IN THE SUPREME COURT OF NIGERIA
On Friday, the 31st day of March, 1978
Before Their Lordships
DARNLEY A.R. ALEXANDER….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
CHUKWUWEIKE IDIGBE….. Justice, Supreme Court
LAGOS CITY COUNCIL CARETAKER COMMITTEE & ORS
BENJAMIN O. UNACHUKWU & ANOR
The appeal is partly allowed.
1. DAMAGES – Award of Damages – Principles guiding award of damages in an action for negligence
Per BELLO, J.S.C. at Pp. 2-3, Paras. D-A.
2. DAMAGES – Compensation for destroyed chattels – Measure of damages payable
Per BELLO, J.S.C. at P. 3, Para. C.
3. DAMAGES – Award of damages in tort – Need to avoid multiple compensation
Per BELLO, J.S.C. at P. 5, Paras. A-B.
A bus belonging to the Appellants strayed from the highway and crashed into the shop of the Respondents. As a consequence of that accident, the Respondents instituted an action in the High Court, Lagos, claiming against the Appellants special and general damages for negligence. The Appellants conceded liability for negligence and, accordingly, the learned trial judge found them liable.
He awarded the Respondents the sum of 10,943.9p (N21 ,887.18).This appeal is only concerned with the issue of damages. One of the main complaints of learned counsel for the Appellants at the hearing of the appeal is that the learned trial judge erred in law in his award of 8,943.9p as special damages when the items of special damage were not strictly proved.
He contended that the Respondents are not entitled to recover any damages for the goods damaged on the ground that the damaged goods had been salvaged by the Respondents who failed to produce them at the trial.
He further submitted that the Appellants are not liable for the loss of profits, learned counsel contended that the Respondents did not produce their books of account to prove their monthly profits but that the learned trial judge simply accepted the unsupported evidence of the first Respondent and based his awards of special damages thereon. With regard to the award of 2,000pounds as general damages, learned counsel argued that there is no basis for it. He submitted that the Respondents having been fully compensated by the awards of special damages, the award of general damages in addition thereto is tantamount to awarding double compensation.
Learned counsel for the Respondents conceded that there is no evidence to support the award of 969: 12s:0d for the damaged goods and that in respect of the award for the office equipment only 295 has been proved. As regards the other two items of special damage, i.e. the value of the goods stolen and loss of profits, learned counsel submitted that the awards in respect of both are supported by the evidence of the first Respondent and that of his accountant who produced the valuation report, Exhibit B. He further submitted that the learned trial judge acted rightly in accepting the unrebutted evidence of the first Respondent and that of his witness. He referred us to S. O. NWABOUKU v. PNP OTITH (1961) ALL NLR 487 to buttress his submission.
In respect of the award of 2,000pounds as general damages, learned counsel for the Respondents drew our attention to the fact that although the Respondents limited their claim for loss of profits to the period 15th March to November 1971 in their pleadings, the evidence of the first Respondent shows that he did not secure another shop until September 1972 and that he had to pay higher rents for the new shop
Learned counsel finally submitted that having regard to that evidence coupled with the fact that damage was done to the Respondents business and inconvenience caused to them, the award of general damages is justifiable. The measure of damages in an action for negligence is founded on the principle of restitution in integrum. That principle was re-echoed by Lord Wright in Liesbosch Dredger Vs. S.S. Edison (1933) A.C. 449 at p.459, wherein he said:
“The substantial issue is what in such a case is the true measure of damages. It is not questioned that when a vessel is lost by collision due to the sole negligence of the wrong-doing vessel the owners of the former vessel are entitled to what is called restitution in integrum, which means that they should recover such a sum as will replace them, so far as can be done by compensation in money, in the same position as if the loss has not been inflicted on them, subject to the rule of law as to remoteness of damage”.
The above statement of the law was cited with approval and followed by this Court in THOMAS KEREWI v. BISIRIYU ODEGBESAN (1965) 1 All N.L.R. 95 at p.98. In stating the same principle on Lord Citrine (Owners) Vs. Herridean Coast (Owners) (1961) A.C. 545, Devlin L.J. had this to say at p.562:”The only principle of law that can be laid down is the familiar one that the plaintiff is entitled to be awarded such sum as will fairly compensate him for the loss that he has actually sustained” .
In the application of the above mentioned principle to cases where chattels were destroyed or damaged, the following rules have been evolved for compensating the party damnified: where goods are destroyed by the wrongful act of defendants, the measure of damages is the value of the goods at the time of their destruction and, in a proper case, plus such further sum as would compensate the owner for the loss of use or earnings and the inconvenience of being without the goods during the period reasonably required for their replacement.
In the case of damage to goods the measure of damages is the cost of their repairs or the difference between their market value at the time of their damage and their value as damaged and, in a proper case, plus loss of use or earnings during the reasonable period of repairs or replacement: See Thomas Kerewi Vs. Bisiriyu Odegbesan (1965) 1 All N.L.R. 95 and The London Corporation (1935) p. 70.
