Adeogun v Adidas (1986)

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DR. I. O. ADEOSHUN

V.

POPOOLA ADISA

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/90/85

UMARU MAIDAMA, J.C.A. (Presided and Read the Leading Judgment)

EPHRAIM OMOROSE IBUKUN AKPATA, J.C.A.

JOSEPH DIEKOLA OGUNDERE, J.C.A.

WEDNESDAY, 23RD JULY, 1986

CIVIL PROCEDURE – Pleadings – Special damages – How pleaded.

CIVIL PROCEDURE – Issues – Meaning of issues.

CIVIL PROCEDURE – Object of Pleadings.

CIVIL PROCEDURE – Pleading in Road Accident cases.

CIVIL PROCEDURE – Pleadings – Negligence – How pleaded.

CIVIL PROCEDURE – Rules of Court – Recourse to Foreign Rules.

DAMAGES – Special and General Damages – Distinctions.

DAMAGES – Special and General Damages – How pleaded.

PRACTICE AND PROCEDURE – Evidence must be rooted in pleadings.

TORT – Negligence – Proof of.

Issues:

1.
When are special damages taken as having been proved by a claimant?

2.
How is negligence proved in road accident cases?

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Facts:

The plaintiff/respondent in the High Court of Kaduna State claimed against the defendant/appellant the sum of N6,000 as special damages for the loss and damages suffered by him as a result of the collision which occurred between plaintiffs/Respondent’s vehicle – Datsun C20 Bus Registration No. KD 6825DB and defendant’s /appellant’s vehicle – Peugeot Station Wagon RegistrationNo. KD 9515 DE, at the junction of Sokoto-Zaria Kano road on the 19th ofAugust 1981. Plaintiff/respondent alleged that the collision was caused by the negligence of the defendant/appellant.

The learned trial Chief Judge found the defendant/appellant liable for the amount claimed and entered judgment for the Plaintiff/respondent.

Held (Allowing the appeal by majority):

  1.        Since our rules of practice are comprehensive on the procedure of filing  pleadings, there is no need for recourse to foreign rules for guidance.

2.
One of the objects of pleadings in civil proceedings is to define issues and narrow the scope of controversy in each case.

3.
Where parties to an action have answered one another’s pleadings in such a manner that they have arrived at some material point or matter of fact affirmed on one side and denied on the other side, the parties are said to be at issue or they have joined issues and the question they raised is called the issue.

4.
While general damages consists of damages which the law presumes to be the natural or probable consequence of a defendant’s act, special damages consists of items of loss which are capable of exact calculation.

5.
General damages need not be pleaded but can be averred generally and special damages will have to be particularised, or specified in the plaintiff’s pleadings in order that he maybe permitted to give evidence thereof and recover damages thereon.

6.
Since the plaintiff/respondent’s pleadings did not give the particulars of the damage suffered, his evidence as to the value of the bus goes to no issue.

7.
The value of the bus being an item of special damage ought to have been specifically pleaded and strictly proved.

8.
The rule of pleadings in road accident cases like in all other civil cases, require the plaintiff to state the material facts of the accident describing as clearly as possible what is alleged each party was doing or attempting to do at the time of the accident and how the collision or the accident occurred or happened.

9.
Where negligence is alleged the plaintiff must set out or givefull particulars of the negligence if he is to be allowed to give evidence on that particular item of negligence.

10.
It is the duty of courts to decide cases in accordance with the

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issues formulated on the pleadings of the parties; it is not within their province to adjudicate on any matter not put in issue.

11.
Parties are bound by their pleadings and any evidence which is at variance with the averment in the pleadings comes to no issue and should be disregarded.

Nigerian Cases Referred to in the Judgment:

Akpapuna v. Nzeka II (1983) 2 SCNLR 1

Appah v. Costain (W.A) (1974) 11 SC 23

Araba v. Elegbe (1986) 1 . (Pt. 16) 333

Bank of the North Ltd. v. Intra Bank S.A. (1969) 1 All NLR 91

Benson v. Otubu (1975) 3 SC 112

Boshali v. Allied Commercial Exports Ltd. (1961) All NLR 917

British India General Insurance Co. (Nig.) Ltd. v. Akhimen (1976) 7 SC 137

Bush and Co. (Nig.) Ltd. v. Uzowulu (1979) 1 FNLR 139

Ehimare v. Emhonyon (1985) 1 . (Pt. 2) 177

Far East Mercantile Ltd. v. Jackie Philips Photos Ltd. (1974) 11 SC 225

Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 1 All NLR 387

Mandilas and Karaberis v. Apena (1969) NMLR 199

N.P.M.B. v. Adewunmi (1972) 11 SC 111

Njoku & Sons v. Eme (1973) 5 SC 293

Nwabuokei v. Iwenjiwe (1978) 2 SC 61

Odulaja v. Haddad (1973) 1 All NLR 191

Odume v. Nnachi (1964) 1 All NLR 329

Odumosu v. A.C.B. (1976) 11 SC 55

Okqfor v. Obiwe (1978) 9-10 SC 115

Okparaoke v. Egbuonu (1941) 7 WACA 53

Oloruntade v. Dandodo (1976) NNLR 117

Owosho v. Dada (1984) 7 SC 149

Foreign Cases Referred to in the Judgment:

Bruce v. Odhams Press Ltd. (1936) 1 KB 697

Davies v. Mann 10 NRW 546

Ikwu v. Samuel (1963) All E.R 879

Swadling v. Cooper (1931) AC 1

The Susequehanna (1925) AC 655

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria 1979, S. 220(1)

Evidence Act, Cap. 62, S. 137(1).

