Francis Osa We Eseigbe V. Friday Agholor & Anor. (1993)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C
The appellant was the plaintiff at trial court in this action based on negligence causing injuries to the appellant. Appellant, a prominent woman and a Chief at Ekpoma was in a car registration number BD 2913 K driven by the local traditional Chief, the Onogie of Egoro. That was on 3rd day of February, 1986, and they were on Ebelle-Agbor road. The vehicle belonged to the Onogie.
Thomas Osobaghase Ogbebor. It was a straight road and the weather was very clear. Suddenly a vehicle with registration number BD 9846A hit the vehicle in which the appellant was from the rear, whereby it tumbled and caught fire. The Onogie and the appellant were rescued by passersby but the appellant had in the process sustained second degree burn on her right hand, and several lesser burns on her body. She was on admission at lruekpen General Hospital receiving treatment for about ten days; thereafter she was an out-patient in several other hospitals in Benin, lruekpen and Lagos and spent Thirty Thousand Naira on treatment. She could not use the right hand again.
At the time she was taken to the hospital immediately after the accident, she was, according to medical evidence, in a state of shock and confusion. The burns extended from the forearm to the tip of her fingers and by the time she was discharged. Keloids had developed. The hand could not thereafter be used to pick anything or to write. The doctor that gave this evidence also was of the opinion that the Keloids could be cured only by plastic surgery. He was not cross-examined by the defence on this all important evidence that was clearly pleaded. The appellant also testified that on medical treatment alone she spent Thirty Thousand Naira.
The plaintiff amended her Statement of Claim after given her own evidence but before closing her case. Her further witnesses gave evidence e.g. a police constable who tendered Exhibit B the sketch of the scene of the accident signed by first respondent and the Onogie. The Statement of Defence was not amended even after the Statement of Claim was amended. The Statement of claim specifically avers in its paragraph 1 and 2 that (1) the plaintiff was a prominent woman and a chief at Ekpoma and that she was a prominent business woman as well as a farmer; and (2) that the first defendant was a professional driver and was at the material time in the employment of the second defendant, limited liability company, as a driver of the vehicle registration No. BD 9846 A, a tipper lorry. The defendant in the statement of defence admitted the lorry belonged to the company but never specifically denied the clear and unambiguous pleading. All the statement of defence did was a general traverse by saying “The 2nd defendant admits ownership of the vehicle but denies other averments in paragraphs 2 and 3 of the Statement of Claim” and also “the defendants deny paragraphs 1, 4, 5, 6, 7, 8, 10 and 11 of the Statement of Claim and puts her to the strictest proof thereof’.
The plaintiff testified to prove her averments but the defendants never testified. What remained as evidence before the Court was the evidence proferred by the plaintiff based on her pleadings. In a curious judgment, trial judge held as follows:
“Paragraph 6 of the amended statement of claim reads as follows:
”The plaintiff further avers that as a result of 1st defendant’s negligent act of hitting the vehicle from behind, vehicle registration No. BD 2913 K was caused to tumble and overturn, bursting into flames in the process.” There is no other paragraph of the amended statement of claim in which the negligence of the 1st defendant or any of the defendants was pleaded, and no particulars of the negligence in paragraph 6 of the amended statement was pleaded. Besides, paragraph 6 of the amended statement of claim as formulated does not disclose a cause of action in tort because the mere act of hitting the vehicle from behind per se does not amount to negligence on the part of the person so hitting the vehicle from behind. The hitting of the vehicle from behind could result from the negligence of the driver of the vehicle hit from behind.”
For the foregoing reasons trial judge dismissed the claim. There was an appeal to Court of Appeal, Benin Branch, where Uche Omo, J.C.A (as he then was) held as follows in respect to the aforementioned quoted passage in trial court’s judgment:
“There is clearly no evidence to support this speculation {in the trial Judge’s finding}. What is apposite here is the case of Abdullahi v. The State (1985) 1 NWLR (Pt.3) 523 Where it was held in a running down case resulting from a motor accident that:
‘To leave one’s lane for another when another vehicle is approaching from the opposite direction and thereby causing one’s vehicle to hit that other in the process is a dangerous piece of driving.’
