3PLR – JOSEPH OBI V. BIWATER SHELLABEAR NIGERIA LIMITED AND JOSEPH O. YANGE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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JOSEPH OBI
V.
BIWATER SHELLABEAR NIGERIA LIMITED AND JOSEPH O. YANGE
COURT OF APPEAL
(JOS DIVISION)
CA/J/28/95
THURSDAY, 11TH JULY, 1996
3PLR/1996/64 (SC)
OTHER CITATIONS
1 NWLR PART 484 PG. 722
BEFORE THEIR LORDSHIPS
DENNIS ONYEJIFE EDOZIE;
ADRIAN CHUKWUEMEKA ORAH;
MUHAMMAD SAIFULLHI MUNTAKA-COOMASSIE.
REPRESENTATION
- Ofodile Okafor – for appellant
J.K Manda – for respondents
MAIN ISSUES
PRACTICE AND PROCEDURE – COURT: Double compensation
PRACTICE AND PROCEDURE – DAMAGES: Loss of profit: Double compensation
PRACTICE AND PROCEDURE – EVIDENCE: Proof: Vicarious liability
MAIN JUDGEMENT
ADRIAN CHUKWUEMEKA ORAH Delivering lead judgement:
The appellant as plaintiff commenced an action for negligence at the High Court of Benue State, sitting at Gboko presided over by I. Hwande, J. in suit No. GHC/72/93 against the respondents claiming jointly and severally as follows:-
(a) Special damages ……………………………………………. N150,000.00
(b) General damages …………………………………………… N 20,000.00
Total claim ……………………………………………………N 170,000.00, and
(c) 4% interest rate on judgment debt from date of judgment to date judgment will be liquidated.
The first defendant’s vehicle, a heavy duty Leyland trailer with registration No. KW 5357 AD driven by the 2nd defendant Josepg O. Iyange in the ordinary course of his duty on 30/5/92 collided with a Peugeot 504 saloon car Registration No. BN 5252 GA owned by the plaintiff, at the material time driven by the plaintiff’s driver, one SUNDAY ACHUPA who testified as PW1 in this case. The collision occurred along Yandev-Gboko Road a public Highway near Amaco Hotel at a sharp bend corner; while PW1 Sunday Achupa, the driver of the plaintiff who had gone to the Benue Cement Company at the instance of the plaintiff was driving back to Gboko in the said Peugeot Car Registration No. BN 5252 GA.
Pleading were in accordance with the rules of court duly filed and exchanged through the respective counsel for the parties. The plaintiff filed 18-paragraph statement of claim, while the 1st and 2nd defendants filed a 12 paragraph Joint Statement of Defence and a 10 paragraph Counter-claim which were later amended. The plaintiff in turn filed 13 paragraph ‘Reply and Defence to the counter-claim of the 1st defendant. The 1st defendant counter-claimed vicariously against the plaintiff as a result of plaintiff’s driver’s negligence:-
(a) Special damages for repairs on 1st defendant’s vehicle N135,704.10k
and
(b) General damages for loss of income and work on the defendant’s vehicle at N5,000.00 daily for 6 months N 50,000.00k
Total N385,704.10K
The case proceeded to trial before I. Hwande, J. Sunday Achupa, driver of Peugeot Saloon car Registration No. BN 5252 GA testified on behalf of the plaintiff as PW1, while the plaintiff, Joseph Obi, the owner of the Peugeot Saloon car Registration No. BN 5252 GA and employer of PW1 testified as PW2. That was the case for the plaintiff. The following four (4) witnesses testified for the defence namely:-
(i) Mark Ochai driver of vehicle Registration No. BN 4041 W as DW1.
(ii) Joseph Ormye Iyange, farmer and driver as DW2
(iii) Esemonu Akujobi, store Manager of 1st defendant as DW3 and
(iv) Sunday Wuya Ambi, A.S.P. with the Nigeria Police State Headquarters as DW4.
A total of six (6) witnesses testified at the trial. At the close of the case for the defence, both counsel for the defence and counsel for the plaintiff with leave of court submitted written address and reply respectively.
After a due consideration of the evidence led by the parties at the trial, the arguments on the written address and reply of learned counsel for the parties, the learned trial Judge in a reserved Judgment delivered on 12th January, 1995 dismissed the plaintiff’s claim for special and general damages wherein he held inter alia:
“………..It is my view, that there is overwhelming evidence to show that PW1 was trying to overtake a litace bus at a bend when he could not properly see his front. It was in his effort to overtake this bus that PW1 spotted the 2nd defendant coming with his vehicle from the opposite direction. In an effort to avoid collision with 2nd defendant’s trailer lorry, PW1 tried to get back to his right lane and ended up hitting at the back. To my mind I cannot imagine how 2nd defendant will hit the vehicle of PW1 with his left tyre and not his front of his vehicle if he were one at fault. My conclusion is that it was PW1 that hit 2nd defendant’s vehicle at the left front tyre after losing control of his Peugeot vehicle. The impact on 2nd defendant’s tyre caused the tyre to burst and 2nd defendant too lost control of the vehicle as he had only three tyres now functioning on his vehicle, 2nd defendant went into the bush on his left lane after the collision and more damage was done to his vehicle ……………………………….”
