Justice denied or given?: The ‘no victor, no vanquished’ Nigeria Supreme Court verdict of Adim Vs Nigeria Bottling Company

MR FELIX NWOYE ADIM V. NIGERIAN   BOTTLING COMPANY PLC & ANOR

CITATION: (2010) LPELR-SC.56/2003

In The Supreme Court of Nigeria

On Friday, the 30th day of April,   2010

Suit No: SC.56/2003

Before Their Lordships

Between

And

(b) Costs of this action to be assessed but not below N100,000.00 (One   Hundred Thousand Naira).”

At the trial, the plaintiff filed a fifty paragraph (50) Statement of Claim,   while the defendants filed a thirteen (13) paragraph Statement of Defence.   The plaintiff testified in support of his claims and called two other   witnesses, the defendants rested their case on the evidence adduced by the   plaintiff and did not call evidence. With the consent of the parties written   addresses were filed by the parties, In the judgment delivered by the trial   judge, he partially found for the plaintiff as follows:-

“Judgment is hereby entered for the plaintiff against the two defendants   jointly and severally as follows:-

(1) Special damage

Damage to property – Exhibit D

U.T.C. Estimate N879,793.95.

(2) Medical bills – Exhibits E and E1

N162,750.00

(3) General damages is assessed at

N200,000.00.

I am of the opinion that since the other occupants were paid for by the   plaintiff and were hospitalized on his own account, he has the right to claim   for their expenses without making them parties to this action.   xxxxxxxxxx”

(4) Costs N80,000.000.”

At the hearing, the plaintiff has claimed for loss of use of his damaged   vehicle for 119 days from 29/10/97 to 24/2/98 and from then to the date of   judgment at rate N2,500.00 per day, but the trial judge did not make award   for loss of use. The plaintiff felt unhappy and appealed to the Court of   Appeal on that point. The defendants also felt dissatisfied with the judgment   and also cross-appealed to the Court of Appeal. In its determination of the   issues for the determination of the appeal and the cross appeal, the Court of   Appeal, as per the lead judgment of Oguntade JCA (as he then was), which was   concurred to by Galadima JCA and Aderemi JCA (as he then was) decided:-

“In the final conclusion, I make the following orders:

(1) The appeal by the plaintiff fails. It is dismissed.

(2) The appeal by the defendants partially succeeds. The award of N200,000.00   as general damages is set aside in its place I award N20,000.00.

(3) The award of N80,000.00 as costs is set aside in its place, I award   N10,000.00.

(4) The judgment of the lower Court is affirmed in other respects.

I make no order as to costs.”

The plaintiff still feels dissatisfied with the decision of the Court of   Appeal and has further appealed to this Court. The Notice of Appeal filed   against the judgment of the Court of Appeal contains two grounds of appeal.   The defendants also felt unhappy and have filed a further appeal to this   Court. The Notice of Cross–appeal filed on 12/3/2003 contains three   grounds of appeal. In compliance with the rules of this court, the parties   have filed briefs of argument. Now, in this judgment, the plaintiff shall   hereinafter be referred to as the appellant or the cross respondent while the   defendants as the respondents or the cross appellants. Issues for   determination have been submitted in the appellant’s brief as follows:-

“(1) Was the Court of Appeal right to have disallowed the appellant’s   claim for loss of use?

(2) Was the Court of Appeal right to in reducing the general damages and   costs awarded the appellant in this case?

In their amended Respondents/Cross-Appellants’ brief the respondents/cross   appellants more or less adopted the appellant’s issues for determination and   have •submitted two further issues for the determination of the   cross-appeal:-

“(1) Whether the Court below rightly confirmed the awards of Special   damages for the cost of the repairs of the appellant’s car and medical bills   expenses for the appellant and three other occupants of the car.

(2) Whether Court below rightly awarded the stun of N20,000.00 in favour of   the appellant as general damages.”

I will first consider the appeal by the appellant before dealing with the   cross–appeal.

