ABUBAKAR & Another v JOSEPH & Another (SC 10/2002) [2008] NGSC 5 (6 June 2008)

**IN THE SUPREME COURT OF NIGERIA** **On Friday, the 6th day of June 2008** **SC 10/2002** **Between** **ABUBAKAR & ANOR ............................................................................APPELLANT ** **And** **JOSEPH & ANOR ..................................................................................... RESPONDENT** **Before:** | **Sylvester Umaru Onu; Niki Tobi; George Adesola Oguntade; Mariam Aloma Mukhtar; Ikechi Francis Ogbuagu, Jjsc** ---|--- **ISSUES** _Whether the Court of Appeal correctly made a finding on issues that were not pleaded, but did not make a finding on the claims of negligence that had been pleaded._ _Whether the appellants were entitled to damages arising from the claims of negligence._ **FACTS** _The appellants claimed that the first respondent, an employee of the second respondent, caused damage to their vehicle, a Fiat T3 trailer, by driving a Fiat trailer negligently and crashing into their vehicle. They therefore commenced an action at the Minna High Court of Niger State for special and general damages._ _The respondents denied such negligence and averred that the accident was caused by the negligence of the first appellant’s driver in overtaking another vehicle and colliding with the respondent’s vehicle. They counter-claimed for general and special damages. The trial court granted plaintiff’s claims; the defendants appealed to the Court of Appeal where the appeal was allowed. Aggrieved, the plaintiffs appealed to the Supreme Court**.**_ **HELD** **Leading judgment by** George Adesola Oguntade, JSC; with S.U. Onu, N. Tobi, A.M. Mukhtar, I.F. Ogbuagu JJSC concurring **1\. Pleadings define issues** The object of pleadings is to compel the parties to define, accurately and precisely, the issue upon which the case is to be contested. This is in order to avoid any element of surprise by either party. Parties are bound by their pleadings. Per Ogbuagu, JSC at 24. **2\. Particulars of negligence must be pleaded** He who pleads negligence should not only plead the act of negligence, but should also give specific particulars. The mere occurrence of an accident is not proof of negligence. It is not enough to prove that there was an accident. It must be proved that the accident was as a result of the negligence. That is, the circumstance, nature and extent of the accident must be pleaded and proved. Per Ogbuagu, JSC at 24. **3\. Evaluation of evidence by Appeal Court** For a judge to produce a judgment which is a fair and just verdict on a case, he must fully consider the evidence proffered by all the parties before him, ascribe probative value to it, make definite findings of fact, apply the relevant law and come to some conclusion. Where a court failed to properly evaluate the evidence, and arrived at a decision which is perverse, the Court of Appeal has a duty by way of hearing, to evaluate the evidence that has been adduced. Per Ogbuagu, JSC at 24. **4\. Act of negligence not pleaded** While the evidence suggested that the second respondent had driven negligently by leaving his own lane of travel, this had not been pleaded by the appellants. Whatever evidence adduced in the course of a trial that is not in conformity with the pleadings, becomes a non-issue and must be ignored. Per Mukhtar, JSC at 22. **5\. Evidence outside the ambit of pleadings** Evidence that fell outside the ambit of pleadings has to be ignored. Per Mukhtar, JSC at 22. **6\. How to determine the negligent party in a case of motor accident** In cases of motor accidents, the test to be applied in determining who was negligent is to look for the person whose negligence substantially caused the accident by determining whether or not that person could have avoided the collision by the exercise of reasonable care. Per Tobi, JSC at 15. **7\. Burden of proof** The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars negligence pleaded will be fatal to the case of the