“On damages it has become obvious that as it was PW1 a servant of the plaintiff that caused the multiple accident due to the negligent manner he drove or managed his master’s vehicle no benefit can accrue to the plaintiff by way of damages. While there is indication that plaintiff suffered by way of damage to his vehicle that took him quite a fortune to put on the road, there is no way the court can compensate him for such as it was his servant that was negligent. It is my view therefore that plaintiff’s claim in special and general damages fail(s) and it is hereby dismissed in its entirety……………..”
On the counter-claim of the 1st defendant against the plaintiff, the learned trial Judge in his said Judgment of 12/1/95 held inter alia:-
“……. I find paragraph 7 of the counter claim established that it was PW1 who caused the accident through his negligence”………”The defendants have failed a counter-claim seeking an award of special and general damages. DW3 Eseonu Akujobi a store Manager with the 1st defendant testified and tendered documents relating to stores requisition for the repair of vehicle Registration Number KW 5357 AD. He gave evidence that among the damaged items were roof springs, two front tyres, two tubes, steering arms and box, the radiator, two front shock absorbers and fan. That they also painted the vehicle. Exhibits G1 to G4 relate to the repair of the vehicle. It is the evidence of DW3 that the spare parts were supplied by Norack International Agency (Nig.) The cost of the repair and painting is contained on the cash invoice which is tendered as Exhibit G4”
The total cost for the repair is given as N135,704.10K. This includes painting, which is put at N15,000.00. DW3 testified that after ascertaining the parts that were damaged in the vehicle following the accident they issued a Local Purchase Order (L.P.O.) to F. Norack International to effect the repairs. The L.P.O. is in evidence as Exhibit ‘G’…………………..
It is my view that the evidence of DW3 is clear on the issue of special damages. What I do not agree with in that claim is the necessity for painting of the vehicle. From the affected parts enumerated above, there is no indication that the body of the vehicle was damaged. The decision of the 1st defendant to paint the vehicle at that time has no bearing to the accident that occurred on 30/5/92. I have therefore withdrawn the amount of N15,000.00 from the claim of SPECIAL DAMAGES which amount is in respect of the bill for plaintiff. This leaves the balance of N120,704.10. This amount is awarded as SPECIAL DAMAGES.
In the 1st defendant’s counter-claim for general damages, the learned trial Judge also held inter alia:-
In “1st defendant is claiming general damages of N250,000.00 for loss of use of the vehicle for the six months when the spare parts could not be procured within the country. He is claiming the sum of N5,000.00 per day.
2nd defendant testified that they are counter-claiming for the six months that the vehicle was under repairs. DW3 did not give evidence to bring out clearly how they arrived at the amount of N5,000.00 per day. It is however a fact that the 1st defendant lost the services of the accident vehicle for a period of six months following the accident. 1st defendant is therefore entitled to compensation for services lost due to the negligence of the plaintiff’s servant. The court has awarded the sum of N60,000.00 to the 1st defendant against the plaintiff.
As stated earlier in this judgment as plaintiff is vicariously liable to the acts of his servant who is PW1, judgment is entered in favour of the 1st defendant against the plaintiff in the sum of N180,704.10K. The defendant’s counter-claim succeeds”.
In summary the learned trial Judge in his judgment delivered on 12/1/95:-
- a) dismissed the plaintiff’s claim for special and general damages in their entirety.
- b) upheld the counter-claim of the 1st defendant and entered judgment in the counter-claim in favour of the 1st defendant against the plaintiff as follows:-
(i) the sum of N120,704.10K special damages and
(ii) N60,000.00 general damages for loss of services of the accident vehicle for six months.
It is against the said judgment of the learned trial Judge delivered on 12/1/95 that the plaintiff as appellant aggrieved and dissatisfied with, has lodged an appeal to the Court of Appeal before us, on a Notice of Appeal dated the 2nd day of February, 1995 consisting of six (6) grounds of appeal shorn of their inundating particulars most of which are argumentative and/or independent complaints that could go for a ground of appeal are as follows:
“1. The learned trial Judge erred in law when he found and held:
“It is my view that there is overwhelming evidence to show that PW1 was trying to overtake a litace bus at a bend when he could not properly see his front. It was in his effort to overtake this bus that PW1 spotted the 2nd defendant coming with his vehicle from the opposite direction. In the effort to avoid collision with 2nd defendant’s trailer lorry PW1 tried to get back to his right lane and ended up hitting the bus at the back…………………..