Issue No.(1) of the appellant is the complaint whether the Court of Appeal is   right in failing to make an award with reference to the claim of the loss of   use of the appellant’s vehicle as a result of the accident? There is no   dispute whatever that the appellant pleaded and led evidence as to the loss   of use. In paragraph 46 of the Statement of Claim the appellant pleaded:–

“46.(c) Loss of use at N2,500.00 (Two thousand and five hundred Naira   only) per day for One hundred and nineteen days 119 (29/19/97 – 24/2/98 =   N297,500 (Two Hundred and Ninety-seven Thousand and Five hundred Naira).

(d) Loss of use from 24/10/98 to the time judgment will be given at N2,500.00   per day (to be determined after judgment.)

In support of the above averment, the appellant as P.W.1 testified at page 21   of the printed record as follows:

“I have suffered loss of the use of the car. I have lost four   hundred and eighty four days (484 days) to date at W2,500.00 per day which   gives a total of one million two hundred and ten thousand naira only (N1,21   0,000.00). I communicated all these to the 1S defendant through the firm of   my present solicitor. This is the letter written by counsel Exhibit F.”

The appellant was not cross-examined by the respondents on this point. In its   judgment the trial Court did not refer to this claim as pleaded and the   evidence adduced. The trial Court did not discuss this in its judgment. The   Court of Appeal considered the evidence as grossly insufficient, it opined   that the item of the damages for loss of use is in the category of special   damages and must be strictly proved. It held that–

“There was no evidence as to alternative means of transportation   which the plaintiff used and which costs N2,500.00 per diem. There was no   evidence as the places which the plaintiff had to go which necessitate the   expenditure was it a private car that was hired or a taxi? Where were the   receipts for such expenditure as high as one million two hundred and ten   thousand naira?”

The Court of Appeal held that the appellant had failed to prove that head of   claim and accordingly disallowed the claim for loss of use. It is submitted   that the respondents did not even cross examine the appellant on his   testimony: on the loss of use of his vehicle and since the lower courts   agreed that it was the fault of the respondents that caused damage to the   appellant’s car, the appellant needed not produce receipts. It is submitted   that the appellant’s evidence remained unchallenged and uncontradicted. It is   argued that the Court of Appeal was in error to have descended into the arena   and build a case for the respondents the court ought to confine itself to the   issues raised by the parties vide AJOWON VS. AKANNI (1993) a NWLR (Pt.   316) 182 HAYAKI VS. DOGARA (1993) 8 NWLR (Pt. 313) 586. It is submitted   that since the respondents did not raise the issue of receipts, the Court of   Appeal has no right to demand that from the appellant. It is finally   submitted that the evidence led by the appellant is sufficient proof of loss   of use.

The Learned counsel for the respondents on the other hand submits that the   issue of loss of use under the circumstances is a claim of special damages   which must be specifically claimed and strictly proved. The appellant had   failed to adduce any evidence of how he incurred or arrived at the sum of   N2,500.00 per day, as loss of use. Learned counsel cites S.P.D.C. (NIG.)   LTD. VS. TIEBO VII (2005) 9 NWLR (Pt. 931) P.439. It is again submitted   that the mere fact that the evidence is not challenged is not enough. Where a   person claims an item of special damages the law requires him to prove the   damage strictly and not leave the Court to guess or speculate. Failure of the   defendant to challenge the items claimed does not lessen the requirement of   the strict proof on the plaintiff see S.P.D.C. VS. TIEBO supra, OKORONKWO   VS. CHUKWEKE (1992) 1 NWLR (Pt. 216) 175, AGBAJE VS. JAMES 1967 NWLR 49 IMANA   VS. ROBINSON (1974) 3-4 .SC 1. A.C.B VS. NEKA B.B.B.. MANUFACTURING CO. LTD   (1996) 4 NWLR (Pt. 444) 564. SHEHU VS. AFERE (1989) 7 NWLR (Pt. 556) P.115.

It is again submitted that the question of damages in action and whether   general or special is always in issue except when it is admitted by the   defendant. NGILARI VS. MOTHERGAT LTD. (1999) 13 NWLR (Pt. 636) P.626 OSUJI   VS ISIOCHA (1989) 3 NWLR (Pt. 111) 623, PRODUCE MARKETING BOARD VS. A.O.   ADEWUNMI (1972) 11 SC 111.