plaintiffs. This knocks the bottom of the plaintiff’s/appellant’s case, and the issue of damages does not arise, as no negligence has been established. Per Tobi, JSC at 15. _M.N. Ibrahim Esq._(_Moses E. Agwulonu_ with him) for the appellants _Y.C. Maikyau Esq._(_Miss P.Y. Tukhur_ and _Miss S.I. Adamu_ with him) for the respondents **The following cases were referred to in this judgment:** **Nigeria** _Abdullahi v Elayo_(1993) 1 NWLR (Part 479) 62 _Adegoke v Adidi_(1997) 5 NWLR (Part 242) 410 CA _Adenuga v Lagos Town Council_ 13 WACA 125 _Adeoshun v Adisa_(1986) 5 NWLR (Part 40) 255 _Adesanya v The State_(1978) 3 FCA 185 _African Continental Bank Ltd v Northern Nigeria_(1967) NMLR 231 _Agbaka & others v Amadi & another _(1998) 11 NWLR (Part 572) 16, (1998) 7 SCNJ 367 _Agbomagbe Bank v C.F.A.O_(1961) 1 All NLR 140 _Ajide v Kelani_(1985) 3 NWLR (Part 12) 248 _Akanbi v Alatede_(_Nigeria_) _Ltd_(2000) 1 NWLR (Part 639) 135 _Akanbi v Raji_(1998) 12 NWLR (Part 578) 360 _Aku Nmecha Transport Services_(_Nigeria_) _Ltd & another v Atoloye _(1993) 6 NWLR (Part 298) 233 _Alashe & others v Olori Ilu & others _(1965) NMLR 66 _Amadi v Okoli & others _(1977) 7 SC 57 _Anabogu v The State_(1965) NMLR 167 _Are v Adisa_(1967) NMLR 359 _Atama v Amu_(1970) 1 SC 237 _Audu v Ahmed_(1990) 5 NWLR (Part 156) 287 _Bada v The Chairman L.E.D.B_ SC 501/65 of 23 June 1967 _Bello v Kassim_(1969) NMLR 148 _Buckley Ltd v Akura_(1986) 5 NWLR (Part 44) 752 _Bunyan v Akingboye_(2001) FWLR (Part 41) 1977 _Confidence Insurance Ltd v Trustees of S.O.C.E._(1999) 2 NWLR (Part 591) 373 _Dr Ochin & 15 others v Prof. Ekpechi _(2002) 5 NWLR (Part 656) 225 _Duru & another v Nwosu & others _(1989) 4 NWLR (Part 113) 24; (1989) 7 SCNJ 154 _Edok Eter Mandilas Ltd v Ale_(1985) 3 NWLR (Part 11) 43 _Egbe v Alhaji_(1990) NWLR (Part 128) 546 _Egbue v Araka_(1988) 3 NWLR (Part 84) 598 _Ekponyong & others v Chief Ayi & another _(1973) 5 SC 169 _Elias v Omobare_(1982) All NLR 75 _Emegokwue v Okadigbo_(1973) 4 SC 113 _Erinle v Adelaja_ SC 332/1966 of 6 June 1979 _Esigbe v Agholor_(1990) 7 NWLR (Part 161) 234 _Eze v Atasie_(2000) 10 NWLR (Part 676) 470 _Ferdinand George v The United Bank for Africa Ltd_ SC 209/1971 of 29 September 1972 reported in [1972] 8/9/SC 264 _Gabriel Agu v Nwakanma Atuegwu_ 21 NLR 83 _George v Dominion Flour Mills Ltd_(1963) 1 SCNLR 177 _Gwani v Ebule_(1990) 5 NWLR (Part 149) 201 CA _Ibanga & others v Usanga & others _(1982) 5 SC 103; (1982) 1 ANLR 88 _Ibrahim v Ojomo & others _(2004) 4 NWLR (Part 862) 89; (2004) 1 SCNJ 309; (2004) 1 SC (Part II) 136 _Idahosa v Oronsaye_(1959) 4 FSC 166 _Ikenye v Ofunne_(1985) 2 NWLR (Part 5) 1 _Imeh & another v Okogba & another _(1993) 9 NWLR (Part 316) 159; (1993) 12 SCNJ 57 _International Messengers_(_Nigeria_) _Ltd v Pegafor Industries Ltd_(2005) 5 SCNJ 120 _Jahanmi v Saibu_(1977) 2 SC 89 _Kalla v Jarmakaru Transport Ltd_(1961) All NLR 747 _Kalu Njoku & others v Ukwu Eme & others _(1973) 5 SC 293 _Lawson v Afani Continental Co Nigeria Ltd & another _(2002) 2 NWLR (Part 252) 585 _Leke v Soda & others _(1995) 2 NWLR (Part 378) 432 _Lions Building v Shodipo_(1976) 12 SC 135 _Madueke v Madueke_(2000) 3 NWLR (Part 655) 3 _Mercantile Bank of Nigeria Ltd v Abusomwan_(1986) 12 NWLR (Part 22) 270 _National Investment and African Seaways Ltd v Nigerian Dredging Road & General Works Ltd _(1977) 5 SC 235 _National Investment and Properties Co Ltd v Thompson Organisation Ltd & others _(1969) NMLR 99 _Ngilari v Mothercat Ltd_(1999) 13 NWLR (Part 636) 626; (1999) 12 SCNJ 101 _Nigeria Bank Plc v M. Abubakar & Sons _(2004) 17 NWLR (Part 901) 66 _Njoku & others v Eme & others _(1973) 3 ECSLR 253 _Njoku v Eme_(1973) 5 SC 293 _Northern Brewery Ltd v Mohammed_(1973) 1 NMLR 19 _Nta & others v Anigbo & others _(1972) 5 SC 156 _Nwachukwu v Egbuchu_(1990) 3 NWLR (Part 139) 435 CA _Obimiami Brick & Sons Nigeria Ltd v African Continental Bank Ltd _(1992) 3 NWLR (Part 229) 260; (1992) 3 SCNJ _Ochin v Ekpechi_(2002) 5 NWLR (Part 656) 225 _Odinaka & another v Moghalu _(1992) 4 NWLR (Part 