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In The Supreme Court of
On Friday, the 15th
day of June 2007
Before Their Lordships
S.C. 140/2002
Between
And
Judgment of the Court
delivered
by
Ikechi
Francis Ogbuagu J.S.C
This is an appeal against the
decision of the court of
appeal,
Dissatisfied with the said
decision, the appellant has further appealed to this court on four (4)
grounds of appeal. Without their particulars, they read as follows:
Ground one
"The learned Justices of the court of appeal erred in law in failing to
consider or adjudicate upon a ground of appeal
and issue for determination raised
by the: defendant/appellant, viz that
the plaintiff/respondent failed to plead particulars of negligence and that
consequent upon this failure any
evidence of negligence went
to no issue."
Ground two
"The
learned justices of the court of
appeal erred in law when after striking out the major piece of evidence upon
which the learned trial judge depended upon for his finding of negligence,
they proceeded to re-evaluate the evidence before the court of trial without
considering or evaluating any of the evidence proffered at the court of
trial by the defendant /appellant.”
Ground three
"The learned justices of the court of appeal erred in law in proceeding to
evaluate
the evidence of the parties before the trial court by themselves after
striking out the piece of evidence upon which the trial court based her
finding of negligence on."
Ground four
"The learned justices of the court of appeal erred in law and on the facts
in awarding the sum of
I note that grounds two and
three are substantially, the same although differently couched. When this
appeal came up for hearing on 20th March, 2007, the appellant and
his counsel, were absent although there was evidence of sending of hearing
notice on counsel. Pursuant to the appeal, was deemed argued.
The facts of this case leading
to this appeal briefly stated are that the respondent as plaintiff, at the
high court,
"(a)
Two million
(b)
Five hundred naira (
(c)
One Million naira (
I
note that the above
claims are the same as those claimed by the respondent in paragraph 18 of
his statement of claim at page 8 of the records.
The plaintiffs/respondent's
case is that on 19th October, 1992, he took his Mercedes Benz 500
SEL car to the appellant's workshop at
On its part, the appellant's
case is that in good faith, it embarked on the repairs but on further
investigation of the source of the
tapping noise, the engine of the car, was dismantled and it was then,
it was discovered that the short
blocks of the engine, were worn-out. It had pleaded in paragraph 5 of
its statement of defence that the respondent did not bring the said car for
the change of the exhaust manifold gasket, but for several faults and/or
repairs twelve (12) in number (a) to (1). The appellant called two (2)
witnesses in support of its defence. At the end of the trial, the learned
trial judge, found in favour of the respondent. He relied heavily on
exhibit CA 57.
Dissatisfied with the said
decision, the appellant, appealed to the court below, which
expunged from the records,
exhibit CA 57 and allowed
the appeal in part, by awarding two million Naira (
Aggrieved by the said decision,
the appellant has further appealed to this court. There is no cross-appeal
by the respondent.
The appellant, has formulated
three (3) issues for determination, namely,
“1.
Whether the court of appeal adjudicated upon the issue for
determination complaining about the respondents (sic) failure to plead
particulars of negligence and if not, whether this honourable court should
effectively determine this case by pronouncing upon the failure to plead
particulars of negligence by the respondent and its effect?
2.
Whether the court of appeal ought to have re-
evaluated the evidence before the
trial court and whether in re-evaluation, any weight ought to have been
given to the evidence in rebuttal of negligence lead (sic) (meaning led) by
the appellant's witnesses?
3.
Whether in the absence of a
cross-appeal, the court of appeal ought to have
increased the award
of damages reflecting the value of the engine of the respondent's car from
On his part, the respondent has
formulated also three (3) issues for determination, namely:
"3.01
Whether the omission, if
any, by the court below to
pronounce on the issue of pleading the particulars of negligence occasions a
miscarriage of justice ,so as to warrant the reversal of the lower court's
decision.
3.02
Whether there was any counter
evidence to warrant the
court of appeal disturbance of the trial court's finding that the appellant
was negligent (sic).
3.03
Whether the court of appeal is
justified in its decision that the evidence of PWl
and PW2 were
uncontroversial, and if so,
whether the upward review of the value of the respondent's car is justified
in law."
In my respectful view, the
issues of the parties are substantially, the same although differently
worded/couched. I will therefore, deal with them in that regard.