It is further submitted that the appellant sin1ply failed to specifically   plead and lead evidence in strict proof of the claim of loss of use, the   Court of Appeal is not making a case for the respondents or that it descended   into the arena, it is merely illustrating the gap between the evidence and   the pleading.

Now, in law of tort, there is   a distinction between special and general damages. A special damage is such a   loss that will not normally be presumed as the natural consequence of the   defendant’s fault, but which depends on the special circumstances of the case   and therefore it must be specifically pleaded and strictly proved by   evidence. General damages on the other hand is such a loss which flows   naturally from the defendant’s act. It needed not be specifically pleaded, it   arises by inference of law and need not be proved by evidence, it suffices if   it is generally averred in the pleading. See INCAR VS. BENSON   (1975) 3 SC 117. In the case of BRITISH TRANSPORT COMMISSION VS. GOURLEY   (1956) A.C. Pg. 185 at Page 206 GODDARD CJ stated:-

“xxxxxxxx damages are always divided into two main parts. First,   there is what is referred to as special damage, which has to be specially   pleaded and proved. This consists of out- of – pocket expenses and loss of earnings   incurred down to the date of trial, and is generally capable of substantially   exact calculation. Secondly, there is general dan1age which the law implies   and is not specially pleaded. This includes compensation for pain and   suffering and the like, and, if the injuries suffered are such as to lead to   continuing or permanent disability, compensation for loss of earning power in   the future.”

See ODULAJA VS. HADDAD (1973) 11 SC 351. ODUMOSU VS. A.C.B. (1976) 11 SC   55. ROCKONOH PROP CO. LTD. VS. NITEL (2001) 14 NWLR (Pt. 733 468.

The claim by the appellant for loss of use of his vehicle after the accident   is clearly a claim in special damage which must be specially pleaded and   proved. I have above reproduced the appellant’s pleading with reference to   the claim. In the instant case the appellant is claiming loss of use as   special damage by quantifying the amount he spent at the rate of N2,500.00   per day. But the pleading went too short to discuss the reasons for the   expenditure whether the vehicle was used as a taxi and earned N,500.00 per   day or whether the appellant was forced to hire a vehicle at the rate of   N2,500.00 per day for his business or for doing any thing of the like or for   private personal use. As shown above, the law will not infer the damage, it   must be properly and specifically particularized in the pleading and adequate   evidence given. See the case of B.E.O.O. VS. MADUAKOH (1975) 12 SC 91.   It is improper for a court to   award special damages on incomplete and inconclusive facts given from memory   which have not been documented elsewhere. See AGBAJE VS. JAMES (1967) NMLR   49, AGUNWA VS. ONUKWE (1962) 1 ALL NLR 537. The particularity of the pleading   and the evidence must be such that the losses are exactly known and   accurately measured. See IMANA VS. ROBINSON (supra).

It must be measurable and quantifiable. The nature of the pleading and the   evidence must establish the entitlement to such damages which will   immediately lend to the measurement and quantification of the losses. See DUMEZ   VS. OGBOLI (1972) 3 SC 196. But where there has been a proper and   adequate pleading, the unchallenged evidence, without more can constitute   sufficient proof of special damage. See ADEL BOSHALI VS. ALLIED COMMERCIAL   EXPORTERS LTD (1961) ALL NLR 917, ODULAJA VS. HADDAD (supra) N.M.S.L. VS.   AFOLABI (1978) 2 SC 79. But clearly in the case at hand, the pleading and   the evidence of the appellant, which I have reproduced above are not in the   nature and character required in claims of special damages perhaps that might   be the reason or reasons why the trial judge did not bother to refer to the   claim in his judgment. I have referred to the judgment of the Court of Appeal   on this matter and applying the principles recited above, I agree with the   decision that the appellant had failed to adequately plead for the special   damages in his Statement of Claim and the evidence led is clearly   insufficient to ground a claim of special damages. I accordingly resolve the   1st issue against the appellant. The Court of Appeal was right to have   disallowed the claim for special damages for loss of use as testified and   pleaded by the appellant.

