ABUBAKAR & ANOR v. JOSEPH & ANOR (SC 10/2002) [2008] 9 (06 June 2008);

IN THE SUPREME COURT OF NIGERIA

On Friday, the 6th day of June 2008

SC 10/2002

Between

ABUBAKAR & ANOR ............................................................................APPELLANT

And

JOSEPH & ANOR ..................................................................................... RESPONDENT

Before:

Sylvester Umaru Onu; Niki Tobi; George Adesola Oguntade; Mariam Aloma Mukhtar; Ikechi Francis Ogbuagu, Jjsc

ISSUES

Whether the Court of Appeal correctly made a finding on issues that were not pleaded, but did not make a finding on the claims of negligence that had been pleaded.

Whether the appellants were entitled to damages arising from the claims of negligence.

FACTS

The appellants claimed that the first respondent, an employee of the second respondent, caused damage to their vehicle, a Fiat T3 trailer, by driving a Fiat trailer negligently and crashing into their vehicle. They therefore commenced an action at the Minna High Court of Niger State for special and general damages.

The respondents denied such negligence and averred that the accident was caused by the negligence of the first appellant’s driver in overtaking another vehicle and colliding with the respondent’s vehicle. They counter-claimed for general and special damages. The trial court granted plaintiff’s claims; the defendants appealed to the Court of Appeal where the appeal was allowed. Aggrieved, the plaintiffs appealed to the Supreme Court.

HELD

Leading judgment by George Adesola Oguntade, JSC; with S.U. Onu, N. Tobi, A.M. Mukhtar, I.F. Ogbuagu JJSC concurring

1. Pleadings define issues

The object of pleadings is to compel the parties to define, accurately and precisely, the issue upon which the case is to be contested. This is in order to avoid any element of surprise by either party. Parties are bound by their pleadings. Per Ogbuagu, JSC at 24.

2. Particulars of negligence must be pleaded

He who pleads negligence should not only plead the act of negligence, but should also give specific particulars. The mere occurrence of an accident is not proof of negligence. It is not enough to prove that there was an accident. It must be proved that the accident was as a result of the negligence. That is, the circumstance, nature and extent of the accident must be pleaded and proved. Per Ogbuagu, JSC at 24.

3. Evaluation of evidence by Appeal Court

For a judge to produce a judgment which is a fair and just verdict on a case, he must fully consider the evidence proffered by all the parties before him, ascribe probative value to it, make definite findings of fact, apply the relevant law and come to some conclusion. Where a court failed to properly evaluate the evidence, and arrived at a decision which is perverse, the Court of Appeal has a duty by way of hearing, to evaluate the evidence that has been adduced. Per Ogbuagu, JSC at 24.

4. Act of negligence not pleaded

While the evidence suggested that the second respondent had driven negligently by leaving his own lane of travel, this had not been pleaded by the appellants. Whatever evidence adduced in the course of a trial that is not in conformity with the pleadings, becomes a non-issue and must be ignored. Per Mukhtar, JSC at 22.

5. Evidence outside the ambit of pleadings

Evidence that fell outside the ambit of pleadings has to be ignored. Per Mukhtar, JSC at 22.

6. How to determine the negligent party in a case of motor accident

In cases of motor accidents, the test to be applied in determining who was negligent is to look for the person whose negligence substantially caused the accident by determining whether or not that person could have avoided the collision by the exercise of reasonable care. Per Tobi, JSC at 15.

7. Burden of proof

The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars negligence pleaded will be fatal to the case of the plaintiffs. This knocks the bottom of the plaintiff’s/appellant’s case, and the issue of damages does not arise, as no negligence has been established. Per Tobi, JSC at 15.

M.N. Ibrahim Esq. (Moses E. Agwulonu with him) for the appellants

Y.C. Maikyau Esq. (Miss P.Y. Tukhur and Miss S.I. Adamu with him) for the respondents

The following cases were referred to in this judgment:

Nigeria

Abdullahi v Elayo (1993) 1 NWLR (Part 479) 62

Adegoke v Adidi (1997) 5 NWLR (Part 242) 410 CA

Adenuga v Lagos Town Council 13 WACA 125

Adeoshun v Adisa (1986) 5 NWLR (Part 40) 255

Adesanya v The State (1978) 3 FCA 185

African Continental Bank Ltd v Northern Nigeria (1967) NMLR 231

Agbaka & others v Amadi & another (1998) 11 NWLR (Part 572) 16, (1998) 7 SCNJ 367

Agbomagbe Bank v C.F.A.O (1961) 1 All NLR 140

Ajide v Kelani (1985) 3 NWLR (Part 12) 248

Akanbi v Alatede (Nigeria) Ltd (2000) 1 NWLR (Part 639) 135

Akanbi v Raji (1998) 12 NWLR (Part 578) 360

Aku Nmecha Transport Services (Nigeria) Ltd & another v Atoloye (1993) 6 NWLR (Part 298) 233

Alashe & others v Olori Ilu & others (1965) NMLR 66

Amadi v Okoli & others (1977) 7 SC 57

Anabogu v The State (1965) NMLR 167

Are v Adisa (1967) NMLR 359

Atama v Amu (1970) 1 SC 237

Audu v Ahmed (1990) 5 NWLR (Part 156) 287

Bada v The Chairman L.E.D.B SC 501/65 of 23 June 1967

Bello v Kassim (1969) NMLR 148

Buckley Ltd v Akura (1986) 5 NWLR (Part 44) 752

Bunyan v Akingboye (2001) FWLR (Part 41) 1977

Confidence Insurance Ltd v Trustees of S.O.C.E. (1999) 2 NWLR (Part 591) 373

Dr Ochin & 15 others v Prof. Ekpechi (2002) 5 NWLR (Part 656) 225

Duru & another v Nwosu & others (1989) 4 NWLR (Part 113) 24; (1989) 7 SCNJ 154

Edok Eter Mandilas Ltd v Ale (1985) 3 NWLR (Part 11) 43

Egbe v Alhaji (1990) NWLR (Part 128) 546

Egbue v Araka (1988) 3 NWLR (Part 84) 598

Ekponyong & others v Chief Ayi & another (1973) 5 SC 169

Elias v Omobare (1982) All NLR 75

Emegokwue v Okadigbo (1973) 4 SC 113

Erinle v Adelaja SC 332/1966 of 6 June 1979

Esigbe v Agholor (1990) 7 NWLR (Part 161) 234

Eze v Atasie (2000) 10 NWLR (Part 676) 470

Ferdinand George v The United Bank for Africa Ltd SC 209/1971 of 29 September 1972 reported in [1972] 8/9/SC 264

Gabriel Agu v Nwakanma Atuegwu 21 NLR 83

George v Dominion Flour Mills Ltd (1963) 1 SCNLR 177

Gwani v Ebule (1990) 5 NWLR (Part 149) 201 CA

Ibanga & others v Usanga & others (1982) 5 SC 103; (1982) 1 ANLR 88

Ibrahim v Ojomo & others (2004) 4 NWLR (Part 862) 89; (2004) 1 SCNJ 309; (2004) 1 SC (Part II) 136

Idahosa v Oronsaye (1959) 4 FSC 166

Ikenye v Ofunne (1985) 2 NWLR (Part 5) 1

Imeh & another v Okogba & another (1993) 9 NWLR (Part 316) 159; (1993) 12 SCNJ 57

International Messengers (Nigeria) Ltd v Pegafor Industries Ltd (2005) 5 SCNJ 120

Jahanmi v Saibu (1977) 2 SC 89

Kalla v Jarmakaru Transport Ltd (1961) All NLR 747

Kalu Njoku & others v Ukwu Eme & others (1973) 5 SC 293

Lawson v Afani Continental Co Nigeria Ltd & another (2002) 2 NWLR (Part 252) 585

Leke v Soda & others (1995) 2 NWLR (Part 378) 432

Lions Building v Shodipo (1976) 12 SC 135

Madueke v Madueke (2000) 3 NWLR (Part 655) 3

Mercantile Bank of Nigeria Ltd v Abusomwan (1986) 12 NWLR (Part 22) 270

National Investment and African Seaways Ltd v Nigerian Dredging Road & General Works Ltd (1977) 5 SC 235

National Investment and Properties Co Ltd v Thompson Organisation Ltd & others (1969) NMLR 99

Ngilari v Mothercat Ltd (1999) 13 NWLR (Part 636) 626; (1999) 12 SCNJ 101

Nigeria Bank Plc v M. Abubakar & Sons (2004) 17 NWLR (Part 901) 66

Njoku & others v Eme & others (1973) 3 ECSLR 253

Njoku v Eme (1973) 5 SC 293

Northern Brewery Ltd v Mohammed (1973) 1 NMLR 19

Nta & others v Anigbo & others (1972) 5 SC 156

Nwachukwu v Egbuchu (1990) 3 NWLR (Part 139) 435 CA

Obimiami Brick & Sons Nigeria Ltd v African Continental Bank Ltd (1992) 3 NWLR (Part 229) 260; (1992) 3 SCNJ

Ochin v Ekpechi (2002) 5 NWLR (Part 656) 225

Odinaka & another v Moghalu (1992) 4 NWLR (Part 233) 1; (1992) 4 SCNJ 43

Odulaja v Haddad (1972) 1 All NLR 191

Oforkire & another v Maduike & 5 others (2003) 5 NWLR (Part 812) 166; (2003) 1 SCNJ 440

