Daye Benjamin Gata V. Paulosa (Nig) Limited (1998)
LawGlobal-Hub Lead Judgment Report
KALGO, J.C.A.
The action giving rise to this appeal was based on negligence arising from the collision of two vehicles coming from opposite directions on a highway along Keffi-Suleja road. The accident took place on the 1st day of July 1983 at about 8. am and the vehicles involved were Toyota Panel Van registration number NC9942A driven by the appellant and a peugeot 504 pick-up van registration No. BD334BE belonging to the respondent.
The appellant who was the plaintiff at the trial, original sued the respondent and one Simeon Adie. Pleadings were then filed and exchanged. In his original Statement of Claim, the appellant pleaded that Simeon Adie, who drove the said respondent’s pick-up van on the day of the accident and was negligent in so doing, was the employee and servant of the respondent. He then itemised the particulars of negligence against Simeon Adie in paragraph 4 of the original Statement of Claim.
On the 13th of June 1984 when the trial commenced, the learned counsel for the appellant applied to discontinue the actions against Simeon Adie as the 2nd defendant in the case. The record of the trial court on page 16 of the record of appeal reads:-
“Mr K. Tunyan:
I no longer want to proceed against the 2nd defendant.
I am therefore applying that his name be struck out from this suit.
Mr.Ogbebor:
I am not opposing the application.
Court:
The application of the plaintiff s counsel is granted.
The name of the 2nd defendant is hereby struck out from this suit.
SGD
OSENI OYEWO
JUDGE
13/6/84”
As a result of this, the appellant filed an amended Statement of Claim on the 26th of June 1984 and thereafter the respondent also filed an amended Statement of Defence. The case then proceeded to trial. Both parties called witnesses and at the end of the trial, their counsel addressed the court. On the 27th of July 1987, the learned trial Judge Oyewo J. delivered his judgment dismissing the whole claim of the appellant. The appellant being dissatisfied appealed to this court.
Written briefs were filed and exchanged in this court according to the court rules. In the appellant’s brief only two issues for determination of this court were raised whereas the respondent in his brief formulated five issues. I have examined these issues set out by the parties in their briefs and find that in view of the grounds of appeal contained on pages 83-85 of the record of appeal, the issues raised by the respondent in his brief are more appropriate than those raised by the appellant. I adopt them for the purpose of this appeal. Infact the two issues raised by the appellant are properly contained in the respondent’s issues for determination which read thus:-
“1. Whether the learned trial Judge ought not to have rejected in evidence the record of proceeding in respect of Criminal trial of one Simeon Adie who is not a party to this proceeding, and who was not proved to be in the employment of the respondent.
- Whether in the light of the inconsistencies and con traditions in and with the evidence of P.W.5 and also the unexplained alterations in the exhibits thereof, the court was not right to have disbelieved the evidence of P.W.5.
- Whether in view of paragraph 5, 6, 7, 8 and 9 of the amended statement of defence dated 12th day of March, 1987 paragraph 11 of the statement of claim is not sufficiently, by implication, denied.
- Whether on the face of the unexplained alteration on Exb. 3 and Exe. 5, which the material to this case, the court was not right to have refused to enter judgment for the plaintiff/appellant.
- Whether on the totality of evidence adduced at the trial the learned trial Judge ought to have reached a contrary decision at the trial.”
I take issue I first. It is very clear that on 13th of June 1984, the appellant discontinued action against Simeon Adie the 2nd defendant and on the application of the learned counsel for the appellant, the name of Simeon Adie was struck out. Therefore, from then on, the action was between the appellant as plaintiff and the respondent as the sole defendant. Therefore, if the appellant were to succeed in his claim, he must prove negligence exclusively against the respondent and no other. Simeon Adie was a non-existent party in this case, and no reasonable court or tribunal can accept a claim against a party not brought before it. If the respondent were to be found guilty or liable for the negligent act of Simeon Adie, it must be proved that the respondent as a company is vicariously liable. Vicarious liability can arise where the person who was alleged to have committed the offence or the tortious liability is an agent or servant of the person or party to be vicariously liable. In other words there must be some proof of relationship or connection between them to establish such liability. It is not enough to allege negligence or liability for negligence on the part of the respondent in this case through the act of Simeon Adie without any proof of some master and servant or agency relationship between them. In this case there is no iota of such evidence or proof thereof. The respondent in his pleadings clearly and unambiguously denied that Simeon Adie was at any time his employee or servant. It is therefore the duty of the appellant to prove otherwise and establish his case. This, the appellant failed to do.
Therefore, since the said Simeon Adie was not a party to the proceedings at the trial, and there was no proof of any relationship or connection between him and the respondent, the Court proceedings in the Magistrates Court sought to be tendered at the trial by the appellant could not be relevant and was in my respectful view correctly rejected by the learned trial Judge.
I now take issue 2 and 4 together. These issues deal with the evidence of P.W.5, Exhibits 3 and 5 and the identity of the respondent’s vehicle. P.W.5 a security officer of the F.C.D.A., a colleague of the appellant visited the scene of accident on the day in question. He saw the vehicles involved and was met at the scene by traffic police and a retired Army Captain who was the transport officer of the respondent. He tendered Exhibits 3 and 5 in course of his evidence and they were admitted at the trial.