Issue 1 of the appellant
and Issue 3.01 of the
respondent
I note that in the notice and
grounds of appeal filed by the appellant in the court below, in ground three
(3) thereof, the appellant, complained about the respondent's failure, to
plead the particulars of negligence, thus:
"The learned trial judge erred in law and on the facts when he held that the
plaintiff was not bound to plead particulars of negligence.
Issue 3 for determination in
the appellant's brief in that court at page 129 of the records, reads as
follows:
"Whether the learned trial judge was correct when he held that the
plaintiff/respondent was not bound to plead particulars of negligence and
that merely indicating what your case is all about
suffice as particulars of negligence?"
Issue 3 of the respondent at
page 149 of the records for determination in the court below, read as
follows:
"Whether the facts and various acts of omission and commission as contained
in the plaintiffs statement of claim particularly paragraphs 5,7,8,9, 13, 15
and 17 constitute particulars of negligence on the part of the defendant".
I note that paragraph 15 of the
respondent's statement of claim at page 7 of the records, read thus:
"The plaintiff will at hearing adduce evidence to prove that, ordinarily the
change of exhaust gasket has nothing to do with the stiffness of the engine
is due to the defendant’s recklessness, gross negligence and incompetence."
I am aware that most of the
decided authorities on this issue, relate to road or motor accident or
electric wiring cases. However, it is firmly established that a party who
alleges negligence, should not only plead the act or acts of negligence, but
should also give specific
particulars. See the case of Aku
Nmecha Transport Services (Nig.) Ltd. &
Anor. v. Atoloye
(1993) 6 NWLR (Pt.298)
233 @
248
As rightly submitted in the
appellant's brief, if is not only in cases in which the allegation of
negligence, is based on tort, that particulars are required as appears to be
the decision of the learned trial Judge at pages 105 and 106 of the records.
See the case of Seismograph
Services (Nig.) Ltd, v. Mark (1993) 7 NWLR (Pt.304)
203 @.... - per Uwaifo-,
J.C.A (as he then was) also cited and relied on
in the said brief. As a matter of fact, in Bullen
& Leake Precedents of Pleadings 11th
edition, page 533, also reproduced in the brief,
the following appear, inter
alia:
“It is not enough for the plaintiff in his statement of claim to allege
merely that the defendant acted negligently and thereby caused him damages,
he must also set out facts which show that the alleged negligence was a
breach of duty,
which the defendant owed to the plaintiff.
The statement of claim "ought to state the facts upon which the
supposed duty is founded and the duty to the plaintiff with the breach of
which the defendant is charged" per
Willes
J. in Gautret v. Egeraon
(1867) LR. 2 C P
31.
Then should follow an allegation of
the
precise breach of that duty of which the plaintiff complains; in what
respect the defendant was negligent; and lastly the details of the
damage sustained”.
(the
underlining his)
This statement I note, relates
to road accident cases. So also die case of Adeoshun
v. Adisa (1986) 5 NWLR
(Pt.40) 255 (@), 236-237 C.A. - per
Maidaa, J.C.A,
also cited and relied on in the
appellant's brief.
The appellant has therefore,
submitted that the justice of this case, demands that the respondent's case
be dismissed for failure to plead the particulars of negligence. With
respect, I do not quite agree. This is because, the complaint in this issue,
is not the failure of the respondent to supply the particulars of
negligence, but because of the failure of the court below to pronounce on
it. So, I am obliged to deal with this specific complaint.
Now, it is firmly settled that
it is the duty of all lower courts, to consider all issues placed before it
except in the clearest cases. In the case of
Owodunni v. Registered Trustees
of
The learned counsel for the
respondent, has admirably, conceded in paragraph 4.02 of their brief, of
this fact or settled principle. He even cited/referred to the case of
Alhaji
Olowolagbai & ors. V Bakare
& ors. (1998) 3 NWLR
(Pt.543) 528 @
534; (1998) 3 SCNJ. 75. But he
describes it as "the general rule". I note that the appellant or his learned
counsel has not stated in their brief, or in oral submission, what prejudice
or embarrassment, that the appellant has suffered or what miscarriage of
justice, the omission, has occasioned to it. As rightly
submitted in the respondent's brief citing and relying on the case of
Ejelikwu v. The State
(1993)7NWLR (Pt, 307) 554 (a) 583 (it is
also reported in (1993) 9 SCNJ. 152.) -
per Karibi-Whyte, J.S.C, for a condition to nullify a judicial proceeding,
it must be a substantial provision, which affects the jurisdiction or
competence of the court, or a procedural defect in a miscarriage of justice.