233) 1; (1992) 4 SCNJ 43 _Odulaja v Haddad_(1972) 1 All NLR 191 _Oforkire & another _v _Maduike & 5 others _(2003) 5 NWLR (Part 812) 166; (2003) 1 SCNJ 440 _Ogboda v Adulugba_ SC 3/70 of 12 February 1971 _Ogidi & 7 others v Igba & 5 others _(1999) 6 SCNJ 157 _Okagbue & others v Janet Romaine _(1982) 5 SC 133 _Okeowo v Sanyaolu_(1986) 2 NWLR (Part 23) 471 _Okoro & others v Udom & others _(1960) 5 FSC 162 _Okunoren v U.A.C. Ltd_ 20 NLR 25 _Olarewaju v Bamigboye_(1987) 3 NWLR (Part 60) 353 _Olohunde v Adeyoju_(2000) 10 NWLR (Part 676) 562 _Olufosoye v Olorunfemi_(1989) 1 NWLR (Part 95) 26 _Olukade v Alade_(1976) 2 SC 183; (1976) 1 ANLR 67 _Onuwaje v Ogbeide_(1991) 3 NWLR (Part 178) 147 _Orizu v Anyaegbunam_(1978) 5 SC 21 _Osawaru v Ezeruka_(1978) 6–7 SC 135 _Otaru & Sons Ltd v Idris & another _(1999) 6 NWLR (Part 606) 330; (1999) 4 SCNJ 156 _Owodoyin v Omotosho_(1961) 1 (Part II) ANLR 304 _Oyediran & Family v Amoo & Family _(1970) 3 NMLR 47 _Oyowole v Kelani_ 12 WACA 327 _Phil-Ebosie & others v Ebosie _(1974) 4 ECSLR 139 _Property Development Ltd v Attorney-General of Lagos State_(1976) 7 SC 15 _R v Tatimu_(1952) 20 NLR 60 _Republic Bank Ltd v C.B.N._(1998) 13 NWLR (Part 581) 300 _Saraki v Kotoye_(1992) 9 NWLR (Part 254) 156 _Shehu v Afere_(1998) 7 NWLR (Part 556) 115 _Shell B.P. v Abedi_(1974) 1 SC 23 _Shogo v Adebayo_(2000) 14 NWLR (Part 686) 121 _Sule Jimbo & others v Aminu Sanni & others _SC 373/67, 13 March 1970 _Thanni v Saibu_(1977) 2 SC 89 _Tiza & another v Begha _(2005) 5 SCNJ 168 _Total_(_Nigeria_) _Ltd v Nwako_(1978) 5 SC 1 _Tsokwa Motors Nigeria Ltd & another v UBN Ltd _(1996) 3 NWLR (Part 471) 129; (1996) 10 SCNJ 294 _UBN PLC v Emole_(2002) FWLR (Part 88) 845 _Ugbodume & others v Abiegbe & others _(1991) 8 NWLR (Part 209) 261; (1991) 11 SCNJ 1 _Ugo v Obiekwe_(1989) 2 SCNJ 95 _Usman v Abubakar_(2001) 12 NWLR (Part 728) 689 _Uwegbe & 4 others v Attorney-General_, _Bendel State_ , _Nigeria & others _(1986) 1 NWLR (Part 16) 303 CA _Woluchem v Gudi_(1981) 5 SC 291 _Yassin v Barclays Bank DCO_(1968) 1 ANLR 171 **Foreign** _Conway v Wimpey_[1951] 2 QB 266 _Hollington v Newthorn & Co Ltd _[1943] 1 KB 587; [1943] 2 AER 35 _Pfeiffor v The Midland Railway Co_[1887] 18 QBD 143 _R v Gorsney_[1971] 2 QB 674 CA **The following statute was referred to in this judgment:** Court of Appeal Act: S 16 Evidence Act Cap. 112, LFN 1990: S 149(_d_) **Oguntade, JSC (Delivered the leading judgment):–** The first appellant in this appeal commenced his suit at the Minna High Court of Niger State claiming against the respondents special and general damages, the breakdown of which is as stated hereunder:– “(a) Cost of replacing the plaintiff’s now completely cannibalised vehicle ~~N~~ 1,500,000 (b) Loss of use of vehicle from date of accident to date of filing this suit ~~N~~ 1,008,000 (c) Cost of hiring another vehicle to convey goods from point of accident ~~N~~ 15,000 (d) 9 months payment of watchmen guarding Plaintiffs vehicle at ~~N~~ 75.00 per day each ~~N~~ 40,000 Total Special Damages ~~N~~ 2,563,500 (e) General Damages ~~N~~ 7,500,000 (f) Interest on the judgment sum at 28% from 9/12/91 to date of judgment (g) Interest on the unpaid judgment sum at the Court rate of 10% (0.40rr7) from the date of judgment until the judgment debt is fully and finally paid. (h) Such further or other order(s) as the court may deem fit and just to make in the circumstances of this case.” The suit was founded on the negligence of the first respondent, the driver of the second respondent. It was pleaded, that on 9 December 1991; the first**** respondent negligently drove Fiat trailer registration no. LA 3906 belonging to the second respondent and caused same to collide with the first appellant’s Fiat T3 trailer, registration no. LA 6086 MA. The respondents filed their Further Amended Statement of Defence. They denied the negligence ascribed by the first appellant to the first respondent. They averred that the accident was caused by first appellant’s driver who was alleged to have