidence of the value of the car before the learned trial judge, which the judge did not reject. The court is therefore not only entitled to, but has no reason (Pt.625) 1 at 16. The learned trial judge was in error thinking he could not rely on the evidence – Agbaje’s case (supra) at page 123.
From the evidence of PW5, there is before the learned trial judge that before 7/7/87, which the PW5 travelled to France the car, was priced for (N30, 000) thirty thousand naira. The accident occurred on 28/7/87 about three (3) weeks after the witness travelled. After the accident when the witness came back from France, the car was evaluated for the purpose of repair and the repair was to cost N27, 800 (twenty seven thousand eight hundred naira). He agreed with the plaintiff that the plaintiff should pay (N20, 000) twenty thousand naira.
From the evidence, on the authorities on National Motors (Nig) Ltd v. Gregoire Agbaje (1971) (supra; Ubani- Ukoma v. Nicol (1962) (supra) and Osondu C. Ltd. v. Akhigbe (supra) at page16, I think there is sufficient evidence before the trial court to justify the award of (N20,000) twenty thousand naira, being the value of the
said Peugeot 504 saloon car Reg. No. LA 6169 AG as claimed by the appellant. In the circumstances issue No. 1 formulated by the appellant is answered in the negative, namely, that the learned trial judge was not right in holding that vehicle No. LA 6169 AG was not valued either before or after the accident.
The second issue formulated by the appellant reads as follows:-
“Whether the learned judge was right in his assessment of general damages in the light of evidence before him and the principle guiding the award of general damages”.
On the second issue, the learned counsel for the appellant submitted in his brief that in the light of the evidence before the learned trial judge, the learned trial judge was wrong, as there was no evidence to support his finding.
He referred to the evidence of PW4 at page 36 and 37 of the record of appeal regarding the possibility of the appellant suffering from arthritis in future. He referred to the evidence of PW4 both in chief and under cross-examination
and submitted that the evidence under cross-examination does not derogate from his earlier evidence in chief to the effect that the former. He referred to the judgment of the learned trial judge in awarding the appellant general damages and said the learned trial judge ruled out the possibility of the appellant suffering
arthritis in the future and awarded the appellant only (5,000) five thousand naira. He submitted that the trial judge did not properly evaluate the evidence and his findings cannot be supported by the future. He argued the court of appeal to interfere with the findings and hold that PW4 did not rule out the possibility of the appellant suffering from arthritis in the future. He argued the court of appeal to award full damages to the appellant since the appellant is deformed and things cannot be the same as before the accident.
The learned counsel for the respondent in his brief raised a preliminary objection to ground 3 of the Notice of Appeal upon which issue No. 2 in the appellant’s brief of argument was predicated. He did not proffer any argument on the second issue raised in the appellant’s brief of argument. The preliminary objection has been
considered and overruled.
In paragraph 12(1) (b) of the amended statement of claim, the plaintiff/appellant claimed the sum of (N17, 500) seventeen thousand five hundred naira being general damages for bodily injuries sustained and mental and physical strains of pains and confinement and permanent of right as physical special diet and expenses of personal and specialised nursing care.
In proving the claim, the plaintiff called PW4, a doctor. The PW4 testified in evidence-in-chief inter alia, as follows: –
“The injuries suffered by the plaintiff are deformity with limitation. As a result of the fracture of the patella he is prone to future attacks of arthritis or inflammation of the right knee joint.”
Under cross-examination PW4 goes on to say: –
“There is a possibility that the plaintiff may not suffer arthritis. I would say the plaintiff is deformed since he suffered fractures and the situation cannot be the same as before the accident.”
The evidence of the witness in chief shows that as a result of the fracture of the Patella (i.e. knee cap) he is prone to suffer arthritic attacks in the future. Similarly, the evidence of the witness under cross-examination shows that it is possible the plaintiff may not suffer arthritis attacks. A reading together of the two pieces of evidence still shows that the plaintiff may or may not suffer arthritis in the future. I agree with the submission of the counsel for the appellant that the use of the word possibility indicates uncertainty. It means that the plaintiff may or may not suffer arthritis in future. The evidence under cross-examination certainly does not derogate from the evidence-in-chief that the plaintiff is prone to future attacks of arthritis or inflammation of the right knee joint as a result of the fracture of the knee cap, the patella. The evidence under cross-examination that there is a
possibility that the plaintiff may not suffer arthritis does not mean that the probability of the plaintiff suffering arthritis in the future is ruled out. Certainly the PW4 did not say in his evidence that the probability of the plaintiff suffering arthritis in future as a result of the accident was ruled out.
The word “Possibility” is defined by Black’s Law Dictionary 6th Ed. to mean – “An uncertain thing which may happen”. Similarly, Webster’s New Word Dictionary Second College Edition also defined “possibility” as “the quality or condition of being possible”.
It also defines the word “possible” as meaning “that may or may not happen”.
The word “prone” is also defined by Chambers 20th Century Dictionary, New Edition 1983 at page 1030 as “liable to suffer a specified thing”. A reading together of the evidence of the PW4 before the court shows that the plaintiff/appellant, as a result of the accident, was deformed and may suffer arthritic attacks in the future. His
condition can never be the same as before the accident. The word “possibility” is not synonymous with the word “probability” “possibility” denotes an uncertain thing which may happen while “probability” connotes likelihood, appearance of reality or truth; the likelihood of a proposition or hypothesis being true from its conformity to
reason or experience, or from superior evidence or argument adduced in its favour. A condition or state created when there is more evidence in favour of the existence of a given proposition than there is against it. – See Black’s Law Dictionary, 5th Ed. Page 1081.