I also ask does the omission to
supply the particulars of negligence and or the failure of the court below
to pronounce on the issue as I have hereinabove stated, affect the
jurisdiction or competence of the court below, or is there any procedural
defect in the proceedings which had resulted in any miscarriage of justice?
Certainly, I think not.
I am not going into what a
miscarriage of justice means. But you can read the definition in
Black's Law Chambers Dictionary 7th
Edition page 1013 and the cases of Total (Nig.) Ltd. &
Anor. v. Wilfred
Nweke & anor. (1978)
5 S.C. 1 @ 14; (1978) 5 S.C. (Reprint);
Nnajiofor v.
Ukonu (1986) 4 NWLR (Pt.36)
505 (a), 516-517 cited and relied on in the respondent's brief and
Aidoko v.Sule
Anyegwu (2003) FWLR
(Pt.49) 1439 (a), 1446.
My answer to the respective
issue of the parties, is that although I agree with the complaint of the
appellant that the court below, failed or neglected to pronounce on the
failure of the respondent to plead the particulars of negligence, I also
agree with the respondent, that this failure, did not occasion any
miscarriage of justice that will warrant the dismissal of the suit on this
ground.
Issue 2 of the appellant and Issue 3.02 of the respondent
It is contended at paragraph
4.01 in the appellant's brief that the court below erred in law in
proceeding to re-evaluate the evidence before it from the printed record.
That the court below, after expunging exhibit CA 57 stated severally that
the said exhibit, was the basis of the decision by the trial court.
Now, it is settled that an
appeal is in the nature of re-hearing in respect of all issues raised in
respect of the case. See the ease of Sabrue
Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002)
4 SCN.J. 370@
382. In doing so, it is also settled that the duty of an
appellate court, is to inquire into ways the trial court, tried and settled
the dispute and not to
re-open and re-try cases. See the cases of Oroke
v. Ede (1964) NNLR 119 - 120;
Ajadi v. Okenihun
(1985) 1 NWLR (Pt.3)
484 (a), 492 cited and relied on in the respondent's brief; This is why
it is also settled that what an appellate court has to decide, is whether
the decision of the trial court was/is right and not the reasons for the
decision. Thus, if a judgment of a trial court is -correct, it will not be
liable to reversal, merely because it was anchored on a wrong reason. See
the cases of
Ukejianya v.
Uchendu (1950) 13 WACA
45@46; Ayeni
& ors. v. Williams Sowemimo
(1982) 5 S.C. 6@73-74; Odukari v,
Ogunbiyii (1998) 8 NWLR
(Pt.561) 339
350 and recently,
Jikantoro
&6ors. v. Dantoro &
6ors. (2004) 5
SCNJ. 152 @178
just
to mention but a few.
In respect of this issue, the
court below - per M. D. Muhammad, J.C.A at pages
187 and 188 (not Page 184 as erroneously stated in the appellant's brief),
stated inter alia, as follows:
“It is
true that the court had, (see page. 100 -
103 of the record) largely
based its finding of negligence on the part of the appellant on exhibit
CA57, which has been expunged. It is still
my considered view that in the light of
the evidence given both by
PW1 and PW2
which evidence had remained
uncontradicted,
the same conclusion of negligence would have been
arried (sic) (meaning arrived) at without necessarily
drawing from the expunged document. In particular
PW1, the expert that he was, had testified to the fact that
appellant's diagnosis of the faults in the respondents (sic) (respondent’s)
vehicle was wrong. So where are the repairs conducted.
In
sum, the appellant by the uncontradicted
testimony of PW1 and PW2
had been shown to have displayed, in the discharged (sic) of its obligation
to the respondent a deficient skill.
The trial court's reason for
finding that appellant was negligent might therefore be wrong but not
the finding self (sic) (meaning itself). The court was bound to use evidence
that had remained unshaken and uncontradicted
see Oyetayo
v.
Mosojo
(1997) 10 NWLR (Pt. 526) 627;
Dimlong v. Dimlong
(1998) 2 NWLR (Pt.538)
381 CA
and Ifeanyi
Chukwu Osondu v, Akhigbe (1999) 11
NWLR (Pt. 625) 1 S.C.”
