Anglo-canadian Cement Ltd V O. Alokolaro & Co (1967)
LawGlobal-Hub Lead Judgment Report
BRETT, Ag. C.J.N.
In this case the trial judge made an order of non-suit in the plaintiffs’ claim for damages for negligence on the ground that the plaintiffs had failed to prove that lorry No. LD 4877, which had been involved in a collision with a lorry belonging to the plaintiffs, was the property of the defendants. The defendants were a partnership consisting at the material time of two partners and it was proved that one of the two partners was registered under the Road Traffic Act as the owner of the vehicle.The Judge rightly treated that as insufficient to prove that the lorry was the property of the partnership, or being used on the partnership’s business.In addition to that evidence the plaintiffs relied on evidence to the effect that the name, O. Alokolaro & Co., was painted on the side of the vehicle. There was a conflict between the plaintiffs’ witnesses on this point. One of them, who admitted that he was illiterate, said that the full partnership name appeared, the other said that the only word he saw was Alokolaro.
The judge preferred the evidence of the literate witness and held that the defendants’ responsibility was not proved. We should not be prepared on the facts to say that he was wrong in preferring the evidence of the literate witness. But even if it were shown that the name, O. Alokolaro & Co., appeared on the vehicle we should not regard that as evidence against the defendants unless it was shown that it was they who caused the name to be placed there. The law on this point was, in our view, correctly stated by du Parcq, J., in Green v. Berliner [1936]2 K.B. 477, 494, in the following words-
“It is very tempting to say that probably The Salisbury Press, Ltd., whose name appears on this handbill, really were the printers of it, but I am bound by the rules of evidence, and the question is: What evidence is there that they printed it? The handbill contains a statement that it is printed by the Salisbury Press, Ltd. That statement is conclusive against the Salisbury Press, Ltd. if they made it, but you do not show that they made a statement incriminating themselves by showing that somebody made a statement which would incriminate them if they made it, and if one looks at the document alone, and no other evidence it is only by arguing in a circle, as it seems to me, that one can possibly say that it proves anything against them.”
For this reason the appeal was dismissed but as the respondents did not appear and were not represented at the hearing of the appeal no order was made as to costs.
Other Citation: (1967) LCN/1481(SC)
