(Court of Appeal – July 2015)
Legalpedia Electronic Citation: LER CA/L/481/2011
Areas of Law
ACTION, APPEAL, DAMAGES, INSURANCE LAW, LAW OF CONTRACT, LAW OF EVIDENCE, TORT, WORDS AND PHRASES
Summary of Facts:
The Plaintiff/Appellant’s car was involved in an accident with the 4th Respondent’s Mercedes Benz 200. The 4th Respondent who had a third party insurance with the 3rd Respondent notified the Plaintiff/Appellant of its intention to repair the car. The 1st and 2nd Respondents with a view to getting her car repaired, took possession of the Appellant’s car for repairs but failed to return same. The Plaintiff/Appellant thereafter instituted an action against the Respondents at the High Court of Lagos State seeking for the following reliefs; an immediate return of the Plaintiff/Appellant’s Mercedes Benz 230 car with registration number CD-26-RC illegally, unlawfully and wrongfully converted or the sum of N7, 000, 000.00 (Seven Million Naira) being the value of the car as at December 2002, the sum of N2, 500.00 (Two Thousand Five Hundred Naira) being daily expenses incurred to secure alternative transportation till judgment is delivered, amongst others. At the end of the trial, judgment was entered in favour of the Plaintiff/Appellant but the court refused to award damages. Dissatisfied, with the refusal to award damages, the Plaintiff/Appellant has appealed to the Court of Appeal.
Issues for Determination
- Whether the lower court was right in holding that the Appellant was not entitled to the sum of N2, 500.00 (Two Thousand Five Hundred Naira) per day or any other sum being the average daily expenses incurred to secure alternative transportation despite the express admission of the Respondent and express findings of the trial Judge that the Appellant’s car was illegally converted.
- Whether the lower court was right in holding that the appellant must “preponderate so sufficiently” before she can be awarded the sum of N2, 500.00 (Two Thousand Five Hundred Naira) per day or any other sum as the average daily expenses incurred in securing alternative transportation when the standard of proof in civil cases of this nature remains “balance of probabilities.”
- Whether the amount of N2, 000, 000.00 (Two Million Naira) awarded as special damages is sufficient to restore the appellant back to her previous position and or status quo in accordance with the principles of “restitutio in intergrum.”
- Whether the lower court was right in disregarding the evidence of the Appellant that the value of the car as at December 2002 was N7, 000,000.00 (Seven Million Naira) when there was no other better evidence before the court and when the evidence given by the Respondents was manifestly inconsistent and unreliable.
- Whether the learned trial Judge was right in holding that the 3rd Respondent was not privy to the conversion of the Appellant’s car thereby dismissing the Appellant’s claim against the 3rd Respondent.
- Whether the lower court was right by refusing to enter judgment against the 4th Respondent
BURDEN OF PROOF – HE WHO ASSERTS MUST PROVE
“It is trite law that he who asserts must prove.” PER.Y.B.NIMPAR J.C.A
DOCUMENTARY EVIDENCE – IMPORTANCE OF DOCUMENTARY EVIDENCE
“Documentary evidence is held to be the hanger upon which oral evidence can be verified, see the case of Cameroon Airlines V Otutuizu (2011)
LPELR – 827 (SC) where the court held thus:
“Documentary evidence always serves as a hanger from which to assess oral testimony.”
See also Kindley V M. G. Of Gongola State (1988) 2 NWLR (Pt 77) 473
on when there is oral as well as documentary evidence. It was held as follows:
“The legal proposition that where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony is a sound one.”PER.Y.B. NIMPAR J.C.A
CONTRADICTORY EVIDENCE – MEANING OF CONTRADICTORY EVIDENCE
PREPONDERATE – MEANING OF PREPONDERATE
“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.” PER Y.B. NIMPAR, J.C.A
STANDARD OF PROOF IN CIVIL CASES – THE STANDARD OF PROOF IN CIVIL CASES IS ON THE BALANCE OF PROBABILITIES OR PREPONDERANCE OF EVIDENCE
“The standard of proof in civil cases has been settled in a plethora of cases, it simply is that proof in civil cases is “on the balance of probabilities or preponderance of evidence”, see Amokomowo V Andu(1985)
LPELR – 469 (SC).It is therefore settled that balance of probabilities is the same as preponderance of evidence.” PER Y. B. NIMPAR, J.C.A
EVALUATION OF EVIDENCE – DUTY OF THE JUDGE WHEN EVALUATING EVIDENCE ADDUCED BY PARTIES
“The Supreme Court in the case of Abisi V Ekwealor(1993)
NWLR (Pt 302) 643 had this to say:
“Before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality of probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than other given by the other party.