My conclusion is that it was PW1 that hit 2nd defendant’s vehicle at the left front tyre after losing control of his Peugeot vehicle” a sum of N120,704.10 as special damages against the plaintiff when the claims is not strictly proved”.
“3. The learned trial Judge erred in law in awarding the defendant N60,000.00 in lieu of general damages and or for loss of use for six months when he had found and held:
“DW3 did not give evidence to bring out clearly how they arrived at the amount of N5,000.00 per day ……………………………………………………………………………
And this award amounted to double damages”.
“4. The learned trial Judge erred in law in awarding a total sum of N180,704.10K as vicarious liability against the plaintiff when his agent or servant or driver who is alleged to be negligent is not a party to the suit”.
“5. The learned trial Judge erred in law in failing to give judgment for the plaintiff who had proved his case by oral and documentary evidence”.
“6. The judgment is against the weight of evidence”.
Briefs of argument were duly filed and exchanged in this Appeal. Based on the six grounds of appeal, the appellant distilled the following five (5) issues for determination:-
“3.01 Whether or not the award of N420.704.10 special damages was proved”.
“3.02 Whether or not the award of N420,704.10 special damages was proved”.
“3.03 Whether or not the award of N60,000.00 general damages being compensation for services lost was justified and if the answer is in the affirmative does it not amount to double compensation”.
“3.04 Whether or not the plaintiff/appellant could be vicariously liable to the tune of N180,704.10 for negligence even when his driver was not a party to the proceedings”
“3.05 Whether or not the appellant was entitled to judgment on the balance of probability having proved his case before the court below”.
The respondents in their joint brief of argument identified, the following three issues for determination:-
“1. Whether considering the evidence before the trial court it was appellant’s driver that was negligent or the 2nd respondent.”
“2. Whether the appellant could be liable vicariously without his driver being sued as a party in the case”.
“3. Whether the 1st respondent proved and was entitled to the special damages of N120,000.00 and whether the N60,000.00 awarded to him in addition as general damages amounted to double compensation”.
I have perused the grounds of appeal and both the appellant’s five (5) issues for determination and the respondents’ three (3) issues for determination. Both appellant’s and respondents issues for determination are related to and covered by the 6 grounds of appeal from which they were distilled.
Issues 1 and 3, Ground 2 relates to appellant’s issue “3.02” and respondents’ issue 3. Ground 3 relates to appellant’s issue “3.03” and respondent’ issue 3, while ground 4 relates to appellant’s issue “3.04”.
The foregoing analysis dovetail to the following three issues for determination namely:-
(1) Whether the plaintiff/appellant was negligent and vicariously liable to the respondent when his servant, the driver alleged to be negligent was not a party to the proceedings and in the sum of N180,704.10 claimed as special damages or to N120,704.10 awarded by the learned trial Judge and whether same were specifically proved:
(2) Whether or not the award of N60,000.00 general damages being compensation for loss of service was justified and if the answer is in the affirmative, does it amount to double compensation?
(3) Whether the plaintiff/appellant was entitled to judgment.
I am satisfied that the above three issues are the only issues for determination in this case. The said three issues are related to the 6 grounds of appeal filed and encompass both the appellant’s and respondents’ issues identified in their respective briefs of argument.
I will therefore now proceed to consider the three issues for determination in the order in which I have above-stated.
The appeal came up before us for hearing on 9th May 1996. G. Ofodile Okafor Esq, learned counsel to the appellant adopted and relied on appellant’s brief of argument dated 8/5/95, filed on 11/5/95 and urged the court to allow the appeal. Amplifying appellant’s issue “3.04” now issue (1) in this judgement (sic) whether the plaintiff/appellant is vicariously liable when his driver/servant, the alleged torfeasor was never a party or joined as a party to the whole proceedings; Mr. okafor cited the following two cases (Ifeanyichukwu) Osondu CO. LTD. v. Solel Boneh (NIG) LTD. (1993) 3 NWLR (Pt. 280) 2 46 at 251, and Management Enterprises Ltd. & Anor v. Jonathan Otusanya (1987) 2 NWLR (Pt. 55) 179 at 190 in support.)
In reply, J.K. Mada Esqr. holding A. Angwe’s brief to the respondents, adopted and relied on respondents’ joint brief of argument filed on 21/11/95, deemed filed on 28/7/95 and urged the court to dismiss the appeal.
On issue one for determination in this case i.e.
“Whether the plaintiff/appellant was negligent and vicariously liable to the respondent, in the sum of N180,704.10 claimed as special damages or to N120,704.10 special awarded by the learned trial Judge and whether same were specifically proved”.