Ogboda v Adulugba SC 3/70 of 12 February 1971

Ogidi & 7 others v Igba & 5 others (1999) 6 SCNJ 157

Okagbue & others v Janet Romaine (1982) 5 SC 133

Okeowo v Sanyaolu (1986) 2 NWLR (Part 23) 471

Okoro & others v Udom & others (1960) 5 FSC 162

Okunoren v U.A.C. Ltd 20 NLR 25

Olarewaju v Bamigboye (1987) 3 NWLR (Part 60) 353

Olohunde v Adeyoju (2000) 10 NWLR (Part 676) 562

Olufosoye v Olorunfemi (1989) 1 NWLR (Part 95) 26

Olukade v Alade (1976) 2 SC 183; (1976) 1 ANLR 67

Onuwaje v Ogbeide (1991) 3 NWLR (Part 178) 147

Orizu v Anyaegbunam (1978) 5 SC 21

Osawaru v Ezeruka (1978) 6–7 SC 135

Otaru & Sons Ltd v Idris & another (1999) 6 NWLR (Part 606) 330; (1999) 4 SCNJ 156

Owodoyin v Omotosho (1961) 1 (Part II) ANLR 304

Oyediran & Family v Amoo & Family (1970) 3 NMLR 47

Oyowole v Kelani 12 WACA 327

Phil-Ebosie & others v Ebosie (1974) 4 ECSLR 139

Property Development Ltd v Attorney-General of Lagos State (1976) 7 SC 15

R v Tatimu (1952) 20 NLR 60

Republic Bank Ltd v C.B.N. (1998) 13 NWLR (Part 581) 300

Saraki v Kotoye (1992) 9 NWLR (Part 254) 156

Shehu v Afere (1998) 7 NWLR (Part 556) 115

Shell B.P. v Abedi (1974) 1 SC 23

Shogo v Adebayo (2000) 14 NWLR (Part 686) 121

Sule Jimbo & others v Aminu Sanni & others SC 373/67, 13 March 1970

Thanni v Saibu (1977) 2 SC 89

Tiza & another v Begha (2005) 5 SCNJ 168

Total (Nigeria) Ltd v Nwako (1978) 5 SC 1

Tsokwa Motors Nigeria Ltd & another v UBN Ltd (1996) 3 NWLR (Part 471) 129; (1996) 10 SCNJ 294

UBN PLC v Emole (2002) FWLR (Part 88) 845

Ugbodume & others v Abiegbe & others (1991) 8 NWLR (Part 209) 261; (1991) 11 SCNJ 1

Ugo v Obiekwe (1989) 2 SCNJ 95

Usman v Abubakar (2001) 12 NWLR (Part 728) 689

Uwegbe & 4 others v Attorney-General, Bendel State, Nigeria & others (1986) 1 NWLR (Part 16) 303 CA

Woluchem v Gudi (1981) 5 SC 291

Yassin v Barclays Bank DCO (1968) 1 ANLR 171

Foreign

Conway v Wimpey [1951] 2 QB 266

Hollington v Newthorn & Co Ltd [1943] 1 KB 587; [1943] 2 AER 35

Pfeiffor v The Midland Railway Co [1887] 18 QBD 143

R v Gorsney [1971] 2 QB 674 CA

The following statute was referred to in this judgment:

Court of Appeal Act: S 16

Evidence Act Cap. 112, LFN 1990: S 149(d)

Oguntade, JSC (Delivered the leading judgment):– The first appellant in this appeal commenced his suit at the Minna High Court of Niger State claiming against the respondents special and general damages, the breakdown of which is as stated hereunder:–

“(a) Cost of replacing the plaintiff’s now completely cannibalised vehicle N1,500,000

(b) Loss of use of vehicle from date of accident to date of filing this suit N1,008,000

(d) 9 months payment of watchmen guarding Plaintiffs vehicle at N75.00 per day each N40,000

Total Special Damages N2,563,500

(e) General Damages N7,500,000

(f) Interest on the judgment sum at 28% from 9/12/91 to date of judgment

(g) Interest on the unpaid judgment sum at the Court rate of 10% (0.40rr7) from the date of judgment until the judgment debt is fully and finally paid.

(h) Such further or other order(s) as the court may deem fit and just to make in the circumstances of this case.”

The suit was founded on the negligence of the first respondent, the driver of the second respondent. It was pleaded, that on 9 December 1991; the first respondent negligently drove Fiat trailer registration no. LA 3906 belonging to the second respondent and caused same to collide with the first appellant’s Fiat T3 trailer, registration no. LA 6086 MA.

The respondents filed their Further Amended Statement of Defence. They denied the negligence ascribed by the first appellant to the first respondent. They averred that the accident was caused by first appellant’s driver who was alleged to have negligently driven his vehicle in the course of overtaking another vehicle and in the process collided with the second respondent’s vehicle. The respondents raised a counter-claim of four million, two thousand, three hundred and fourteen Naira, (N4,002,34) being general and special damages) jointly against first appellant and his driver, the second appellant. It is relevant to say here that it was the counter-claim by the respondents that brought in the second appellant as a party to the dispute.

The case was heard by Evuti J. At the trial, the plaintiff/appellant called three witnesses in support of their case. The defendants/respondents also called three witnesses. On 19 October 1995, the trial judge in his judgment concluded as follows:–

“I give judgment in favour of the first plaintiff as follows: the sum of N500,000 for damages caused to his vehicle, a fiat T3 Trailer.

(2) The sum of N6,500 being refund for the payment made for hiring a vehicle to convey the goods from the scene of accident to Kaduna.

(3) Another sum of N40,000 for payments made to the 2 watchmen who looked after the vehicle at the scene of accident for a period of 9 months.

In addition to the above I award to the plaintiff against the defendants, the sum of N1,000 as general damages plus 10% interest p.a. thereon the total sum until the whole amount is fully paid with effect from today.”

The respondents were dissatisfied with the judgment of the trial court. They appealed against it before the Court of Appeal, Abuja (hereinafter referred to as “the court below”). On 16 July 2007, the court below set aside the judgment given by the trial court in favour of the plaintiffs/appellants. Their case was dismissed. The plaintiffs have come before this Court on appeal against the judgment of the court below. They raised five grounds of appeal. The respondents, who won before the court below, have raised a cross appeal on two grounds of appeal. In the appellant’s brief filed by the plaintiffs Counsel, the issues for determination in the appeal were identified as the following:–

“(1) Was the Court of Appeal right in finding that the trial Judge made a finding on issues that were not pleaded but did not make findings as to acts of negligence pleaded by the parties?

(2) Whether the Court of Appeal was right in dismissing plaintiffs’ claims in toto.

(3) Was the Court of Appeal right in remitting back to the High Court for determination the amount of damages counter-claimed by the defendants when there was no prior finding that the defendants had, on the evidence adduced, proved negligence against the plaintiffs?”

The respondents adopted the appellants’ first issue and in addition formulated an additional issue. The additional issue reads:–

“2. Whether in the absence of any finding of negligence against the respondents the appellants are entitled to damages arising from the same acts or omissions constituting the negligence complained of?”

The respondents/cross-appellants raised a preliminary objection against the plaintiffs/appellants’ fifth ground of appeal and their Issue No. 3 formulated upon it. It is appropriate that I first consider the notice of preliminary objection. The contention of the respondents/cross-appellants is that the matter complained of by the plaintiffs/appellants in their fifth ground of appeal did not arise from the judgment of the court below being appealed against. Respondents’ Counsel submitted that a ground of appeal and issue formulated thereupon must arise from the judgment appealed against. He referred to Republic Bank Ltd v C.B.N. (1998) 13 NWLR (Part 581) 300 at 327 and Saraki v Kotoye (1992) 9 NWLR (Part 254) 156 at 164 and Madueke v Madueke (2000) 3 NWLR (Part 655) 3 at 135. Counsel relied on a passage from the judgment of the Court in Saraki v Kotoye (supra) where the Court said:–

“It is well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal must relate to the decision and should constitute a challenge to the ratio of the decision. (See Egbe v Alhaji [1990] NWLR (Part 128) 566 at 590). Grounds of appeal are not formulated in nubibus they must be in firma terra, namely arise from the judgment. However meritorious the ground of appeal based on point of critical constitutional importance or general public interest, it must be connected with controversy between parties.”

The plaintiffs/appellants did not file a reply brief. I am left to approach the matter without the advantage of an input from the plaintiffs/appellants. The fifth ground of appeal raised by the appellant at pages 202–203 of the record reads:–

“(5) The Court below erred in law when it remitted the damages of defendants back to the High Court to be determined de novo when there was no prior finding by it that the defendants had established negligence on the part of the plaintiffs and proved their counter-claim for damages.

PARTICULARS

(a) The Court below held that:–

‘It is also significant that the learned trial judge did not discuss the question of damages raised by the appellants. It is now trite law, that trial Court should discuss the issue of damages in case they are found to be wrong on the question of liability. An appeal court may at times under and by virtue of section 16 of the Court of Appeal deal with the question of liability and the issue of damages, but in this case, the issue of credibility of the witnesses is important, that is why I shall remit the claims for the appellants back to the High Court and there to be tried de novo by another judge.’

(b) The trial High Court had found the first defendant negligent and therefore dismissed the counter-claim thus:–

‘On the other hand I find the first defendant negligent. His action gave rise to the present suit being filed against him and his employer. Consequently, all heads of claims filed by the defendants are each dismissed as lacking basis.’

I reproduced earlier the third issue for determination in the appeal raised by the plaintiffs/appellants. A combined reading of the fifth ground of appeal and Issue 3 formulated thereon conveys that the court below had in its judgment come to the conclusion that the defendants/respondents had established a case of negligence against the plaintiffs/appellants on the counter-claim raised; and that the case was being remitted to the court below only for an assessment of damages. But this was not the case. The court below in the last paragraph of its judgment at page 195 of the record had only said:–

“Accordingly in the end, I allow this appeal, set aside in toto the decision of the trial court and in its place, I order that the respondents’ claims be and are hereby dismissed. I order also that the claims of the appellants as contained in the counterclaim be remitted back to the High Court of Niger State and there to be decided de novo by another judge.” (Underlining mine.)