negligently driven his vehicle in the course of overtaking another vehicle and in the process collided with the second respondent’s vehicle. The respondents raised a counter-claim of four million, two thousand, three hundred and fourteen Naira, (~~N~~ 4,002,34) being general and special damages) jointly against first appellant and his driver, the second appellant. It is relevant to say here that it was the counter-claim by the respondents that brought in the second appellant as a party to the dispute. The case was heard by Evuti J. At the trial, the plaintiff/appellant called three witnesses in support of their case. The defendants/respondents also called three witnesses. On 19 October 1995, the trial judge in his judgment concluded as follows:– “I give judgment in favour of the first plaintiff as follows: the sum of ~~N~~ 500,000 for damages caused to his vehicle, a fiat T3 Trailer. (2) The sum of ~~N~~ 6,500 being refund for the payment made for hiring a vehicle to convey the goods from the scene of accident to Kaduna. (3) Another sum of ~~N~~ 40,000 for payments made to the 2 watchmen who looked after the vehicle at the scene of accident for a period of 9 months. In addition to the above I award to the plaintiff against the defendants, the sum of ~~N~~ 1,000 as general damages plus 10% interest p.a. thereon the total sum until the whole amount is fully paid with effect from today.” The respondents were dissatisfied with the judgment of the trial court. They appealed against it before the Court of Appeal, Abuja (hereinafter referred to as “the court below”). On 16 July 2007, the court below set aside the judgment given by the trial court in favour of the plaintiffs/appellants. Their case was dismissed. The plaintiffs have come before this Court on appeal against the judgment of the court below. They raised five grounds of appeal. The respondents, who won before the court below, have raised a cross appeal on two grounds of appeal. In the appellant’s brief filed by the plaintiffs Counsel, the issues for determination in the appeal were identified as the following:– “(1) Was the Court of Appeal right in finding that the trial Judge made a finding on issues that were not pleaded but did not make findings as to acts of negligence pleaded by the parties? (2) Whether the Court of Appeal was right in dismissing plaintiffs’ claims _in toto._ (3) Was the Court of Appeal right in remitting back to the High Court for determination the amount of damages counter-claimed by the defendants when there was no prior finding that the defendants had, on the evidence adduced, proved negligence against the plaintiffs?” The respondents adopted the appellants’ first issue and in addition formulated an additional issue. The additional issue reads:– “2. Whether in the absence of any finding of negligence against the respondents the appellants are entitled to damages arising from the same acts or omissions constituting the negligence complained of?” The respondents/cross-appellants raised a preliminary objection against the plaintiffs/appellants’ fifth ground of appeal and their Issue No. 3 formulated upon it. It is appropriate that I first consider the notice of preliminary objection. The contention of the respondents/cross-appellants is that the matter complained of by the plaintiffs/appellants in their fifth ground of appeal did not arise from the judgment of the court below being appealed against. Respondents’ Counsel submitted that a ground of appeal and issue formulated thereupon must arise from the judgment appealed against. He referred to _Republic Bank Ltd v C.B.N._(1998) 13 NWLR (Part 581) 300 at 327 and _Saraki v Kotoye_(1992) 9 NWLR (Part 254) 156 at 164 and _Madueke v Madueke_(2000) 3 NWLR (Part 655) 3 at 135 _._ Counsel relied on a passage from the judgment of the Court in _Saraki v Kotoye_(_supra_) where the Court said:– “It is well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal must relate to the decision and should constitute a challenge to the ratio of