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TECNO MECHANICAL (NIGERIA) LIMITED
IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 10TH DAY OF NOVEMBER, 1999
(2000) 1 NWLR (PT.639)150
BEFORE THEIR LORDSHIPS
ALOMA MARIAM MUKHTAR, JCA
MORONKEJI OMOTAYO ONALAJA, JCA
FRANCIS FEDODE TABAI, JCA
TECNO MECHANICAL (NIGERIA) LIMITED – Appellant(s)
ADISA OGUNBAYO – Respondent(s)
Prince Alaba Okupe – For Appellant
ONALAJA, J.C.A. (Delivering the Leading Judgment):
The plaintiff henceforth referred to in this judgment as respondent was engaged in the employment of the defendant now appellant in this judgment as a security staff as per undated letter titled “OFFER OF APPOINTMENT’ admitted and marked Exhibit ‘B’ respondent commenced work in the factory of appellant situate at PAKOTO AREA, IFO, Ogun State on 10th January, 1994.
On 13th January, 1994 in the course of duty as security staff at about 11.45 a.m. he was on patrol of appellants factory premises when a forklift driven by one labourer, also an employee, of the appellant knocked him down from his back and was rescued by one Mufu also a servant of appellant. As a result of the accident when respondent was knocked down with the forklift wrongly driven by Fatayi Enitan he received personal injuries and was referred to the Accident and Emergency Centre of Lagos University Teaching Hospital on 13th January, 1994 the same day of the accident, and admitted to ward E2. On 3rd February, 1994, respondent was operated upon under Local Anaesthesia. The medical report of 17th October, 1994 issued on respondent by Dr. E.A. Adeleye the Chief Medical Officer Traumatic of Lagos University Teaching Hospital, was admitted and marked Exhibit “A” when the Medical doctor testified as 1st plaintiff’s witness. As a result of the accident of 13th January, 1994 wherein respondent was knocked down by a servant of the appellant, respondent issued a writ of summons against the appellant. After service of the writ of summons on appellant pleadings were filed delivered and exchanged. The trial was concluded on statement of claim and statement of defence. As both the court and the parties are bound by their pleadings as unpleaded facts go to no issue, the claims of the respondent were as pleaded in some of the paragraphs of the statement of claim as under:-
“(5) On 13th January, 1994 at 11.45 a.m. the plaintiff was walking round the Mechanical Section of the defendant’s factory premises when the defendant’s Forklift driven by Mr. Fatayi Enitan A labourer collided with the plaintiff from the back, raised the plaintiff in the air several times and eventually knocked him down.
(12) The plaintiff was admitted at LUTH, Lagos and underwent surgical operations there and was on admission for four months. The medical report issued by the Chief Medical Officer Trauma Unit Dr. Adeleye will be tendered.
(13) Up till now the plaintiff cannot walk nor sit properly and has pains continually. The plaintiff has been incapacitated from going about to look for work or do farming as a result of the injuries suffered from the accident in the defendant’s factory premises on 13th January, 1994.
(15) The plaintiff ceased to be paid by the defendant as a staff as from January, 1995.
(17) The defendant has been negligent in the following manner:-
(a) Lack of control over the labourers in the defendant’s employment.
(b) Failure to issue regulations in the factory as to the category of staff authorised to drive the FORK LIFT.
(18) The plaintiff has been unable to lead a full life as a result of the injuries sustained on 13th January, 1994.
(19) The plaintiff will rely on the principle of RES IPSA LOQUITOR.
(20) The plaintiff claims special and general damages as follows:-
(a) Broken left leg and continual pains – N750,000.00
(b) Future hospital Treatments and Travelling costs for 13 years up to age of
65 years from Ifa to Lagos N70,000.00
(c) Loss of earnings al the rate of N12,000.00 p.a. for 13 years up to
the age of 65 years. N156,000.00
(d) Inability to lead a full life as a result of broken left leg and pains
(22) Whereof the plaintiff claims as per the writ of summons.”
which writ of summons was endorsed as follows:-
“The plaintiff’s claim against the defendant’s is for:-
(a) N1,000,000.00 special and general damages for injuries, pains, suffering and inconveniences suffered by plaintiff as a result of FORKLIFT negligently and incompetently driven by an employee of the defendant on 13th January, 1994 which collided and knocked down the plaintiff within the factory premises of the defendant at FAKOTO, IFO, OGUN STATE damaging the plaintiff’s left leg with accompanying abrassions on the cheek and left toes, and the face.
(b) The plaintiff was hospilalised at Lagos University Teaching Hospital, Lagos for four months and has not been able to walk properly and continues to have pains till today.