High Court Law, Vol. 2, Laws of Northern Nigeria, 1963, S. 35

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Nigerian Rules of Court Referred to in the Judgment:  

High Court of Kaduna State (Civil Procedure) Rules, 1977, O. 10 rr. 5, 6, 7 and 8

Foreign Rules of Court Referred to in the Judgment:

Rules of the Supreme Court of England, O. 8 rr. 12 & 13.

Books Referred to in the Judgment:

Bullen, Leake and Jacobson Precedent of Pleadings at page 685

Shorter Oxford Dictionary 3rd Ed. Vol.2

Appeal:

This was an appeal against the decision of the High Court Kaduna which entered judgment for the Plaintiff/respondent against the defendant/appellant.

The Court of Appeal dismissed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Kaduna.

Names of Justices that sat on the appeal: Umaru Maidama, J.C.A. (Presided and Read the Leading Judgment); Ephraim Omorose Ibukun Akpata, J.C.A., Joseph Diekola Ogundere, J.C.A.

Date of judgment: Wednesday, 23rd July, 1986  

Appeal Number: CA/K/90/85

High Court:

Name of High Court: High Court, Kaduna State.

Counsel:

B. Aluko Olokun Esq. – for the Appellant

Mr. G. O. Olanrewaju – for the Respondent

MAIDAMA, J.C.A. (Presiding and Delivering the Leading Judgment): This appeal arose from an accident involving two vehicles – a Datsun C20 bus registered No. KD 6825 DB and a peugeot station wagon registered No. KD 9515 DB. The accident occurred at the junction of Sokoto-Zaria-Kano Road on the 19th day of August 1981 at about 9 O’clock in the evening. As a result of the accident, the bus which belonged to the respondent was damaged beyond economic repairs. The respondent, as plaintiff in the High Court, claimed against the appellant, as defendant, the sum of N6,000 as special damages for the loss and damages suffered by him as a result of the collision which was caused by the negligence of the appellant. After due hearing, the learned trial Chief Judge

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found the appellant liable for the amount claimed and therefore entered judgment for the respondent. This is an appeal against the decision.

Before dealing with the grounds of appeal, it is relevant to state, albeit briefly, the facts of the case as found by the learned trial Chief Judge. The facts are as follows:-

On the date of the accident, the bus which was driven by the respondent’s driver, Baba Hamida (PW4) was coming from the direction of Funtua along Sokoto-Zaria Road and was heading towards Zaria. On reaching the junction of Sokoto-Zaria-Kano Road, the appellant who was driving the peugeot at a speed, failed to stop at the junction, thereby he collided with the bus. As a result of the collision, Baba Hamida (PW4) and the passengers in the bus were injured. The bus itself was damaged beyond economic repairs. A police sergeant No. 21186, who was at the scene, immediately made arrangements to convey the injured to the hospital, and thereafter made a report to the Motor Traffic Division. Another police sergeant, Jacob Dogo, Sergeant No. 42521, attached to the Divisional Police Headquarters Samaru, Zaria, was detailed to investigate the cause of the accident on the 20th of August 1982, and drew a sketch map (Exhibit 1) showing the travelling direction of each of the vehicles in the presence of both parties who signed it as correct. The two vehicles involved were later examined by two vehicle inspection officers. While the bus was examined by PW1, Ishaya Usman Achison, the peugeot was examined by another officer who died before submitting his report. According to PW1, the damages caused to the bus, as a result of the accident included wrecked steering system, damaged front chasis, front side head lamp, signals, doors, seats and the front windscreen. In his opinion, the bus was damaged beyond economic repairs.

Before the commencement of the trial, both parties filed and exchanged pleadings, on the order of the court which was made on the 23rd of December 1983. In his Statement of Claim which was filed on the 8th of March 1984, the respondent averred as follows:

(1)
The plaintiff is a transporter by trade and the owner of vehicle Datsun C20 Bus registration No. KD 6825 DB.

(2)
The plaintiff runs his business with the said vehicle.

(3)
On or about 19th August, 1982, the plaintiff’s vehicle was being lawfully and properly driven along and in the direction of Sokoto Road, Zaria/Kano junction, Zaria, when the defendant so negligently drove, managed and controlled a peugeot family car registration No. RD 9515 DB along the said road that he caused or permitted the same to collide with the plaintiff’s vehicle and damaged it beyond repairs.

(4)
The plaintiff has since been deprived the use of the said vehicle No. KD 6825 DB, as a result of the negligence of defendant.

(5)
The plaintiff suffered loss of use/profit as a result of damage done to the said vehicle resultant from the negligence of the defendant.

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Particulars of Negligence

(6)
  (a)     Driving at excessive speed.

(b)
Failing to keep any or proper look out or to have any sufficient regard for other traffic of the said road.

(c)
Driving and overtaking recklessly without regard for other traffic on the road.

