CORAM
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
SYLVESTER UMARU ONU , JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
SYLVESTER UMARU ONU , JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
SYLVESTER UMARU ONU , JUSTICE, SUPREME COURT
SYLVESTER UMARU ONU , JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
SYLVESTER UMARU ONU , JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT
SYLVESTER UMARU ONU , JUSTICE, SUPREME COURT
AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
IKECHI FRANCIS OGBUAGU, JUSTICE, SUPREME COURT.
AKINTOLA OLUFEMI EJIWUNMI JUSTICE, SUPREME COURT
PARTIES
A. G. LEVENTIS NIG. PLC. APPELLANTS
CHIEF CHRISTIAN AKPU
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondent was the Plaintiff at the trial court and his claim against the Appellant which was the Defendant was for the sum of N2 million being cost of replacement of the engine of Plaintiff’s Mercedez-Benz 500 SEL car destroyed by the Defendant; N500.00 per day from 28th January, 1993 until the date of judgment for procuring alternative transport and N1 million being damages for breach of contract.
HELD
APPEAL DISMISSED
ISSUES
Whether the Court of Appeal adjudicated upon the issue for determination complaining about the failure to plead particulars of negligence and if not, whether this Honorable Court should effectively determine this case by pronouncing upon the failure to plead particulars of negligence by the Respondent and its effect? Whether the Court of Appeal ought to have re-evaluated the evidence before the trial court and whether in re-evaluation, any weight ought to have been given to the evidence in rebuttal of negligence led by the Appellant’s witnesses? Whether in the absence of a cross-appeal, the Court of Appeal ought to have increased the award of damages reflecting the value of the engine of the Respondent’s car from N1.5m to N2.0M??
RATIONES DECIDENDI
DUTY OF THE APPELLATE COURT IS TO INQUIRE WHETHER THE DECISION OF THE TRIAL COURT IS RIGHT NOT THE REASONS
It is also settled that the duty of an Appellate Court, is to inquire into ways the trial court, tried and settled the dispute and not to re-open and re-try cases. This is why it is also settled that what an Appellate Court has to decide is whether the decision of the trial court was right and not the reasons for the decision. PER OGBUAGU, J.S.C
HOW TO PROOF NEGLIGENCE
It is firmly established that a party who alleges negligence, should not only plead the act or acts of negligence, but should also give specific particulars. Again settled, is that where there is failure to furnish further and better particulars, no evidence, will be led on the facts of which further particulars, are required. PER OGBUAGU, J.S.C
THE CONDITIONS THAT WOULD NULLIFY JUDICIAL PROCEEDINGS
For a condition to nullify a judicial proceeding, it must be a substantial provision, which affects the jurisdiction or competence of the court, or a procedural defect in a miscarriage of justice. . PER OGBUAGU, J.S.C
IT IS THE DUTY OF THE TRIAL COURT TO ACCESS THE CRDIBILITY OF WITNESSES
It is settled that the function of assessment of credibility of witnesses, is essentially, for the trial court and not that of an Appellate Court. PER OGBUAGU, J.S.C
WHERE THE FINDINGS OF A TRIAL COURT ARE PERVERSE OR THE USE MADE OF DOCUMENT GOES BEYOND EVIDENTIALS VALUE
It is now firmly established that where the findings of a trial court, are perverse or use made of a document, goes beyond its evidential value particularly in respect of documentary evidence, it is the duty of the Appellate court, to re-consider, re-assess the evidence and apply it if the justice of the case so requires. PER OGBUAGU, J.S.C
A COURT SHOULD LIMIT ITSELF TO THE ISSUES RAISED BY PARTIES
It is also firmly settled that, it is the duty of a court to confine or limit itself, only to the issue raised and/or canvassed by the parties before it. There are also too many decided authorities in this respect. PER OGBUAGU, J.S.C
ERROR OR MISTAKE IN A JUDGEMENT THAT WILL DETERMINE AN APPEAL IN FAVOUR OF AN APPELLANT MUST BE SUBSTANTIAL AND MUST HAVE OCASSIONED A MISCARRIAGE OF JUSTICE