the decision. (See _Egbe v Alhaji_[1990] NWLR (Part 128) 566 at 590). Grounds of appeal are not formulated _in nubibus_ they must be _in firma terra_ , namely arise from the judgment. However meritorious the ground of appeal based on point of critical constitutional importance or general public interest, it must be connected with controversy between parties.” The plaintiffs/appellants did not file a reply brief. I am left to approach the matter without the advantage of an input from the plaintiffs/appellants. The fifth ground of appeal raised by the appellant at pages 202–203 of the record reads:– “(5) The Court below erred in law when it remitted the damages of defendants back to the High Court to be determined _de novo_ when there was no**** prior finding by it that the defendants had established negligence on the part of the plaintiffs and proved their counter-claim for damages. _PARTICULARS_ (a) The Court below held that:– ‘It is also significant that the learned trial judge did not discuss the question of damages raised by the appellants. It is now trite law, that trial Court should discuss the issue of damages in case they are found to be wrong on the question of liability. An appeal court may at times under and by virtue of section 16 of the Court of Appeal deal with the question of liability and the issue of damages, but in this case, the issue of credibility of the witnesses is important, that is why I shall remit the claims for the appellants back to the High Court and there to be tried _de novo_ by another judge.’ (b) The trial High Court had found the first defendant negligent and therefore dismissed the counter-claim thus:– ‘On the other hand I find the first defendant negligent. His action gave rise to the present suit being filed against him and his employer. Consequently, all heads of claims filed by the defendants are each dismissed as lacking basis.’ (c) No where in its judgment did the Court of Appeal make a finding that negligence was proved against the Plaintiffs.” I reproduced earlier the third issue for determination in the appeal raised by the plaintiffs/appellants. A combined reading of the fifth ground of appeal and Issue 3 formulated thereon conveys that the court below had in its judgment come to the conclusion that the defendants/respondents had established a case of negligence against the plaintiffs/appellants on the counter-claim raised; and that the case was being remitted to the court below only for an assessment of damages. But this was not the case. The court below in the last paragraph of its judgment at page 195 of the record had only said:– “Accordingly in the end, I allow this appeal, set aside _in toto_ the decision of the trial court and in its place, I order that the respondents’ claims be and are hereby dismissed. _I order also that the claims of the appellants as contained in the counterclaim be remitted back to the High Court of Niger State and there to be decided _de novo_ by another judge._” (Underlining mine.) It is apparent from the extract of the judgment of the court below reproduced above that what was remitted to the trial court for trial _do novo_ was “the claims**** of the appellants as contained in the counter-claim” not just the damages claimed. The claims of the defendants/respondents included a determination of the question whether or not the plaintiffs/appellants were liable in negligence as asserted by the defendants/respondents in their counter-claim. The result is that the fifth ground of appeal and the third issue for determination by the plaintiffs/appellants could not have arisen from the judgment of the court below. Both are accordingly struck out. Issues 1 and 2 raised by the plaintiffs/appellants will be taken together. The court below allowed the appeal brought to it by the defendants/respondents mainly on the ground that the plaintiffs/appellants’ evidence at the hearing was not in conformity with their pleadings as to the nature of the negligence upon which their claims were