(d)
Failing to have or to keep any or proper control of the said vehicle No. KD 9515 DE.

(7)
 By reason of the matters aforesaid, the plaintiff has suffered loss and damages.

WHEREUPON the plaintiff claims from the defendant the sum of N6,000.00 as special damages for the loss and damages suffered by the plaintiff as a result of collision caused by the negligence of the defendant.

In reply to the above averments, the defendant in his amended statement of defence, which was filed on the 26th of June 1985, pleaded as follows:

(1)
SAVE and EXCEPT as hereinafter expressly admitted the defendant denies each and every allegation in the Statement of Claim as each has been hereinafter set out and traversed in Seriatim,

(2)
The defendant denies paragraphs 1 and 2 of the Statement of Claim and at the trial put the plaintiff to the strictest proof of these averments.

(3)
The defendant most vehemently denies paragraph 3 of the Statement of Claim in that the averment therein is manifestly untrue as the plaintiff’s car was not being lawfully and properly driven on the said 19th of August 1982 in the direction alleged in the Statement of Claim,

(4)
Further and in answer to paragraph 3 the defendant denies that he was guilty of any negligence or breach of duty whatsoever as alleged in the Statement of Claim or at all and avers that injury, loss or damage which the plaintiff may have suffered or sustained was caused and occasioned by the negligence of the plaintiff and his agent.

               Particulars of Negligence

The plaintiff and his agent one Abdulhamid Ishaku of No.44, Layin Radio Tudun Wada drove his vehicle in most reckless and negligent manner in that at the Kano-junction on the Samaru-Zaria Road,

(a)
drove at excessive speed.

(b)
failed to keep any look out in or have regard for other road users such as the defendant.

(c)
overtook the defendant through the right hand side at the afore-mentioned Kano junction at very excessive and dangerous speed.

(d)
failed to apply his brakes so as to avoid the said accident.

(5)
The plaintiff thereby collided with the defendant caused him substantial injury and damage both to his person and the vehicle

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No. 9515 DB in that the defendant sustained injuries which have now healed and the co-driver’s door had to be replaced together with the right fender and many other parts.

(6)
The defendant further aver that by a criminal proceedings ZA/622T/82 commenced at the Chief Magistrate Court in September, 1982 and by a considered judgment of Mrs) Z. A. Aliyu dated the 24th of June, 1983, the defendant was discharged and acquitted of any act of negligence against the plaintiff.

(7)
The defendant shall at the hearing of this suit urge that this suit be dismissed with substantial and punitive costs in that it is frivolous, vexatious and without merit.

(8)
The defendant avers that a sketch map of the accident was drawn by the police shortly after the accident occurred and it was signed by both parties. The sketch map w’hich was explained to both parties and was agreed to by them as correctly showing the truth in regard to the accident noted the correct travelling directions of the motor vehicles which was involved in the accident immediately before the accident and belies an assertion of the plaintiff that the defendant was travelling from Kano end of the junction road. The two motor vehicles were shown there as traveling in the same direction.

(9)
Without any lawful authority or justification, the sketch map was altered in some material respects after it was duly signed by the parties but before it was tendered in evidence in the Magistrate’s Court, Zaria. This alteration was discovered by the Magistrate in the course of the proceedings and the police investigator admitted the alteration in the open court.

(10)
Again without any lawful authority or justification the plaintiff through his counsel has taken possession of the sketch map from the Registrar of the Magistrate Court, Zaria since 11/1/85 and it has been in his unlawful and unjustifiable possession since then.”

At the hearing, both parties gave evidence in support of their respective claims. While the respondent called five witnesses in support of his case, the appellant did not call any witness. At the close of the hearing, learned counsel for both parties addressed the court on the issues of law arising from the pleadings, especially on Exhibit 1, and after carefully considering the facts and the submissions of the learned counsel, the learned trial Chief Judge came to the conclusion that the appellant was guilty of negligence in failing to stop at the junction. He said, “I find as a fact that the defendant was driving his vehicle along Kano Road and that he failed to stop at the junction and also that he collided with the plaintiffs vehicle which was then being lawfully driven along Sokoto Road which collision resulted in completely wrecking the plaintiff’s vehicle.”

Having found that the appellant was negligent, the learned trial Chief Judge then proceeded to consider the question of damages and arrived at the conclusion that the respondent was entitled to recover the sum of N6,000 as claimed by him.

Five grounds of appeal were filed and argued before us on behalf of the appellant, and these grounds read as follows:

(1)        The trial Chief Judge erred in holding in effect that there was no denial in the statement of defence of the value of the bus and

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in holding that the value was therefore admitted and in giving judgment for the plaintiff for N6000. when there was no pleading and no evidence of the value of the Bus.

Particulars

(a)
What has been pleaded or claimed are special damages for loss and damages without particulars. No mention of value of Bus is made.  

(b)
Paragraph 1 of the amended statement of defence is enough denial in law.

(c)
Quantum of damages is deemed to be denied unless specifically admitted by virtue of the rules of pleading.

(d)
The failure of the plaintiff or any of his witnesses to give evidence in regard to the value of the Bus is fatal to plaintiff’s case.