The defendant refused to take delivery of the letter of demand forwarded to it by the plaintiff’s solicitor by hand and by registered post.
(c) The plaintiff was on duty on the defendant’s factory premises on the date of the accident as a security staff.”
The appellant/defendant averred in the undermentioned paragraphs of the statement of defence thus:-
“After the general traverse
(3) With further reference to paragraphs 5, 7, 9, 13, 16, 17, 19, 20 of the statement of claim the defendant avers that if and in so far as Mr Fatai Enitan, a Labourer, acted as alleged therein which is not admitted, the said Mr. Fatai Enitan did not do so as servant or agent of the defendant and/or did so outside the scope of his employment as a labourer, by the defendant and it is denied that the defendant is liable in respect thereof whether as alleged or at all.
(4) It is denied that the defendant or any of its servants or agents acting within the scope of their respective employments was guilty of the alleged or any negligence or breach of duty as alleged in the statement of claim or at all or that any injury loss or damage which the plaintiff may have suffered or sustained was caused or occasioned thereby or by the alleged or any of the acts or matters complained of as alleged or at all.
(5) The alleged injuries, loss and damage are denied.
(7) Further or in the alternative the loss and damage claimed herein (if any which is denied) are too remote and are not recoverable in law.
(8) Further or in the alternative, the plaintiff failed, refused and or neglected to take any reasonable steps to mitigate the loss and damage suffered by him (if any which is denied) by reason whereof the plaintiff is not entitled to recover such alleged loss and damage or part thereof.
The plaintiff is sufficiently eligible for similar or alternative or any suitable employment if only he takes steps to secure one either in the public or private sector or by being self employed.
(10) The defendant avers that it at all times material to this suit exercised strict control over all its workers in general and labourers in particular and it did issue regulations from time to time concerning the scope of employment of its staff.
(11) Whereof the defendant avers that the plaintiffs claims are frivolous, misconceived and that the reliefs claimed by the plaintiff are not maintainable against the defendant or at all”
To establish his case respondent testified in line with his pleading as 2nd P.W. and called two other witnesses who were cross examined by the learned counsel for the appellant. In the course of their testimonies documents were admitted and marked as Exhibits.
Appellant called two witnesses and documents tendered were marked as Exhibits. They were cross examined by learned counsel for the respondent.
Upon completion of testimonies by the parties, learned counsel to the parties addressed the court after which the learned trial Judge delivered her judgment on 1st day of August, 1996. The judgment covers pages 41-61 of the record of appeal and found in favour of the respondent at pages 60 and 61 of the record of appeal as follows:-
“give judgment for the plaintiff in parties as follows:-
(3) ” I award the sum of N250,000.00 to the plaintiff under claim 20(a) for the injury to his left leg.
(b) N70,000.00 to the plaintiff as claimed for (a) a special shoe at N10,000.00 (b) N60,000.00 for further treatment and (c) for transport to and from hospital.
(c) N25,000.00 for loss of earnings for 2 years and 1 month while plaintiff receives further treatment and finds gainful employment.
The claim for N24,000.00 for inability to lead a full life fails.”
Being dissatisfied with the said judgment appellant timeously filed its notice of appeal at pages 63 to 66 of the record of appeal and in paragraph 3 formulated 5 grounds of appeal as A-E. In accordance with the rules of this court about formulation of issues which must be based and to encompass the grounds of appeal appellant in its appellant’s brief of argument filed in this court on 13th February, 1997 was relied and adopted in the argument of this appeal. At page 3 in paragraph 3 appellant distilled the issues for determination as under:-
Issues for Determination
“3. It is the respectful contention of the defendant/appellant that the issues for determination in this appeal are as follows:-
Grounds of Appeal “A”
(a) Whether the learned Trial Judge was correct in holding that the defendant/appellant was vicariously liable for the negligence of Mr. Fatai Enitan.
(b) Grounds of Appeal” B”
Whether the learned trial Judge was correct in awarding N320,000.00 as special damages.
(c) Grounds of Appeal “C” and “D”
Whether the learned Trial Judge was correct in awarding N25.000.00 as general damages for loss of earnings for 25 months
(d) Grounds of Appeal “E”
Whether the conclusions reached by the learned Trial Judge on the accepted evidence can be justified in the circumstances of this case.”
Appellant’s brief of argument was served on respondent which made him to file a respondent’s brief of argument which brief of argument was relied and adopted in arguing respondent’s appeal. In paragraph 5.01 he raised the issues for determination as –
“Issues for Determination
5.01 The issues for determination formulated in this brief by the respondent are as follows:-
Appellant on 8th December, 1998 filed appellant’s reply brief of argument and relied on same in argument of it’s appeal.