(the
underlining mine)
His lordship, continued thus,
"
Undoubtedly,
the court had erred when it
based its decision largely on a document that has been adjudged
inadmissible and or of little or no probative value. This error by
itself in view of the subsisting credible evidence given by
PW1 and PW2
cannot lead to a reversal, of the decision appealed against. The finding
has not been shown to be perverse. See
Okokji
(sic)
(meaning
Okonji) v. Njokanma
(1999) 14 NWLR (Pt.628)
250 S.C. The finding has remained unaffected by our holding that Exhibit
'CA57' is inadmissible. By virtue of
S.I 6 of the Court of Appeal Act,
the lower court's reasons for its findings are hereby
retailored to reflect our foregoing observations ............."
(the
underlining mine)
It is now firmly established
that where the findings of a trial court, are perverse or use made of a
document, goes beyond its evidential value particularly in respect of
documentary evidence, it is the duty of the appellate court, to re-consider,
re-assess the evidence and apply it if the justice of the case so requires.
See the cases of Adeleke v.
lyande (2001) 13 NWLR
(Pt.729)1 (a), 20; (2001) 6
SCNJ. 101: and Tsokwa Oil
Marketing Co. Nig. Ltd, v. Bank of the North Ltd. (2002) 5
SCNJ. 176
@ 200. This is why, there
is the need for a trial and an appellate court, to consider, all relevant
evidence before them.
This is exactly what the court
below did. It gave its reasons for expunging exhibit
CA57 from its records at pages 181 to 183. Some of them include that
Exhibit CA57, was not specifically pleaded; that
it had not been made part of the record, it was clear that
DW1 through whom it was tendered, was neither
the maker nor the
addressee of the very
document. That the maker of
the document, did not testify so also the
addressee and therefore, it
had not been possible to cross-examine either of them; thus that there was
nothing on record, to indicate that the exhibit, had been written by and
received by the persons so alleged; that worse still, that the learned trial
Judge, did not reproduce the content of the document nor was the court
below, afforded an opportunity to physically, examine the content of the
exhibit. Finally, that the document never had the probative value ascribed
to it by the trial court chiefly because, its maker was neither called nor
its origin and destination fully ascertained. That for the first reason, the
trial court, should have discountenanced the document.
Fine! There seems to be no
quarrel about the court below's decision in
expunging the said document or exhibit from the records. The complaint by
the appellant is that having expunged the said document, the court below,
ought not and should have not proceeded to
re-evaluate the evidence
before it. I have, with respect, rejected this contention/submission. I gave
my reason for so doing.
In addition and this is also
settled,
Section 16 of the Court of Appeal
Act, gives it
full jurisdiction over the whole
proceedings as if the proceedings, had been initiated in the court of appeal
as the court of first instance and therefore, may re-hear the case as
a whole or in part or may remit it, to the trial court for the purpose of
rehearing or trial de novo. I will add also, that the incontestable limit,
is that such first instance jurisdiction exercised by the court of Appeal,
does not, include what a trial
court, could not have done. See the cases of
The State v. Dr.
Onagoruwa (1992) 2
NWLR (Pt. 221) 33
(a), 46, 56, 58: (1992) 2
SCNJ. 1: Abbas & ors.
) v. Solomon
& ors.
(2001) 7 SCNJ.546
and Attorney-General,
It has to be borne in mind and
this is also settled, that if an appellate court is of the opinion (as in
the instant case reproduced by me hereinabove), that the inadmissible
evidence, cannot or could not reasonably, have affected the decision, it
will not interfere. But if it is of the opinion that without the
inadmissible evidence, the decision must have been different, it will
interfere. See the cases of
Ajayi v. Fisher (1956) 1 FSC 90 (a).
92; (1956)
SCNLR 279; R. v. Thomas (1958) 3
FSC 8; Raimu
v.
Alhaji
Akintoye (1986) 5 S.C. 87
and recently.
Chief
Durosuro v. Ayorinde
(2005) 3
SCNJ.
8 (a), 16-17;
(2005) 3-4 S.C. 14
citing also
Idundu v. Okumagba
(1976) 9-10 S.C. 227(a), 245.
There is no doubt and this also firmly established that where
inadmissible evidence, has been admitted, it is the duty of the court, not
to act upon it. See
Olukade
v. Alade (1976) 2 S.C. 183 (a),
188-189. This is why the
court below, stated that the trial court, should have discountenanced the
said exhibit or document.