(2)
The judgment is erroneous in that there was no allegation in the plaintiff’s statement of claim that the defendant failed to stop at road junction as an item in the particulars of. negligence but the trial Chief Judge nevertheless proceeded to consider the case as if such a plea had been made in the Statement of Claim in holding in effect that an allegation in the Statement of Claim that a collision occurred per se is enough to enable the plaintiff to give evidence relating to any form of particulars of negligence and or in particular an allegation that the defendant failed to stop at a road junction when he was so required by the rule of the road.

                Particulars

(a)
It is trite law that a mere allegation of negligence is not enough but particulars of it must be given and if the evidence does not support any of the particulars the plaintiff must fail.

(b)
Evidence of any particulars of negligence which is not given is inadmissible and if admitted cannot be utilised, in giving judgment.

(c)
Particulars of negligence are not just matters of evidence but they are matters of facts whose notice must be given in pleadings.

(3)
The trial Chief Judge erred in holding that the alteration of the sketch alleged would amount, to the offence of forgery and in holding that it is required to be proved beyond reasonable doubt when:

(a)
there was no allegation that the act of alteration was done dishonestly or fraudulently so as to render the document a forged document.

(b)
there were visible signs of erasure on the sketch and he did not utilise the advantage he had to personally look into the sketch to ascertain the truth of this allegation.

(c)
the defendant gave evidence in relation to the alteration and told the court of the visible signs of alteration of the sketch in the full view of the court.

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(d)
the trial Chief Judge failed to state the nature of the evidence he required to enable him find that there was alteration on the sketch.

(e)
there is no requirement in law in a case of this nature for the defendant to prove that any particular person did the alteration.

(4)
The trial Chief Judge erred in holding that the sketch represented the true driving directions of the two vehicles.

                    Particulars

A sketch is not admissible in law to prove travelling directions and it can only be properly utilised to depict those things which the drawer observed at the scene and their relative positions only.

(5)
The judgment is unreasonable, unwarranted and against the weight of the evidence.

Both parties filed their written briefs of arguments, in accordance with the rules of this court. At the hearing, the briefs were adopted by the learned counsel. In his reply to the appellant’s briefs, learned counsel for the respondent, raised a preliminary objection in which he urged this court to dismiss the appeal on the grounds that it is incompetent. According to him, while grounds 1 and 3 are of mixed law and fact, grounds 2, 4 and 5 are purely grounds of facts, in which case, leave of the High Court or of this court must be obtained before filing the appeal. Therefore, since there was no leave, the appeal is not properly before this court. However, when the attention of the learned counsel was drawn to the provisions of S. 220(1)(a) of the Constitution of the Federal Republic of Nigeria 1979, which gives the appellant the right to appeal against final decision of the High Court, sitting at first instance, in any civil or criminal proceedings, he withdrew his objection and it was accordingly struck out.

At this stage, learned counsel for the appellant commenced his argument and dealt with the grounds of appeal in the order in which they were filed. The first and second grounds of appeal relate to the particulars of pleadings, while the third and fourth grounds relate to the standard of proof. The fifth ground deals with the weight of evidence.

On the first ground of appeal, it was contended by the learned counsel for the appellant that the sum of N6,000 which was awarded to the respondent as the value of the bus is a special damage, which was not specifically pleaded by the respondent as required bylaw. Counsel therefore, submitted that, the learned trial Chief Judge was wrong in awarding this sum, since it was not specifically pleaded and strictly proved. Learned counsel in his submission drew our attention to paragraph 7 of the Statement of Claim where the respondent sought the following relief – “whereupon, the plaintiff’s claim from the defendant the sum of N6,000 as special damages for the loss and damages suffered by the plaintiff as a result of collision caused by the negligence of the defendant.”

He also drew our attention to the evidence of the plaintiff where he said at page 19 line 21 of the record of proceeding thus:- “I am claiming the sum of N6,000 from the defendant being the value of the bus.” Again, he referred us

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to the portion of the judgment where the learned trial Chief Judge said: “the plaintiff put the value of the bus at N6,000. There is no averment in the statement of defence denying this nor is there the usual averment putting the plaintiff to the strictest proof of this.”

Learned counsel’s submission is that, where special damages are claimed, the plaintiff’s required to state the particulars of the amount so claimed in the body of the Statement of Claim in order that he may be permitted to give evidence and recover thereon. In this respect, learned counsel referred us to Order 10 rules 5, 6 and 7 of the Kaduna State High Court (Civil Procedure) Rules, 1977 which require pleadings to contain a statement of all the material facts on which a party relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs consecutively with each paragraph containing as nearly as may be possible a separate allegation. In addition, the facts shall be alleged positively, precisely and distinctly and as briefly as is consistent with a clear statement. The Statement of Claim shall also state specifically the relief which the plaintiff claims either simple or in the alternative, and may also seek for general relief.

Learned counsel also referred to Order 18, rules 12-13 of the Rules of the Supreme Court of England, and then submitted that even if the pleading of the respondent is adequate, as a pleading of the value of the bus, the burden of proof was not discharged, as there was no value of the bus at all or evidence from which its value can be deduced or assessed. In support of his submissions on this ground, learned counsel referred us to the following cases. Bush and Co. Nig. Ltd. v. P. Uzowulu (1979) 1 FNLR 139 at 147; ILKIW v. Samuel and Ors. (1963) 2 AER 879; Oloruntade v. Dandodo (1976) NNLR 117; and Benson v. Otubu (1975) 3 SC at 112.          