It is necessary to look at the name-parties to the suit and the relevant pleadings in the case. The parties to this suit are: Joseph Obi ……………………………. plaintiff AND (i) Biwater Shellabear (Nig.) Ltd. and (ii) Joseph Yange ……………………….. defendants/respondents.
From the state of the pleading and the named-parties on record, it is the plaintiff/appellant whose action was dismissed that sued the defendant/appellant, while the respondents who were the defendants in the claim by the plaintiff in the action dismissed by the trial court, are the 1st and 2nd plaintiffs in the counter-claim (see at 39-41 of the records), who counter-claimed against the defendant who was the plaintiff in the action as per paragraph 10 of the amended counter-claim as follows:-
“10. WHEREBY the 1st defendant has been put to colossal loss and expenses as a result of the plaintiff’s driver’s negligence and therefore claims VICARIOUSLY from him a sum of N385,704.10 as damages.
PARTICULARS OF DAMAGES
(a) Special damages for repairs on 1st defendant’s vehicle N135,704.10
(b) General damages for loss of income and work on defendant’s vehicle at N5,000.00 daily for 6 months N250,000.00
Total N385,704.10K
It is not necessary to reproduce the remaining 1 to 9 paragraphs of the counter-claim in view of the limited issues herein in controversy. I have to observe with respect, that a counterclaim is a different action from that on which the counter-claim is predicted. In such a case, there must be two separate judgments since each is a separate claim though brought together in one suit. From the parties on records, it is crystal clear, that only the plaintiff/appellant Joseph Obi was plaintiff in his claim and the defendant in the counter-claim against him. The plaintiffs-Biwater Shellbear (Nig.) Ltd, and Joseph O. Yange as plaintiffs in their counter-claim, did not make Joseph Obi’s (the defendant’s) driver (PW1) Sunday Achupa, a party in the suit/the counter-claim.
The basis of the counter-claim by the plaintiffs (now respondents) in the counter-claim is a as per paragraph 10 of the counter-claim predicated on the negligence of appellant’s driver upon which the 1st respondent claims vicariously from the appellant Joseph Obi as defendant:-
(a) Special damages aforesaid in the sum of N135,704.10
and
(b) General damages for loss of income etc. N250,000.00
Total N385,704.10
It is beyond question and crystal clear that from the records of appeal, that appellant’s driver (PW1) Sunday Achukpa, who drove appellant’s vehicle Peugeot 504 Saloon car Registration No. BN 5252 GA on the fateful day 30/5/92 that was involved in an accident with 1st respondent’s trailer Leyland lorry with Registration No. KW 5357 AD serial number 02158 driven by the 2nd respondent on a public Highway at Amaco Hotel by-pass bending/sharp corner along Aliade-Yandev Road, Gboko, was never a party to the whole civil proceedings. The respondents did not join him in the proceedings and consequently did not establish any liability against the said appellant’s driver.
A master and servant relationship has to be established and the servant held liable before a vicarious liability of a master can arise. The servant has to be joined as a party to a suit against his master before either the relationship of master and servant or principal and agent can arise and consequently the liability of the servant can be established and the vicarious liability of the master can arise. In an action of this nature, it is imperative to bring an action albeit, a counter-claim as in the instant case jointly and severally against the master and his servant. Indeed, the servant must first be held liable before the master can be vicariously held liable. The liability of the master is predicated on the liability of the servant. The servant is the principal tortfeasor while the master is the accessory. It is the accessory that follows the principal never the reverse. It is expressed in the Latin maxims: “Accessorium non ducit, sed sequitur suum principale” (That which is the accessory or incident does not lead, but follows its principal). ‘Accessorius sequitur naturam sui principalis” (Accessory follows the nature of its principal. One who is accessory to a crime cannot be guilty of a higher degree of crime than his principal.)
The non-joinder for the appellant’s driver to the counter-claim (sic) to the whole proceedings is fatal to every head of claim made by the 1st respondent(s) in the said counter-claim. The non-joinder of a driver in a claim against his master in a running down accident case is the issue considered in the following two cases cited by learned counsel to the appellant in issue 1 (one) under consideration:
In the case of Ifeanyi Chukwu Osondu) Co. Ltd. v. Solel Boneh (Nig.) Ltd. (1993) 3 NWLR (Pt. 280) 246 to 248 the Court of Appeal in a similar circumstance held:-
- “In the case of vicarious liability of a master for the negligence of his servant, be that master a natural or a juristic person, the negligence and liability of the servant must first be established. Thus where the liability or otherwise of the master depends wholly on a verdict against the servant, then it is very necessary to see whether the servant was liable. Once the liability of the servant is established, then it must be determined whether or not the master or employee must shoulder the servant’s liability. (Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179 at 189; Consortium Steel Plant Alaja v. Akindejoye (unreported) Case No. CA/B/128/87 of 3/11/89 referred to and followed (p. 251 paras, B-E)”.