The problem or quarrel is the
holding of the court below, that the evidence of PW1
and PW2 remained
uncontradicted. I respectfully, do not agree with this view. I agree
with the submission in the appellant's brief at page 7, that by stating so,
the court below, in effect, sought to eliminate the entirety of the evidence
of the
DW1 and DW2. The
learned counsel for the appellant has submitted that the evidence of the
PW2 (the "expert"), was merely speculative and
academic and that there was no evidence from him that stated that the
appellant, was negligent. That the evidence of the DW1
at pages 44 to 46 of the records were all in
rebuttal of negligence. I agree:
This is because, this witness - DW1,
testified that he participated in dis-mantling
the engine and that they discovered that the engine was damaged because two
(2) out of the eight (8)
cylinders, were worn out. DW2 was the witness
who received the car. He testified that the vehicle, was releasing
blue-white smoke from the exhaust and that the car, had a tapping noise for
which the appellant, was to effect repair as necessary. He also testified
that no negligence occurred.
I agree with the submission in
the appellant's brief, that the court below, instead of saying that there
was uncontroverted evidence, but in is
re-evaluation; it was in effect dealing with the credibility of the
witnesses. That in the circumstances, it could have
ordered a re-trial.
The cases of shell
B.P.
v. Cole (1978) 3 S.C. 183;
Okeowo v. Miglore
(1979) 11 S.C. 138. and
Ezeoke v. Nwagbo
(1988) 1 NWLR (Pt.72)
616 have been cited and relied on for this proposition. It is settled
that the function of assessment of credibility of witnesses, is essentially,
for the trial court and not that of an appellate court. See the cases of
Akpakpuna & ors. v.
Nzeka & ors.
(1983) 2 SCNLR I (a), 14
and Obodo
& anor. v. Ogba
& ors. (1987) 3 S.C 459 460
-61, 480-482, 485; (1987) 2 NWLR (Pt.54)
1; (1987) 3 SCNJ. 82
and recently,
Agbaje & ors. v.
SCNJ. 64
and many others. The
trial court, in my respectful view, adequately or substantially, dealt with
the evidence before it particularly at pages 102 and part of page 103 of the
Records and came to its conclusion at pages 117 and 118 of the record.
I will come later to its award in favour of the respondent. So, in
spite of the stance of the court below in holding that the evidence of the
PW1 and PW2, were
uncontradicted, it is now firmly established
that it is not every mistake or error in a judgment, that necessarily
determines an appeal in favour of an appellant or automatically results in
the appeal being allowed,
It is only when the error, is so substantial, that it has occasioned a
miscarriage of justice, that the appellate court, is bound to interfere.
There are too many decided authorities in this regard. See
Onajobi v.
Olanipekun (1985) 4 S.C. (Pt.2)
156 @ 168;
Osafile & anor. v.
Odi & anor.
(No.1) (1990) 3
NWLR (Pt.137) 130;
(1990) 5 SCNJ. 118,
Anyanwu v. Mbara (1992) 5
NWLR (Pt.242) 386@
400 Odukwe v. Mrs. Ethel N.
Ogunbiyi
(1998) 8 NWLR (Pt......) 338 (@)351; (1998) 6
SCNJ, 102 (a), 113 and International Bank
for West Africa Ltd, v. Pavek International Co.
(Nig) Ltd. (2000)
1 NWLR (Pt.663)
128; (2000) 4 SCNJ, 200 just to mention but
a few.
My answer to this issue
therefore, is partly, in the affirmative, but I hold that the court below,
with respect, was wrong in holding that the evidence of the
PW1 and PW2 remained
uncontradicted. Incidentally, that was the
submission of the learned counsel for the respondent as recorded by the
court below, at page 180 of the records. Even if it dealt with the
credibility of the witnesses, with respect, it was not entitled to do so
because, the assessment of credibility of witnesses, is that of the trial
court. The effect, in my respectful view, is that the trial court, having
preferred the evidence of the respondent to that of the defence/appellant
through its two witnesses, that finding subsists. For the avoidance of
doubt, the trial court at page 112 of the Records, stated inter alia, as
follows:
“I
had the opportunity of watching
the demeanour of the plaintiff while he was in the witness box. He impressed
me as an honest, prudent, innocent but unfortunate customer in the hands of
a team of inexperienced and incompetent, workmen in the employment of an
otherwise reputable automobile engineering company with a poorly stated
branch office at Onitsha I hold that the plaintiff
has proved his case on preponderance
of evidence and that the defendant
company's
workmen at Onitsta damaged the plaintiff’s
mercedes benz car
engine while they were working on it in a most reckless, negligent and
incompetent manner for which I hold the defendant company vicariously liable
in damages (sic) to the
plaintiff..........”