It is apparent from the extract of the judgment of the court below reproduced above that what was remitted to the trial court for trial do novo was “the claims of the appellants as contained in the counter-claim” not just the damages claimed. The claims of the defendants/respondents included a determination of the question whether or not the plaintiffs/appellants were liable in negligence as asserted by the defendants/respondents in their counter-claim. The result is that the fifth ground of appeal and the third issue for determination by the plaintiffs/appellants could not have arisen from the judgment of the court below. Both are accordingly struck out.

Issues 1 and 2 raised by the plaintiffs/appellants will be taken together. The court below allowed the appeal brought to it by the defendants/respondents mainly on the ground that the plaintiffs/appellants’ evidence at the hearing was not in conformity with their pleadings as to the nature of the negligence upon which their claims were hinged. In his statement of claim, the first plaintiff appellant pleaded in paragraph 3 thus:–

“The said trailer no. LA 3906 BF was so negligently driven, managed and controlled by the first defendant that he caused or permitted the same to violently hit the said vehicle no. LA 6086 MA

Particulars of Negligence

(i) The said vehicle No. LA 3906 BF was driven at a speed which was excessive in the circumstance.

(ii) First defendant failed to keep any or any proper look-out on (sic) to have any or any sufficient regard for other traffic and in the process hitting the said LA 6086 MA.

(iii) First defendant failed to keep any or any proper control of the vehicle No. LA 3906 BF driven by him and failed to swerve or in any other way so to manage or control his vehicle as to avoid hitting plaintiff’s vehicle.

(iv) The weather (condition) was bright and the road (a Federal Highway) straight.

(v) The plaintiff will in the alternative rely on the doctrine of Res Ipsa noquitur.” (Underlining mine.)

Now at the hearing, PW3 who was the driver of vehicle no. LA 6086 MA at the time the collision occurred testified thus:–

“On 9 December 1991, I was driving my vehicle loaded with plates to Kaduna from Lagos. On my way at Maikujeri after Kagara, I was driving when the first defendant’s vehicle was coming down a slope, left his lane and came into mine. I thought he could not go back to his lane and I was parking my vehicle. He ran into my vehicle and his vehicle went further and fell down.

My vehicle did not fall down but the head got condemned.” (Underlining mine.)

It is to be observed here that whereas the main plank of the negligence alleged against the defendants/respondents in first plaintiff’s/appellant’s Statement of Claim was excessive speeding and failure to keep a proper look-out, the evidence of PW3, who was the only witness called to show how the accident happened, was to the effect that the defendants/respondents’ vehicle veered off its lane of the road to collide with the plaintiffs/appellant’s vehicle. So what were the findings of the trial court as to the cause of the accident? At page 60 of the record of proceedings, the trial court in its judgment said:–

“The evidence of PW2 and PW3 alleged negligence on the part of the first defendant. This is further corroborated by the sketch map of the scene of the accident. The points of impact to which the first defendant was part of the making never favoured him. From the point of impact to where his vehicle finally fell down is 160 ft. This clearly shows that he was on an excessive speed which made it not possible for which (sic) to have proper control of the vehicle resulting to the accident.

These (sic) finding, I believe worked on the mind of the trial court to find the first defendant guilty of dangerous driving. By the first defendant’s negligence, he breached the duty of care he owe (sic) other road users.” (Underlining mine.)

In the passage underlined above, the trial court made a finding that the cause of the accident was excessive speeding by the first defendant/respondent. This finding was in tune with the averment pleaded by the first plaintiff/appellant in the particulars of negligence pleaded. On the other hand, the only evidence called by the plaintiffs/appellants in proof of the negligence ascribed to the first defendant/respondent was that the vehicle driven by him (first defendant/respondent) veered off his lane of the road and came to collide with first plaintiff/appellant’s vehicle. The result is that there was no evidence before the trial court in support of the averments pleaded by the first plaintiff/appellant as to how the collision occurred.

In Njoku v Eme (1973) 5 SC 293 at 300–302, this Court observed:–

“In National Investment & Properteis Ltd v Thompson Organisation Ltd & others (1969) NMLR 99 at page 104, we again observed as follows:–

“A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings, and evidence which is in fact contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it.

It is of course the duty of Counsel to object to inadmissible evidence and the duty of the court anyway to refuse to admit inadmissible evidence, but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it come to give judgment to treat the inadmissible evidence as if it had never been admitted. Other views along the same lines were expressed in Idahosa v Oronsaye (1959) 4 FSC 166 at 171; Bada v the Chairman L.E.D.B SC 501/65 of 23 June 1967; Erinle v Adelaja SC 332/1966 of 6 June 1979 and Chief Sule Jimbo & others v Aminu Sanni & others SC 373/67 of 13 March 1970. Another recent case on the point is Ferdinand George v The United Bank for Africa Ltd; SC 209/1971 of 29 September 1972 reported in (1972) 8/9/SC 264 at page 275 in which we referred with approval to our decision in Ogboda v Adulugba SC 3/70 of 12 February 1971 where we emphasised the same point as follows:–

‘We have pointed out numbers of time that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given (See Chief Sule Jimbo & others v Aminu Sanni & others SC 373/67 dated 13 March 1970). Even when such evidence had been wrongly allowed, the trial court should disregard it as irrelevant to be issues properly raised by the pleadings.’”

Similarly in Shell B.P. v Abedi (1974) 1 SC 23 at 45, this Court said:–

“It is now settled that in any action in the High Court, the parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of these averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue . . . The corollary to this principle is that judgment should not be given in favour of a party on facts which were not pleaded; it is the same with facts which are pleaded but not canvassed at the hearing.”

The Court below adopted the proper approach to the case when in its judgment at page 158 of the record, it said:–

“This piece of evidence was not pleaded and in view of the authorities cited above, that evidence must be expunged from the record. The respondents relied upon specific acts of negligence on the part of the first appellant, no evidence was given to prove those facts, the evidence that was led [of] the first appellant leaving his lane went to no issue joined by the parties at the pleadings. (See Obmiami Brick and Stone (Nigeria) Ltd v A.C.D. (supra) (Part 229) 260. Olarewaju v Bamigboye (1987) 3 NWLR (Part 60) 353. See Also Adeosun v Adisa (supra)).

On the strength of the above authorities, I have no doubt that the evidence given by the respondent’s only eyewitness to the accident that the cause of the accident was that the first appellant left his lane and collided with the second respondent was not pleaded and ought to be expunged. And in the absence of such an evidence there was nothing on the record to support the respondent’s claims of negligence against the appellants. There is no doubt that there was an accident or collision between the vehicles of the parties along the highway, but mere occurrence of an accident is not sufficient proof of negligence, and establish by credible evidence, the acts of negligence against the appellants. The learned trial judge was in error to have made a case for the respondents different from the one contained in their pleadings. I must therefore resolve this issue in favour of the appellants, that is, from the nature of the pleadings and the evidence the respondents did not establish a case of negligence against the appellants.”

The plaintiffs’/appellants’ Counsel at page 9 of his brief argued thus:–

“Even assuming without conceding, that trial Court failed to make any findings to acts of negligence, since the appeal before the lower Court was by way of rehearing based on the evidence in the Record of Proceedings and because the complaint before the lower Court was not based on credibility of the witnesses, the Court of Appeal in exercise of its power under section 16 of the Court of Appeal Act could have proceeded to make findings of fact based on the evidence adduced. Bunyan v Akingboye (2001) FWLR (Part 41) 1977 at 1996 B–G. (See also the Court of Appeal decision (which we urge the Court to approve) in – Buckley Ltd v Akura (1986) 5 NWLR (Part 44) 752 at 760 G–H).”

I think, with respect to learned Counsel, that he did not sufficiently appreciate the limits of the power of rehearing granted to the Court of Appeal under section 16 of the Court of Appeal Act. That power does not extend to enable the court reconstruct a party’s case or to redesign the evidence called by parties to make sure that evidence called agrees with the averments pleaded by the parties. The fundamental lacunae with the plaintiff/appellants case was that the facts pleaded by them were not in accord with the evidence led at the trial as to the cause of the accident. Section 16 of the Court of Appeal Act was therefore irrelevant in the circumstances. Again, it was argued that the court below should have looked at the sketch of the scene of accident tendered as exhibit C and to have drawn the inference of negligence on first defendant’s/respondent’s part from the resultant positions of the two vehicles. But with respect, such an approach would not cure the fact that the plaintiffs/appellants’ evidence as to how the accident occurred was not in line with their pleadings.

The second issue for determination is whether or not the Court below was correct to have dismissed the plaintiff/appellants’ suit in toto following the finding that the evidence called by them was not in accord with the pleadings. This does not seem to me a reasonable issue for determination in this appeal. The plaintiffs’/appellants’ claim for damages which was in negligence postulated that the trial Court would find a case in negligence established against the defendants/respondents. But as it turned out, the case in negligence was not made out arising from the fact that the evidence called by the plaintiffs/appellants was contrary to the pleadings filed. Since a case of negligence was not established, the inevitable consequence was a dismissal of plaintiffs’/appellants’ case. It is therefore unreasonable to raise an issue querying the correctness of the dismissal of plaintiffs/appellants’ suit.

In the final conclusion, this appeal must be dismissed as unmeritorious. I affirm the judgment of the Court below and award N50,000 costs against the plaintiffs/appellants in favour of the defendants/respondents.