Respondent having contended that there was incompetent notice of appeal and grounds of appeal raised a fundamental and basic issue of the jurisdiction of this court to entertain this appeal being issue of jurisdiction and the competence of this court the dictum of Bairamian FJ in Gabriel Madukolu and others (For themselves and on behalf of the Umuonala Family v. Johnson Nkemdilim (1962) 1 All NLR 582 (1962) 2 SCNLR 341 at All NLR page 595 is apposite as under:-
“Before discussing those portions of the Record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when.
(1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another and
(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication.
If the court is competent, the proceedings are not a nullity, but they may be attacked on the ground of irregularity, in the conduct of the trial, the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication.
A defect in procedure is not always fatal.”
applied and adopted in Adefulu v. Okulaja (1998) 5 NWLR (Pt.50) page 435 SC Dr. Tunji Braithwate v. GDM (1998) 7 NWLR (Pt.557) page 307 CA. UNITED Agro Ventures Ltd v. First City Merchant Bank Ltd. (1998)4 NLWR (Pt.547) page 546 CA; Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) page 704 CA Ikeni v. Efamo (1997) 4 NWLR (Pt.499) page 318 at 333″
In support of his contention that the notice of appeal and grounds A- E are incompetent in that the grounds of appeal are of mixed law and facts leave of court must first be obtained to make the notice of Appeal valid. As no leave was obtained as in the instant case such notice of appeal is invalid with a consequential dismissal of the appeal buttressed by three judgments of the Supreme Court listed in support in respondent’s brief.
The grounds of appeal A to E without their particulars read as follows:-
“3. Grounds of Appeal
Particulars of Error in Law
Particulars of Error in Law
(i) (ii) (iii)
Particulars of Error in Law
(i) (ii) (iii)
Particulars of Error in Law
(i) (ii) (iii)
Every appellate jurisdiction is statutory be it under the Constitution, Act or Decree, Law or Edict. The Court of Appeal derived its appellate jurisdiction under section 220(1) of Constitution of the Federal Republic of Nigeria 1979 Cap 62, Laws of the Federation of Nigeria 1990 is Ipsissima Verba Section 241(1) Constitution of the Federal Republic of Nigeria 1999 which reads thus:-
An appeal shall lie from decisions of the Federal High Court or a High Court to, the Court of Appeal as of right in the following cases:-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or High Court Sitting at First Instance.”
It is common ground that this appeal was against the judgment of the High Court of Ogun State holden at Otta sitting at first instance.
Section 318(1) of the Constitution of Federal Republic of Nigeria 1999 defines:-
“Decision, means in relation to a court, any determination of that court and includes judgment, decree, order conviction, sentence or recommendation.”
It is trite law that the attitude of the court is to give liberal interpretation to the provisions of the constitution and where the words are plain and unambiguous to give it ordinary, grammatical, natural meaning. Nafiu Rabiu v. The State (1980) 8/11 SC 130 at 146-148 (1980) 2 SCLR 293. NNPC v. Fawehinmi (1998) 7 NWLR (Pt. 559) page 598 CA Ogbunyiya v. Okuda (1979) 6/9 SC 32; Chief Obafemi Awolowo v. President Shehu Shagari & ors. (1979) 6/9 51.
Applying the above to the instant appeal being a case decided by the High Court NISI PRIUS, that it is a final decision at first instant no leave of the High Court or this court is required whether the grounds of appeal or ground of appeal be mixed law and fact or on fact alone. Respondent misconceived the law in respect of interlocutory appeal to this court where the ground is of mixed law and fact or fact and not real point of law. This court held in Lawrence Elendu & ors v. Felix Ekwoaba & 4 ors. (1995) 3 NWLR (Pt. 386) 704 at 732 that:-
“By virtue of section 220 of the 1979 Constitution, there is a right of appeal without leave of the High Court or the Court of Appeal, where an appeal from the High Court relates to a final judgment of the High Court in its original unlimited jurisdiction under Section 236(1) of the 1979 Constitution. In the instant case, as the appeal is against the final judgment given not in the appellate jurisdiction of the High Court, no leave of the High Court of the Court of Appeal is required (Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) page 410, CA. Bronik Motors Ltd. v. Wema Bank Nigeria Ltd. (1983) 6 SC 158, 1983 1 SCNLR 296, Savannah Bank of Nigeria Ltd v. PAN Atlantic Shipping & Transport Agency Ltd. (1987) 1 NWLR (Pt.49) page 212).”