Issue 2

“Was the Court of Appeal right in reducing the general damages   and costs awarded the appellant in this case?

It is submitted that in a proper case an appellate Court has the power to   review the award of damages granted by the trial Court. Learned counsel   referred to the cases of ALLIED BANK OF NIGERIA LTD. VS. AKABUEZE (1997) 6   NWLR (Pt. 509) Page 374, HIS HIGHNESS UYO VS. NIGERIAN NATIONAL PRESS LTD   (1974) 6 SC 103, in which case ZIK’s PRESS LTD VS. ALVAN IKOKU (1951) 13 WACA   P. 188. It is submitted that the circumstances does not exist in this   case to warrant the Court of Appeal to reduce the general damages from   N200,000.00 to N20,000.00, learned counsel refers to IMAH VS. OKOGBE   (1993) 9 NWLR (Pt. 316) 159 ONAGA VS. MICHO (1961) NSCLR Page 101, IJEBU ODE   LOCAL GOVERNMENT VS. BALOGUN & CO LTD. (1991) 1 NWLR (Pt.166) P.136. BOLA   VS. BANKOLE (1986) 3 NWLR (Pt. 277) Page 141.

It is submitted that the respondents merely stated before the lower Court   that the sum of N200,000.00 awarded as general damages was excessive, they   never gave any circumstances warranting the reduction of the damages,   especially in a situation where the respondents did not even testify to   question the suffering of the appellant and the other occupants of the car.   Learned counsel referred to the case of STEPHEN OKONKWU VS. NNPC (1989) 4   NWLR (Pt. 115) 296 at 319.

For the respondents it is submitted that by their pleadings the   appellants claimed special and general damages ‘and that the award of   N200,000.00 as general damages was too high having regard to the pleaded   claim of N300,000.00. Learned counsel referred to the case of W.A.S.A VS.   KALLA (1978) 3 SC 21.

It is submitted that it is trite law that an appellate Court will only   interfere with award of general damages under certain conditions and learned   counsel referred to UBA PLC VS. BTL IND. LTD (2006) 19 NWLR (Pt 1013) P.   61 OKAFOR VS. OKITIAPE (1973) 2 SC 49; UBN LTD VS. ODUSOTE BOOKSTORES LTD.   (1995) 9 NWLR (Pt. 421) p. 55; OSUJI YS. ISIOCHA (1989) 3 NWLR (pt. 111) P.   623.

It is submitted with reference to the issue of costs, that the appellant   had failed to canvass any argument on the reduction of the costs from   N80,000.00, as fixed by the trial judge, to the N10,000.00 as assessed by the   Court of Appeal. The failure to advance any argument amounts to an   abandonment of the complaint and this Court should discountenance it, vide EGBEDU   VS. I.G.P. (2006) 5 NWLR (Pt. 972) P. 146 at 155, NWOSU VS. MBADUGBA (2000) 1   NWLR (Pt. 641) 486.

Now, the principles upon   which an appellate court acts in an appeal against the quantum of damages are   well settled and were stated thus by Greer, LJ in FLINT VS. LOVELL (1935) 1   KB 354 at P. 360 “In order to justify reversing the trial judge on the   question of the amount of damages it will generally be necessary that this   Court should be convinced either that the judge acted upon some wrong   principle of law, or that the amount awarded was so extremely high or so very   small as to make, in the judgment of this court an entirely erroneous   estimate of the damage to which the plaintiff is entitled.”   See EZEKWE VS. OTOMEWO (1958) WNLR 61 at 68.