Onu, JSC:– Having had the privilege to read before now the judgment of my learned brother Oguntade, JSC just delivered, I am in entire agreement therewith that the appeal must be dismissed as unmeritorious. I too affirm the judgment of the court below and award N50,000 costs against the plaintiffs/appellants.

Tobi, JSC:– This is a case of negligence with its usual apportionment of blame by one party to the other. The blames are between the plaintiff and the defendant. None of the parties usually accepts fault. The plaintiff will say that the defendant was at fault. The reverse situation is also canvassed and that makes the dispute. There are however, certain cases where the defendant accepts some blame but says that the plaintiff contributed to the accident. That deals with the law of contributory negligence. That is not the case here. What is the case here?

It was on 9 December 1991. An accident occurred between two vehicles. They are trailer bearing registration no. LA.6086 MA and Fiat TS Trailer bearing registration no. LA 3906 BF. It is the case of the appellants that the Fiat TS no. LA 3906 BF trailer was driven by first respondent at an excessive speed and failed to keep any proper look out or have any efficient regard for other traffic and in the process hit trailer no. LA 6086 MA. It is the case of the respondents that the accident was not as a result of the fault of the first respondent but as a result of the fault of the second appellant, who at the time of the accident, left his lane to collide with the trailer no. LA 3906 BF driven by the first respondent. They claimed that the second appellant was attempting to overtake a third vehicle while ascending a hill, and in the process collided with the second respondent’s vehicle.

The appellants filed an action in the High Court. They claimed special and general damages. The respondents counter-claimed for special damages. The learned trial Judge gave judgment to the appellants in the following terms:–

“I give judgment in favour of the first plaintiff as follows, the sum of N500,000 for damages caused to his vehicle a fiat TS Trailer.

(2) The sum of N6,500.00 being refund for the payment made for hiring a vehicle to convey the goods from the scene of accident to Kaduna.

(3) Another sum of N40,000 for payments made to the 2 watchmen who looked after the vehicle at the scene of accident for a period of 9 months.

In addition to the above I award to the plaintiffs against the defendants, the sum of N1,000,000 as general damages. Plus 10% interest p.a. there (sic) on the total sum until the whole amount is fully paid with effect from today.”

On appeal, the Court of Appeal reversed the judgment of the High Court. The court blamed the learned trial Judge for not discussing “the issue of damages in case they are found to be wrong on the question of liability.” In the concluding paragraph of the judgment, the Court of Appeal said:–

“Accordingly in the end, I allow this appeal, set aside in toto the decision of the trial court and in its place, I order that the respondents’ claims be and are hereby dismissed. I order also that the claims of the appellants as contained in the counter-claim be remitted back to the High Court of Niger State and there to be decided de novo by another judge.”

The appellants have appealed to the Supreme Court. Briefs were filed and exchanged. They formulated three issues for determination:–

“(1) Was the Court of Appeal right in holding that the trial judge made a finding on issues that were not pleaded but did not make findings as to acts of negligence pleaded by the parties?

(2) Whether the Court of Appeal was right in dismissing plaintiffs’ claims in toto.

(3) Was the Court of Appeal right in remitting back to the High Court for determination the amount of damages counter-claimed by the defendants when there was no prior finding that the defendants had on the evidence adduced, proved negligence against the plaintiffs.”

The respondents formulated two issues for determination:–

“(1) Was the Court of Appeal right in holding that the trial Judge made a finding on issues that were not pleaded but did not make findings of negligence pleaded by the parties.

(2) Whether in the absence of any finding of negligence against the respondents the appellants are entitled to damages arising from the same acts or omissions constituting the negligence complained of?”

Learned Counsel for the appellants, Ibrahim Isiyaku, Esq, relying on the evidence of PW3 and the findings of the learned trial Judge, submitted that the Court of Appeal was wrong to have held that the trial court did not make any specific finding as to acts of negligence as pleaded by the parties but made a finding on issues that were not pleaded. Even assuming, without conceding that the trial court failed to make any further findings of acts of negligence, learned Counsel argued that since the appeal before the court was by way of rehearing based on the evidence in the Record of Proceedings and because the complaint before the court was not based on credibility of the witnesses, the Court of Appeal, in the exercise of its powers vide section 16 of the Court of Appeal Act, could have proceeded to make findings of fact based on the evidence adduced. He cited Bunyan v Akingboye (2001) FWLR (Part 41) 1977. Buckley Ltd v Akura (1986) 5 NWLR (Part 44) 752. Criticising the evidence of DW1 and commending the evidence of PW3 to the court, learned Counsel submitted that the Court of Appeal could very well have considered the evidence in the Record and made a finding of negligence against DW1.

On Issue No. 2 learned Counsel called in aid the evidence of PW1 and the findings of the trial Judge and submitted that the award of N1million out of a total of N7.5million damages is not out of tone with the nature of the damages suffered by the appellants.

On Issue No. 3, learned Counsel submitted that as the Court of Appeal did not make any finding as to the negligence of the appellants or that the respondents had proved that the second appellant caused the accident by attempting to overtake another vehicle as pleaded by the respondents, the Court of Appeal was wrong to revert the counter-claim back to the High Court for a trial de novo, Counsel argued. He urged the court to allow the appeal.

Learned Counsel for the respondents, Yakubu Maikyau, Esq, raised a preliminary objection on ground 5. He submitted that the ground does not emanate from the judgment of the Court of Appeal. He cited Republic Bank Limited v CBN (1998) 13 NWLR (Part 581) 306; Saraki v Kotoye (1992) 9 NWLR (Part 254) 156; Madueke v Madueke (2000) 3 NWLR (Part 655) 3; Confidence Insurance Ltd v Trustees of S.O.C.E. (1999) 2 NWLR (Part 591) 373 and Egbe v Alhaji (1990) NWLR (Part 128) 546.

Taking Issue No. 1, learned Counsel cited some paragraphs of the Amended Statement of Claim, the evidence of PW3, DW3 and submitted that the Court of Appeal was right in holding that the trial Judge made a finding on issues that were not pleaded. He relied on Adeoshun v Adisa (1986) 5 NWLR (Part 40) 255.

Learned Counsel pointed out that the appellants did not state or describe what the first respondent was doing or the particular manner of driving adopted by him which amounted to a breach of the duty of care on his part to the appellants rather the pleadings of the appellants seem to impose a duty on the first respondent to control his vehicle at all cost and to avoid hitting the appellants’ vehicle. It is nowhere suggested in the pleadings that the first respondent did leave his lane and went into the lane of the second appellant thereby causing the collision and the only time this evidence came about in the case of the appellants was at the trial, learned Counsel contended. Citing Akanbi v Raji (1998) 12 NWLR (Part 578) 360; Ajide v Kelani (1985) 3 NWLR (Part 12) 248; Shehu v Afere (1998) 7 NWLR (Part 556) 115; Esigbe v Agholor (1990) 7 NWLR (Part 161) 234; Audu v Ahmed (1990) 5 NWLR (Part 156) 287, Counsel submitted that in a case of road accidents the pleadings must state all material facts of the accident, describing as clearly as possible what each party did. He contended that the Court of Appeal was right when it held that the trial court did not make any specific finding as to the acts of negligence as pleaded by the parties, but merely summarised the evidence and made issues that were not pleaded.

On the exercise of the power under section 16 of the Court of Appeal Act by the Court of Appeal, learned Counsel argued that the attempt by the appellants to heap the blame on the Court of Appeal for not invoking its powers under the Section is of no assistance to the appellants whatsoever because the exercise of the power is not done in vacuum as the manner of driving, a material fact, was not pleaded. He referred to Exhibit 1.

On Issue No. 2, learned Counsel argued that the claim for damages against the respondents can only be sustained where there is a finding of negligence against them unless the injuries allegedly suffered by the appellants are the result of the respondents negligent conduct, they cannot be held liable in damages. Since the Court of Appeal found that the appellants did not prove negligence against the respondents the Court of Appeal was entitled to dismiss the entire claim of the appellants for damages, Counsel further submitted. He cited Akanbi v Alatede (Nigeria) Ltd (2000) 1 NWLR (Part 639) 135 and UBN Plc v Emole (2002) FWLR (Part 88) 845.

Referring to paragraphs 1, 2, 3 and 4 of the Amended Statement of Claim, Counsel submitted that special damages must be specifically pleaded and strictly proved. He cited Usman v Abubakar (2001) 12 NWLR (Part 728) 689 and Odulaja v Haddad (1972) 1 All NLR 191. He argued that the evidence led by the appellants in support of the claims for the sum of N1,500,000 as cost of replacing the plaintiffs now completely cannibalised vehicle did not meet the standard laid down in the case of Usman v Abubakar (supra). He submitted that failure on the part of the appellants to produce the Inspection Report of their vehicle at the trial was fatal to their case. He cited section 149(d) of the Evidence Act Cap. 112, LFN 1990 (“Evidence Act”) and the cases of Ochin v Ekpechi (2002) 5 NWLR (Part 656) 225, Lawson v Afani Construction Co Ltd (2002) 2 NWLR (Part 752) 585 and Elias v Omobare (1982) All NLR 75.

On the expenses incurred on the hire of a vehicle and the compensation paid on the alleged damaged plates, learned Counsel submitted that in the absence of any damage to the goods being transported by the appellants, the claims for N6,800 and N8,500 cannot succeed, more so when the appellants did not discharge the burden of proving that their vehicle was conveying the goods of the description given by them.

