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Julius Berger (Nig.) Plc v. Ogundehin

  1. JULIUS BERGER (NIG.) PLC
  2. IDRIS UMAI KASIMU

V

MRS. DOLAPO OGUNDEHIN

COURT OF APPEAL

( CALABAR DIVISION )

MOHAMMED LAWAL GARBA JCA ( Presided )

UZO I. NDUKWE-ANYANWU JCA ( Read the Lead Judgment )

JOSEPH TINE TUR JCA

CA/C/86/2011

THURSDAY, 26 FEBRUARY 2013

COURT - Discretion - Exercise of - Courts - Proper approach to

DAMAGES - General damages - What covers - Heads of - What constitutes - Discretionary powers of court to award

DAMAGES - Personal injury cases - Damages in - Nature and classification of

DAMAGES - Special damages - Unchallenged evidence of proper and adequate pleading of - Sufficiency of as proof of

DAMAGES - Special damages - What are - Specific pleading and strict proof of - Mandatoriness of - Strict proof of - What amounts to What is included therein

DAMAGES - Tortious damages - Purport of

EVIDENCE - Admitted facts - Proof required for - Nature of

EVIDENCE - Civil proceedings - Onus of proof therein - On whom lies - Non-static nature of -  Standard required thereof - Onus on plaintiff to succeed on strength of own case and not rely on weakness of defence

EVIDENCE - Confessional statement - Direct and positive confessional statement - Propriety of basing conviction solely on - Civil cases -  Standard of proof therein

EVIDENCE - Evaluation of by trial courts - Guiding principles for

EVIDENCE - Pleadings - Bindingness of court and parties by - Evidence led at variance with or unpleaded facts - Irrelevance of

MAXIM - Res ipsa loquitur - Meaning of

NOTABLE PRONOUNCEMENT - On impropriety of recklessness of drivers of articulated lorries when driving

PLEADINGS - Bindingness of courts and parties by - Evidence led at variance with or unpleaded facts - Irrelevance of

TORT - Accident - Meaning of - Who bears onus of explaining cause of - Reasonable evidence of negligence in - What constitutes

TORT - Negligence - Action for - Claimant in - Onus on to give particulars of and lead evidence in support of

TORT - Personal injury cases - Damages in - Nature and classification of

TORT - Res ipsa loquitur - Meaning of

TORT - Tort damages - Purport of

TORT - Vicarious liability - Servant’s wrongful act - When deemed to be in the course of his employment

WORDS AND PHRASES - Res ipsa loquitor - Meaning of

Issues:

  1. Whether the learned trial judge was right to rely on the police report tendered by the plaintiff/respondent to find the defendant/ appellant liable in negligence when the police officer who allegedly made the report was not called to give evidence and was not cross-examined on the report.
  2. Whether the learned trial judge was right to award the sum of N6,978,844.00 (sixty million, nine hundred and seventy-eight thousand, eight hundred and forty-four naira) as special damages in favour of the respondent when the respondent did not establish special damages in the manner required by law.
  3. Whether the sum of N60,000,000.00 (sixty million naira) awarded by the learned trial judge as general damages was not excessive and too high having regard to the fact that the respondent did not adduce the proper evidence to support the specific nature, degree, effect of the injuries and alleged disability.
  4. Whether the learned trial judge was right to hold that the 2nd defendant caused the accident.

Facts:

In the High Court of Cross River State, the respondent commenced an action as plaintiff, claiming that while she was travelling in a Chartered Toyota Corrola car on 7 February 2006, the 2nd defendant now appellant, who was driving a Mercedes Benz Tipper Lorry belonging to the 1st defendant veered off his lane and hit her vehicle. That as a result of this, an accident occurred involving three vehicles in which 6 people lost their lives, that she was injured and treated in various hospitals. She claimed against the 1st and 2nd defendants jointly and severally for negligence and breach of duty on the part of the 2nd defendant and for which 1st defendant is vicariously liable. In the alternative, she raised res ipsa loquitor. She further claimed special and general damages. The respondent called three witnesses to testify and tendered several exhibits in proof of her claim. The appellants denied respondent’s claims. The trial court granted judgment in favour of the respondent. Not satisfied, the appellants filed an appeal to the Court of Appeal, challenging the decision of the trial court on grounds that it relied on police report tendered by the respondent to find the appellants negligent when the maker was not called or cross-examined thereon, the respondent failed to establish the special damages claimed and the general damages awarded were excessive.

In determination of the appeal, the Court of Appeal considered the following statute:

Evidence Act, 2011, section 10

“In proceedings in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.”