The complaint raised in issue one of respondent’s brief of argument about the competence of the grounds of appeal was completely misconceived in law and lacks any merit in view of the judgments referred to above. The notice of appeal and grounds of appeal filed by appellant are competent thereby this appeal is maintainable and valid in this court.
Issue Two supra raised by respondent in his brief of argument touched on the issue of balance of probabilities and or by res ipsa. Appellant in its reply brief contends that this issue having not been based on any ground of appeal by the appellant and being the rule of brief writing that an issue must be based on ground or grounds of appeal with the issue to correlate and encompass the ground of appeal. An issue not based or formulated on the ground or grounds of appeal is by the attitude of the court ignored. There is much force in the contention of the appellant that as issue Two in respondent’s brief was not based on any ground of appeal be ignored, reflects the position of the law thereby the contention of the appellant to ignore issue Two in the respondent’s brief of argument being impeccable is upheld by this court with reliance and support in the cases referred to by appellant’s reply brief in addition to Haruna v. Salau (1998) 7 NWLR (Pt. 559) page 653, Wema Bank Ltd v. Intl Fishing Co. Ltd. (1998) 6 NWLR (Pt.555) page 557 CA, Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt.559) page 661 CA. Hyppolite v. Egharevba (1998) 11 NWLR (Pt.575) 598 CA. A fortiori issue two in respondent’s brief as stated supra for emphasis lacks and devoids of merit.
Be that as it may I shall now proceed to consider the appeal based on the issues for determination formulated in appellant’s brief of argument and issue three in respondent’s brief of argument but reliance shall be put on appellant’s issues for determination with liberty to make cross reference to competent issue raised by respondent.
The issues raised by the parties already set up above and after ignoring respondent’s issues A and B are further encompassed in this judgment as follows:-
(i) Whether the learned trial Judge based on the pleadings and evidence adduced was right to have found appellant to be vicariously liable for the negligent act of its labourer Fatai Enitan.
(ii) Whether the learned trial Judge’s awards for personal injuries as a result of the negligence of Fatai Enitan suffered by the respondent was based on wrong principle of law or that the amount awarded was so high or so low as to make it an entirely erroneous estimate of the damages to which the respondent was entitled.
In Marcus Enyika v. Shell BP Petroleum Development Company of Nigeria Limited and two ors (1997) 10 NWLR (Pt.526) at 638 at 650 this court observed as follows and held thus:-
“(5) Negligence has been defined as the omission to do something which a reasonable man guided upon the consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.
(6) The question “What is the duty of care” in negligence and to whom it is owed has to be approached in two stages. First, one has to ask whether as between the wrong doer and the person who has suffered damages there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively it is necessary to consider whether there are any consideration which ought to negate, or to reduce, or limit the scope of the duty or the class of persons to whom it is owed or the damage to which a breach of it may give rise (Abusomwan v. Merchantile Bank of Nigeria Ltd. (1987) 3 NWLR (Pt. 60) page 196 referred to and adopted).
(7) The doctrine of proximity as the foundation of duty of care in tort is now firmly established as the basis of an action in negligence (Nigerian Bottling Company Ltd. v. Ngonadi (1985) 1 NWLR (Pt.4) at 739 SC, U.S.A. Ltd v. Mrs. Achoru (1990) 6 NWLR (Pt. 156) page 254 U.S.N. v. Nwaokolo (1995) 6 NWLR (Pt. 400) page 127 referred to.”From the pleadings and evidence adduced in the lower court the learned trial Judge’s finding of fact of negligence against Fatai Enitan in knocking down the respondent with the driving of the Forklift was a breach of duty of care owed by Fatai Enitan to respondent as there was sufficient relationship of proximity and neighbourhood that in the reasonable contemplation of Fatai Enitan carelessness on his part was likely to cause damage to respondent.
Having answered the first question of proximity affirmatively from evidence there were no extenuating consideration to negate, or reduce of limit the scope of the duty of care owed the respondent by Fatai Enitan. The negligence being evidence of fact in my assessment the finding of fact of negligence against Fatai Enitan was borne out from the evidence and in my estimation the finding by the learned trial Judge was not perverse. As an appellate court I am not prepared to disturb the said finding of fact. The complaints and attacks by the appellant against the finding of fact of negligence are devoid of any merit, leading this court to reject them. Having found Fatai Enitan a labourer in the employment of appellant liable in negligence against a co-employee the respondent is the appellant thereby liable vicariously for the negligence of Fatai Enitan?