In his judgment, that learned trial Judge on page 71 of the record said in lines 10 – 13:-
“I am of the view that it will not be safe for me to reply (sic) on the altered registration number on Exhibit 3 and 5 since no explanation had been offered in respect of the alterations made on the exhibit”.
The learned trial Judge then proceeded to add that he finds it difficult to believe the evidence of P.W.5 as a result of the witness’s failure to explain the circumstances under which the alteration were made.
I have examined Exhibits 3 and 5 and find that the alterations made on them related to the vehicle registration number of the respondent vehicle alleged to be involved in the accident. In both Exhibits 3 and 5, it would appear on the face of the documents that the registration number was either BD3344BE or BD3334BE. In each of the documents, the last but one figure in the registration involved was altered or changed either to “3” or to “4”. It is not clear on the face of it and this can only be confirmed by the writer of maker of the documents. In the absence of any such explanation, the vehicle registration number of the respondent’s vehicle concerned cannot be properly ascertained and confirmed, especially in the light of the respondent’s assertion through evidence of D. W. 2 that their vehicle registration number BD3334BE was not on the material day driven by Simeon Adie but by one Michael Abu. And even if D.W.2 confirmed that vehicle No. BD3334BE belonged to the respondent, Exhibits 3 and 5 as they are admitted in trial court, without any explanations; do not corroborate the fact that the respondent’s vehicle alone was the actual one involved in the accident. Therefore, I am of the view that the learned trial Judge was entitled to find, as he did, that it was not safe for him to rely on Exhibits 3 and 5 as altered, without any explanations, to say that the respondent’s pick-up van was the actual one involved in the accident on the 1st of July 1983.
The learned counsel for the appellant has argued in his brief, relying on the case of Nwobodo v. Onoh (1984) 1 SCNLR 1 at p. 88, the since P.W.5 through whom Exhibits 3 and 5 were tendered was not cross-examined on the alterations in the documents while giving evidence, it was unfair and unjust for the respondent’s counsel to raise the issue in his address and for the trial court to rely on it in its judgment. It is true that the credibility of the evidence of witnesses can only be challenged by cross-examining the witness in court or producing evidence directly challenging the truth of his testimony in court. In this case, the question of the actual registration number of the respondent’s vehicle is involved in a claim of negligence against the respondent. The appellant therefore has the burden of proving that the respondent’s vehicle and no other was involved and that the respondent or his servant or agent was responsible for the accident. It was therefore necessary for the appellant to produce clear and unambiguous evidence of the registration number of the respondent’s vehicle involved in the accident. It is not the duty of the respondent to clear that evidence for the appellant by cross-examining P.W.5 on the alterations of Exhibits 3 and 5. In my view, the principle in Nwobodo case (supra) is not applicable in this case.
Also, it is not the genuiness or otherwise of the documents Exhibits 3 and 5, which is in issue in this case; what is in issue is what was the correct registration numbers on the documents and the circumstances surrounding the alterations on them. Therefore the case of Ibrahim v. Shagari (1983) 2 SCNLR 176 at 193 cited by the learned counsel for the appellant in his brief does not apply to this situation on hand.
I now treat issues 3 and 4 together. The general principle is that pleadings are not evidence. They only constitute a guide as to how a party intends to prove his case or defend the adversary’s case. Their importance lies in the fact that any evidence given by a party outside the pleadings goes to no issue and would be discountenanced by the court. The Court is only bound by the evidence properly adduced before it and not pleadings filed without evidence. Therefore issue 3 as raised by the respondent is not relevant in this appeal. In any case paragraph 11 of the appellant’s amended Statement of Claim referred to one Simeon Adie who, as I earlier found in this judgment, is not a party to these proceedings nor in anyway connected with the respondent. No evidence was called by the appellant to connect the said Simeon Adie with the respondent at the material time. This made Exhibits 1 and 2 completely irrelevant in the absence of any admission by the respondent.
From what I have said above, it is abundantly clear that no act of negligence was proved against the respondent perse, and Simeon Adie who was earlier alleged to be the servant or agent of the respondent responsible for the accident, was struck out as a party on the application of the appellant himself. And even following paragraphs 10 and 11 of the amended Statement of Claim of the appellant, no evidence was called to prove that the said Simeon Adie was responsible for the accident and that he was a servant or agent of the respondent at the material time.
It is also very clear that the identity of the respondent’s vehicle alleged to be involved in the accident as can be been from Exhibits 3 and 5 discussed earlier is not established. The respondents at the trial denied that one Simeon Adie drove their pick up van No BD3334BE on the day in question and that no such name had ever worked for them. This was not contradicted in any way by the appellant. I answer issue 4 in the affirmative.
From the above, I answer issue 5 in the negative. In sum therefore, I dismiss this appeal and affirm the decision of the learned trial Judge dated 22nd of July of 1987. The respondent shall be entitled to the cost of this appeal which I assess at N1, 500.00 in his favour.
Other Citations: (1998)LCN/0394(CA)
