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CaseLaw

Rabiu Hamza V. Kure (2010) CLR 3(za) (SC)

Judgement delivered on March 26th 2010

Brief

  • Evaluation of evidence by appellate court
  • Negligence
  • Special or general damages; Proof of
  • Mutual duty of care of Highways – Nature of and proof of
  • Finding of fact – When perverse
  • Damages
  • Duty of care
  • Section 16 of the Court of Appeal Act of 1976
  • Order 3 Rule 23 of the Court of Appeal Rules, 1981

Facts

The plaintiff took out a special indorsed Writ of Summons from the Kaduna State High Court of Justice, Holden at Kaduna (trial court). The defendant, who was served with the Writ of Summons was a commissioner in the Kaduna State Government. The plaintiff alleged that on or about the 20th day of March, 1995, about 6.00pm; he was riding his motorcycle along the Constitution Road (dual lane) heading to Kabala Costain from Ahmadu Bello Stadium. When he got to a U-turn, very close to Abubakar Kigo road, the defendant supposedly trying to make a U-turn, negligently drove, managed and controlled his Peugeot 505 and caused or permitted his said vehicle to collide violently and hit down the plaintiff who claimed to be riding along his lane of the said road, thereby causing substantial and grave injuries to the plaintiff. Plaintiff particularized the alleged negligence;

  • a
    the defendant failed to give the said on - coming motor-cyclist (that is plaintiff) sufficient time to safely pass before making or attempting to make a U-turn;
  • b
    the defendant failed to see or take special care at the said U-turn before turning;
  • c
    the defendant failed to keep any proper look out or to have any sufficient regard for traffic that was or might reasonably be expected to be on the said road;
  • d
    the defendant failed to stop, to apply or properly apply his brakes, to slow down or in any other way to manage or control the said car as to avoid the collision;
  • e
    failing to drive at a reasonable speed while making a U-turn at the U-turn spot.

The plaintiff averred further that by reason of the violent collision, the plaintiff's left leg was seriously crushed with loss of bone from tibia/fibula. The plaintiff was as a result, rendered unconscious and admitted. The plaintiff claimed that his crushed left leg was required to and did attend the clinic for a period of twenty four (24) days for further medication after discharge. Plaintiff claimed that he was required on admission at the clinic to be under special diet to facilitate healing of the wounds. He claimed to have spent a total sum of N16,000.00. He also claimed to have lost a purse on the accident day containing the sum of N4,500.00. Plaintiffs claimed further that the motor cycle he was riding on that fateful day used to fetch him N200.00 daily. It was badly smashed and damaged and plaintiff had to expend money to repair it. The damaged machine was not roadworthy and he collected it from the Police for use on the 20th of November, 1995.

In paragraph 15 of his statement of claim, the plaintiff made the following claim for special damages:

  • 15
    The plaintiff avers that the collision has incapacitated him and have (sic) incidentally caused him specific losses/expenses in numerous and various ways:

    • PARTICULARS FOR SPECIAL DAMAGES:

    • 1
      Cost of walking crawls............ N650.00
    • 2
      Cost of transportation at N200.00 daily from the plaintiff's residence to the clinic for 21 days after discharge for injection and dressing......... N4,800.00
    • 3
      Total cost of the prescribed/special feeding for thirty-two days on admission......... N16,000.00
    • 4
      Cash lost on the collision on the 20/3/95. N4,500.00
    • 5
      Cost of panel beating, spraying and replacing of damaged parts N7,200.00
    • 6
      Money loss for not utilizing the motor-cycle for a period of six months at N200.00 per day... N36,800.00
    • TOTAL N69,500.00

      • Plaintiff further averred as follows:

      • 16i
        The plaintiff avers that he has suffered deprivation in that:
      • a
        he has lost forever his legs, thus making life more difficult to him to fend, carter, or and provide material and social needs for the members of his family.
      • b
        he is suffering an untold hardship and ever lasting prejudice having his life prospect rendered hopeless by reason of the defendant's negligent driving.
      • c
        it is a permanent deformity and depravity that affects generally his capacity in life, business and social necessities.
      • ii
        Consequently, the plaintiff claims the sum of N903,050.00 general damages for pains and sufferings, loss of expectation of life caring and especially as in (16) (i) a, b and c above."

        • Plaintiff finally claimed the sum of one Million naira (N1,000,000.00) as special and general damages for negligence.



        In his statement of defence the defendant denied liability. He averred, among others, that the collusion was caused by the speed and failure of the plaintiff to stop as other traffic on his lane had stopped at the material time and that the injuries, loss and damage suffered by the plaintiff (if any, which was denied) were caused or alternatively, contributed by the negligence of the plaintiff. The defendant gave particulars of the contributory negligence in paragraph 3 of his statement of defence. On all other averments, the defendant put the plaintiff to the strictest proof thereof. He asserted that it was at his insistence and expense that the plaintiff and his passenger were taken to and admitted for treatment at the said orthopaedic clinic in Kaduna which cost him the sum of N65,000.00. The defendant averred further that after their investigation, the Police arraigned the defendant before a Magistrate court, Kaduna but the case was struck out for want of diligent prosecution. He urged that the suit be dismissed.

        Plaintiff finally claimed the sum of one Million naira (N1,000,000.00) as special and general damages for negligence.

        After full hearing of the case, the learned trial judge entered judgment for the plaintiff/appellant. On appeal to the Kaduna Division of the Court of Appeal (court below), that court set aside the trial court's judgment. It is from there that the appellant appealed to this court.

Issues

  • 1
    Whether the court below was right in holding that the trial court did not...

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