At page 927 Blacks Law Dictionary Seventh Edition June 1999 Vicarious Liability means:
Liability that supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties” with derivation from Latin “respondent superior defined at page 1313 Blacks Law Dictionary 7th Edition aforesaid thus:-
(Law Latin “Let the superior make answer) Torts. The doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency based on the doctrine that “He who does a thing through another does it himself.”
It is appellant’s case that when Fatai Enitan drove the Forklift whereby he knocked down respondent within its factory premises on 13/1/94 being employed as labourer and not as Forklift driver he was on the frolic of his own and was not acting within the scope of his employment thereby appellant was not liable. Appellant averred in paragraph 10 of the statement of defence supra that at all material time to the suit, it exercised strict control over all its workers in general and labourers in particular and did issue regulations from time to time concerning the scope of employment of its staff. It is well established under our civil jurisdiction that pleaded facts in pleadings must be backed up with evidence, where an averment in pleading is not backed up with satisfactory or credible evidence the averment insupportable with evidence is treated as unestablished. Though appellant pleaded issue of regulations not a single regulation was given in evidence, so the learned trial Judge based on the joinder of issues of control of the labourers scope of employment was right when she held that appellant failed to establish that it did not authorise Fatai Enitan to drive the Forklift which was without its authority and outside the scope of Enitan’s employment.
In Bayley v. Manchester, Sheffield and Lincolnshire Railway Co. (1873) LR 8 CP 148, 42 LJCP 78, LT 366 it was observed that –
“Where a servant is acting within the scope of his employment, and so acting does something negligent or wrongful, the employer is liable even though the acts done may be the very reverse of that which the servant was actively directed to do.” See further Limpus v. London General Omnibus co. Ltd. (1862) 1 H & C 526, 32 LJEX 34, 7 LT 641, Warren v. Henlys Ltd (1948) 2 All ER 955, (1948) WN 449″.
As appellant failed to place before the trial court the regulations issued to disbar Enitan from driving Forklift and as it is not the habit of the court to speculate on the contents of a document not placed before it as decided in Gbajor v. Ogunburegui (1961) 1 All NLR 853 the learned trial Judge was right to have found the appellant to be vicariously liable for the negligence of Enitan which act resulted in personal injuries to the respondent. The complaints and arguments of the appellant on issue A & D raised in the matter after due consideration are hereby rejected and resolved against the appellant. Issue one encompassed by this court is resolved as unmeritorious against the appellant.
The next issues for consideration are issues B and C raised in appellant’s brief of argument and issue C in respondent’s brief of argument encompassed as issue (ii) by this court which revolved against the issue of damages awarded as stated above by the learned trial Judge in the case of personal injuries received as a result of the negligence of the appellant for which it was vicariously held to be liable.
The Supreme Court through KARIBI WHYTE, J.S.C. dealt exhaustively with the award of damages for personal injuries in United Bank for Africa v. Mrs Achoru (1990) 6 NWLR (Pt. 156) page 254 and per OPUTA, J.S.C. in NBC v. 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 principle to guide courts in award of damages in personal injury cases in the case of the involuntary castrated man resulting from automobile accident in Paul S. Ebe v. Albert Nnamani, (2) Toisei (West Africa Ltd. (1997) 7 NWLR (Pt.513) page 479 at 506, 507, 508 wherein it was stated as follows:-
The award of personal injuries in negligence cases has not been clear as to whether to award for each 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 v. Camden and Islington Area Health Authority (1979) 1 All ER 332 at 342, (1979) 1 QB 196 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 approved and confirmed by the House of Lords in Limpoh Chao v. Camden and Islington Area Authority (1979) 2 All ER 332, Cockson v. Knowles (1978) 2 All ER 604 at 614. In Re Croke (a minor) v. Wiseman (1981) 3 All ER 852 (1982) 1 WLR 71 followed in D.B. Solanke v. Tajudeen Ogunbanwo, Inspector Gen of Police & Ors. (1985) HCNLR 362 at 385.
In Samson Ediagbonya v. Dumez Nigeria Ltd. & Anor (1986) 6 SC 149 at 164, (1986) 3 NWLR (Pt.31) at page 753 “Karibi Whyte, J.S.C. 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 loss of the pleasure of life. Salihu v. Tin Associated Minerals Ltd. (1958) NRNLR 99. Shaibu v. Maiduguri (1967) NMLR 56, Mauche v. Durie & Anor. (1970) NNLR 62. The broad distinction between personal loss and financial loss run through all cases.
Perhaps one of the most difficult exercises in assessing damages is the quantification of the loss whether financial or personal. The court proceeds with the underlying assumption that damages are compensation for injury sustained and are not meant to be punitive, see British Transport Commission v. Gourley (1956) AC 185 at page 208. In Roshton v. National coal Board (1963) 1 All ER 314 at page 316 SINGLETON L.J. said:-
“Every member of this court is anxious to do all he can to ensure that the damages are adequate for the injury suffered so far as they can be compensation for an injury and to help the parties and others to arrive at a fair and just figure.”