It is now firmly established that it is not every mistake or error in a judgment that necessarily determines an appeal in favour of an appellant or automatically, results in the appeal being allowed. It is only when the error, is so substantial, that it has occasioned a miscarriage of justice, that the Appellate Court, is bound to interfere. There are too many decided authorities in this regard. PER OGBUAGU, J.S.C
COURT SHOULD NOT RAISE ISSUES SUO MOTU WITHOUT AFFORDING PARTIES OPPORTUNITY OF ADDRESSING IT ON SAME
This Court has in many decided cases, deprecated a court raising a matter/point suo motu, without affording the parties, the opportunity of addressing it on the matter/point as it amounts to a denial of fair hearing guaranteed in Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria now Section 36(1) of the 1999 Constitution. PER OGBUAGU, J.S.C
THE POWERS OF COURT OF APPEAL UNDER SECTION 16 OF THE COURT OF APPEAL ACT
This is also settled, Section 16 of the Court of Appeal Act, gives it full jurisdiction over the whole proceedings as if the proceedings, had been initiated in the Court of Appeal as the court of first instance and therefore, may re-hear the case as a whole or in part or may remit it, to the trial court for the purpose of rehearing or trial de novo. PER OGBUAGU, J.S.C
CIRCUMSTANCES WHERE THE APPELLANT COURT WOULD INTERFERE WITH THE AWARD OF DAMAGES
The law is firmly settled as to the attitude or powers of an Appellate Court in respect of an award of damages by a trial court. An Appellate Court ought not to upset an award of damages by a trial court merely because, if it had tried the matter, it might have awarded a different figure. PER OGBUAGU, J.S.C
CIRCUMSTANCES WHERE APPELLANT COURT WOULD INTERFERE WITH DECISION WHICH IS INADMIISIBLE
It has to be borne in mind and this is also settled, that if an Appellate Court is of the opinion (as in the instant case reproduced by me hereinabove), that the inadmissible evidence, cannot or could not reasonably, have affected the decision, it will not interfere. But if it is of the opinion that without the inadmissible evidence, the decision must have been different, it will interfere. PER OGBUAGU, J.S.C
CIRCUMSTANCES WHERE COURT WOULD GIVE ADEQUATE CONSIDERATIONS BEFORE MAKING AN AWARD OF DAMAGES
I am aware and this is settled, that a court, should give adequate consideration to the evidence offered in support of a claim for special damages and that if the accepted evidence possesses such probative value as preponderates the case in favour of the person claiming, then an award, would be justified. PER OGBUAGU, J.S.C
CIRCUMSTANCES WHERE THE PARTICULARS OF NEGLIGENCE WOULD BE RECTIFIED WHEN THE APPELLANT FAILED TO PLEAD IT BUT IT IS CONTAIN IN THE PLEADING
On the first question, the contention of the trial court was that although no particulars of negligence was specifically pleaded by the plaintiff; such omission could be and was in fact cured because the plaintiff has clearly indicated in his pleadings what his case was all about. I entirely agree with that view. I therefore believe and hold that although a plaintiff may not specifically set out the particulars of negligence in his pleadings, that omission could be cured if the relevant details are contained in the various paragraphs of his pleadings. PER OGBUAGU, J.S.C
DUTY OF THE COURT TO CONSIDER ALL ISSUES BEFORE IT
It is firmly settled that it is the duty of all lower courts, to consider all issues placed before it except in the clearest cases. That unless in the clearest of cases, an intermediate court, should endeavour to resolve all issues put before it. . PER OGBUAGU, J.S.C
CASES CITED
Aku Nmecha Transport Services (Nig.) Ltd. & anor. v. Atoloye.Odunayo v. The StateIfeanyi-Chukwu (Osondu) Ltd. v. Saleh Boneh Ltd. (2000) 3 SCNJ. 18Oroke v. Ede;Jikantoro & 6 ors. v. Dantoro & 6 orsTsokwa Oil Marketing Co. Nig. Ltd. v. Bank of the North LtdAbbas & ors. v. Solomon & ors. and Attorney-General Anambra State & 5 ors. v. Okeke & 4 ors. R. v. Thomas; Raimu v. Alhaji Akintoye Akpakpuna & ors. v. Nzeka & ors.International Bank for West Africa Ltd. v. Pavek International Co. Madam Obulor & anor. v. OboroCalabar Cement Co. Ltd. v. Abiodun Daniel.
STATUTES REFERRED TO
Section 33(1) of the 1979 Constitution of the Federal Republic of Nigeria now Section 36(1) of the 1999 Constitution?