Finally after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.”PER Y.B. NIMPAR, J.C.A
CONVERSION AND DETINUE – DISTINCTION BETWEEN CONVERSION AND DETINUE
“It is important to state the difference between conversion and detinue and from there the measure of damages can be clearly distilled. The Supreme Court in the case of M. I. N. LTD V M. F. K. W. A. LTD (2005)
10 NWLR (Pt 934) 645 said thus:
“There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of conversion; the latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods or judgment in the action for detinue. It is important to keep this distinction clear, for confusion sometimes arises from the historical derivation of the action of conversion from detinue or bailment and detinue or trover, of which one result is that the same facts may constitute both detinue and conversion.”PER Y. B. NIMPAR J.C.A
AWARD OF DAMAGES – AWARD OF DAMAGES IN CONVERSION
“It is trite that award of damages in a case of conversion is different from that of detinue. In conversion judgment is given as at day of conversion, a single sum, usually the value of the item at date of conversion and damages for its detention. The argument of awarding damages for the period of litigation is inconsistent with the principles of award of damages in cases of conversion. See the case of C.D.C. (Nig) V SCOA (Nig) Ltd (2007)
2 S.C. 198 at 199 where the court held thus:
“The measure for damages for conversion generally is the value of chattel at the time of conversion together with any consequential damages flowing from the conversion.”See also Ordia V Piedmont (Nig) Ltd (1995)
2 NWLR (Pt 379) 516.” PER Y. B. NIMPAR J.C.A
AWARD OF DAMAGES – DAMAGES THAT ARE NOT SPECIAL ARE AWARDED AT THE DISCRETION OF THE TRIAL COURT.
AWARD OF DAMAGES – A PARTY SEEKING TO SET ASIDE AN AWARD OF DAMAGES BY A TRIAL COURT MUST ESTABLISH CONDITIONS FOR INTERFERENCE.
INTERFERENCE WITH THE AWARD OF DAMAGES – PRINCIPLES THAT WILL WARRANT INTERFERENCE BY AN APPELLATE COURT WITH DAMAGES AWARDED BY A TRIAL COURT
“Now did the appellant establish any of the settled principles under which this court can interfere with the award of damages? For clarity the principles are:
(a) The trial court acted on wrong principle
(b) The amount awarded was so high or so small as to make it an entirely erroneous estimate of the damages to which the Plaintiff’s is entitled or;
(c) The award was arbitrary.”PER Y. B. NIMPAR J.C.A
JOINDER OF PARTIES – DUTY OF A THIRD PARTY WHO INTENDS TO JOIN AN INSURER IN A CLAIM AGAINST THE INSURED
“The common law position is that a third party cannot join an insurer but the position has since changed by legislation. See the case of Unity Life And Fire Insurance Co. V Ladega(1996)
1 NWLR (Pt 427) where this court Per OGUNTADE JCA
(as he then was) held as follows:
“Under the common law, the Plaintiff in this matter, could not have joined the appellant as a party to the suit brought against the persons said to be responsible, for the Plaintiff’s injuries. However, Section 11 of the Insurance (Special Provisions) Decree No. 40 of 1988 altered the position. The Section provides:
“Where a third party is entitled to claim against an insured in respect of a risk insured against, he shall have a right to join the insurer of that risk in an action against the insured in respect of the claim: provided that before bringing an application to join the insurer, the third party shall have given to the insurer at least thirty days notice of the pending action and of his intention to bring the application.”PER Y. B. NIMPAR J.C.A
JOINDER OF PARTY- INSTANCE WHERE IT WILL BE UNLAWFUL TO JOIN THE INSURER AS A PARTY IN A CLAIM AGAINST THE INSURED
“It is correct to say that the Supreme Court in the case of Andrew O. Ajufor V Christopher Ajabor & Ors (1978)
6 – 7 SC. 39 at 52 held that a faulty party could not sue the insurer ab initio. That it is so because there would be no privity of contract between the parties and that even if such right was conferred by Section 10 of the Motor Vehicles (Third Party) Insurance Act Cap 126 Laws of the Federation it would be inappropriate to bring in the insurer as a party except, perhaps, by way of a third party proceedings based on contract of indemnity if any.”PER Y.B. NIMPAR J.C.A
Statutes Referred To
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