An appellate Court may   only interfere with an award of damages when the award is manifestly too high   or too low or is based on the wrong principles of law. See AFRICAN NEWSPAPERS   LTD VS. CIROMA (1996) 1 NWLR (Pt. 423) 156. It is also the law, that the   appellate Court ought not upset an award of damages merely because if it had   tried the matter it would have awarded a higher or lesser amount. See JAMES   VS. MIDMOTORS (NIG) LTD. (1978) 11 – 12 SC 31 ZIK’s PRESS LTD VS. IKOKU   (supra) WILLIAMS VS. DAILY TIMES (1990) 1 NWLR (Pt. 24) 110 the case of   OLOROTIMI VS. IGE (1993) 8 NWLR (Pt. 311) 257. This Court   held that it is not enough for the trial Court (or the Court of Appeal) to   simply award damages in action where damages are recoverable without giving   any reasons as to how it arrived at what amounted to the reasonable damages.   See also UMUNNA VS. OKWORAIWE (1978) 6 7 SC 1., I.C.C. YS. AJANAKU (1969)   6 NSCC 44 at 50. But, before an appellate Court will interfere, it must   be satisfied that the trial court had acted upon a wrong principle of law in   making the award or that the amount awarded is so ridiculously low or   extravagantly high as to make an erroneous estimate of the damages see ONAGA   VS. MICHO supra.

Now with reference to the issue of general damages in this case, the learned   trial judge merely stated:

“General damages is assessed at N200,000.00.”

Now, in its consideration of the assessment of the award of general dan1ages,   the Court of Appeal stated in its judgment:-

“The respondent is also contending that there is no basis for the   award of N200,000.00 as general damages. The plaintiff had claimed   N300,000.00 as general damages. xxxxxx was there a justification in the   circumstances for the award of N200,000.00 as general damages?

xxxxxx considering that the trial judge in the instant appeal has awarded   damages on items of special damages, it is my view that the award N200,000.00   as general damages was manifestly too high. See WASA VS. KALLA (1978) 3 SC   2. I would reduce it to N20,000.00“.

I am in total agreement with the decision of the Court of Appeal. The learned   trial judge having awarded all the special damages claimed and proved, gave   no reasons as to how he arrived at the high figure of N200,000.00 from the   claim of N300,000.00 as contained in the appellant’s Statement of Claim. I   find no merit whatever in the complaint of the appellant, under the   circumstances, the Court of Appeal is justified in reducing the amount. To   award the sum of N200,000.00 in the circumstances of this case when all the   properly, pleaded and proved special damages were awarded will amount to   double compensation.

On issue of the costs, unfortunately the learned counsel for the .appellant   completely failed to canvass or submit any argument. I accordingly agree with   the learned counsel for the respondents that the appellant is deemed to have   abandoned that part of the issue. But the law is that there is a distinction   between costs awarded according to settled principles, and costs awarded in   the exercise of a discretion on particular facts. Whereas appeal lies in   respect of the former, which is the exercise of discretion, there is no   appeal in respect of the later even from the erroneous exercise of discretion   which is based on private opinion of the judge. ‘See UBA LTD VS. STAHLHAU   GMBH (1989) 3 NWLR (Pt. 110) 374.

In any event, ordinarily, appellate Court does not interfere with the   award or refusal of costs see MALLAM IDI WORNO VS. UNITED AFRICAN CO. LTD.   (1956) 1 F.S.C. 33; REWANE VS. OKOTIEEBOH (1960) SCNLR 461; but, as   mentioned above, the appellant offered no argument in support of the part of   issue No.2 dealing with the reduction of the costs awarded by the learned   trial judge by the Court of Appeal. I take it the appellant has abandoned the   complaint. So issue No. 2 is resolved against the appellant and this means   that the appellant’s appeal fails in toto.

I shall now deal with the cross-appeal: The cross-appellant has also   identified two issues for the determination of the appeal as recited above.

Issue 1

“Whether the Court below rightly confirn1ed the award of special   damages for the cost of the repairs of the appellant’s car and medical bills   for the appellant and three other occupants of the car.”

It is submitted on behalf of the cross-appellants, that the   cross-respondent’s claims for repairs of his vehicle and the medical bills   are clams of special damages which must be specifically pleaded and strictly   proved. Learned counsel referred to the cases of SALEH VS. B.O.N. LTD   (2006) 6 NWLR (Pt 976) 316, AJIKAWO VS. ANSALDO (NIG) LTD (1991) 2 NWLR (Pt.   173) 359. It is further argued that the onus of strict proof is always on   the claimant even if the defendant did not challenge or contest the claim.   Learned counsel referred to the cases S.P.D.C. (NIG) LTD VS. TIEBO VII   (supra) and A.C.B. VS. NEKA B.B.B. MANUFACTURING (SUPRA). It is submitted   that the lower courts were in error to have accepted as strict proof, the   mere estimate of the cost of repairs made by U.T.C. engineer who was not   called as a witness. Learned counsel referred to the case of A.G. OYO   STATE VS. FAIRLAKES HOTELS No.2 (1989) 5 NWLR (Pt.121) 255. SOMMER VS. F.R.A.   (1992) 1 NWLR (PART 219) 548, ADEDEJI AND SONS MOTORS LTD VS. IMMEH (1996) 8   NWLR (Pt. 465) 240.