(the
underlining mine)
Issue 3 of the appellant and 3.02 of the respondent
I have under Issue 2 of the
appellant, dealt with part of Issue 3.03 of the respondent which read as
follows:
"Whether the court of appeal is justified in its decision that the evidence
of PW1 and PW2 were
uncontroverted...........”
The rest of the sentence is
substantially, the same with Issue 3 of the appellant.
The law is firmly settled as to
the attitude or powers of an appellate court in respect of an award of
damages by a trial court. An appellate court, ought not to upset an award of
damages by a trial court merely because, if it had tried the matter, it
might have awarded a different figure. An award of damages can only he upset
or interfered with by an appellate court, if it is shown by the appellant,
either that:
“(a)
the trial court acted or proceeded upon wrong principles of law, or
(b)
the amount awarded by the trial court,
is manifestly and extremely high or low, or
(c)
the amount, was on an entirely erroneous
estimate which no reasonable tribunal, will make.”
See
the cases of F.R. A. Williams v. Daily Times
of Nig. Ltd. (1990) 1 NWLR (Pt,l24)
l@49; (1990) 1 SCNJ.1;
Ndinma v. Igbenedion (2001) 5
NWLR (Pt.705) 140
140
and
recently, The Shell Petroleum Development Co. of Nig. Ltd. & 4 ors.
v. Chief Tiebo VII
(2005) 3-4 S.C. 137; (2005) 4 SCNJ.
39 (a), 56.
In other words, in order to
justify interference with
any decision of a trial judge on the amount of damages awarded, it must be
convinced that the above ingredients are present. In the instant case, while
the trial court in its final decision at page 118 of the records, entered
judgment in favour of the respondent in the following terms:
"(1) The
defendant-company shall pay to the plaintiff the sum of
(2)
The defendant-company shall also pay to the plaintiff the sum of
(3)
The defendant-company will
also pay the plaintiff the sum of
In paragraph 18 of the
Respondent's Statement of Claim which appears at page 8 of the Records, the
Respondent, claimed as follows:
"(a)
Two million naira (
(b)
Five hundred naira (
(c)
One million naira (
In supporting the enhancement
of the award in respect of the engine, the respondent has submitted that the
court below because, according to the respondent, it is sustained by the
body of evidence on record before the court. It is submitted that it is
empowered to interfere with the award made by the trial court "where the
circumstances calling for such interference are shown to the -appellate
court. The cases of
Soleh
Bonah Overseas (Nig.) Ltd, v. Ayodele (1984)
(sic) (it is (1989) 1
NWLR (Pt.99) 549
(a), 563 and Union
Bank of Nig. Ltd v. Odusote Bookstore
Ltd.(1995)9 NWLR(pt.421)558
have been cited and relied on.
It is further submitted that there is counter-evidence on
record and that the award of two million naira (
Now, the court below at pages
189 to 194 of the records, dealt with the said three (3) heads of claim of
the respondent and the award made by the trial court. At page 192 thereof,
the following appear inter alia:
“What
did the lower court do in the instant case? In spite of the fact that the
appellant neither challenged
the pleadings nor evidence in proof of respondent's
head of claim, the lower court
arbitrarily proceeded to
award the respondent
I must confess that the
underlined sentence is worrisome
to me. This is because, if issue 4 is resolved in favour of the
appellant that is the same appellant in this appeal
then it could not have
enhanced the said award.
That Issue 4 of the appellant
reads as follows:
“Whether there was any basis for the award of
This issue is very clear and unambiguous. Surprisingly and with respect
erroneously, the court
below at page 194 of the records, stated inter alia as follows:
"The appellant's 4th and 5th issue (sic)
must have been formulated with a
view that at this level, we review the damages awarded to the respondent if
we find the lower court's award incorrect.