- “For a party claiming for negligence in tort against a natural or juristic person and a servant of that natural or juristic person, who is the principal tortfeasor, the servant must be joined because the vicarious liability of the master is predicated or consequent upon that of the servant (Consortium Steel Plant Alaja v. Akindejoye unreported supra)”.
- “In an action for negligence, if the principal actor – the offending servant – is not joined as a party so that his liability may be established, the question of finding the master vicariously liable can never arise. Consequently, once a servant is not joined in the action, the action is incompetent ab initio and a trial court should not waste its time going into the merits of the case (Chukwu v. Solel Boneh (Nig.) Ltd. (supra) (pp. 251-252) paras, H-A)”.
In the case of Management Enterprises Ltd & Anor v. Jonathan Otusanya (1987) 2 NWLR (Pt. 55) 179 at p. 181, the Supreme Court held:
“A person sued in a vicarious capacity cannot be liable where the liability of the principal tortfeasor cannot be established”.
Applying the principles in the foregoing cases, I am of the firm view, that since the respondents counter-claimants in their counter-claim did not join the servant of the 1st appellant to the suit, the issue of the liability of the servant upon which the respondents counterclaim special and general damages does not at all arise and has not arisen and has not been established for a consideration whether or not the appellant should shoulder the servant’s liability. Consequently, because, the servant was not joined in the action, I hold, that the action (sic) the counterclaim against ab initio incompetent and I so declare. The counter-claim being ab initio incompetent for the reasons I have given, the Court of Appeal like trial court should not waste further time going into the merits of the issue of award for special and general damages in the case, it is for this reason, that I had earlier declared and pronounced the two heads of claim/relief’s of the counter-claim for special and general damages against the appellant dismissed.
It is no longer necessary to consider, whether or not,
(a) The sum of N135,704.10K claimed as special damages or the sum of N120,704.10 awarded as special damages in the counter-claim in favour of the respondents against the appellant were proved, and
(b) Whether the sum of N250,000.00 general damages for loss of income and work on defendants’/respondents’ vehicle and repairs etc. for 6 months or the sum of N60,000.00 general damages awarded by the trial Judge in favour of the respondents against the appellant was also proved.
However, in order to give finality to the relief’s sought in the counter-claim on the issue, I will on the evidence on record based on the judgment of the trial court further consider the issue.
On the claim of N135,704.10K special damages, the learned trial Judge, relied on the evidence of DW3 – the Stores Manager to the 1st respondent in establishing the claim for special damages in the sum of N135,704.10K for repairs carried out in 1st respondent’s vehicle Registration No. KW 5357 AD. These consist of the spare parts supplied for the repair of the said vehicle from “F. Norack International Agency (Nig.) Ltd, including painting per cash invoice tendered as Exhibit “G4” in the said sum of N135,704.10 of which, the cost of painting is N15,000.00 per Local Purchase Order (L.P.O.) Exhibit “G”.
On this issue of special damages, the learned trial Judge held in his judgment of 12/195 thus:-
“It is my view that the evidence of DW3 is clear on the issue of special damages. What I do not agree with in that claim is the necessity for painting of the vehicle. From the affected parts enumerated above, there is no indication that the body of the vehicle was damaged. The decision of the 1st defendant to paint the vehicle at that time has no bearing to the accident that time has no bearing to the accident that occurred on 30/5/92. I have therefore withdrawn the amount of N15,000.00 from the claim of special damages which amount is in respect of the bill for painting. This leaves the balance of N120,704.10. This amount is awarded as special damages”.
In the judgment of the learned trial Judge, which I had earlier on reproduced in part in this judgment it suffices to say, that the learned trial Judge held the appellant liable for the special damages of N120,704.10 he awarded to the 1st respondent on the basis that the negligence of PW1 Sunday Achukpa, appellant’s driver who was not joined in the suit. Assuming, that the sum of N120,704.10 special damages awarded by the learned trial Judge was established and specifically prove, the learned trial Judge was clearly in error in making the award, when the negligence of the appellant’s driver as a party in the suit ought first but was not such a party and his negligence not established. The award was therefore erroneous and ought to be set aside. I hereby set the award of N120,704.10 as special damages made by the trial Judge against the appellant in favour of the 1st respondent in the said judgment of 12/1/95.
On the award of N60,000.00 general damages in favour of the respondents against the appellant, the learned trial Judge in his said judgment of 12/1/95 said inter alia:-
“………………………1st defendant is claiming general damages of N250,000.00 for loss of use of the vehicle for the six months when the spare parts could not be procured within the country. It is claiming the sum of N5,000.00 per day. 2nd defendant testified that they are counter-claiming for six months that the vehicle was under repairs. DW3 did not give evidence to bring out clearly how they arrived at the amount of N5,000.00 per day:”.