It must be recognised and conceded that the fullness and the adequacy of damages awarded as compensation will in each case depend on proved solid facts of the case and a just and fair assessment of the effect of the injury complained of. Damages are assessed as a Lump Sum and once for all, not only in respect of loss accrued before trial but also in respect of prospective loss. Hence in the Ceramic (Owners) v. The Test bank (owners) (1942) 1 All ER, 281 Goddard LJ. said:-
“In an ordinary accident case there is no yardstick by which the court can measure the amount to be awarded for pain and suffering or ensuring disability.”
In respect of assessment of damages for personal loss which involves pain and suffering and the loss or diminution of enjoyment of life, the term personal loss” denotes every kind of harm and disadvantage which flows from a physical injury, other than the loss of money or property. It therefore necessarily includes the loss or impairment of integrity of the body, pain and suffering both physical and mental loss of the pleasures of life, actual shortening of life and mere discomfort or inconvenience.
In assessing damages both the financial and personal loss factors should be taken into account and compensation given for both types of loss,” adopted in United Bank for Africa Ltd & anor v. Mrs. Ngozi Achoru (1990) 6 NWLR (Pt. 156) page 254 SC at 280- 286, Union Bank of Nigeria Ltd v. Odusote” (1995) 9 NWLR (Pt. 421) page 558 SC.”
As already stated above in this judgment the learned trial Judge at page 61 of the record of appeal concluded her judgment as under:-
“(a) I award the sum of N250.000.00 to the plaintiff (now respondent) under claim 20(a) for the injury to his left leg.
(b) N70,000.00 to the plaintiff as claimed (a) special shoe at N10,000.00 and (b) N60,000.00 for further treatment and (c) for transport to and from hospital
(c) N25,000.00 for loss of earnings for 2 years and 1 month while plaintiff receives further treatment and finds gainful employment.”
Appellant submitted that whilst the appellate court is reluctant to intervene on questions of damages unless the trial court acted on wrong principle of law or the amount awarded was so extravagant or so small as to make it an entirely erroneous estimate of damages then the appellate court can interfere with the awarded of damages as decided in Techno plastic Nig. Ltd v. Jatau (1986) 4 NWLR (Pt. 38) pp 771. The award of special and general damages totalling N345,000.00 broken down as stated above was wrong application of the law on award of special damages which must be pleaded and strictly proved.
Appellant failed to prove the amount awarded in his favour strictly in accordance with the law therefore the Court of Appeal should dismiss the heads of claims reliance was put on Yalaju-Amaye v.A.R.E. Const. Ltd & ors (1990)4 NWLR (Pt.145) pp 422, 431, 451 and UBN Ltd v. Nnoli (1990) 4 NWLR (Pt.145) pp 530, 533, 543 and 548, A.G. Oyo State v. Fairlakes Hotels Ltd (1989) 5 NWLR (Pt.121) page 255, 278 and Odumosu v. ACB Ltd. 1976 11 SC pp 55 are all cases not based on personal injury cases as a result of negligence, thereby they are distinguishable from the issue that gave rise to this appeal. It is for this reason that this court took the pains to highlight the principle laid down by the Supreme Court as reflected exhaustively above in this judgment.
It is trite law that in assessing damages both the financial and personal loss factors should be taken into account and compensation given for both types of loss. This is exactly what the lower court did basing it on the evidence of 1st PW Dr Adeleye and the medical report Exhibit A. In awarding the sum of N345,000.00 as stated in paragraph 5.09 page 7 of appellant’s brief was a lump sum as enjoined in Limpon Choo v. Camden and Islington Area Health Authority supra, Union Bank of Nigeria Ltd. v. Odusote Bookstores Ltd. Samson Ediagbonya v. Dumez, supra, UBA v. Mrs Achoru supra followed and adopted in Ebe v. Nnamani supra Applying the above authorities the lower court adopted the paramount considerations of financial and personal loss factors.
The sum of N250,000.00 was awarded for the injury suffered and covered under personal loss.
The sum of N10,000.00 for special shoe covered also personal loss and the sum of N60,000.00 for further treatment falls into categories 2 and 4 in Limpon Chao’s case supra so also the sum N25,000.00 for loss of future earnings which is category 4 in Umpan Chao’s case adopted in Ebe v. Nnamani supra. For the above reasons I see no legal justification to disturb the-award for personal injuries in favour of the respondent. The attacks on the award are baseless in law resulting in resolving issues B,C,D and E and issue encompassed by this court against the appellant.