The Supreme Court has provided conditions by virtue of which an
appellate court will be justified in interfering with the award of damages
made by the trial court. These are ......... "
(the
underlining mine)
With respect, nothing can be
far from the truth in respect of my underlined statement. As rightly
submitted in the appellant's brief, firstly, the issue was raised by the
court below, suo motu.
This court has in many decided cases, deprecated a court raising a
matter/point suo
motu, without affording the
parties, the opportunity of addressing it on the matter/point as it amounts
to a denial of fair hearing guaranteed in
Section 33(1) of the 1979
Constitution of the Federal Republic of Nigeria now
Section 36(1) of the 1999
Constitution. See the cases of Odiase
v. Agbo (1972) 1 ANLR
(pt.1) 170;
Alhaji Otapo
v. Alhaji Sunmonu
(1987) 2 NWLR
(Pt.58)
587; and
recently,
Mallam Mohammed v.
Alhaji Mohammed
(2005) All FWLR .275) 502 @ 508, 516
citing other cases therein and Mrs. Fombo v.
I note that at page 149 of the
records, the respondent's issue 4 in this regard, reads as follows:
"Whether the award of
This issue is also clear and
unambiguous. It did not talk or refer to an enhancement of the award. It is
also firmly settled that, it is the duty of a court to confine or limit
itself, only to the issue raised and/or canvassed by the parties before it.
There are also too many decided authorities in this respect. See
Onwunalu & ors. v.
Osademe (1991) ANLR
15 @ 17 - per Coker, J.S.C, cite
Secondly, the trial court, at
pages 112 and 113 stated inter alia, as follows:
".........
The plaintiff testified that his
car engine costs
There is no evidence from the Defendant-Coy, particularly
DWl as to the cost of
(the
underlining mine)
I note that this was or
amounted to speculation or assumption to which it is not entitled to do.
Although the learned trial judge did not give any reason as to the basis of
his unbelief as it is settled that a court, must give reason or reasons, for
a particular finding of fact or holding, but the respondent, as rightly
submitted in the appellant's brief, did not appeal against this holding i.e.
there was/is no cross-appeal by the respondent in respect of the said
holding of not believing the respondent more so, as the evidence, was not
controverted by the appellant's said witness
DWl. I am aware and this is settled, that
a court, should give adequate consideration to the evidence offered in
support of a claim for special damages and that if the accepted evidence
possesses such probative value as preponderates the case in favour of the
person claiming, then an award, would be justified. See
Oshinjirin & ors. v. Elias & ors.
(1970) & ors. (1970) 1 ANLR 153 (a),156
and perhaps, the case of Boshali
v. Allied Commercial Exporters Lid, (supra), (it is also reported in
(1961) ANLR 917) cited and relied on by the
court below. But C/F (compare) this, decision in
Boshali's case with the case of Calabar
Cement Co. Ltd. v. Abiodun Daniel (1991) 4
NWLR (Pt.118) 750
(a), 760 - per Katsina-Alu,
J.C.A, (as he then was). In any case, the above,
is not the issue. What is in issue, is that the court below,
raised the issue of enhancement of the award of
damages made under relief appeal. I have already noted and held with
respect, misconception as to the interpretation by the court below, of the
said Issue 4 of both parties. I have no hesitation in holding and I so hold,
that the court below, in all the circumstances, was wrong in enhancing the
said award from
In conclusion, from what has
been adumbrated by me above, the third issue of the parties is resolved in
favour of the appellant. This appeal therefore, succeeds in part 1 hereby
set aside the said award of
Costs follow the event.
I assess and award the sum
of
Judgment delivered by
Sylvester Umaru Onu.
J.S.C.
Having had the opportunity to
read before now the judgment of my learned brother
Ogbuagu, J.S.C just delivered, I am in entire agreement with him that
but for the award of
Judgement delivered
by
Dahiru
Musdapher. J.S.C.
I have read before now, the
judgment of my Lord Ogbuagu, J.S.C. just
delivered with which I respectfully agree. For the same reasons lucidly set
out in the judgment which I adopt as mine, I too allow the appeal in part. I
set aside the award of
I abide by the order for costs
proposed in the aforesaid lead judgment.
Judgment delivered by
Sunday
Akinola Akintan.
J.S.C
The respondent, as plaintiff,
instituted this action at Onitsha High Court in
The facts of the case, briefly
are that the plaintiff, now respondent, sent his Mercedes Benz 500
SEL car to the appellant company for repairs.