It is further submitted that the cross-respondent had also failed to give   oral evidence of the cost of each item of treatment, the appellant merely   pleaded medical bills without a break down of the items of treatment carried   out on him and other occupants of the car.

Now, in this judgment I have discussed the circumstances in which an   appellate court may review the award of damages by a lower court. I do not   think it is necessary for me to repeat the principles while dealing with this   Issue. It must be understood that the cross-appellant is not complaining on   the adequacy of the pleading of the special damages for the repairs of the   car and medical bills but of the proof offered by the appellant/cross   respondent. I have also discussed the principles of the law on this point.

Now, the Court of Appeal as per the judgment of OGUNTADE JCA (as he then was)   affirmed the judgment of the trial court in that the cross-appellant did not   challenge the evidence led by, the cross-respondent in proof of the special   damages. The learned justice stated, at page 126 of the printed record, thus:

“The respondents under their second issue contend that the   plaintiff did not prove special damages claimed for the repairs of the   vehicle and hospital bills. xxxxx

The plaintiff tendered the estimate from the U.T.C. Motors and hospital bills/receipts   as Exhibits D – D1 and E – E1. Testifying in support of the claim the   plaintiff said:

“I called UTC workshop Apapa and two engineers were sent to   evaluate the damages. I reminded Dayo Dosunmu that some of us were still   hospitalized and that a medical bill will be sent to them. UTC Motors   estimated the damages and issued an estimate of repairs to be done. xxxx I   made an advance payment of N50,000.00 for medical treatment the balance of   N112,000.00 plus has not been paid.xxxxxxx. “

“The defendants did not even contest the an10unt claimed as estimates of   repairs. This could have been done by showing that the estimates made were   excessive. Now in NIGERIAN M. SHIPPING LINE VS. AFOLABI (1978) 2 SC 79,   the Supreme Court at pages 81 – 82 discussed the Approach when a claim of   Special damage is not disputed.

xxxxxxx. “

The defendants in paragraph 6 and 7 of their Amended Statement of Defence had   pleaded:-

“6. The defendants in answer to paragraph 26 of the Statement of Claim   say that the said UTC

estimate is exaggerated, excessive and unreasonable in the circumstances.

7. The 1st defendant being dissatisfied with the report of the UTC Engineers   their own engineering MENS FOLA Engineering Consultants to inspect the   vehicle and submit an estimate of repairs. The defendants will found and rely   on the report at the trial of this suit.”

Through out the hearing, the defendants did not n1ake the case that the   amount claimed by the plaintiff for repairs was excessive.

xxxxxxxxx. “

Thus, although the cross-appellant said the estimate was excessive and that   they would tender another estimate at the hearing of the matter, they failed   to do so. As a matter of fact, the appellant cross-respondent was not   seriously cross-examined on the issues of the items of special damages. As   mentioned above, an appellate court will only interfere with the award of   damages if there was no evidence to justify the award or the appraisal of the   facts was unrealistic. The cross-appellants in the instant case merely pleaded   that the amount claimed were “excessive exaggerated and   unreasonable” and offered no evidence in support of such a claim when   they even averred that they would do so. Considering all the circumstances of   the case, it cannot be correct to say that the appellants offered no credible   evidence in support of the claims of special damages See CHANRAI VS.   KHAWAM (1965) 1 ALL NLR 182.