In the counter-claim of the respondents filed in the pleadings (at pp. 31-41 at p. 41 para 10(b), the 1st respondent pleaded.
“(b) General damages for loss of income and work on defendants’ vehicle at N5,000.00 daily for 6 months – N25,000.00”
In considering DW3’s evidence on record in support of the said pleading , the learned trial Judge rightly came to the conclusion as per his judgment quoted above:-
“………………….. The (1st defendant) is claiming the sum of N5,000.00 per day, DW3 did not give evidence to bring out clearly how they arrived at the amount of N5,000.00 per day”.
The above finding is consistent with the drift of evidence in the case with which I am in entire agreement.
When in the same judgment, after the learned trial Judge found as a fact, that DW3’s only evidence on the issue did not clearly show, how they arrived at the amount of N5,000.00 per day of loss of income, it became difficult to see the basis on which the learned trial Judge came to the conclusion in the same judgment:-
“It is however, a fact, that the 1st defendant lost the services of the accident vehicle for a period of six months following the accident. 1st defendant is therefore entitled to compensation for services lost due to the negligence of the plaintiff’s servant. The Court has awarded the sum of N60,000.00 to the 1st defendant against the plaintiff”.
It is clear from the judgment of the trial Court that the award of N60,000.00 general damages awarded to the 1st respondent against the appellant for loss of income of 1st respondent’s use of its vehicle Registration No. KW 5357 AD cannot be presumed by law to be the direct, natural or probable consequence of the act of the appellant complained of (See E.K.O. Odulaja v. A.F. Haddad (1973) 1 All NLR 71, 191 at p. 195-196 at p. 195). Indeed, loss of income is in my view special damages, which ought to but has not been specifically pleaded and proved. Where it is awarded as general damages in addition to special damages already awarded, it amounts to double compensation.
The court must not make any such award of general damages, which will in effect amount to compensating the plaintiff twice for a single loss. Such award must be impeached on that ground. (See Onaga & Ors. v. Micho (1961) 2 SCNLR 101; Ezeani v. Ejidike (1964) 1 All NLR 402 at 405, and Imo Concorde Hotel Ltd. v. Anya (1992) 4 NWLR (Pt. 234) 210 at 277. The law is that if all the losses suffered by the plaintiff have been compensated for by an award of special damages, the court should refrain from awarding general damages to the plaintiff in order to avoid double compensation. (See Nigerian Railway Corporation v. Odemuyiwa (1974) NMLR 115. See also Lagos City Council v. Unachukwu (1978) 1 All NLR 324 where it was held that, the plaintiff having been awarded for his actual loss under various special headings he could not recover any further award under the heading of general damages. I resolve all the issues I have considered in favour of the appellant against the respondents. In conclusion, I hereby for the foregoing reasons further dismiss the counter-claim.
The only issue left for determination in the instant case is issue three (3) – ‘whether the appellant is entitled to judgment’. This issue deals with the evidence in support of the claim by the appellant as pleaded and the defence of the respondents as pleaded. I have very carefully perused the pleadings of parties in this case, the evidence of both parties and the findings of the learned trial Judge as to whether or not the appellant proved his case, in which case, between the drivers of the appellant proved his case, in which case, between the drivers of the appellant (as plaintiff) and the respondents’ (as defendant) who was negligent and therefore liable to the other in the accident, in which the vehicles of the two parties were involved in an accident on 30/5/92 at the Amaco Hotel by-pass bending/sharp corner along Allade-Yandev Road Gboko. In the statement of claim, the plaintiff averred inter alia:-
“2. The plaintiff is at all material times the owner of a refurbished air-conditioned 2nd hand Peugeot 504 saloon car with Registration No. BN 5252 GA bought from Mr. James Nwafor on 13/3/89, sale agreement is hereby plead …………”.
- The 1st defendant is a limited liability company …………………..”
- The 2nd defendant is at all material times the driver/employee/agent of the 1st defendant engaged in driving the 1st defendant’s construction trailer leyland with Registration No. KW 5357 AD serial No. 02158 ……………..”.
“5. On the 30/5/92 at Amaco Hotel by-pass bending/sharp corner along Alide-Yandev Road, Gboko, the 2nd defendant recklessly, negligently and dangerously drove at a terrific speed from Aliade-Gyad Hotel junction towards Amaco Hotel sharp corner/bending in the Yandev Road direction”.
“6. The plaintiff’s Peugeot 504 saloon car Registration No. BN 5252 GA was carefully driven by his driver-mechanic Mr. Sunday Achukpa from Yandev toward the Amaco Hotel sharp corner/bending to Aliade road direction”.
“7. The 2nd defendant at all material times drove recklessly within the scope of the 1st defendant’s employment as agent/driver while in the ordinary course of his employment with the 1st defendant”.