In the final result the appeal fails and is dismissed. Having dismissed the appeal as appellant succeeded in striking out issues A and B in respondent’s brief of argument, based upon the principle that costs follow the event, acting judicially and judiciously the cost to be awarded in favour of respondent is thereby reduced and fixed at N1,500.00 in favour of respondent against the appellant.
I have had the advantage of reading in advance the judgment of my learned brother Onalaja, J.C.A. which I agree with. I will however by way of emphasis make the following contribution on the important first issue for determination.
In arguing issue (a) above learned counsel for the appellant attacked the finding of the learned trial Judge on the negligence of Fatai Enitan and liability of the appellant, arguing that the finding of vicarious liability was not based on the evidence before the court, and therefore did not arise from a proper exercise of the opportunity of seeing and hearing the witnesses which appeared before it. In order to be able to do justice to this argument I will look at the various relevant pieces of evidence, and possibly reproduce some here. Three witnesses testified for the plaintiff (including the plaintiff himself), and two of them testified on how the accident occurred. The respondent/plaintiff in his evidence in Chief and said inter alia:-
“On 13/1/94, I resumed duty at 8.30 a.m. and as I was going round the factory at about 11.45 a.m., I saw a caterpillar at my back, carried me by the two prongs, and knocked a table and other things on top of me before throwing me on the ground. The table and other things also injured me. The caterpillar is also called a fork lift. The forklift was driven by one Fatayi Enitan who was one of the labourers employed by the defendant, one Mufu, a mechanic, shouted and left the job he was doing to come and stop the forklift. Then the table and other iron which fell on were removed from on top of me. I was bruised all over my body, face, leg and my left leg was crushed.”
The only material obtained from the respondent that is of any assistance to the appellant on this argument, is the one given in the course of cross examination and is as follows:- .
“As a security man I know that Enitan had no right to drive a forklift as he was neither a driver nor a mechanic. I was appointed on 10/1/94 and the accident occured on 13/1/94 and the letter of appointment stipulated that.”
It is clear from the above evidence that the plaintiff was in the employment of the appellant for only three days when the accident occurred, and I find it intriguing that he would be certain of the duties and rights of Fatayi Enitan within that very short span of time. Be that as it may he did give that evidence under cross-examination. Then P.W.3 (another security man) gave the following evidence:-
“I saw plaintiff on that day and soon after I left the plaintiff after a short discussion with him, I noticed that one Labourer Fatayi Enitan drove a forklift and knocked down and injured the plaintiff.”
In the course at cross-examination the only relevant point made is that each employee knew the nature of his job. The personal administrative manager of the appellant company of vicarious liability testified thus:-
“I know one Fatayi Enitan. He was a labourer with the defendant company. He was never allowed to drive a forklift in the company and no labourer was ever allowed to drive a forklift. Everybody is given designation of merit and no worker is allowed to do as he pleases there.”
If the above evidence is true and correct, then one is tempted to ask why and how the said Fatayi Enitan came to be driving the forklift on the day of the accident. He definitely did as he pleased on that day, for he not only drove the forklift for a fleeting while (if at all he was trying it without authority behind some one’s back) he drove it long enough to cause the havoc caused by his action. Surely he must have previously had an idea of how the machine operates, as he couldn’t have jumped on the forklift just out of curiosity to commence its operation for the simple reason of doing so. The evidence of D.W.2 is to my mind neither here nor there as far as the action of the said Fatayi Enitan is concerned. On the evidence against the backdrop of these evidence, I fail to see that there was no scintilla of evidence to confirm that Fatayi Enitan drove the forklift without the authority of the appellant. To say therefore that the wrong was not committed in the course of the servants employed is to my mind inconceivable in view of my assessment and appraisal of the pieces of evidence put together above. The cases of W.N. Iko v. John Hair and co. Ltd. & anor; (1957) SCNLR 107; (1957) 2 FSC 50; Ogunmuyiwa v. Salanke (1956) SCNLR 143; (1956) FSC 53 and ACB Ltd. & 2 ors v. Apugo (1995) 6 NWLR (Pt.399) page 65 cited by learned counsel for the appellant are of no assistance to the appellant’s case. Learned counsel for the respondent has in his brief attributed the accident that injured the respondent to the laxity of the defendant, has submitted that it is vicariously liable since the accident occurred during the course of the official working hours of the employers. Indeed the accident occurred on the premises of the defendant where the victim and the offender were employees discharging their duties.
