ALHAJI ISA MAIWAKE (PLAINTIFF)

v.

HARUNA GASSAU AND COMET TRANSPORT LTD (DEFENDANTS)

(1971) All N.L.R. 594

Division: High Court, Kano

Date of Judgment: 6th November, 1971

Case Number: SUIT NO. K/94/70

Before: Wheeler, J.

Civil Action.

HELD:

(1)     The plaintiff was not entitled to recover the cost of a new lorry but the value of the lorry at the time of the accident.

(2)     The claim for special damages for loss of use failed as the quantum of loss was not certain or strictly proved.

(3)     The plaintiff was entitled to general damages for loss of use on the basis that acting as a reasonably prudent businessman, he would have been able to replace the lorry with a new one within six weeks of the accident and, on the evidence, there was a reasonable certainty that, if the plaintiff's lorry had not been involved in the accident, it would have been profitably engaged during that period.

Judgment for the Plaintiff.

Cases referred to:

The Hebridean Coast Owners of Steamship Lord Citrine v, Owners of Motorship or Vessel-Hebridean Coast (1960) 2 All E.R. 85;

Ogun v. Leventis Motors Limited 1963 N.N.L.R. 115.

CIVIL ACTION.

SUIT NO. K/94/70.

Majiyagbe for plaintiff.

Araoye for defendants.

Wheeler, J.:-This is an action for damages for negligence arising out of an accident which it is agreed took place on the 8th February, 1970 at Chiromawa bridge on the Lagos-Zaria Road between the plaintiff's lorry and a lorry owned by the second defendants and driven by their employee, the first defendant.

The plaintiff's case is that his lorry No. KN.8677, being driven by his driver Idi Audu to Kano, had been permitted through the barrier at the Zaria end of the single-lane bridge and had all but completed crossing the bridge when the lorry driven by the first defendant was allowed through the first defendant's negligence and notwithstanding the frantic signals of the attendant at the barrier at the Kano end of the bridge to stop, to crash through that barrier and collide with the plaintiff's lorry.

That case rests on the evidence of the plaintiff's driver Idi Audu and of the barrier attendant at the Kano end of the bridge by name Yallo Uku who told consistent stories and gave their evidence well. I see no point in restating their evidence here. No evidence has been called by the defence and in the absence of any contrary evidence, I have no reason to disbelieve the evidence of Idi Audu and Yallo Uku. I am satisfied their evidence amply establishes the case put forward by the plaintiffs. In particular I find on their evidence that the following allegations of negligence set out in the statement of claim, namely, that the first defendant drove excessively fast, failed to keep a proper look out, failed to stop at the barrier and drove his lorry onto a narrow bridge when the plaintiff's lorry was already on the bridge have been proved on the balance of probabilities.

I have no hesitation in finding too, that in the position in which he found himself, that is to say stationary or almost stationary at the exit of a single-lane bridge when the defendant's lorry crashed through the barrier and entered the bridge at speed, the plaintiff's driver could have done nothing to avoid the accident and that there was no contributory negligence on his part. I find that the negligent driving of the first defendant was wholly responsible for the accident, and that the first defendant being the driver of the second defendant, both are responsible for the consequences.

I turn now to the issue of damages in which regard the plaintiff first claims the sum of £6,925 as the cost of a new vehicle, his case being that his lorry and trailer cost that sum and were a total loss as a result of the accident. Evidence of this was given by the engineer in charge of BEWAC Motors, Kano who stated the plaintiff purchased both from BEWAC late in 1969 and that when he examined them both after the accident in BEWAC premises, they were both damaged beyond repair and, apart from two or three tyres of some use, had no salvage value. The plaintiff's own evidence is that he paid BEWAC £6,925 for both the lorry and the trailer and that they were five or six months old at the time of the accident. On this evidence, I find that the lorry and trailer had been purchased for £6,925 and were a total loss as a result of the accident

At the same time, the lorry and trailer were almost six months old when the accident occurred and there must have been some depreciation in their value over that period. No one has given evidence indicating what the immediate pre-accident value of the lorry and trailer likely was and doing the best I can in the circumstances, I award the plaintiff damages for £6,500 under this head.

