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8 APRIL, 1986

SUIT NO. SC 31/1985

3PLR/1985/74 (SC)



[1986] 1 NSCC 461











Chief C. A. Adogeh – for Appellant

Mr. A.A. Balogun (with him Mr. O.O. Omisore) – for Respondent



Tort – Special damages – Negligence – Plaintiffs house damaged by 1st defendant’s trailer lorry negligently driven by their employee (2nd defendant) – Plaintiff claiming special damages on basis of estimated cost of repairs prepared by his valuer – Defendant’s estimate rejected by trial judge in preference for that of plaintiff – No principle violated by award of special damages on basis of plaintiffs estimate even though repairs already carried out by him for undisclosed amount – Remedies – Assessment of damages.



OBASEKI, J.S.C. (Presiding):

The 1st appellant’s employee, i.e. 2nd appellant, driving a heavy tanker trailer lorry on the 14th day of June, 1975 at about 2.30 a.m. veered off the road – 3rd East Circular Road, Benin City – along which it was travelling, crossed the concrete fence of and crashed into the respondent’s house at No. 75 3rd East Circular Road, Benin City. The house was severely damaged. The impact sent shock waves through the structures of the house together with the inhabitants and woke up the respondent who was fast asleep at the time. When the respondent came out, he found only the vehicle and the timber load on it resting against his house without the driver, Ibrahim I. Bello, the 2nd appellant.

The respondent got an estate valuer and surveyor, P.W.2, to prepare cost estimate of the repairs necessary to reinstate the building to its pre-accident condition. This was done and he produced Exhibit H, an estimate of about N48,700.00 and he filed his action in the High Court. At the conclusion of the trial, the learned trial judge, Uwaifo, J., awarded the respondent special damages of N45,411.03 and N1,000.00 general damages against the appellants. Dissatisfied, the appellants appealed to the Court of Appeal. At the Court of Appeal, the point raised before us now as to damages was canvassed, i.e. that the learned trial judge erred in law in basing his assessment of damages on the estimate or evidence of estimate Exhibit H prepared by the estate surveyor in view of the evidence of the respondent that he had carried out the repairs. There was also the evidence by the respondent that he could not remember or did not know the total amount that the repairs cost him. The Court of Appeal was not persuaded by the submission. After discussing the principle laid down in the cases of S.D. Lar v. Stirling Astaldi (Nig.) Ltd. (1977) 11-12 S.C. 53 and distinguishing Leis Bosh v. Edison (1933) A.C. 449 and Moss v. Christ church (1925) A.C. 750, the Court of Appeal dismissed the appeal and affirmed the decision.

Before us, two issues were raised. The 1st was at to the power of the Court of Appeal to amend the statement of claim by inserting the relief claimed in the writ of summons which was omitted and the second was as to the correctness of the Court of Appeal in following Lar’s case which based its award on an estimate of the cost of repairs. Learned counsel for the appellant abandoned the argument on the 1st issue when it became apparent to him that the Court of Appeal Act 1976 gave the Court of Appeal powers of amendment similar to the powers possessed by the High Court. On the second issue, counsel submitted that in the absence of the value of the repairs which the respondent carried out according to the evidence, the court erred to have awarded special damages on the basis of the expert estimate Exhibit H. of the cost of reinstatement. He distinguished this case from Lar’s case on the basis that whereas in Lar’s case no repairs had been carried out in this case the repairs had been carried out.

It is obvious that the only evidence accepted by the trial court and the Court of Appeal of the cost necessary to reinstate the damaged house to its former condition was the evidence of P.W.2 and Exhibit H. The respondent’s inability to give the total cost incurred by him in carrying out the repairs he effected is of no advantage or disadvantage to either party. It is possible that the expenses incurred by him far exceeded the estimate in Exhibit H. In that case, the appellant would have gained by the error. It may be that it is far below the estimate in Exhibit H. In that case, it would appear that the claim has favoured the respondent. But one should not forget that the quality of the repairs effected may be lower than that stated in Exhibit H in which case, his house is still a dangerous structure. I think there is no substance in the submission and that the Court of Appeal was perfectly right to have followed Lar’s case in its assessment of the proper award.                I find no merit in the appeal and I hereby dismiss it and affirm the decision of the Court of Appeal.

The appellants will pay the respondent costs in this appeal fixed at N300.00. This is a case that the U.A.C. of Nigeria Ltd. should have promptly settled out of court as there is no doubt at all about the liability of the company. On the question of damages, the company should have rushed its workers to the site of the building to effect the necessary repairs and reinstate the building to its pre-accident condition. I have not been impressed by the argument of counsel on the question of damages.

ANIAGOLU, J.S.C.: I agree that this appeal is entirely without merit and Chief Adogah is wise to have withdrawn ground one of the grounds of appeal. He would have been wiser if he had withdrawn the entire appeal. Indeed, the justice of this case should have rested on whether the respondent should not have been granted enhanced damages. If that had been the focus of this appeal – unfortunately it is not – I would gladly have awarded more damages. Here was this respondent who was sleeping quietly in his house in the night when a trailer belonging to the appellants and driven by their driver collided with his house and damaged the house. The respondent, in order not to expose his family to the vagaries of the weather, rushed the repairs to the house and made his claim to the appellants.

Instead of meeting the claim, the appellants have come to this court pettifogging over the power, or the propriety of the Court of Appeal amending the statement of claim in order to include the relief which the respondent claimed in his writ but did not repeat in the statement of claim.

I must draw counsel’s attention to the fact that it is within his duty, as counsel, to tender advice both in law and facts to his client. A reputable company such as the U.A.C. of Nigeria should be loath to do injustice to a little man, such as in this case, by picking unnecessary holes in a judgment which, from every sense of the equity of the case, clearly should be for him.