Whether or not the offender was authorised to drive the forklift is a fact that needs to be proved with cogent evidence which was not adduced, and this omission has not lent credence to the principle of law that civil cases are decided on balance of probabilities. See Odulaja v. Haddad (1971) II SC 357, and Woluchem v. Gudi (1981) 5 SC 291. In this respect I have no doubt in my mind that learned trial Judge evaluated the evidence before her when she made the following finding in her judgment:- “Fatayi Enitan’s whereabouts has not been explained whether he is still in the service of the defendant or not. He was not called by the defendant and from the totality of the evidence, he did drive that forklift on the fateful day. Even if he was not authorised to do so, he was, in my view from the pleadings and the evidence of D.W.2 and D.W.3 before me which I believe and accept that is, Fatayi Enitan the labourer who drove the forklift on 13/1/94 is liable in negligence to the plaintiff and as he was on duty on that day, the defendant, his master is vicariously liable for the wrongful and unauthorised mode of doing some act authorised by the master in the course of the employment for the master.”
I couldn’t agree more. Indeed I will add here that the failure of the appellant to call or explain the whereabout of Fatayi Enitan is an omission on its part to evoke the provision of S.149D of the Evidence Act, Laws of the Federation of Nigeria 1990 Cap. 112 will be appropriate place. By virtue of this law. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the Court may presume –
(d) that evidence which could be and is not produced would, if produced, be unafavourable to the person who withholds it”
See U.B.N v. Nnoji (1990) 4 NWLR (Pt. 145) page 530, P.B.N v. Adegbesote (1986) 3 NWLR (Pt.44) page 787, and Habib (Nig.) Bank Ltd v. Kaya (1992) 7 NWLR (Pt. 251) page 43.
For the above reasoning and fuller ones in the lead judgment I abide by all the orders made in the lead judgment.
I had the privilege of reading in advance, the leading judgment prepared by my learned brother ONALAJA, J.C.A. and I agree with his reasoning and conclusions therein.
I would however like to comment on the main issue of vicarious liability. The facts are well set out in the leading judgment. Although in the Statement of Defence, the appellant did not expressly admit the negligence of its labourer Mr Fatayi Enitan, at the trial his negligence was not contested. The main issue before us is therefore that of vicarious liability.
The principle is that once (i) there exists a master and servant relationship between an employer and a tortfeasor and (ii) it is established that the tortfeasor committed the wrong complained of in the course of his employment, there is a rebuttable presumption of the employer’s vicarious liability. In such a situation the onus is on the employer to prove that the alleged wrong was committed by the tortfeasor not in the course of his employment but that it was committed while on a frolic of his own. See Francis Osabe Eseibe v.Agholor (1993) 9 NWLR (Pt. 316) 128 at 144. And in some cases the law even imposes a stricter duty of care on an employer than the rule in Eseigbe’s case supra. This is because in addition to providing safe environment for work safe system of work and safe fellow servants, he has a duty to exert reasonable control and supervision over those he engages. In such situations the mere proof by an employer that the tortfeasor committed the wrong while on a frolic of his own would not discharge him from being also vicariously liable. See Quinn v. Horsfall & Bickham Ltd. (1956) 2 All ER. 467. An employer can be vicariously liable for the negligence of an employee if he failed to provide the necessary controls by way of instructions and other steps to prevent unnecessary risks to other employees. See also General Cleaning Contractors Ltd. v. Christmas (1953) AC. 180 and Barcack v. Brighton Corporation (1949) 1 K.B. 339.
In paragraph 10 of the Statement of Defence the defendant averred as follows:-
“the defendant avers that it, at all times material to this suit, exercised strict control over all its workers in general and labourers in particular and it did issue regulations from time to time concerning the scope of employment of its staff.”
At the trial all that the D.W.2 said was:-
“I know Fatayi Enitan. He was a labourer with the defendant company. He was never allowed to drive a fork lift in the company and no labourer was ever allowed to drive a fork lift. Everybody is given designation of work and no worker is allowed to do as he pleased there.”
No evidence was therefore adduced about the strict controls and the regulations issued from time to time. There was no evidence of where or under whose control the forklift was before the tortfeasor got unto it to manipulate it. The appellant cannot claim to have discharged the burden of rebutting the presumption of vicarious liability without some evidence about the situation of the forklift. The available evidence all point to the fact that the appellant was wanting in its duty of care to the respondent and was, in my view, rightly found by the learned trial Judge to be vicariously liable.
For the foregoing and the more comprehensive reasons in the leading judgment, I also hold that the appeal has no merit. The appeal is accordingly dismissed. I also abide by the consequential orders including those as to costs.