Sylvester Ifeanyi Ibekendu V. Sylvester Ike (1993)

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UCHE OMO, J.S.C. 

 On the 17th May, 1993, this appeal was heard and dismissed by this Court. It was then adjourned to the 9th July, 1993 when fuller reasons for the dismissal would be given. I now proceed to do so by delivering this judgment.

The appellant in this case was sued in the High Court of the then Anambra State (Enugu Judicial Division) jointly with his “brother”- George Ibekendu (as 2nd defendant) by the respondent who claimed against the two defendants, jointly and severally, N50,000.00 special and general damages for personal injuries to the respondent allegedly occasioned by their negligence.

This claim arose from a motor accident on the Enugu – Onitsha highway which occurred in July 1979 in which a Toyota Hiace Bus driven by the appellant/1st defendant collided with the respondent, who was walking by the side of the highway. Injuries were inflicted on the left leg of the respondent which crushed mainly the ankle. This resulted in the said leg being amputated at the University of Nigeria Teaching Hospital, Enugu, to which he was taken for treatment.

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In his statement of claim filed in the High Court, the respondent pleaded that the defendants were joint-owners of the Bus involved in the accident, and that the 1st respondent was the driver of the vehicle. In addition to pleading the usual particulars of negligence, the respondent also pleaded thereunder as follows:-
“4…………………………………
(c) further or in the alternative the plaintiff will rely on the doctrine of res ipsa loquitur.”

After hearing the evidence of the parties, the learned trial Judge dismissed the 2nd defendant from the case, holding that there is “no scintilla of evidence” to connect him “with the ownership of the said vehicle.” He foundon the evidence before him, that the liability of the 1st defendant (appellant) has not been established and dismissed the claim in its entirety. In this process, respondent’s plea of res ipsa loquitur was not at all adverted to. On the damages claimed, he found that the special damages averred had not been proved; but failed to assess what the general damages would be should in case his decision on liability is set aside

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vide Kareem v. Ogunde (1972) 1 S.C. 182.
The respondent felt aggrieved by this decision, and therefore appealed to the Court of Appeal.

The Court below reversed the decision of the trial High Court on the main issue of liability. It held that the High Court was in error not to have considered the plea of res ipsa loquitur which was before it. There was prima facie evidence of negligence, and the purported explanation of the appellant is manifestly unreliable, having regard to the damning conflict between it and the contradictory evidence he gave in the Magistrate Court, in the course of the criminal aspect of this accident. It held that the consequence of this contradiction is that there is no explanation of the accident, and that therefore liability for the accident by the appellant is established. It upheld the decision of the High Court that 2nd defendant is not liable and that evidence of the plaintiff/(respondent) on special damages is very weak and does not constitute proof. It however faulted the trial Court for not proceeding to assess general damages in compliance with the often repeated injunctions

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(decisions) of the appellate Courts that trial Court should assess damages, bearing in mind always that their decision on the core issue of liability may be reversed on appeal vide Yakassai v Incar Motors Ltd. (1975) 5 S.C. 107. Finally, the Court of Appeal proceeded to assess general damages and made an award thereunder of N35,000.00. It is against this judgment that the appellant has appealed to this Court.

The three grounds of appeal relied upon in challenging the decision of the Court of Appeal are set out as follows:-
“ERROR IN LAW
The Court of Appeal erred in law in holding that the maxim of Res Ipsa loquitor applied in the circumstances of this case when there was no conclusive evidence of the exact scene of the accident to warrant such a presumption.
PARTICULARS
(a) The Court of Appeal held that the defendant’s vehicle swerved to collide with the plaintiff “for no apparent reason”.
(b)

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