I have scrutinized the original grounds of appeal once again and found that there was no ground of appeal attacking the damages awarded as being excessive. Had there been one, this would have been a clear case in which the strategy of the late Bairamian, J.S.C., should be adopted of revising the damages upwards. By straining the gnat in this case, appellants’ counsel should always be reminded of the strictures made against U.A.C. Limited in those far off colonial damages by Scipio Pollard, J., when he imposed a fine of about one hundred thousand pounds on the company in the Enugu High Court for profiteering in a sum as little as one penny. It is to be regretted that this appeal was even brought before us. It has no merit. Accordingly, I would dismiss it and hereby dismiss it with N300.00 costs to the respondent. The judgment of the Court of Appeal is hereby affirmed.

NNAMANI, J.S.C.: There is, in my view, no substance in this appeal. The appellant wisely abandoned ground 1 of the grounds of appeal as it is clear that the Court of Appeal had power under the Federal Court of Appeal Act, 1976 to grant the amendment to the statement of claim which it did. That amendment did not necessitate the calling of further evidence, and was only to include a relief which had been the basis of the argument between the parties.

On ground 2, the appellant is complaining about the assessment of damages. He contends that the respondent did not prove special damages as he testified that he had repaired his house but did not know how much such repairs cost. Applicant’s counsel also urged this court to reject Exhibit H and accept Exhibit K the report of an engineer called by them. I think it has to be remembered that the respondent tendered Exhibit H which was the estimated costs of repairs put in by valuers and estate surveyors. This evidence was accepted by the trial judge and confirmed by the Court of Appeal. If the respondent carried out repairs, I do not see any principle which would preclude the court from awarding damages in his favour as per the estimated cost of repairs Exhibit H. See the cases of S.D. Lar v Sterling Astaldi (Nigeria) Ltd. (1971) 11-12 S.C. 53 and Dodd Properties Ltd. v Canterbury City Council (1972) 2 A.E.R. 118.

As regards the Engineer called by the appellant, it has to be remembered that the trial court had rejected his evidence and this was again affirmed by the Court of Appeal. In the result, the position is that on the question of assessment of damages there are concurrent findings of the High Court and the Court of Appeal. The grounds on which this court will go behind such findings and upset them have been set down in several decisions of this court. There must be a miscarriage of justice or some substantial error in procedural or substantive law. No such error has occurred here. In all these circumstances, this appeal must fail. It is hereby dismissed with N300 costs to respondent.

KAZEEM, J.S.C.: This is an appeal against the judgment of the Court of Appeal dated 13th June, 1984 which confirmed the award of damages granted to the respondent for the damage to his building by the appellants’ vehicle. The 1st ground of appeal which complained of improper amendment of the respondents’ statement of claim by inserting the relief claimed, was abandoned by learned counsel for the appellants. That ground is accordingly struck out.       Learned counsel thereafter proceeded to argue the second ground which said that the damages awarded were improperly assessed. He said that the assessment should not have been based on the estimates made as to what will be sufficient for repairing the house; but it should have been based on the actual amount that the respondent said he had spent on repairing the house. At the trial, the respondent’s evidence by the valuer who testified as to what it would cost to repair the house was believed; but the contrary evidence adduced by the appellants was rejected. At the Court of Appeal, that finding of fact was affirmed. Hence there were already two concurrent findings of fact on the issue of damages. There is nothing in my view which has been said by learned counsel for the appellants which had convinced this court that the concurrent findings were perverse or unreasonable.

Here is a situation where the respondent’s house was nearly demolished by the appellants’ vehicle negligently driven at night; and which rendered the respondent homeless for sometime. It is now being complained that he should not have repaired the damages to the house before claiming on the estimate for the repairs. I cannot conceive of anything more callous or unsympathetic to say the least, notwithstanding the facile expression of sympathy with the respondent by learned counsel for the appellants in this court.

The appellants having been found negligent; and damages having been appropriately awarded against them, I am satisfied that that finding already affirmed by the Court of Appeal was right. Hence I find no merit in this appeal and I hereby dismiss it with N300.00 costs to the respondent.

OPUTA, J.S.C.: Two grounds of appeal were filed. The ground dealing with the power of the Court of Appeal to amend was withdrawn and struck out. The only ground argued was the valuation of damages.

This appeal lacks merit. The court did not call on learned counsel for the respondent to reply because there is nothing to reply to. Learned counsel for the appellant is quarrelling over the fact that the trial judge accepted the valuation of estate surveyor and valuer EX.H and rejected that of the appellant’s witness EXX This court does not evaluate evidence. If there is evidence on which the trial court based its decision, an appellate court which on the same evidence would have arrived at a different conclusion if it were the trial court should be slow to reverse the finding of the trial court.

In this case, on the assessment of damages, we have concurrent findings of the High Court and the Court of Appeal. It is the policy of this court not to interfere with such concurrent findings of two courts unless it is shown that there was a miscarriage of justice or a serious error in procedure or substantive law. There is no such error here. The balance of justice is more on the side of the respondent. I do not see how this court can interfere here. The facts of the case appellant’s trailer knocking down respondent’s house – impose on the appellant an obligation to pay the respondent damages for the damage done. The appellant has thus an obligation to make reparation. We understand this has been done. I personally do not therefore understand why learned counsel for the appellant/company is still keen on pursuing this appeal instead of withdrawing same honourably. The Court of Appeal was within its power and was right in assessing the damages the way it did relying on EX.H.

This appeal lacks substance and should be dismissed. It is hereby dismissed. There will be costs to the respondent which I assess at N300.00.

Appeal dismissed.

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