On whether there was any traverse of the value of the bus by the appellant in his statement of defence as found by the learned trial Chief Judge, learned counsel submitted that this finding was incorrect because under the rule of pleadings, a specific traverse is not essential to join issues on damages. However, even if this is necessary, learned counsel submitted that paragraph 1 of the statement of defence is adequate. He cited the case of N.P.M. B. v. Adewunmi (1972) 11 SC 111 at page 124-125 and Mandilas and Karaberis v. Apena (1969) NMLR 199.

Replying to these submissions, learned counsel for the respondent submitted that the learned trial Chief Judge was right in awarding to the respondent the amount claimed in the Statement of Claim as the value of the bus was adequately pleaded and the evidence given by the respondent at the trial was not contradicted. He further submitted that, since the learned trial Chief Judge found the respondent negligent, the award of damages follows automatically. Learned counsel drew our attention to the respondent’s averments, the evidence led in support of the findings of facts made by the learned trial Chief Judge and urged us to dismiss this appeal on this ground.

With regards to the rules of the Supreme Court of England referred to by the counsel for the appellant, it was submitted that since our rules of procedure are similar, in all respects to those of the Supreme Court of England, there is no need to have recourse to them under the provisions of S. 35 of the High Court law. I entirely agree with this submission. Our Rules have made adequate provisions for the procedure in filing pleadings and there is no need for us, to

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have recourse to those rules under the provisions of S. 35 of our High Court Law. Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 1 ANLR 387; Odume v. Nnachi (1964) 1 ANLR 329; Bank of the North Ltd. v. Intra Bank S.A. (1969) 1 ANLR 91.

It should be noted that one of the objects of pleadings in civil proceedings is to define issues and narrow the scope of controversy in each case. This is why Order 10 rules 5-8 of the Kaduna State High Court (Civil Procedure) Rules have explained what should be pleaded in a Statement of Claim. Therefore, where parties to an action have answered one another’s pleadings in such a manner, that they have arrived at some material point or matter of fact affirmed on one side and denied on the other side, the parties are said to be at issue or they have joined issues and the question they raised is called the issue. See Ehimare and Anor. v. Okaka Emhonyon (1985) 1 . (Part 2)177 where it was held: “when filing pleadings, each of the parties is free to formulate his own case and once formulated, he is bound by his pleadings and cannot be allowed without necessary amendment to urge a case different from that formulated in his pleadings.”

       It should be noted also that there is distinction between special and general damage. While general damages consists of damages which the law presumes to be the natural or probable consequence of a defendant’s act, special damages consists of items of loss which are capable of exact calculation. General damages need not be pleaded but can be averred generally and special damages will have to be particularised, or specified in the plaintiff’s pleadings in order that he may be permitted to give evidence thereof and recover damages thereon. Chief J. K. Odumosu v. A.C.B. (1976) 11 SC page 55; see also The Susequehanna (1925) AC 655 at 661 in which it was held, per Lord Dunedin; “if there is any special damage which is attributable to the wrongful act of the defendant, that special damage must be averred and if proved, will be awarded.”

      The need to plead special damages specifically and prove them strictly, has been emphasised in a number of cases. See Odulaja v. Haddad (1973) 1 ANLR 191 at 196; Oladehin v. Continental Textile Mill Ltd. (1978) 2 SC 23; Far East Mercantile Ltd. v. Jackie Philips Photos Ltd. (1974) 11 SC 225 and Benson v. Otubu (1975) 3 SC 9 at 12.

       The point here is, whether the value of the bus has been specifically pleaded and strictly proved. In paragraph 7 of his Statement of Claim, the plaintiff merely stated thus:

                        “By reasons of the matters aforesaid, the plaintiff has suffered loss and

                       damages.

Whereupon the plaintiffs claims from the defendant the sum of N6,000 as special damages for the loss and damages suffered by the plaintiff as a result of collision caused by negligence of the defendant.”

This averment in my view did not give the particulars of the damage suffered as required by law, therefore, the respondent’s evidence as to the value of the bus goes to no issue. It would have been otherwise, if the evidence given by the respondent was in line with his pleadings in which case, if that evidence was not challenged, the value is deemed to have been proved. Adel Boshali v. Allied Commercial Exports Ltd. (1961) All NLR 917; where it was held that a Judge is entitled to accept uncorroborated evidence as to loss of profit given

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by a plaintiff, who is an expert in the trade out of which the cause of action arose and who is not cross-examined on the basis that his claim is excessive. Based on this principle, this court, (Lagos branch) decided in the case of Alhaji Suru-lere Kadiri Araba v. Salihu Elegbe, reported in (1986) 1 . (Part 16) page 333, which was cited by the learned counsel for the respondent, that where oral evidence is given on items classified as special damages in line with the pleading, and such evidence is unchallenged, those items are deemed to have been duly proved. Non-production of receipts to further prove such unchallenged oral evidence is therefore not fatal to the plaintiff’s claim.