The 2nd defendant negligently, dangerously drove his heavy-duty mixer machine Leyland trailer lorry conveying gravel, sands, cement with Registration No. KW 5357 AD coming from G.R.A. Gboko to Yandev at a terrific speed at the Amaco Hotel sharp corner/bending without due care and attention for safety of other road users, left to the plaintiff’s car lane and collided with plaintiff’s car registration No. BN 5252 GA on the plaintiff vehicle lane. Thereby rendering the plaintiff’s car Registration No. BN 5252 GA a complete write-off condemned and unreparable and causing grave personal injuries to the plaintiff.
At paragraph 12(a) to (e) plaintiff stated the particulars of 2nd defendant’s negligence or reckless and careless driving which were specifically pleaded as herein set out seriatim. At paragraph 15(a)-(r) the plaintiff stated particulars of damages claimed in the sum of N150,000.00 and general damages of N20,000.00 both totaling N170,000.00.
It is enough to state, that the defendants in their joint statement of defence their paragraph 1, admitted paragraphs 2-4 of the statement of claim above- They were not in a position to know if the plaintiff bought his vehicle from Mr. James Nwafor or any other person.
By paragraph 3 of the statement of defence, the defendants deny paragraphs of the statement of claim as above-stated. The defendants further aver in the following paragraphs of the statement of defence:-
“4. That the driver of the said Peugeot vehicle being one Sunday Achukpa (hereinafter called “the driver”) on seeing that he was accelerating to overtake dangerously when the 1st defendant’s vehicle was approaching in the opposite direction then the driver tried to retreat to his lane and in the process hit the left rear of the “Litace” Bus which was also in motion”
“5. The defendants aver that it was the hitting of the “Litace” Bus by the plaintiff’s vehicle that forced the plaintiff’s vehicle to veer off of its lane and course and enter the lane of 2nd defendant who was heading to Yandev thereby loosing control and hitting the vehicle driven by the 2nd defendant who as a result of the hit got a burst tyre which made his vehicle equally veer off the road and stopping on the bush at the left land”
“11. The defendants deny paragraph 13 of the claim ………… if any damages occurred to the plaintiff …………………….. the negligence emanated and or was contributory on the side of the plaintiff’s driver as per the particulars in paragraph 10(a)-(e)”.
At the trial before the learned trial Judge, the driver of the plaintiff Sunday Achukpa testified as PW1 while the plaintiff Joseph Obi the owner of the Peugeot saloon car Registration No. BN 5252 AD testified as PW2. That was the case the plaintiff.
For the defence, Mark Ochai, the driver of the ‘Litace’ Bus Registration No. 4041 W testified as DW1. Joseph Ormye Iyange – the driver of 1st defendant’s vehicle registration No KW 5357 AD testified as DW2. Eseomonu Akujobi Stores Manager of 1st defendant testified as DW3 while Sunday Wuya Ambi, A.S.P. with Nigeria Police State Headquarters, Makurdi testified as Dw4. That was the case for the defence.
I have very carefully read through the evidence of all the six persons on record who testified before the trial court. At the end of the hearing and written addresses of learned counsel to the parties by leave of the trial Court, the learned trial Judge in a well considered judgment held that the plaintiff’s driver Sunday Achukpa was negligent and caused the accident. Part of the said judgment reads thus:-
“It is my view that there is overwhelming evidence to show that PW1 was trying to overtake a Litace Bus at a bend when he could not properly see his front. It was in his effort to overtake this bus that PW1 spotted the 2nd defendant coming with his vehicle from the opposite direction. In an effort to avoid collision with the 2nd defendant’s trailer lorry. PW1 tried to get back on his right lane and ended up hitting at the back. To my mind I cannot imagine how 2nd defendant will hit the vehicle of PW1 with his left tyre and not his front of his vehicle if he were the one at fault. My conclusion is that it was PW1 that hit 2nd defendant’s vehicle at the left front tyre after loosing control of his Peugeot vehicle. The impact on 2nd defendant’s tyre caused the tyre to burst and 2nd defendant too lost control of the vehicle as he had only three tyres now functioning on his vehicle, 2nd defendant went into the bush on his left lane after the collision and damage was done to his vehicle”.
The above is the finding of fact by the trial Judge. The sum total of the learned trial Judge’s findings is that since PW1 Sunday Achukpa, the plaintiff’s driver was at fault, the plaintiff has not proved his case and was not entitled to judgment.
The burden of proof in civil cases rests mainly on the plaintiff but the onus of proof is not static it shifts from one side to the other, (Abiodun v. Adehin) (1962) 2 SCNLR 305; Adegboyega v. Awe (1993) 3 NWLR (Pt. 280) (p. 241 para C). The burden of proof in this case lies on the plaintiff who would fail, assuming no evidence had been adduced on either side. The burden of proof in the particular case rests on the plaintiff, he is the party against whom judgment would be given if no evidence were produced in respect of the negligence he alleges against the 2nd defendant in this case (Tewogbade & Co. v. Akande & Co.) (1968) NMLR 404 at 408; Are v. Adisa (1967) NMLR 304; Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253 at p. 267; Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372 at p. 386.
