the right of the insured to sue the wrong doer after indemnified by insurers

Today's case on Nigerian Insurance Court Cases:

ISSUES: 
Damages; for wrongful detention of motor vehicle, criterion of assessment, special damages and degree of proof.
Insurance; right of the insured to sue the wrong doer, position of insured as to the damages recovered.
Practice/procedure; the right of the insured to sue the wrong doer after indemnified by insurers, application of section 55 of the high court law.
Emmanuel Oloruntade -Appellant
Umaru Dandodo -Respondent  

Suit K/12A/76 at the court of appeal in Kano on the 19th of july, 1976 before;
• Jones CJ
• Kalgo J
COUNSEL:
• K Grey for appellant
• O Ayodele for respondent   

FACT:

Appellants motor vehicle suffered damage in a road accident caused by negligence of the respondent. In the action in the court of the senior district judge he was awarded some general damages but lost his claims for the cost of repairing his vehicle which he claimed as special damages. The only evidence of this special damages was his own averrment on oath that the repairs had cost him some N493.95, the suit was undefended. On appeal against the failure to award special damages, it was argued that for lack of re butting evidence, appellant had a balance in his favor entitling him to these damages. It was also submitted that the senior district judge had wrongly stated in his judgment that the appellant could not sue the wrong doer for injury for which his insurance company had already indemnify him.
 
HELD:

A. An insured has the right to sue the wrong doer whether or not his insurance company has indemnified him.
 
B. While special damages must be strictly proved, the degree of proof is relative to the ease of proof and it must be such as is reasonable having regard to the circumstances and the. Nature of the act by which the damage was done.
 
C. In an undefended case, the word of plaintiff is not necessarily enough. A court has a right to expect such evidence in support of a claim for special damages as will enable it to be reasonably sure that its assessment of the damages is justified. In the case of the claims for vehicle repairs, the very least evidence which would enable it to do so would be the garage receipt.
 
D. Section 55 of the high court law was never intended and is not to be used to give a plaintiff a "second bite at the cherry" therefore appeal is dismissed.
 
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