In the case in hand, the argument is that, there was no specific averment as to the pre-accident value of the bus, or its value after the accident, less the value of the salvage. I agree with learned counsel for the appellant that the value of the bus being an item of special damage ought to have been specifically pleaded and strictly proved. Since there is no specific averment of the value of the bus and no strict proof as required by the law, the learned trial Chief Judge was wrong in awarding the respondent the sum of N6,000 as special damages representing the value of the bus. The appeal on this ground therefore succeeds.

The next ground argued by the learned counsel is ground 2 which deals with the question, whether, in the absence of proper averment setting out particulars of negligence the learned trial Judge was right in finding the respondent liable of negligence. Learned counsel referred us to the portion of the judgment where the learned trial Chief Judge found as follows:

“The second point by Mr. Aluko-Olokun relates to the evidence that defendant was driving from Kano Road. Learned counsel asked me to expunge this evidence from the record of as it has not been pleaded. He specifically referred to paragraph 3 and 6(c) of the Statement of Claim to show that it has been pleaded that defendant was driving on the Kano Road Mr Olarenwaju’s answer to this is that pleadings do not or are not meant to disclose the evidence a party intends to call, but only facts.

I have read paragraph 3 of the plaintiff’s Statement of Claim several times over and I am of the view it is sufficient notice to defendant that his car had collided with that of the plaintiff along Sokoto/Kano Road, defendant’s statement’s travelling direction and how the collision took place are matters of evidence and paragraph 3 clearly has averred that the collision was “along the said road” i.e. “Sokoto Road Zaria/Kano junction Zaria.”

It was submitted by the learned counsel that failure to stop at the junction which is relied upon by the learned trial Chief Judge was not pleaded by the respondent as required by law. Learned counsel asked this court to allow this appeal on this ground.

In replying to this submission, learned counsel for the respondent submitted that the High Court was right, in that it considered the evidence adduced before it and arrived at a just conclusion which should not be disturbed by this court.

The rule of pleadings in road accident case, like in all other civil eases, require the plaintiff to state the material facts of the accident, describing as clearly as possible what is alleged each party was doing or attempting to do at the

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time of the accident and how the collision or the accident occurred or happened. The plaintiff must also set out the particulars of negligence in full detail. It is only when he sets out or gives full particulars of the negligence that he will be allowed to give evidence on that particular item of negligence.

The learned author of Bullen & Leake & Jacobs on Precedent of Pleadings at page 685 stated thus: “It is not enough for the plaintiff in his statement of claim to allege merely that the defendant acted negligently and thereby caused him damage: he must also set out facts which show that the alleged negligence was a breach of duty which the defendant owes to the plaintiff. In other words, particulars must always be given in the pleadings, showing precisely in what respect the defendant was negligent.

In paragraph 6 of his Statement of Claim, the respondent gave the particulars of negligence which he was relying upon as follows:

(a)
Driving at excessive speed.

(b)
Failing to keep any or proper look out or to have any or sufficient regard for other traffic of the said road.

(c)
Driving and overtaking recklessly without regard for other traffic on the road.

(d)
Failing to have or to keep any proper control of the said car No. KD. 9515 DB.

Learned counsel for the appellant’s submission is that, the particulars of negligence that the appellant failed to stop at the junction was not pleaded and the evidence on this should not have been allowed. He submitted that the findings of the learned trial Chief Judge based solely on failure to stop at junction was therefore erroneous.

I have carefully considered the submission of the learned counsel for the appellant. I am satisfied that the particulars of negligence relied upon by the learned trial Chief Judge was not pleaded in paragraph 6 of the Statement of Claim. If the evidence given by PW2, was in line with the respondent’s averment and believed by the learned trial Judge, along with other evidence e.g. sketch map of the scene of the accident, that would have supported the respondent’s case.

The court has a duty to decide a case in accordance with the issues formulated on the pleadings of the parties. It is not within its province to adjudicate on any matter not put in issue, Ehimare v. Emhonyon (supra). In my view, the submissions of the learned counsel is well founded. The ground therefore succeeds and the appeal on this ground is also allowed.

This appeal having succeeded on grounds 1 and 2, it is not necessary for me to consider the arguments of the learned counsel on grounds 3, 4 and 5.

For the reasons which I have given, I will allow this appeal and set aside the decision of the High Court Kaduna, dated 25th of September 1985 and substitute therefore, an order dismissing the plaintiff’s claim. The respondent is entitled to costs which I assess at N250.00.

APATA, J.C.A.: I have had a preview of the judgment of my learned brother Maidama, JCA. I agree that the appeal be allowed. I am however commenting on one or two aspects of this appeal.

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The plaintiff, now respondent, averred at paragraph 3 of the statement of claim as follows:

“(3)    On or about 19th August, 1982, the plaintiffs vehicle was being lawfully and properly driven along and in the direction of Sokoto Road Zaria/Kano junction, Zaria, when the defendant so negligently drove, managed and controlled a Peugeot family car registration No. KD 9515 DB along the said road that he caused or permitted the same to collide with the plaintiff’s vehicle and damaged it beyond repairs.”

(Italics are mine).

The impression one gathers from this averment is that, the respondent’s vehicle was being driven in the direction of Sokoto Road Zaria/Kano junction and that the appellant drove his own car negligently along the said (same) read.