On the claim for N40,500 payment to watchmen, Counsel submitted that in addition to the fact that this head of claim cannot succeed on the ground of the failure by the appellants to prove negligence, the absence of credible evidence in support of the claim disentitles them to the award under the head. Counsel also agreed with the Court of Appeal for refusing to award general damages. He urged the court to dismiss the appeal

There is a Preliminary Objection. Let me take it here. Counsel for the respondents objected to Ground 5 on the ground that it did not emanate from the judgment of the Court of Appeal. Ground 5 reads:–

“The Court below erred in law when it remitted the damage of the defendants back to the High Court to be determined de novo when there was no prior finding by it that the defendants had established negligence on the part of the Plaintiffs and proved their counter-claim for damages.”

Counsel quoted the following passage from the judgment of the Court of Appeal:–

“It is also significant that the learned trial judge did not discuss the question of damages raised by the appellants. It is now trite law, that trial court should discuss the issue of damages in case they are found to be wrong on the question of liability. An appeal court may at times under and by virtue of section 16 of the Court of Appeal deal with the question of liability and the issue of damages, but in this case, the issue of credibility of the witnesses is important, that is why I shall remit the claims for the appellants back to the High Court and there to be tried de novo by another judge.”

In the final paragraph of the judgment, the Court of Appeal said at page 195 of the Record:–

“Accordingly, in the end, I allow this appeal, set aside in toto the decision of the trial court and in its place, I order that the respondents’ claims be and are hereby dismissed. I order also that the claims of the appellants as contained in the counter-claim be remitted back to the High Court of Niger State and there to be decided de novo by another judge. I award the appellants costs of N7,500 including out of pocket expenses.”

It is clear from the above that the Court of Appeal was concerned, using its exact words “with the claims of the appellants as contained in the counter-claim” and not “with the damages of the defendants.” The preliminary objection therefore fails.

In an action for negligence, the plaintiff must prove the following essential elements: (a) The existence of a duty of care owed to the plaintiff by the defendant; (b) breach of that duty of care by the defendant; and (c) damages suffered by the plaintiff as a result of the breach by the defendant of that duty of care. (See Edok Eter Mandilas Ltd v Ale (1985) 3 NWLR (Part 11) 43; Okeowo v Chief Sanyaolu (1986) 2 NWLR (Part 23) 471; Agbomagbe Bank v C.F.A.O (1961) 1 All NLR 140; Mercantile Bank of Nigeria Ltd v Abusomwan (1986) 12 NWLR (Part 22) 270).

In order to establish negligence, one pertinent question arises for consideration and it is whether as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter.

The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars of negligence pleaded will be fatal to the case of the plaintiff. In cases of motor accidents the test to be applied in determining who was negligent is to look for the person whose negligence substantially caused the accident by determining whether or not that person could have avoided the collision by the exercise of reasonable care. (See Alhaji Otaru and Sons Limited v Idris (1999) 6 NWLR (Part 606) 330).

Let me take Issue No. 1 in the appellants brief. The Issue is in respect of the following finding of the Court of Appeal at page 188 of the Record:–

“I have very carefully read the judgment in the instant case and I agree with the appellants Counsel that the learned trial Judge had failed to properly assess the evidence adduced and pleaded. He did not make any specific finding as to the acts of negligence as pleaded by the parties. He merely summarised the evidence and made a finding on issues that were not pleaded. I accordingly resolve Issue No. 3 in favour of the appellants.”

I entirely agree with the Court of Appeal. The learned trial Judge in his judgment of six pages, devoted about two pages for stating the facts of the case and the reliefs sought by the parties; and about another two and half pages for summarising the evidence of the witnesses; less than half a page for assessing the evidence of the witnesses and about a page for his conclusion and order.

It is important to note that the Court of Appeal held that the learned trial Judge “failed to properly assess the evidence adduced and pleaded.” The operative and telling word is properly. The Court of Appeal did not say that the learned trial Judge did not assess the evidence adduced and pleaded at all. Again, I entirely agree with the court. In a case where the pleadings took pages 7 to 16 of the Record, involving a detailed counter-claim of eighteen paragraphs, and evidence of six witnesses taking some large portion of the Record, the learned trial Judge did not properly assess the evidence adduced and pleaded. In the assessment of the evidence, the learned trial Judge was only involved in the evidence of PW1, PW2 and PW3. I ask, what of the evidence of DW1, DW2 and DW3? It is our law that a trial Judge is bound to consider equally in his assessment and evaluation, the evidence of both the plaintiff and the defendant. And that is the role he plays like an umpire of a game. I have the impression that because the learned trial Judge parochially assessed only the evidence of the plaintiffs that he was carried away by it and failed to examine the detailed counter-claim of the defendants. That was the point made in the Court of Appeal and I agree entirely with the court. I will not call the action of the learned trial Judge as a bias. No, it is not. It is just a slip, a genuine one for that matter. And he is entitled to slip. That is why he is a trial Judge.

Facts are important in every case before the court as they are the fountainhead of the law. If there is any case in which facts are of great importance it is the case of negligence. In a case of negligence the facts which gave rise to the negligence must be comprehensively and delicately pleaded. The facts must be pleaded in minute details almost to the letters of the alphabet. Nothing should be left unpleaded. The Statement of Claim should give a very clear picture of what was the cause of the accident and the action and conduct of the drivers in the accident. The plan sketch (which is Exhibit C in this appeal) should, as far as it is possible, be an accurate report of the events leading to the accident and it must convey that accuracy to the trial Judge.

In cases of motor accidents arising from negligence of drivers, there is the tendency, (I think it is probably beyond tendency to reality) that the driver, if alive, shifts blame to his colleague. Even if one of them dies or two of them die, the shifting process does not stop. After all, nobody wants to accept responsibility for an accident. In such a case, the learned trial Judge has to properly assess and evaluate the evidence before him. In the assessment and evaluation exercise, the learned trial Judge should not introduce any sentiments. He should not involve himself in the emotions arising from the death of person or persons in the assessment and evaluation of the evidence. He can consider that aspect when he is doing a case of fatal accident and claim of damages. It is my view that a trial Judge who gets himself worked up by the death of person or persons will certainly be a blindfold in giving judgment in favour of the dead or victims. That is not the law and the Judge that he is, must choose the path of law; not the path of sentiment.

I think I can stop here. It is for the above reasons and the more detailed reasons given by my learned brother, Oguntade, JSC in his judgment that I too dismiss the appeal. I abide by my learned brothers order as to costs.

Mukhtar, JSC:– In the court below the appellants’ claims were dismissed as the respondents appeal was allowed as follows:–

Unhappy with the decision, the plaintiffs have appealed to this Court on five grounds of appeal from which three issues for determination were distilled in the appellants’ brief of argument. The issues are:–

“(1) Was the Court of Appeal right in holding that the trial judge made a finding on issues that were not pleaded but did not make findings as to acts of negligence pleaded by the parties.

(2) Whether the Court of Appeal was right in dismissing plaintiffs’ claims in toto.

Page 23 of (2008) 1 All N.L.R. 1

The issues raised for determination, in the respondents’ brief of argument are:–

“(1) Was the Court of Appeal right in holding that the trial judge made a finding on issues that were not pleaded but did not make findings of negligence pleaded by the parties?

The remedy sought by the appellants in the trial court was damages against the respondents for damaging their vehicle through the negligent driving of the second respondent who is an employee of the first respondent. The particulars of negligence as pleaded in the Amended Statement of Claim are as follows:–

“The said trailer no. LA 3906 BF was so negligently driven managed and controlled by the first defendant that he caused or permitted the same to violently hit the said vehicle No. LA 6086 MA.

(i) the said vehicle No. LA 3906 BF was driven at a speed which was excessive in the circumstances;

(ii) first defendant failed to keep any or any proper look-out on to have any or any sufficient regard for other traffic and in the process hitting the said LA 6086;

(iii) first defendant failed to keep any or any proper control of the vehicle No. LA 3986 BF, driven by him and failed to swerve or in any other way so to manage or control his vehicle as to avoid hitting plaintiff’s vehicle;

(iv) the weather (condition) was bright and the road (a federal highway) straight;

(v) the plaintiff will, in the alternative, rely on the Doctrine of res ipsa loquitur.”

The evidence given in support of the averment reads as follows:–

“PW2 . . .

I drew a sketch map. It was drawn four days after the accident. There were two points of impact on the sketch. The essence of point of impact is to show where the vehicles collided. One of the point of impact was on Dahiru Adamu’s lane while the other at the centre of the road.”

The above clearly shows that the first defendant/respondent left his own lane to hit the second plaintiff/appellant on his lane, and negligence on the first respondent could be inferred but then it is not in consonance with the pleadings. Then the evidence of PW3 which reads thus:–

“I was driving when the first defendant’s vehicle was coming down a slope, left his lane and came into mine, I thought he could not go back to his lane and as I was parking my vehicle he ran into my vehicle and his vehicle went further and fell down.”

This piece of evidence reinforces the PW2’s evidence but again it is outside the pleadings, as it was not pleaded. It is elementary law that parties are bound by their pleadings and whatever evidence adduced in the course of a trial that is not in conformity with the pleading becomes a non-issue and must be ignored by a trial judge. In other words evidence must be within pleadings, and not outside. (See Egbue v Araka 1988 3 NWLR part 84 page 598; Eze v Atasie 2000 10 NWLR (Part 676) 470 and Olohunde v Adeyoju 2000 10 NWLR (Part 676) 562).

The resultant position is that the above pieces of evidence are not admissible and ought not to have been relied upon by the learned trial judge, in the determination of the case before him. In this vein, the lower court as per Musdapher JCA, (as he then was) was right when he held thus:–

“This piece of evidence was not pleaded and in view of the authorities cited above that evidence must be expunged from the record.”

