Indexed Face Sets

The statutes provide (See p. 310, post) that the action on behalf of the dependants must be brought within three years after the death, by and in the name of the executor or administrator of the deceased, but that (a) if there is no executor or administrator, or (b) if the executor or administrator does not commence an action within 6 months of the death, then any dependant who qualifies as a claimant under the Acts may sue in his own name on behalf of himself and the others.

(c) Damage to Property

Where the plaintiff’s property is not lost, destroyed, or damaged in consequence of the defendant’s tort, the aim of the law is restitutio in integrum i.e. to restore the plaintiff as far as possible to the position he would have been in had the loss not been inflicted. (Armel’s Transport Ltd. V. Martins (1970) 1 All N.L.R. 27, at p. 32; Lagos City Council v. Unachukwu (1978) 1 LRN 142, at pp. 143, 144). The method of computation differs, however, according to whether it plaintiff’s property is (1) totally lost or destroyed, or (2) merely damaged and repairable (1978) 1 L.R.N., at p. 144).

realizing a sum of ₤4,500 within a year, I think it would be a fair estimate that the useful life of the vehicle could not be more than three years. On that basis I would estimate the market value of the plaintiff’s vehicle at the time of the collision as two thirds of the original value of the vehicle plus the cost of accessories”.

In addition to the pre-accident value of the chattel, the plaintiff is also entitled to be compensated for any loss of earnings (e.g. where a commercial vehicle or taxi-cab is destroyed) and the inconvenience arising from his being deprived of the use of the chattel during the period reasonably required for procuring a replacement (Kerewi v. Odegbeson, supra). What is a reasonable period for acquiring a replacement will vary according to circumstances, but in all cases the plaintiff is under a duty to mitigate his loss (see Chukwu v. Uhegbu (1963) 2 All N.L.R.

209). In Maiwake v. Gassau (1972) 8 CCHCJ 21), Wheeler J. said:

It is a cardinal principle of law that a plaintiff must act reasonably in relation to the defendant so as to mitigate his loss, and it follows that the plaintiff in the present case was not entitled…to sit back and do nothing about replacing his lorry which had been written off’.

In Alabilogbo v. Sofowora (1972) N.N.L.R. 125) the plaintiff claimed loss of earnings in respect of his lorry for a period of eight months. Kazeem J. refused to uphold the claim, saying (at p. 27):

I am not convinced that it could have taken about six to eight months to get another vehicle in replacement for the defendant’s vehicle. The fact that the defendant had no money for the replacement seems to me immaterial, and if he had taken out comprehensive instead of third party cover on his vehicle, the insurance company could have borne the cost of the replacement

….. In the circumstances I would only award as loss of earnings a sum of ₤360 on the basis of ₤12 per day for 30 days.

Where the plaintiff claims special damages for the loss of a chattel, including loss of earnings, he must plead and prove strictly each item of loss, and if he fails to do so, his claim for special damages will fail. Thus, for example, in Maiwake v. Gassau, where the plaintiff claimed loss of earnings in respect of his destroyed lorry, Wheeler J. said (1971) N.N.L.R. 125, at p. 127:

The plaintiff’s evidence regarding the manner in which the daily profit/loss of ₤45 was arrived at was very much evidence of a general character indicating in general terms the work the plaintiff had been able to arrange for the lorry and the kind of profit he had been making with it. In particular, he gave or called no evidence showing that by reason of the accident he had been unable to undertake specific assignments for which the lorry had been engaged. Special damages, however, must be certain and strictly proved and, having regard to these matters, I am unable to find that there is satisfactory proof of the plaintiff’s claim for special damages for loss of profits totaling

₤10,485, and that claim accordingly fails.

This, however, is not the end to the matter, for even if the plaintiff’s claim for special damages fails, he may still recover general damages, provided he has pleaded them. (General Metalware

Co. Ltd. V. Lagos City Council (1973) 2 CCHCJ 68, at p. 79). In Maiwake’s case (Supra), for instance, having rejected the claim for special damages, Wheeler J. went on to award general damages assessed on the principle that “the plaintiff is entitled to be awarded such sum as will fairly compensate him for the loss he has actually sustained” (The Hebridean Coast (1961) A.C.

545, at p. 562, per Devlin L.J). He therefore held as follows (1971) N.N.L.R. 125, at p. 128):

There was a reasonably certainty that the lorry would have been engaged to carry out four trips a month (but not five) from Kano to Lagos and back carrying produce, which would have earned for the plaintiff ₤305-5-0 for each return trip or ₤1,217 per month.

The costs of earning that sum have, of course, to be deducted. And the plaintiff’s evidence, which I accept (he was not cross-examined on these matters), is that he paid the driver wages and expenses of

₤23 per month, that he spent ₤43-15-0 per trip on fuel (or ₤175 per month) and ₤10 per month on engine oil, giving a grand total of

₤208 per month. Consequently the net profit per month could not have been more than about ₤1,010, and as that figure does not take account of such overheads and insurance vehicle licence and the cost of servicing, in my opinion a fair assessment of the net profit made by the lorry was ₤950 per month.

However, it has frequently been emphasised in the Nigerian courts that the plaintiff must not be doubly compensated, and if he has been awarded special damages for his loss, he is not entitled to an additional award of general damages (Chukwu v. Uhegbu (1963) 2 All N.L.R. 209 at p. 211 etc.). In Lagos City Council v. Unachukwu, Bello J.S.C., delivering the Supreme Court’s judgement said (Supra):

It has been stated by this Court in numerous cases that where a victim of a 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 a different head…

In Ezeani v. Njidike (Supra) Brett J.S.C. stated: “Although the measure of damages in an action in tort is not the same as in an action in contract, the rule against double compensation remains the same, and applies to both”. In the afore-mentioned 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 sets 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 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.

4.0 CONCLUSION

In an action for damages for personal injuries there shall (a) in assessing those damages be taken into account against loss of earnings or profit which have accrued or probably will accrue to the injured person from the injuries, such proportion as the court may in all circumstances of the case

consider just, of the value of any compensation which has been recovered or will be recovered by him.

5.0 SUMMARY

In this unit, we learnt about:

(f) the quantum of damages in which a plaintiff is entitled to in a given case;

(g) the mode of assessment of damages;

(h) several examples of the types of damages that we have e.g. nominal damages, general and special damages etc.

6.0 TUTOR MARKED ASSIGNMENT

1. Discuss the term quantum of damages in relation to tortuous act.

2. State the rule in Repolems and Furnas Witty & Co. (1921) case.

7.0 REFERENCES AND FURTHER READINGS

1. Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishmnt (1998), Lagos.

2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).

3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London.

Sweet & Maxwell.

4. A. Street: The Law of Torts Swet & Maxwell (1977), London

5. G. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.

: The Criminal Procedure of the Northern States of Nigeria