We will now consider the several awards of the learned trial judge. The award of 969: 12s:0d was for the goods said to have been damaged as the result of the accident. According to the Respondents, they recovered damaged goods worth 960pounds while their accountant assessed their value at 969:12s:0d. There is no evidence showing their market value before the accident and hence the difference between that market value and their damaged value, which difference the Respondents, where entitled to recover, has not been proved. For this reason the award of 969: 12s:0d cannot be sustained and it will be set aside. Subject to the reduction we will make in the award of 394Pounds for the office equipment, we are unable to agree with learned counsel for the Appellants that the other items of special damage have not been proved.
The evidence of the first Respondent and that of his accountant, which the learned judge accepted, shows that on 15th March 1971 at 6.00 a.m. the first Respondent found the bus of the Appellants in their shop which was completely damaged due to the bus crashing into it. The first Respondent found some of their goods damaged and some stolen. Their accountant (PW.2), who took stock of the Shop after the accident, assessed the depreciated value of the office equipment at 295, the value of goods lost or stolen at 3,119:19s:0d and he valued gross daily profits of the Respondents from the business at 20. His valuation report was admitted in evidence as Exhibit B. He said he made his valuation partly from Respondents’ stock ledger, Exhibit C, and partly from the information supplied to him by the first Respondent.
The learned trial judge, rightly in our view, accepted the evidence of the first Respondent and that of their witness and based his awards thereon. We do not accept the submission of learned counsel for the Appellants that the Appellants are not liable to pay for the goods lost or stolen. The police report, which was admitted by consent as Exhibit A, shows that the accident occurred at night and that the bus shattered the door and walls of the shop which was left overnight without being guarded. It is apparent that in that shattered condition the shop was rendered susceptible to theft.
Under the circumstances, the learned Judge was entitled to infer, as he did, that the missing goods were stolen. It is plain that the accident facilitated the theft. We hold that the Appellants are liable for the loss of the stolen goods. As regards the award of 4,460pounds for loss of profits, the evidence shows that the Respondents were tenants of the shop and that because of the accident they had to look for another shop which they eventually secured in September 1972.
Although it took them about 18 months to secure the other shop, the learned judge awarded them loss of profits for 9 months only, as claimed. Having regard to the circumstances of the case, we do not consider 9 months to be unreasonable. It is reasonable in our view. In the result, we reduce the award for office equipment from 394Pounds to 295Pounds, which was the amount proved. The awards of 3,119: 19s:0d and 4,460Pounds for goods stolen and loss of profits respectively are affirmed.
Finally, we have to consider what justification there can be for the award of 2,000pounds as general damages. The learned trial judge gave no reason for awarding this additional sum. Learned counsel for the Respondent has made a futile attempt to justify it but we are not impressed by his effort. It has been stated by this Court in numerous cases that where a victim of tort has been fully compensated under one head of damages for a particular injury, it is improper to award him damages in respect of the same injury under another head: See per Unsworth F.J. in ONANUGA v. MICHO AND CO.(1961) All N. L. R. 324 AT 328 wherein it was held that a contractor whose contract was wrongly terminated was entitled to recover any balance of payment for work done and also to loss of profit on the work he had been prevented from doing. An additional award as general damages made by the court below was set aside as being unjustified double compensation. In HENRY EZEANI AND 6 ORS v. ABRAHAM NJIDIKE (1964) 1 All N. L. R. 402 At Pg 405 Brett J.S.C. stated at p 405:
“Although the measure of damages in an action in tort is not the same as in an action in contract, but the rule against double compensation remains the same, and applies to both”.
In the aforementioned case the Plaintiff claimed in an action for conversion the value of the goods converted and general damages. The trial judge awarded him both. This Court set aside the award of general damages as being double compensation. Now reverting to the case in hand, we are satisfied that the Respondents have been fully compensated by the awards for their office equipment, their goods stolen and their loss of profits. We hold that the additional award as general damages is unjustified double compensation and it must be set aside. To summarise, the awards of 969: 12s:0d and 2,000pounds for goods damaged and as general damages respectively are hereby set aside while the sum of 295 is hereby substituted for the award of 354Pounds for office equipment. The remaining awards are affirmed.
The appeal is partly allowed. The judgment of the learned trial judge in the sum of 10,943:11s:9d (N21,887.18) is hereby set aside. Instead there shall be judgment for the Respondents in the sum of 7,874:19s:0d (N15,749.90). costs in favour of the Appellants are assessed at N183.
S.H. Shitta-Bey Esq. ( B.A. Oni Esq.with him)…..For Appellant
A.A. Ogunsanya Esq.( with him, E.O. Ezeoke Esq.)…..For Respondent