It has been held by this court, in the case of OSHINJINRIN &   OTHERS VS. ALHAJI ELIAS & OTHERS (1970) 1 ALL NLR 153, that the   “rule about special damages is that it must be strictly proved, this   does not however mean that the law has set a minimum measure of evidence or   that the law has laid down a special category of evidence required to   establish special damages.•• What is required is that the claimant should   establish his claim by credible evidence that he is entitled to special   damages.”

On the issue of whether Exhibit E – E1, the estimates of the UTC engineers   were hearsay and inadmissible, this is clearly a new issue for which no leave   of this court nor of the Court of Appeal was sought and obtained. It is   raised for the first time in this court. I have discountenanced it. Both   parties pleaded estimates by engineers, and both parties averred to rely on   the estimates, the appellant’s estimates of repairs were admitted in evidence   without objection and the cross-appellant failed to adduce any evidence to   the contrary, in my view, it is unjust at this stage to object to the   document. If an objection was raised at the trial, the appellant would have   called the engineers to testify. Unchallenged evidence ought to be accepted   by the court as proof of the facts contained therein under the circumstances   documentary evidence may be admitted in court proceedings through any witness   by consent of the parties or without any objection See IGBODIM VS. OBIANKE   (1976) 9 – 10 SC 79. The wrongful admission of evidence may not   necessarily fatally affect the decision of a court unless the use of the   evidence has brought about a miscarriage of justice or if the evidence is in   any event inadmissible. See UGBALA VS. OKORIE (1975) 12 SC 1. I accordingly   resolve issue No. 1 against the cross-appellant.

Issue 2

“Whether the Court below rightly awarded the sum of N20,000.00 in   favour of the appellant as general damages.“

It is submitted that the further award of N20,000.00 as general damages   amounts to double compensation, reduce it or out rightly refuse it.

I have in this judgment discussed the attitude of an appellate Court in   relation to an appeal on award of damages. In BENSON VS. ASHIRU (1967) 1   ALL NLR 184 it was held that an appeal court can easily decide whether or   not damages awarded by the lower court shall be upheld or reviewed only when   such lower court has set out the reasoning by which it arrived at such   estimate. The learned justice of the Court of Appeal considered the sum of   N200,000.00 awarded by the trial judge as general damages on the high side   after an award of special damages and thus reduced the amount of general   damages to N20,000.00. I do not think that the amount of N20,000.00 as   general damages in addition to the proven special damages is too high under   the circumstances. It is evident that the appellant and members of his family   were hospitalized as the result of the accident. They had suffered   inconveniences, injuries, pains and sufferings. The law allows general   damages in addition to the special damages in such circumstances. I find no   merit in this complaint.

In the result both the appeal and the cross appeal are rejected by me and   both are dismissed. I make no order as to costs.

W. S. N. ONNOGHEN. J.S.C: I have had the benefit of reading in draft   the lead judgment of my learned brother MUSDAHPER JSC just delivered. I agree   with his reasoning and conclusion that both the main appeal and cross appeal   has no merit and should be dismissed.

I have nothing useful to add as my learned brother has dealt with the issue   for determination exhaustively.

I therefore order accordingly and abide by the consequential orders made in   the said lead judgment including the order as to costs.

Appeal and cross appeal dismissed.

I. T. MUHAMMAD. J.S.C: I read before now the judgment of my learned   brother Musdapher, JSC. I agree with his reasoning and conclusion. I too   dismiss both the main and the

cross appeals. Each party shall bear his/its own costs.

C. M. CHUKWUMA-ENEH, J.S.C; I have read before now the judgment   prepared by my learned brother Musdapher, JSC and just delivered. I agree   with his reasoning and conclusion that the appeal and cross-appeal should be   dismissed for want of merit. And I so dismiss the appeal and cross-appeal. I   endorse the order of costs as stated in the lead judgment.

O. O. ADEKEYE, J.S.C: I was privileged to read in draft the judgment   just delivered by my learned brother, D. Musdapher JSC. I entirely agree with   his reasoning and conclusion.

My Lord had meticulously considered all the issues raised for determination –   I therefore have nothing useful to add. I also conclude that the main appeal   and cross appeal have no merit, they are therefore dismissed. I adopt the   consequential orders particularly the order made as to costs as mine.

Appearances