Dr. C.k. Manuel V Joseph Edevu (1968)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C.

The respondent in this appeal was the plaintiff in the Lagos High Court (suit No. LD/540/1964) where he sued the defendant/appellant claiming £4,690:

14s. as special and general damages for injuries sustained by him on the 18th of November, 1962, when a motor vehicle (No. LF.7897) belonging to the defendant was negligently driven by the defendant or his servant and collided with the plaintiff.

At the trial, the evidence adduced in support of the plaintiff’s case was that the vehicle was driven by the defendant at the time of the accident. This was disbelieved by the learned trial judge. The defendant’s evidence in so far as it relates to the issue of liability may be summarised thus:-

1. The defendant was the owner of vehicle No. LF7897 which was involved in an accident with Tanker No. LD4711, belonging to Messrs. Jarmakani Transport Company, near Ijebu Ode on the 13th January, 1962.

2. The driver of the Tanker promised to repair the damage done to the defendant’s vehicle and he agreed.

3. The following day, the driver of the Tanker brought the defendant’s vehicle to one Lawal at Mushin, where with the knowledge and consent of the defendant, Lawal repaired the vehicle.

4. On the 17th November, 1962, “the car was ready for collection except spraying” and Lawal was to arrange to have it sprayed.

5. The accident which resulted in this action occurred on the 18th November, 1962, whilst the vehicle was still in the possession of Lawal who has since absconded.

In a reserved judgment, Adefarasin J. found as a fact that vehicle No. LF 7897 was driven negligently on the 18th November, 1962; as a result of which the plain-tiff sustained injuries. As stated earlier, he also found as a fact that the defendant was not the driver of the vehicle at the material time. He then considered whether “any servant or agent of the defendant was in the control of the vehicle at the material time so as to make the defendant liable to the plaintiff’ and relying on the case of Ormrod and another v. Crossville Motor Services Ltd. and another (1953) 2 All E.R. 753, he concluded that:-

“It seems to me that the defendant by leaving his car with Lawal with a request that when he completed the repairs he should get it to the place where it should be sprayed, he gave his express permission for the car to be driven for his own purposes. I do not consider having regard to the circumstances that the defendant ever gave up the control of the car. In any case, Lawal at the material time had the car for the purposes of the defendant and I think he was an agent of the defendant. In any event the defendant has not discharged the burden that at the time of the accident the car was not being driven for his own purposes.”

On the issue of liability, he held that:-

“In this case there is no evidence as to who drove the vehicle at the time of the accident. The man Lawal could not be seen since the day of the accident. He disappeared from his residence and from his place of work. The irresistible inference is that Lawal or a person with his consent drove the vehicle at the material time. Whichever was the case, it seems to me, taking the whole of the circumstances into consideration that at the material time not only was the car being driven for the purposes of the plaintiff (sic) but that it was being driven at the express or implied permission of the defendant. I am of opinion that the driver of the car was agent of the defendant and that the defendant was vicariously liable to the plaintiff.”

He finally entered judgement for the plaintiff in the sum of £739.10s. with costs. The defendant has appealed against that decision on the ground that “the learned trial Judge erred in law in holding the defendant liable when whoever drove the vehicle at the time of the accident was neither a servant nor an agent of the defendant”.

Arguing the appeal, Mr. Olofinmakin contended on behalf of the defendant/appellant that the teamed trial judge was wrong in coming to a decision that the driver of the vehicle was an agent of the defendant in as much as Lawal who undertook to repair the car was a bailee and the bailment had not terminated when the accident occurred. He went further to submit that if Lawal had finished repairing the vehicle and he or someone else was taking it to a sprayer for spraying when the accident occurred, the bailment continued. He sought to rely on the case of Chowddhary and another v. Gillot and others (1947)2 All E.R. 541.

In that case the plaintiff took his motor car to Daimler Co. Ltd. for repairs and after handing it over to the receptionist with instructions in regard to the repairs which were required he asked if he could have a “lift” to the nearest railway station; and Gillot, an employee of the Company and a driver of some 40 years experience, was instructed to drive the plaintiff in the plaintiff’s own car. On the way to the railway station, owing to the negligence of Gillot, the car collided with a lorry and the plain-tiff was Injured. It was held that having received the car for repairs, the company was, at the time of the accident, in possession of it as bailees and, so long as the bailment continued, the plaintiff had no right to control the bailees’ servants, and Gillot did not at common law become the particular servant of the plaintiff.

Mr. Adewole countered this argument by referring us to the evidence of the defendant who said that he saw the vehicle on the 17th of November, 1962, and that k was then ready for collection except spraying. It was argued that Lawal having completed the repairs on the 17th November, 1962, the bailment terminated, and that having regard to the findings of facts made by the learned trial judge, which were not attacked on appeal, the court below drew a reasonable inference that “Lawal or a person with his consent drove the vehicle” on the 16th of November, 1962, when the accident occurred.

On the facts of this case, we are satisfied that the defendant entered into two separate and distinct contracts. The first was a contract with Lawal to repair the vehicle and It seems clear to us from the evidence that the defendant knew that Lawal had completed the repairs of the vehicle on the 17th November, 1962, and that it was ready for collection. The defendant did not collect it but asked Lawal to arrange with a sprayer to spray it. This, in our view, terminated the bailment and formed the basis of the second contract hereby Lawal was, at the request of the defendant, to arrange with a sprayer to have the vehicle sprayed. The defendants evidence on this point is quite illuminating. He said:-

“Lawal arranged with one man who would spray the car .The key of the car was left with Lawal. I consented that the car be so left. I expected that when next I visited Lawal the car would have been already sprayed. I know that the car would have to get to where it would be sprayed and that it would be in order for Lawal or anybody else to get it there.The sprayer’s place is about 20 yards to Lawal’s house. Lawal had my consent to push the car to the sprayer. He also had my consent to drive the car to the sprayer”.

It was when the vehicle was still in the possession of Lawal who was to arrange to have it sprayed that the accident occurred on the 18th of November, 1962.

In regard to the Issue of vicarious liability, we note that in Ormrod’s case (supra) Denning L.J. (as he then was) said at page 754:-

“It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. That is not correct. The owner is also liable if the driver is his agent, that is to say, ff the driver is with the owners consent, driving the car on the owner’s business or for the owner’s purposes.

The law puts an especial. responsibility on the owner of a vehicle who allows ft to go on the road in charge of someone else, no matter whether it is his servant, his friend, or anyone else. If it Is being used wholly or partly on the owner’s business for the owner’s purposes, the owner is liable for any negligence on the part of the driver.”

We are satisfied that on the facts of this case, the learned trial Judge was fully justified in coming to the conclusion that at the time of the accident the vehicle was not only “being driven for the purposes of the defendant but that it was being driven at the express or implied permission of the defendant”, and that the defendant was vicariously liable to the plaintiff. This disposes of the only ground of appeal.

It follows, therefore, that this appeal will be dismissed and it is hereby ordered accordingly. The defendant/appellant shall pay to the plaintiff/respondent the costs of this appeal fixed at 30 guineas.

Other Citation: (1968) LCN/1556(SC)