The duty of appraising evidence given at the trial is pre-eminently that of the trial Court which saw and heard the witnesses. It is the right of that Court to ascribe probative values to such evidence therefore; a Court of Appeal may not disturb a judgment simply on the ground that it would have come to a different conclusion on the facts as long as the judgment of the trial court is supported by the evidence rightly accepted by the court, (See Egri v. Uperi (1973) 11 SC. 299 at 310; Ogundulu & Ors. v. Chief Emmanuel Olabode philips & Ors. (1973) 2 SC. p. 71 at 80; Bamishebi v. Faleye (1987) 2 NWLR (Pt. 54) 51.
It is the duty of the trial Court when confronted with two conflicting or opposing accounts to consider on the balance of probabilities which of them to accept and the Appeal Court does not disturb a finding of fact made by the trial court unless it is satisfied that it is unsound or perverse (Afolayan v. Ogunrinde (1986) 3 NWLR (Pt. 26) 29 at p. 35).
In the instant case, I find no reason to disturb the primary finding of fact made by the learned trial Judge, that the fault in the accident was caused by the negligent driving of PW1 Sunday Achukpa who in an attempt to overtake DW1 Mark Ochai, the driver of a Litace Bus BN 4041 W with speed in a sharp bend (corner) hit the litace Bus and the leyland lorry No. KW 5357 AD driven by DW2 Joseph ormye Iyange. On record, this finding is supported by DW1 Mark Ochai, the driver of Litace Bus BN 4041 W driven by him which PW1 Sunday Achukpa was overtaking at a sharp bend (corner) at the material time. The said finding of the learned trial Judge is also supported by the evidence of DW2 Joseph Ormye on record.
It is in evidence, that PW1 denied seeing and/or overtaking the Litace Bus BN 4041 W at the material time, though he accepted seeing the Litace inside the bush when later the A.S.P. , DW4 Sunday Wuya Ambi, the V.I.O. later took him and to the scene of the accident. It is on record that PW1 was prosecuted in a Magistrate Court and was discharged and acquitted. The onus of proof is not the same as in a civil matter. Without prejudice to the said criminal proceedings against the PW1 plaintiff’s diver) and his consequent discharge and acquittal, I have no reasons to disturb the finding of the trial Court in this case. In conclusion I am equally of the same opinion from the evidence on the printed record that the defendants driver (DW2) Joseph Ormye Iyange was not negligent. The plaintiff has not therefore on the balance of probabilities proved his case. The defendants are not liable to the plaintiff as per the statement of claim. This appeal is meritorious. It must succeed in part and it is hereby so allowed. For the avoidance of doubt the order of this court shall be as follows:-
(i) That the plaintiff did not establish or prove his case against the defendants and the decision of the lower court of 12/1/95 on the relief’s dismissing same is hereby affirmed.
(ii) The respondents counter-claim against the appellant is hereby dismissed in its entirety. The award of N120,704.10K special damages and N60,000.00 general damages on the counter-claim awarded in favour of the 1st respondent against the appellant are hereby set aside.
(iii) The Appeal is allowed in part.
(iv) I make no order as to costs.
Appeal allowed in part
Cases referred to in the judgment:
Abiodun v. Adehin (1962) 2 SCNLR 305
Adegboyega v. Awe (1993) 3 NWLR (Pt. 280) 224
Afolayan v. Ogunrinde (1986) 3 NWLR (Pt. 26|) 29
Are v. Adisa (1967) NMLR 304
Bamishebi v. Faleye (1987) 2 NWLR (Pt. 54) 51
Consortium Steel Plant Alaja v. Akindejoye (Unreported) CA/B/128/87 of 3/11/89
Egri v. Uperi (1973) 11 SC. 299
Ezeani v. Ejidike (1964) 1 All NLR 402
Ifeanyichukwu Osondu Co. Ltd. v. Solel Boneh Nig. Ltd. (1993) 3 NWLR (Pt. 280) 246
Imo Concorde Hotel Ltd. v. Anya (1992) 4 NWLR (Pt. 234) 210
Lagos City Council v. Unachukwu (1978) 3 S.C. 199
Management Enterprises Ltd., v. Otusanya (1987) 2 NWLR (Pt. 55) 179
Odulaja v. Haddad (1973) 1 All NLR 191
Ogundulu v. Phillips (1973) 2 SC. 71
Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372
Onaga v. Micho (1961) 2 SNCLR 101
Railway Corporation v. Odemuyiwa (1974) NMLR 115
Tewogbade v. Akande (1968) NMLR 404
Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253