This being the position, it knocks the bottom off the plaintiffs/appellants’ case, and the issue of damages does not arise, as no negligence has been established. I am not however unmindful of the position of the law that a party is not required to plead evidence. (See Shogo v Adebayo 2000 14 NWLR (Part 686) page 121 and Thanni v Saibu 1977 2 SC 89).

In the light of the above highlights and the fuller reasoning’s in the lead judgment of my learned brother, Oguntade JSC, I also find the appeal unmeritorious and dismiss it. I abide by the consequential orders made in the lead judgment.

Ogbuagu, JSC:– This is an appeal against the judgment of the Court of Appeal, Abuja Division (hereinafter called “the court below”) delivered on 16 July 2002, allowing the appeal of the defendants/respondents to it and setting aside the judgment of the High Court of Niger State holden at Minna Judicial Division presided over by Evuti, J and delivered on 19 October 1995.

Dissatisfied with the said judgment, the appellants have appealed to this Court on five grounds of appeal.

The appellants have formulated three issues for determination namely:–

“(1) Was the Court of Appeal right in holding that the trial judge made a finding on issues that were not pleaded but did not make findings as to acts of negligence pleaded by the parties?

(2) Whether the Court of Appeal was right in dismissing plaintiffs’ claims in toto.

The respondents, while adopting the first issue of the appellants, have formulated two other issues for determination, namely:–

“(1) Was the Court of Appeal right in holding that the trial Judge made a finding on issues that were not pleaded but did not make findings of negligence pleaded by the parties?

When this appeal came up for hearing on 11 March 2008, both learned Counsel for the parties, adopted their respective Brief. While Ibrahim, Esq., for the appellants with Agwulonu, Esq., urged the Court to allow the appeal and set aside the judgment of the court below, Markyau, Esq., for the respondent with Ms Tuktur and Adamu, urged the court to dismiss the appeal. Thereafter, judgment was reserved till today.

I will deal firstly with the Preliminary Objection taken/raised by the respondents in their Brief in respect of Ground 5 in the Notice of Appeal of the appellants which without its particulars, reads as follows:–

“The Court below erred in law when it remitted the damages of defendants back to the High Court to be determined de novo when there was no prior finding by it that the defendants had established negligence on the part of the Plaintiffs and proved their counter-claim for damages.”

I note that the appellants never filed a Reply in reaction to the said Objection. The consequence, in my respectful view, is that they conceded to the merit thereof. In the circumstance, the Objection is sustained or upheld by me because and this is also settled, that the purpose of giving a Notice of Preliminary Objection, is to give the adversary, an opportunity of reacting to the Objection and to avoid any surprise. (See the cases of Chief Agbaka & others v Chief Amadi & another (1998) 11 NWLR (Part 572) 16 at 25, (1998) 7 SCNJ 367 at 370 and Ogidi (deceased) & 7 others v Chief Igba & 5 others (1999) 6 SCNJ 157). It need be borne in mind that where no objection is raised by a respondent, the court, can suo motu, draw the attention of an appellant’s learned Counsel to an incompetent ground of appeal. (See the cases of Okoro & others v Udom & others (1960) 5 FSC 162 at 164; Nta & others v Anigbo & others (1972) 5 SC 156 at 160; Amadi v Okoli & others (1977) 7 SC 57 at 63; Osawaru v Ezeruka (1978) 6–7 SC 135; Chief Agbaka v Chief Amadi (supra) and Pfeiffor v The Midland Railway Co (1887) 18 QBD 143, just to mention but a few).

I note however, that the respondents at the said hearing, never said a word about their Objection, before the hearing of the substantive appeal. See the cases of Tiza & another v Begha (2005) 5 SCNJ 168 at 178 and Oforkire & another v Maduike & 5 others (2003) 5 NWLR (Part 812) 166 at 178–179; (2003) 1 SCNJ 440 as to the duty of a respondent, to move the motion or Notice, before the hearing of an appeal. But I have noted that the appellants’ learned Counsel, did not react to the said Objection and so, in the circumstance, it is of no moment that the learned Counsel for the respondents, never moved the motion or Notice before the hearing of the appeal, since there is notice of it in the respondent’s Brief, The result, is that the said Ground 5, is accordingly struck out together with all the arguments in respect thereof notwithstanding that in the appellants’ Brief, the said issues, were/are not even related specifically, to any of the grounds of appeal. Instead, there is a general or an omnibus reference to the grounds of appeal in these words:–

“3.1 Arising from the Grounds of Appeal at pp 196–202 are the following issues.”

If I must deal with the said Objection, it could be seen that the ground, refers to the court below, remitting

“the damages of the defendants to the High Court to be determined de novo when there was no prior finding by it, that the defendants had established negligence on the part of the plaintiffs and proved their counter-claims.”

With profound respect to the learned Counsel for the appellants, this is a gross misconception of the decision of the court below and the reason for the said decision. This is because, on a calm and proper reading of the holding of that court, it shows that what it remitted to be tried de novo, are the claims of the respondents in their counter-claim. Period! It must be stressed that the trial court, had found the first defendant/respondent, negligent and proceeded on that basis, to dismiss outright, the counter-claim of the defendants/respondents in these words, inter alia:–

“. . . Consequently, all heads of claims filed by the defendants are each dismissed as lacking basis.” (sic)

As will be shown in this judgment, before finding the respondents to be negligent and therefore, dismissing their counter-claim, the learned trial Judge, never evaluated the counter-claim and the evidence of the defence. In fact, he also based his decision on the conviction of the first defendant/respondent in the Magistrates’ Court.

Now, coming to the merits of this appeal, it is now firmly established that in negligence cases arising from a motor accident, the burden of proof, falls on the plaintiff who alleges negligence. This is because, negligence is a question of fact and not one of law and it is the duty on he who asserts it, to prove it. Failure to prove particulars of negligence pleaded, is fatal to the plaintiff’s case. (See the cases of Alhaji Otaru & Sons Ltd v Idris & another (1999) 6 NWLR (Part 606) 330 at 342, 354–356; (1999) 4 SCNJ 156 and Ngilari v Mothercat Ltd (1999) 13 NWLR (Part 636) 626, (1999) 12 SCNJ 101). In other words, since negligence, is a question of fact, each case, must be decided in the light of the facts pleaded and proved. (See the case of Kalla (not Kallay) v Jarmakaru Transport Ltd (1961) All NLR 747 at 783). This is why it is settled that no one case, is exactly to the other.

In civil cases, the burden of proof, is on a party who asserts a fact, to prove the same, because and this is also settled, he who asserts, must prove. (See the cases of Are v Adisa (1967) NMLR 359; Atama v Amu (1970) 1 SC 237; Obimiami Brick & Sons Nigeria Ltd v African Continental Bank Ltd (1992) 3 NWLR (Part 229) 260 at 309; (1992) 3 SCNJ and recently, Ibrahim v Ojomo & others (2004) 4 NWLR (Part 862) 89; (2004) 1 SCNJ 309 at 323; (2004) 1 SC (Part II) 136; International Messengers (Nigeria) Ltd v Pegafor Industries Ltd (2005) 5 SCNJ 120 and many many others).

It needs to be emphasised and this is also settled, that the mere occurrence of an accident, is not proof of negligence. Thus, in order to succeed in a claim of negligence, it is not enough to prove that there was an accident (as the appellant’s case shows or portrays). The plaintiff must prove that the accident, was as a result of the negligence of the defendant. Therefore, the circumstances, nature and extent of the accident, must be pleaded and evidence adduced thereon. Then, the court would be able to determine whether partially or wholly, either the plaintiff or the defendant, caused the accident. (See the cases of R v Tatimu (1952) 20 NLR 60 referred to by Onu, JSC in the Ngilari’s case (supra) at 643 and per Iguh, JSC at page 661 of the NWLR.) In other words, evidence of collision, is not necessarily, proof of negligence. (See also the cases of R v Gorsney (1971) 2 QB 674 CA and Adesanya v The State (1978) 3 FCA 185 at 189).

On the meaning of “burden of proof” of negligence, it is settled that negligence is the omission or failure to do something which a reasonable man under similar circumstances would do, or the doing of something which a reasonable man would not do. As stated above in this Judgment, generally, the onus is on the plaintiff to establish negligence. (See the cases of Odinaka & another v Moghalu (1992) 4 NWLR (Part 233) 1; (1992) 4 SCNJ 43 and Nigeria Bank Plc v Alhail M. Abubakar & Sons (2004) 17 NWLR (Part 901) 66 at 81 CA).

Having stated some of the principles about the requirements of proving negligence and on who lies the onus of proof, a perusal by me of the pleadings of the appellants, the evidence in respect of the pleadings and the judgment of the trial court, the inevitable conclusion by me with respect, is that they amount to a “disaster”. Firstly, in No. (i) of the Particulars of Negligence, it is pleaded in the Amended Statement of Claim that:–

“the said vehicle No. LA 3906 BF was driven at a speed which was excessive in the circumstances.”

Speed being a relative term, there is no evidence by the second defendant who testified as PW3, of or as to what speed, the first defendant/respondent, was driving before the collision. Although the first respondent testified on oath unchallenged, that he was driving at 45kmph before the collision, the second appellant did not say or state at what speed he himself was driving or what speed, the first respondent, was driving before the collision. It is settled that high speed, is not necessarily, excessive speed. This is why, whether speed was excessive, must be determined not by the number of meter per hour or by the statutory prohibitions, but by evidence of all the relevant circumstances.

However, in his evidence at page 29 of the Record, the first appellant testified, inter alia, as follows:–

“. . . On my way to Maikujeri after Kagara, I was driving when the first defendant’s vehicle was coming down a slop (sic), left his lane and came into mine, I thought he could not go back to his lane and as I was parking my vehicle he ran into my vehicle and his vehicle went further and fell down my vehicle did not fall down but the head got condemned . . .” (The underlining mine.)