It is also averred in paragraph 6(c), as one of the particulars of negligence, that the appellant was ‘driving and overtaking recklessly without regard for other traffic on the road”. (Italics mine)

Apart from the fact that the impression is given in paragraph 3 of the Statement of Claim that the two vehicles were being driven along the same road, the use of the word “overtaking” at paragraph 6(c) confirms that the two vehicles were in fact being driven along the same-road, but with the vehicle of the appellant coming from behind to overtake that of the respondent. The Shorter Oxford English Dictionary Volume 2, 3rd Edition defines the word ‘overtake”, as meaning amongst other things, “to come up to in pursuit, to catch up.” This is the only meaning usually attached to moving motor vehicles. When it is stated that one vehicle overtakes the other there is the presumption that both vehicles are being driven along the same road and the one behind catching up with the other.

In effect, the respondent having pleaded that the defendant was driving along the same road and overtook him, he cannot be heard to say, contrary to his pleadings, that he was coming from the direction of Funtua along Sokoto Zaria Road and heading to Zaria while the appellant approached the junction from a different road, that is, Kano Road. Indeed, the defendant also pleaded and led evidence to the effect that the two vehicles were being driven along the same road and in the same direction, but claimed that the respondent’s car “overtook the defendant through the right hand side at the aforementioned Kano junction.”

It was therefore palpably wrong for the learned trial Judge to have accepted the evidence of the respondent and that of PW2 which contradicted his pleading in material particular. The question of the appellant failing to stop.at the road junction ought not to have been considered and used against the appellant. It is trite law that parties are bound by their pleadings and that any evidence which is at variance with the averment in the pleadings comes to no issue and should be disregarded. (See Kalu Njoku & Sons v. Ukwu Eme & 4 Others (1973)5 SC 293 at page 300).

As Irikefc, JSC (as he then was) put it in the case of Otuaha Akpapuna & Others v. Obi Nzeka II & Others (1983)2 SCNLR 1 at page 14:-

“It is trite law that issues are tried on parties pleadings and

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the parties are to be bound thereby. My understanding of the correct legal position is that a defendant in a civil action is not obliged to wade, blindfold, through a booby trapped and uncharted mine field, in order to discover at the end thereto which case he has to meet.”

In effect, a surprise should not be sprung at the defendant to his detriment. No party is allowed to canvass a material fact not pleaded by him. It is a cardinal rule of pleading.

That the appellant failed to stop at a road junction or that he was coming from a side road is a material fact which ought to have been pleaded. As stated by Scott LJ in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 at page 712 “the word material means necessary for the purpose of formulating a complete cause of action; and if anyone ‘material’ fact is omitted, the Statement of Claim is bad. Omission of a necessary averment cannot be cured by evidence at the trial.

There is also the question of the sketch map raised in grounds 3 and 4. The appellant contended by his paragraph 8 of the statement of defence that when he and the respondent signed the sketch map, the two motor vehicles were shown thereon as travelling in the same direction. At paragraph 9 he claimed that the said sketch map was altered in some material aspects after they had signed it. The plaintiff adduced evidence in this regard. In my view, this is one of such occasions in a trial when a Judge should substitute the eyes for the ears, and examine the object, the document in this case, to. see whether there was any sign of alteration. The law of evidence allows such an exercise in the reception of evidence. (See Okafor v. Obiwe (1978) 9-10 SC 115 at 126).

I agree with learned counsel for the appellant Mr Aluko-Olokun that the question of proof beyond reasonable doubt, if the commission of a crime, by a party to any proceeding is directly in issue, covered by Section 137(1) of the Evidence Act, does not arise in the circumstances of this case. Having regard to the state of the pleadings, the simple issue before the learned trial Judge was whether the sketch plan showed signs of alteration.

If there appeared a material alteration relating to the direction the two vehicles were travelling, which was not initialed by the parties, then the document would be of doubtful quality which should not be relied upon. In my view, the lower court ought to have carried out the exercise of close examination of the document. The failure to do so means ‘that the case proferred by the defence was not sufficiently considered.

As we were not requested by either of the parties in open court to examine the exhibit at the hearing of this appeal, it would be out of place to express any opinion on the issue whether there was in fact a material alteration as canvassed by the defence. For the reasons stated by my learned brother and for the additional issues raised above, I hold that the appeal succeeds. I accordingly allow it and set aside the decision of the High Court Kaduna dated 25th September, 1985. In its place I also substitute an order dismissing the plaintiffs claim. Costs assessed at N250.00 in favour of the appellant.

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OGUNDERE, J.C.A. (Dissenting): Two main issues arise in this appeal, namely: the first is who was the negligent party of the drivers of Bus No. KD 6825 DB or Station Wagon No. KD 9515 DB, the former belonging to the plaintiff, and the latter belonging to and driven by the defendant; the second is assuming that the defendant was negligent, was the damage claimed duly pleaded and proved?

In the Law of Negligence, collision cases constitute a distinct branch and are the most numerous. In Swadling v. Cooper (1931) AC page 1 at pages 8-9 the House of Lords per Viscount Hailsham summarized the law. in collision cases as follows:

“My Lords, the law in these collision cases has long been, settled. In order to succeed the plaintiff must establish that the defendant was negligent and that that negligence caused the collision of which he complains. If it is established from his own evidence, or by evidence adduced on behalf of the defendant that the plaintiff could have avoided the collision by the exercise of reasonable care, then the plaintiff fails, because his injury is due to his own negligence in failing to take reasonable care. If although the plaintiff was negligent, the defendant could have avoided the collision by the exercise of reasonable care, then it is the defendant’s failure to take that, reasonable care to which the resulting damage is due and the plaintiff’s entitled to recover.