In the final analysis, it seems to me the evidence of the PW4 did not rule out the probability of the plaintiff/appellant suffering arthritic attacks in the future as a result of the accident. In the assessment of damages to be awarded, the learned trial judge ought to have taken into consideration along with the other factors which
he took into consideration, the possibility of the plaintiff suffering arthritis attacks in future as a result of the accident.
The law is well settled that in personal injury cases, the damages to be awarded should be full and adequate.
However, the fullness and adequacy of such damages will in each case depend on proved solid facts of the case and a just and fair assessment of the injury complained of. See Omoregie v. Omigie (1990) 2 NWLR (Pt. 130) 29 at 41.
In Omoregie v. Omigie (supra) at page 41, this court, per Omo, J.C.A. (as he then was) stated: –
“To justify the award of a high sum such as (N45, 000) as damages for pain and suffering it is necessary to establish the ‘specific nature and degree of seriousness’ of the injuries alleged to have been sustained; and to do so successfully there is an obvious need for some medical evidence. In the absence of such evidence
only the award of a smaller amount can be justified”. See also Ediagbonya v. Dumez (Nig) Ltd. (1986) 3 NWLR (Pt.31) 753.
In the present case on appeal, the PW4, (a medical doctor) gave evidence at pages 34-37 of the record of appeal.
He stated inter-alia as follows: –
“I remember the 28/7/87. On that date I was working in the Refinery Clinic. At about 8.25 am both the plaintiff and the defendant were rushed to the clinic having been involved in a road traffic accident on the Refinery access road. I examined the two of them. The plaintiff has bruises and laceration of the left side of the forehead. He was also unable to raise both the right arm and the right leg. Clinical and
radiological examination confirmed multiple fracture of the right patella (Knee cap).
His wounds were dressed and sutured following which we sent him to Unity Specialist Hospital, Sardauna Crescent, Kaduna. At the Unity Hospital he was admitted and had light patellotomy (wiring together of the fractured pieces). He was discharged after a month to continue physiotherapy in private physiotherapy Clinic (D2 physiotherapy Clinic), Kaduna. He was discharged from the Unity Special Hospital on crutches. I received a report from the Unity Hospital on his discharge. – See Exh. 2.
Neither the plaintiff nor the defendant had broken spinal cord. The injuries suffered by the plaintiff are deformity with limitations. As a result of the fracture of the patella he is prone to future attacks of arthritis or inflammation of the right knee joint”.
Under cross-examination, the witness said: –
“There is a possibility that the plaintiff may not suffer from arthritis. I would say the plaintiff is deformed since he suffered fractures and the situation can never be the same as before the accident”.
In this case, the appellant proved he had bruises and laceration of the left side of the forehead, he was unable to raise both the right arm and right leg; that he has multiple fracture of the right Patella (Knee cap) and as a result of the fracture Patella (Knee cap) the plaintiff is prone to future attacks of arthritis or inflammation of the right knee joint, – See. 2.
On a critical examination of the evidence I think the plaintiff has proved that as a result of the accident which he learned trial judge found to be due to the permanent deformity of his right leg and that he may possibly suffer from arthritis attacks in the future as a result of the accident.
On the evidence I think the plaintiff is entitled to a higher award than he was granted by the learned trial judge.
Indeed, the law is well settled on the attitude of appellate court to award of damages by the trial court. An appellate court will alter an award of damages by trial court only if the award is shown to be either manifestly too high or manifestly too low or was made on a wrong principle. – See Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd (1991) 1, NWLR (Pt.166) 136; Elf (Nig). Ltd. v. Sillo (1994) 4 NWLR (Pt. 350) 258 at 274; See also Savannah Bank (Nig) Plc v. P.M.S. Ltd (1999) 10 NWLR (Pt. 621) 160 at 165 – 166. Such interference in the award of damages by the trial court may also be made by the appellate where it is convinced that the award of damages is based on entirely erroneous estimate. – See Onaga & Ors. v. Micho & Co. (1961) 1, All NLR 324 at 328; (1961) 2 SCNLR 101.
In the instant case, the learned trial court made the award without taking into consideration the evidence with respect to the possibility of the appellant suffering from attacks of arthritis in the future as a result of the accident.
Indeed, the learned trial court based its award on the facts that the probability of the appellant suffering from attacks of arthritis in the future has been ruled out, when in fact there was no such evidence before the court. In the circumstances I think this a proper case in which an appellate court ought to interfere with the award.
For the foregoing reasons the award of (N5, 000) five thousand naira by the learned trial court is hereby set aside, and in its place is substituted a sum of (N15, 000) fifteen thousand naira being general damages payable to the
In conclusion, the appeal succeeds and it is hereby allowed. The decision of the trial court, as it relates to the proof of special damages, and the award of N5, 000) five thousand naira for general damages made by the trial court in its judgment dated 29th of October, 1990 are hereby set aside and in substitute thereof, there shall be a judgement for the appellant against the respondent as follows: –
(1) The sum of (N20, 000) twenty thousand naira being special damages in respect of the car, Peugeot 504
Reg. No. LA 6169 AG.
(2) And The sum of (N15, 000) fifteen thousand naira being general damages for bodily injuries and permanent deformity sustained by the appellant.
There shall be costs to the appellant against the respondent assessed at (N2, 500) two thousand five hundred naira.