ONWUKA V. OMOGUI

• Pages: 473-496

ONWUKA V. OMOGUI

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473

ONWUKA V. OMOGUI

10

1.

LINUS ONWUKA



APPELLANTS

2.

JULIUS BERGER (NIGERIA) LTD.

V.

R.I. OMOGUI



RESPONDENT

APPEAL No. SC. 163/1987.

SUPREME COURT OF NIGERIA

15



UWAIS,



J.S.C.

KAWU,



J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,



J.S.C.

BABALAKIN,



J.S.C.

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27th March, 1992.

Appeals - Findings of fact - When an appellate court may interfere - Slip by lower court -

Effect thereof on appeal - Damages - Power of appellate court to assess same - Guiding

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principles - Section 16 Court ofAppeal Act and section 22 Supreme Court Act - Powers

vested therein - Powers vested therein.

"Courts

-Court of Appeal - Supreme Court - Power of to assess damages where lower court

failed to do so - Where derived - How exercised.

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Damages -

Assessment of - Duty of trial judge in relation thereto - Interference by Appeal

Court - When proper - Mitigation of damages - Duty on plaintiff - Proof of damages -

Burden of - How discharged.

Fair hearing -

Essence of - Relationship with pleadings.

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Practice and Procedure -

Pleadings - Purpose of - Evidence on facts not pleaded - Effect -

Duty of court in respect of

Torts -

Negligence - Doctrine of res ipso loquitur - When applicable.

Words and Phrases -

"Res ipsa loquitur" - Meaning of

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ISSUES:

1.

What is the duty of a trial judge where evidence is given on facts not pleaded

before him?

2.

What is the duty of a trial judge with regard to the assessment of damages and

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when may an appellate court interfere with same?

FACTS:

The respondent, as plaintiff, instituted an action against the appellants, as

defendants, in the High Court for damages done to his steyr kerosine tanker which

was hit and damaged by a Mercedes Benz trailer driven by the 1st appellant and

50 owned by the 2nd appellant.

474

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

Evidence led by the plaintiff disclosed that the accident was caused by the 1st

defendant/appellant while he was attempting to overtake a taxi which was in front

of him and in the process he swerved to the side of the plaintiff's tanker and collided

with it. The plaintiffs tanker was damaged and the kerosine which it was carrying

leaked out.

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5

After the accident, the representative of the 2nd defendant/ appellant agreed

to repair the plaintiff's tanker. The tanker was towed to the premises of the 2nd

defendant/appellant, but no repair was carried out and the plaintiff/respondent

refused to remove the tanker from the premises.

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In his judgment, the learned trial judge held that evidence relating to overtaking

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was not pleaded by the plaintiff and he therefore expunged it from the record. He

thereafter dismissed the plaintiff's action on ground that negligence was not

proved. The trial judge did not assess the damages he would have awarded had

negligence been proved.

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The plaintiff appealed to the Court of Appeal. The court held that there was

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sufficient evidence to prove the particulars of negligence contained in paragraph

13(ii) of the plaintiff's further amended statement of claim and that the evidence

led showed that the 1st defendant/appellant while in control and management of

the trailer left his proper side of the road, swerved to his wrong side and collided

with the plaintiff,' respondent's tanker on his proper side. The Court of Appeal

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further held that the plaintiff's case could also succeed under the doctrine of

res

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ipsa loquitur.

The court did not, however, assess damages but remitted the case

back to the High Court for trial on the issue of damages before another judge, the

learned trial judge having retired.

Being dissatisfied with the judgment of the Court of Appeal, the defendants/ap-

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pellants appealed to the Supreme Court mainly on the issue of liability in negli-

gence, contendng that the Court of Appeal wrongly imported into the case the

doctrine of

res ipsa loquitur

which was neither pleaded nor raised at the trial. The

plaintiff/respondent also cross-appealed against the order of the Court of Appeal

remitting the case for trial on quantum of damages.

HELD:

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1.

Where evidence is led on facts pleaded and also on facts not pleaded, all the

trial judge would do is either not to receive such evidence because they are

not pleaded or if it is erroneously received, to expunge it from record; but

certainly the remaining relevant evidence about the facts pleaded can be used

to support the case of the party who has pleaded such facts but has provided 35

evidence in excess of facts pleaded.

(See p.486, lines 42 -

50).

2.

The usual practice is that in order to minimise the prolongation of litigation and

to prevent further unnecessary expenses a trial judge should always assess

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damages he should have awarded even if his decision is against the party

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claiming it.

(See p.489, lines 11 - 14).

3.

Where, however, the trial court fails to consider the question of damages an

Appeal Court is entitled to proceed to assess the damages when it allows the

appeal without the necessity of referring the case to the trial judge for that

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exercise. However, the application of this principle depends on the position of

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the pleadings and proceedings of the case at the trial court before the matter

comes up to appeal. (See

p.489, lines 25 - 31).

4.

Pleadings are facts on which evidence would be led i.e. in support of facts

pleaded. Evidence led need not agree word for word with the facts pleaded.

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And relationship of pleadings and evidence led depends entirely on the facts

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of each case. (See

p.486, lines 36 - 41).