In addition the plaintiff claims special damages for loss of earnings at £45 per day for 233 days. The point has not been clarified but I gather the period of 233 days is the period from the date of the accident to the date of the writ of summons was taken out. It is a cardinal principle of law that a plaintiff must act reasonably in relation to the defendant so as to mitigate his loss, and it follows that the plaintiff in the present case was not entitled, at least where as here it is no part of his case that he had not the financial means to do so, to sit back and do nothing about replacing his lorry which had been written off. It is clear his Counsel appreciated this point for at the end of the day, Mr Majiyagbe invited me to award damages for loss of profits at £45 per day in respect of a reasonable period.

This situation would appear to have arisen because the plaintiff's evidence on this aspect of the case was vague in the extreme. Indeed in examination in chief he gave no evidence that he had sought to replace the lorry in question with another one; it was only under cross-examination, after first denying it, that he stated that he did so on a date in 1970 he was unable to remember. I have the impression the plaintiff at first denied he had replaced the lorry with a new one because he wrongly thought it would have been to his disadvantage, having regard to his claim for the value of the lorry written off, to have said he did so, and in fact I believe his last word on the matter to the effect that sometime in 1970 he bought a new lorry.

Moreover the plaintiff's evidence regarding the manner in which the daily profit loss of £45 was arrived at was very much evidence of a general character indicating in general terms the work the plaintiff had been able to arrange for the lorry and the kind of profit he had been making with it. In particular he gave or called no evidence showing that by reason of the accident he had been unable to undertake specific assignments for which the lorry had been engaged. Special damages however must be certain and strictly proved and having regard to these matters, I am unable to find that there is satisfactory proof of the plaintiff's claim for special damages for loss of profits totalling £10,485, and that claim accordingly fails.

But the matter does not rest there for the plaintiff's writ of summons is endorsed in terms which show that in addition to the items of damage I have mentioned, he is also claiming general damages.

In The Hebridean Coast (1960) 2 All E.R. 85, Devlin, L.J. (as he then was) having first referred to the general rule governing the assessment of general damages, namely that the plaintiff is entitled to be awarded such sum as will fairly compensate him for the loss he had actually sustained, went on to point out that a working principle used by the courts in calculating general damages on the basis of that general rule in the case of a ship or other chattel incapable of use while necessary repairs are being carried out, is that "where there is a reasonable certainty of employment, the owner is entitled to be compensated for the profit he had lost." A Nigerian case is Ogun v. Leventis Motors Ltd. 1963 N.N.L.R. 115 in which the High Court (Hurley C.J. and Smith S.P.J.) dealt with a claim for general damages for loss of profits in an appeal from a District Court in the following terms (p. 120):-

"As to the claim for loss of business, the estimated earnings of £5 a day appears to us to be a reasonable basis for calculating general damages for loss of business. The period for which it is claimed is 51 days. We do not think that the lorry would be earning every day, time being required periodically for maintenance. We therefore assess general damages at £225 based on the conjectural figure of £5 a day for 45 days."

I consider that the principle adverted to by Devlin L.J. is applicable here and approaching this case in that way, I find on the plaintiff's evidence that there was a reasonable certainty that the lorry would have been engaged to carry out four trips a month (but not five) from Kano to Lagos and back carrying produce which would have earned for the plaintiff £304-5s-0d for each return trip or £1,217 per month. The costs of earning that sum have, of course to be deducted. And the plaintiff's evidence which I accept (he was not cross-examined on these matters) is that he paid the driver wages and expenses of £23 per month, that he spent £43-15s-0d per trip on fuel or £175 per month and £10 per month on engine oil giving a grand total of £208 per month. consequently the net profit per month could not have been more than about £1,010, and as that figure does not take account of such overheads as insurance, vehicle licence and the cost of servicing, in my opinion a fair assessment of the net profit made by the lorry was £950 per month.