I will pause here to state that it is settled that driving on the wrong side, is not proof of negligence. (See the case of Bernard Anabogu v The State (1965) NMLR 167).

Under cross-examination at page 30 thereof, he admitted that he was also arraigned before the Magistrates’ Court, Kagara. Said he, inter alia:–

“The allegation (i.e. by the Police/Prosecution) was that I refused to give way for the first defendant’s vehicle. I paved way for the first defendant, he ran into my vehicle . . .”

So, it could be seen that both in his evidence in chief and under cross-examination, there was no word about the first respondent, driving in an excessive speed.

Secondly, the PW1 – the owner of the vehicle/trailer driven by the second appellant testified inter alia, as follows at page 24 of the Records:–

“The following morning I came to Kagara and was taken to the scene of the accident. At the scene of the accident I found all the goods (i.e. his own goods) scattered on the ground. And damaged. The vehicle was damaged. I proceeded to Kaduna to charter another vehicle for N6,500.00. The damaged goods I paid to their owner as compensation the sum of N8,500.00.” (The underlining mine.)

At page 8 of the Record, the claim of the second plaintiff/appellant – PW1, under (c) read as follows:–

“(c) Cost of hiring another vehicle to convey the goods from point of accident; N15,000.”

I have already noted that in his evidence in court, the cost of chartering or hiring another vehicle, is stated to be N6,500. More importantly, I note that in the appellant’s Brief, their learned Counsel from the trial court to the court below and up to this Court, has commended to this Court, the evidence of the PW3 – the second appellant. I note firstly, that at page 25 of the Records, the PW1 under cross-examination, swore, inter alia, as follows:–

“. . . I paid for the damaged goods to the owners. They were Yorubas. I do not have anything to show that I chartered vehicle to convey the goods to Kaduna . . . The owners of the damaged plates (dishes) did not give me any receipt for the payment I made to them.”

He had earlier still under cross-examination, testified, inter alia, as follows:–

“there was load in the vehicle at the time of the accident. I loaded it myself and found the load there, some damaged and I arranged for the conveyance of the rest to its destination.” (The underlining mine.)

I have noted that the PW1 testified that he found all the goods were scattered on the ground and damaged and that he conveyed the remains of the goods to Kaduna. Now, at page 29 thereof, PW3 swore and testified, inter alia, as follows:–

“. . . My vehicle did not fall down but the head got damaged. I reported the matter to the Kagara Police. The Police came to the scene, the goods which were scattered on the High way were removed from the road. The goods were from the defendant’s vehicle . . . The goods in the defendant’s vehicle were of variety including Egusi, Tomatoes, Onion, Maize and Passengers.” (The underlining mine.)

The PW2 – the Police, in his evidence-in-chief at page 28 of the Records, testified, inter alia, as follows:–

“On 9 December 1991 I saw good scattered they were the goods carried by defendant’s vehicle. I saw the passengers of the vehicle personally . . . There were also goods in Dahiru Adamu’s vehicle.” (The underlining mine.)

In effect, the claim of the PW1 of his goods being scattered on the road and damaged, was rubbished and contradicted by his own driver – the PW3 who their learned Counsel, commended his evidence to this Court. The PW2 also, testified that all the said goods of the PW1, were and remained intact in his vehicle which never fell down. Again or rather, it was the respondents, who proved the damage to their own goods. The claim for hiring or chartering another vehicle and conveying the remaining of the goods by the PW1, was not proved. The said evidence or claim, was false and bogus.

In spite of all these overwhelming evidence, the learned trial Judge, found in favour of the appellants. In summary, His Lordship’s reasons for so finding, included that the second appellant first reported to the Police and so, he became the complainant and yet, no statement was ever obtained from him or from any of the said passengers the PW2 said he saw and who from all indications, were not injured in the respondents’ vehicle said to be speeding down a slop. Again, because the first respondent, was convicted in the Magistrates’ Court, and the second appellant discharged, so the respondents must be liable. The Record of the proceedings in the said Magistrate’s Court, was tendered as Exhibit D – see page 27 of the Records. I have no doubt in my mind that this affected and influenced the learned trial Judge’s mind in outrightly, dismissing the counter-claim of the respondents and also finding in favour of the appellants.

I will pause here to state on the decided authorities, that the admission of the said (Exhibit D) – the Criminal Proceedings in a civil trial or proceeding, was wrong. Such proceedings, was certainly inadmissible in any event. In other words, record of proceedings in a criminal proceeding, should not be admitted in evidence in a civil proceeding. (See the cases of Oyowole v Kelani 12 WACA 327; Okunoren v U.A.C. Ltd 20 NLR 25 at 27; Nwachukwu v Egbuchu (1990) 3 NWLR (Part 139) 435 at 443 CA; Gabriel Agu v Nwakanma Atuegwu 21 NLR 83 at 84 and Hollington v Newthorn & Co Ltd (1943) 1 KB 587, (1943) 2 AER 35 just to mention but a few).

That Exhibit D was admitted in evidence without objection, is/was of no moment. This is because and this also settled in a line of decided authorities, that where inadmissible evidence has been admitted, it is the duty of the Court, not to act upon it. It is immaterial that its admission, was as a result of consent of the opposite party or that party’s default in failing to take an objection at the proper time. An Appellate Court, has the power to reject such evidence and decide the case, on legal evidence. (See the cases of Owodoyin v Omotosho (1961) 1 (Part II) ANLR 304 at 305; Alashe & others v Olori Ilu & others (1965) NMLR 66 at 67; Yassin v Barclays Bank DCO (1968) 1 ANLR 171, 177; Olukade v Alade (1976) 2 SC 183 at 188–189; (1976) 1 ANLR 67; Jahanmi v Saibu (1977) 2 SC 89 at 112–113 and Ikenye v Ofunne (1985) 2 NWLR (Part 5) 1 just to mention but a few).

I note that DW3, was not cross-examined. The reason appears at page 36 of the Records – i.e. both the plaintiffs and their Counsel, were absent without any reason and the trial court, permitted the continuation of the defence to proceed.

The effect is that the evidence of the said DW3, remained unchallenged. Yet, in spite of this fact, the learned trial Judge, peremptorily, dismissed the counter-claim of the respondents. It can be seen or appreciated, why I used the word “disaster” in describing the pleadings, the evidence of the plaintiffs, and their police witness and the said judgment of the trial court.

Finally, I note that the learned trial Judge, also relied heavily on Exhibit C – the sketch. The said exhibit, was drawn or made after four days of the said accident. See page 28 of the Records. The PW2 stated that there were two points of impact on the sketch. No explanation is given by him of how this fact, came to be, having regard to the evidence of the second appellant about the first respondent’s vehicle running into his vehicle and falling thereafter. The PW2 stated that “The essence of point of impact is to show where the vehicles collided” This evidence raises some doubts in my mind and the unanswered question by the PW3 and the learned trial Judge, in the sense that if there was one impact – i.e. the said collision, how come the evidence of the PW.2, showing in the sketch, two points of impact and his further testimony that the essence of the point of impact, was to show where the vehicles collided. The PW2 testified that one of the point of impact, was on the PW3’s lane, while the other, was at the centre of the road. This in my view, means that if one of the collisions took place at the centre of the road (he did not say which collision came first), the two vehicles, were therefore, at the centre of the road where they collided. The whole thing or scenario, looks or appears to me to be very absurd. The learned Counsel for the appellants, can now see, the confusion and unreliability of the pleadings of his clients and the evidence in respect of the said accident. There is no wonder or surprise to me, when I read at page 153 or 185 of the Records where it is stated that it was submitted by the learned Counsel for the respondent/appellants in their Brief at the court below:–

“that both parties predicated their respective case on the negligence of the other. The learned Counsel referred to the parties pleadings and the evidence given by each of the parties, it is submitted that the cause of the accident could possibly be determined when the point of collusion as contained in Exhibit C is tested against the evidence of PW3 and DWI . . .”

Regrettably, the learned trial Judge, even without evaluating the pleadings and the evidence of the defence witnesses, was ironically, also influenced by the said Exhibit C and the evidence of the PW2 which is most unreliable. It is significant to note that Exhibit C, did not show how the accident and/or collision occurred. Indeed, the answer of the PW2 under “re-examination” compounded his evidence that one of the points of impact, was at the middle of the road. For said he on oath:–

“The width of the road is 25 fit. (sic) from the point of impact on the centre of the road to the defendant’s side is 15 fit. (sic)”

Apart from giving evidence to add to, vary the contents of a document which in law, is not acceptable or allowed or tolerated, this evidence is very contradictory. In any case, since there were two points of impact, so the collision, did not afterwards occur on the second defendant’s lane. Again, as rightly submitted in the respondents’ paragraphs 6.18 and 6.19 of their Brief, the pleading of the appellants is that,

“Sketch of the scene of the accident indicating the manner the accident happened, was made, statements taken and the vehicle were inspected. All shall be relied upon at the trial and are hereby pleaded.” (The underlining mine.)

As I have noted, Exhibit C did not show how the accident happened. PW3, an eye witness, gave evidence at variance with their pleadings as I have also noted. That the distance of 160 ft from the alleged point of impact to the resultant position of the second respondent’s vehicle, is stated and accepted by the learned trial Judge, as evidence of excessive speed, with respect, is grossly misconceived. This is because, the evidence of the first respondent as DW1 that he drove his vehicle at the speed of 45 kph, was not challenged by the appellants and their learned Counsel. So, having regard to the PW2’s evidence of two points of impact, the confusion becomes more complex in my respectful view. I note that there is no evidence of any VIO’s (Vehicle Inspection Officer) inspecting any of the two vehicles and producing a Report. As I have stated, there is no statements said to be taken and/or the Report of any Vehicle Inspection by a VIO or anybody else, produced or tendered. So, the provision of section 149(d) of the Evidence Act, can be invoked by me in the circumstance. (See the cases of Bello v Kassim (1969) NMLR 148 and Onuwaje v Ogbeide (1991) 3 NWLR (Part 178) 147).

