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”.