According to the job card opened by the company in respect of the car, the
items of repairs to be carried out on the car included replacement of the
exhaust manifold gasket and correcting the tapping noise from the engine
among others. The plaintiff’s case was that when the car was returned to him
some weeks later, more faults were discovered. The car therefore had to be
sent back to the defendant/appellant. When the car was not returned, the
plaintiff/respondent had to institute the action.
At the conclusion of the trial,
the learned trial Judge held that the plaintiff had proved his case.
Judgment was accordingly entered in his favour as per his claim. The
defendant was dissatisfied with the judgment and an appeal to the court
below was filed. That appeal was dismissed and the award of
Three issues were raised and
canvassed in this court. But the two main points canvassed and which I will
like to further comment on are:
(1)
the contention of learned counsel for the appellant that the
plaintiffs case must fail since he failed to plead negligence and lead
evidence in support and also since res ipsa
loquitor was not pleaded, the onus could not
rest on the defendant to establish that there was no negligence; and
(2)
that in the absence of a cross-appeal, it
was erroneous in law for the court below to increase the award made by the
trial court.
On the first question, the
contention of the trial court was that although no particulars of negligence
was specifically pleaded by the plaintiff; such omission could be and was in
fact cured because the plaintiff has clearly indicated in his pleadings what
his case was all about. I entirely agree with that view. I therefore believe
and hold that although a plaintiff may not specifically set out the
particulars of negligence in his pleadings, that omission could be cured if
the relevant details are contained in the various paragraphs of his
pleadings. As that condition was met in the instant case, the appeal on that
point must fail.
On the second point, I entirely
agree that it was wrong of the court below to suo
motu increase an award made by the trial
court when there was no cross-appeal on that point. The parties never joined
issues on the quantum of the award and no argument was preferred on that
point before the court below. The court below was therefore wrong in
increasing the said award.
I had the privilege of reading
the draft of the lead judgment written by my learned brother,
Ogbuagu, J.S.C. For the reasons I have given
above, and the fuller reasons given in the said lead judgment, I also hold
that the appeal is partially allowed in that the additional award made by
the court below is set aside and I accordingly restore the awards made by
the trial court. I abide with the order on costs made in the lead judgment.
Judgment delivered by
Mahmud Mohammed.
J.S.C.
The parties in this appeal were
also parties before the High Court of Justice of
The cause of action arose when
the plaintiff brought his Mercedez-Benz 500
SEL car to the defendant's workshop for repairs.
The car which was driven into the defendant's workshop Onitsha for the
repairs was however towed out of the workshop three years later without its
entire engine, alternator, air conditioner compressor with hose, starter
motor and automatic gear box, when the plaintiff was informed at the
workshop that the engine of the car had been taken to the Lagos workshop of
the defendant. The engine of the car and other parts thereof were not
returned to the plaintiff up to the time he sought
reliefs in his action at the trial court against the defendant.
After giving the parties a full hearing in the matter, the learned
trial judge in his judgment
found for the plaintiff and granted all the reliefs.
Dissatisfied with the judgment of the trial court, the defendant appealed to
the court of appeal where the appeal was heard and dismissed. However, the
court of appeal in its judgment delivered on 3rd July, 2001,
suo
motu, increased the amount of damages for
the replacement of the engine of the plaintiff’s car from
On further and final appeal to
this court against the judgment of the court of appeal, the defendant in his
appellant's brief of argument has raised three issues for the determination
of the appeal. These issues were considered and resolved admirably in the
judgment of my learned Ogbuagu, J.S.C, which he
has just delivered and with which I entirely agree.
The main complaint of the
defendant/appellant in this appeal in which it asked this court to set aside
the judgment of the trial court which was affirmed by the court of appeal
and dismiss the plaintiff/respondent's claim, was the alleged failure' of
the plaintiff/respondent to plead and prove particulars of negligence in
support of his claim. This complaint is certainly not supported by the
statement of claim. Although no particulars of negligence were specifically
pleaded by the plaintiff in one particular paragraph of the statement of
claim, the facts averred in paragraphs 4, 5, 6, 7, 8, 9, 11, 12, 13 and 15
thereof, clearly contain the required particulars of negligence of the
defendant/appellant in handling the repairs of the plaintiff/respondent's
car.
Accordingly, except for the
setting aside of the order of the Court of Appeal increasing the award for
the replacement of the engine of the plaintiff/respondent's car from
Counsel
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