Mere failure to avoid the collision.by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances. All this is familiar law and is commonly illustrated in text books by constraining the cases of Butterfield v. Forrester (1) and Davies v. Mann. (2)”

Swadling v. Cooper was cited with approval by the Supreme Court in the cases of Mungo Appah &Anor. v. Costain (W.A.) (1974)11 SC 23 at 31 and 32 and in Nwabuokei v Iwenjiwe & Ors. (1978) 2 SC 61 at 69 especially the crucial question reported in Cooper’s case as put by the learned Judge in Davies v. Mann 10 NRW 546 in his concluding sentence as follows:

“Whose negligence was it that substantially caused the injury?”

In proof of the plaintiff’s case PW2, Sgt Pauliaes Ogba, a police driver walking towards the junction of Kano Road was an eye witness. At page 39 of the record, the learned trial Judge found, following the evidence of PW2 at page 17 of the record, as follows:

“If the defendant had stopped at the junction the collision would have been averted.”

Also, the damage to the plaintiff’s bus were on its left hand side and is consistent with the plaintiff’s bus driving on his right along a straight road, and the station wagon coming from a side road trying to turn left and, hitting the bus. The sketch of the scenes of accident Exhibit 1 confirms this. The’learned trial Judge at page 40 of the record found as follows:

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“Exhibit 1 was made by Sgt Dogo, PW5, a day or two after the collision. It clearly shows.the travelling direction of 2 vehicles and both plaintiff and defendant who were present when it was made, signed it. The bus on Ex.l is shown to have been travelling from Samaru end of the road towards Zaria and defendants’ car to have been approaching the.junction from Kano Road.

Ex.2 the report of the FLO. shows the extent of the damage caused to the bus and in his opinion the V.I.O. PW1 stated that no mechanical defect on. the bus before the accident could have caused the accident. The damage to the plaintiff’s bus as shown in Ex.2 includes wrecked steering system, damaged front chassis due to the accident. The left front side head lamp and signals were smashed, the doors were damaged as were the seats. The front windscreen was also smashed due to the accident.”

The lower court summarized the case for the defendant at page 41, thus:

“Defendant in his. evidence stated-that the driver-of the bus overtook him on the right and immediately after swerved to the left and smashed into his car destroying his right front door and fender. There is no independent evidence to support this. Further defendant’s assertion that “the collision was well before the junction” is not supported by Ex. 1 which defendant voluntarily signed. I accordingly accept Ex. 1 as representing the true driving direction of the 2 vehicles. I also accept its contents as true.”

He also found at page 42 thus:

“The defendant should have stopped at the junction to allow vehicles on the Sokoto Road to pass before driving onto it; and the result of his refusal is negligence pure and simple and he is liable in negligence. I should point out that I have read all the Supreme Court decisions cited by Mr. Aluko-Olokun in Popoola v. Pan African Gas (1972)11 SC 49 and all it has done is influence me to find defendant liable in negligence which I have already done.

   The final question to consider is the special damages of N6,000.00 claimed by the plaintiff. The plaintiff put the value of the bus at N6,000.00. There is no averment in the statement of defence denying this nor is there the usual averment putting the plaintiff to the strictest proof of this.”

There is therefore no doubt that the defendant had the last opportunity to avoid the accident and by his failure so to do was thereby negligent. The learned trial Judge so found, and there is no basis to criticise him on that score.

As to damages, it is trite law that in pleadings, what is not specifically denied is deemed admitted and forms part of the agreed or undisputed facts. See Okparaoke v. Egbuonu and Ors. (1941) 7 WACA p. 53 at p. 55; British India General Insurance Co. (Nig.) Ltd. v. Thawardas (1978) 3 SC. p. 143 at 149; Lewis and Peat Ltd v. Akhimen (1976)7 SC 137; Owosho v. Adebowale Dada (1984) 7 SC p. 149. The plaintiff pleaded special damages of N6,0C0.00 in para. 7 of the S/C and particularised it, albeit inelegantly in paras 3 and 4 of the S/C.

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The defendant did not deny it, specifically in the S/D. Plaintiff in his evidence at p. 19 of the record in his testimony, inter alia said:

“My bus was damaged beyond repairs. The peugeot was damaged on its front by the right. I am claiming N6,000.00 from the defendant being the value of the bus.”

He was not cross examined at all on this point. The learned trial Judge at p. 42 of the record, in his judgment said:-

“The final question to consider is the special damages of N6,000.00 claimed by the plaintiff. The plaintiff put the value of the bus at N6,000.00. There is no averment in the statement of defence denying this nor is there the usual averment putting the plaintiff to the strictest proof of this.”

The learned trial Judge was therefore right, having found for the plaintiff in negligence, and the damages admitted by the defendant, in his award of N6,000.00 damages as claimed being the replacement value of the bus.

All the grounds of appeal fail. The appeal is dismissed with N200.00 costs.

Appeal allowed.

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