I will now deal even briefly, with the settled law on pleadings and the evidence either in support or not given at all. It is firmly established that the essence of pleadings, is to compel the parties to define, accurately and precisely, the issue upon which the case is to be contested. This is in order to avoid any element of surprise by either party. It is not to adduce evidence which goes outside the facts pleaded. (See the cases of George v Dominion Flour Mills Ltd (1963) 1 SCNLR 177; Emegokwue v Okadigbo (1973) 4 SC 113; Orizu v Anyaegbunam (1978) 5 SC 21; Total (Nigeria) Ltd v Nwako (1978) 5 SC 1 and Chief Ibanga & others v Chief Usanga & others (1982) 5 SC 103 at 124 and 125; (1982) 1 ANLR 88 at 99 and many others).

One of the objects of pleadings, is to shorten proceedings by ascertaining what facts are agreed to, so that evidence need not be led to prove them. (See the case of Okparaeke Egbonu 7 WACA 53). This is why it is also settled that a party or parties, is or are bound by his or their pleadings. (See the cases of Adenuga v Lagos Town Council 13 WACA 125; Oyediran & Family v Amoo & Family (1970) (3) NMLR 47; Ekponyong & others v Chief Ayi & another (1973) 5 SC 169 citing the case of Property Development Ltd v Attorney-General of Lagos State (1976) 7 SC 15 and National Investment and African Seaways Ltd v Nigerian Dredging Road & General Works Ltd (1977) 5 SC 235 and National Investment and Properties Co Ltd v The Thompson Organisation Ltd & others (1969) NMLR 99 just to mention but a few). Thus, a trial court, will not adjudicate on an issue or issues, not pleaded. (See the cases of Northern Brewery Ltd v Mohammed (1973) (i) NMLR 19; Okagbue & others v Janet Romaine (1982) 5 SC 133 at 150–158; Nioku & others v Eme & others (1973) 3 ECSLR 253). Thus, evidence contrary to pleadings, should not be admitted, but if the opposing party fails to object and it is admitted, the court, should not use such evidence in the judgment. (See the case of Phil-Ebosie & others v Ebosie (1974) 4 ECSLR 139; Ugo v Obiekwe (1989) 2 SCNJ 95 at 106 and Conway v Wimpey (1951) 2 QB 266 at 274). It need be stressed that averments in pleadings and on which no evidence is adduced, are deemed abandoned. This is because, pleadings do not constitute or amount to evidence. See the case of Chief Uwegbe & 4 others v Attorney-General, Bendel State, Nigeria & others (1986) 1 NWLR (Part 16) 303 at 317 CA.

In summary, 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 (Nigeria) Ltd & another v Atoloye (1993) 6 NWLR (Part 298) 233 at 248 CA. And so, in the instant case, since the evidence differed materially from the averments in the appellants’ pleadings, the claim should and ought to have been dismissed by the trial court. (See the cases of Kalu Njoku & others v Ukwu Eme & others (1973) 5 SC 293; African Continental Bank Ltd v Northern Nigeria (1967) NMLR 231 and Gwani v Ebule (1990) 5 NWLR (Part 149) 201 CA).

In fact, in the case of Dr Ochin & 15 others v Prof. Ekpechi (2002) 5 NWLR (Part 656) 225 at 240 CA – Tobi, JCA (as he then was) with respect, stated humorously, inter alia, as follows:–

“It is elementary law that parties are bound by their pleadings. This means that they must follow their pleadings blindly in the same way the blind follows his leader or lead man . . . Pleadings not admitted are as good as dead unless proved in court . . . Since pleadings have neither brain nor mouth to think or talk, it is the duty of the party to lead evidence on his pleadings . . .”

(See also the case of Lawson v Afani Continental Co Nigeria Ltd & another (2002) 2 NWLR (Part 252) 585 at 625 CA). This is why it is settled that facts not pleaded, go to no issue. (See the case of Abduliahi v Elavo (1993) 1 NWLR (Part 479) 62). Again, as to the bindingness of pleadings and the failure of a trial court to evaluate evidence. (See also the case of Chief Imeh & another v Chief Okogba & another (1993) 9 NWLR (Part 316) 159 at 178; (1993) 12 SCNJ 57). Once the rules of pleadings are infringed or not complied with, the trial, cannot be said to be free and fair. Consequently, there will be no fair hearing. (See per Olatawura, JSC, in the case of Ugbodume & others v Abiegbe & others (1991) 8 NWLR (Part 209) 261 at 272; (1991) 11 SCNJ 1).

Now, as to the said judgment of the trial court, it cannot be over emphasised and this is firmly settled, that where a trial court, has failed to evaluate or properly evaluate, the evidence before it as a result of a decision which is perverse (as in the instant case leading to this appeal), the Court of Appeal, has a duty by way of a re-hearing, to evaluate as it were, the evidence that has been adduced. (See the cases of Lions Building v Shodipo (1976) 12 SC 135; Tsokwa Motors Nigeria Ltd & another v UBN Ltd (1996) 3 NWLR (Part 471) 129 at 145; (1996) 10 SCNJ 294 – per Iguh, JSC and Adegoke v Adidi (1997) 5 NWLR (Part 242) 410 CA just to mention but a few).

It need be borne in mind that the law is trite that for a judge to produce a judgment which is fair and just verdict on a case put up by two or more contending parties, he must fully consider the evidence proffered by all the parties, before him, ascribe probative value to it, make definite findings of fact, apply the relevant law and come to some conclusion on the case before him. (See the cases of Woluchem v Gudi (1981) 5 SC 291; Olufosoye v Olorunfemi (1989) 1 NWLR (Part 95) 26 at 37 and Alhaji Leke v Alhaji Soda & others (1995) 2 NWLR (Part 378) 432 at 44 CA – per Umaru Abdullahi, JCA (as he then was, now President) citing the case of Duru & another v Nwosu & others (1989) 4 NWLR (Part 113) 24 at 35, 39, (1989) 7 SCNJ 154.)

But what is the case here? I or one may ask. The learned trial Judge at page 60 of the Records, after stating rightly, in my view, inter alia, that:–

“I find that the whole suit of claim (sic) by the Plaintiff’s (sic) and the counter-claims by the defendants rest on which party was negligent.

It is a matter of fact and law that all road users are duty (sic) resulting to damages to the other that gives rise to an action.” (The underlining mine.)

His Lordship proceeded in three sentences, to refer to the evidence of the PW2 and PW3 who he said alleged negligence on the part of the first defendant and that their evidence was corroborated by the sketch map. That this:–

“clearly shows that he (the first defendant/respondent) was on an excessive speed which made it not possible for which to have proper control of the vehicle(sic) resulting to the accident.” (The underlining mine.)

I have noted in this judgment, that speed (or call it excessive speed) is a relative term. There is no evidence in the Record, of the speed either of the drivers was driving before the collision by the appellants and PW2. But there is evidence by the first respondent, of what speed he himself, was driving and this, was not challenged. The court below, in my respectful view, was definitely right, when it held that the appellants did not establish a case of negligence against the first appellant/respondent.

Worse still, the learned trial Judge continued at the same page, thus:–

“These finding, I believe worked on the mind of the trial court (i.e. the said Magistrate’s Court in the criminal proceedings) to find the first defendant guilty of dangerous driving. By the first defendant’s negligence he breached the duty of care he owe (sic) other road users.”

You see to that. It could be seen why I said that the Judgment of the trial court, with respect, was/is a “disaster”. He proceeded finally to make the various awards at page 61 of the Records and did not consider it necessary, fair or just, to evaluate the counter-claim and the evidence in support thereof before he concluded at once thus:–

“On the other hand I find the first defendant to be negligent. His action gave rise to the present suit been (sic) filed against him and his employer, consequently all heads of claims filed by the defendants are each dismissed as lacking basis.” (sic). (The underlining mine.)

It is now firmly settled that a summary or re-statement of evidence, is not the same exercise as the evaluation and findings of a trial Judge on those evidence. (See the case of Chief Uwegbe & others v The Attorney-General Bendel State & others (supra) at 323 of the NWLR). A careful and dispassionate reading of the said judgment of the learned trial Judge, reveals and confirms that at no stage, did he ever or even properly evaluate the pleadings and/or evidence in support of the counter-claim of the respondents or even make an attempt to make some findings on any of the said claims and evidence in respect of the said counter-claim. This was/is with respect, unfair and unjust in the extreme to the respondents.

I should have been obliged to deal with the issue of res ipsa loquitor which however or in any case, was pleaded in the alternative by the appellants. But suffice it to say that this doctrine, does not arise or apply, where the cause of an accident is known.

Finally, on the various said awards by the trial court which again are among “the disasters” having regard to the said pleadings and evidence of the appellants and their/PW2, the power of an Appellate Court to assess damages, is not in doubt as there are a plethora of decided authorities in this regard. I will not go into this because, the judgment of the trial court, as regards the alleged negligence, has rightly in my respectful view, been faulted materially, by the court below.

In conclusion, it is from the foregoing and the reasoning and conclusion of my learned brother, Oguntade, JSC in his lead judgment which I had had the privilege of reading before now and I also agree with, that I too, find no merit in this appeal. I too, dismiss the appeal. I abide by the consequential order in respect of costs.

Nigeria LII

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