hinged. In his statement of claim, the first plaintiff appellant pleaded in paragraph 3 thus:– “The said trailer no. LA 3906 BF was so negligently driven, managed and controlled by the first defendant that he caused or permitted the same to violently hit the said vehicle no. LA 6086 MA _Particulars of Negligence_ (i) The said vehicle No. LA 3906 BF was driven at a speed which was excessive in the circumstance. (ii) First defendant failed to keep any or any proper look-out on (_sic_) to have any or any sufficient regard for other traffic and in the process hitting the said LA 6086 MA. (iii) First defendant failed to keep any or any proper control of the vehicle No. LA 3906 BF driven by him and failed to swerve or in any other way so to manage or control his vehicle as to avoid hitting plaintiff’s vehicle. (iv) The weather (condition) was bright and the road (a Federal Highway) straight. (v) The plaintiff will in the alternative rely on the doctrine of _Res Ipsa noquitur_.” (Underlining mine.) Now at the hearing, PW3 who was the driver of vehicle no. LA 6086 MA at the time the collision occurred testified thus:– “On 9 December 1991, I was driving my vehicle loaded with plates to Kaduna from Lagos. On my way at Maikujeri after Kagara, _I was driving when the first defendant’s vehicle was coming down a slope, left his lane and came into mine._ I thought he could not go back to his lane and I was parking my vehicle. He ran into my vehicle and his vehicle went further and fell down. My vehicle did not fall down but the head got condemned.” (Underlining mine.) It is to be observed here that whereas the main plank of the negligence alleged against the defendants/respondents in first plaintiff’s/appellant’s Statement of Claim was excessive speeding and failure to keep a proper look-out, the evidence of PW3, who was the only witness called to show how the accident happened, was to the effect that the defendants/respondents’ vehicle veered off its lane of the road to collide with the plaintiffs/appellant’s vehicle. So what were the findings of the trial court as to the cause of the accident? At page 60 of the record of proceedings, the trial court in its judgment said:– “The evidence of PW2 and PW3 alleged negligence on the part of the first defendant. This is further corroborated by the sketch map of the scene of the accident. The points of impact to which the first defendant was part of the making never favoured him. From the point of impact to where his vehicle finally fell down is 160 ft. _This clearly shows that he was on an excessive speed which made it not possible for which (_sic_) to have proper control of the vehicle resulting to the accident._ These (_sic_) finding, I believe worked on the mind of the trial court to find the first defendant guilty of dangerous driving. By the first defendant’s negligence, he breached the duty of care he owe (_sic_) other road users.” (Underlining mine.) In the passage underlined above, the trial court made a finding that the cause of the accident was excessive speeding by the first defendant/respondent. This finding was in tune with the averment pleaded by the first plaintiff/appellant in the particulars of negligence pleaded. On the other hand, the only evidence called by the plaintiffs/appellants in proof of the negligence ascribed to the first defendant/respondent was that the vehicle driven by him (first defendant/respondent) veered off his lane of the road and came to collide with first plaintiff/appellant’s vehicle. The result is that there was no evidence before the trial court in support of the averments pleaded by the first plaintiff/appellant as to how the collision occurred. In _Njoku v Eme_(1973) 5 SC 293 at 300–302, this Court observed:– “In _National Investment & Properteis Ltd v Thompson Organisation Ltd & others _(1969) NMLR 99 at page 104, we again observed as follows:– “A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings, and evidence which is in fact contrary to his pleadings should never be admit