“Such an act was also found to be sufficient evidence of negligence.”
Learned appellate judge (as he then was) went on to find
”There is however in addition before the trial Judge evidence from the appellant which was substantiated (not being challenged), and which is strongly suggestive of negligence on the part of the respondents. In addition to the hitting of the Peugeot car from the rear by the tipper lorry, there are the following pieces of evidence (1) that the car was travelling slowly and carefully on a straight road, on a dry clear day on its right hand side of the road (2) that it was travelling in the same direction with the tipper lorry (3) that as a result of this hit at the back by the lorry the car somersaulted and caught fire (4) that the tipper lorry, which belonged to the 2nd respondent was driven by the respondent, on that day and at the time of the accident. What is more, although not specifically pleaded, the learned trial Judge should have considered if the appellant in the circumstances was not entitled to rely on the doctrine of res ipsa loquitur”.
Court of Appeal went ahead to consider “cause of action” and other matters raised in the appeal before them. The appeal was then allowed in part and an award of N10,000.00 general damage was made. The reason for this was that though heads of injuries were mentioned there was no evidence of plaintiff’s earnings nor was there itemised costs of the injuries and sufferings and pains. It was also held that vicarious liability of 2nd respondent had not been established. Thus the appeal to this court; but it must be mentioned that the appellant died before her appeal was heard by the Court of Appeal and she was substituted by Francis Osawe Eseigbe on 10th September, 1990.
The appellant formulated the following issues for determination;
“ISSUES FOR DETERMINATION
- Whether the Court of Appeal was right in bolding that the plaintiff/appellant did not prove that the 2nd respondent was vicariously liable for the negligent driving of the 1st respondent.
- Whether the Court of Appeal correctly considered the heads of damage in the case of personal injuries which the court found were grave and serious as set out in the judgment
- Whether the award of N10,000.00 general damages was adequate compensation for the injuries suffered by the plaintiff/appellant in accordance with established principles.”
The pleadings and evidence before trial court have been referred to earlier, none the less it is pertinent to refer to what was pleaded by the appellant. In paragraph 2 of her statement of claim she averred as follows:
“The first defendant is a professional driver and was at all material times the servant of and driver of the 2nd defendant’s vehicle Registration No. BD 9846 A, a Mercedes Benz tipper lorry …………………………….and in paragraph 3 thereof it is averred that
“The second defendant is a limited liability company registered in Nigeria and were (sic) at all material times master of 1st defendant and owner of vehicle Reg. No. BD 9846 A driven by the 1st defendant…………………………………………………….
The defendants defence in this pleadings is a general pleading, generally denying averments in paragraphs 2 and 3 of Statement of Claim; also in paragraph 4 of Statement of Defence it was averred:
“The defendants deny paragraph 1,4,5,6,7,8,9,10 and 11 of the Statement of Claim and puts her to the strictest proof thereof.”
Rather than specifically traverse the averments in the statement of claim, the defendants averred in their paragraph 5 that the accident was solely caused or contributed to by the plaintiffs and gave extensive particulars of negligence on the part of the driver of the car in which plaintiff was.
In civil matters the fate of every case depends on the pleadings and the evidence in support. A matter that is pleaded but not traversed remains a fact against the other side. Thus, where the plaintiff pleads negligence and it is not specifically traversed and that plaintiff goes on to prove the averment by evidence in court and the defendant offers no evidence whatsoever, that pleading remains uncontradicted and thus must be held against the defendant. The averment in the appellant’s statement of claim pointed to the 1st respondent as the driver of the lorry that crashed into the moving car in which the appellant was riding on the highway. He was averred as an employee of the second defendant and second defendant as the owner of the lorry. There are two strong presumptions which could only be rebutted by the evidence of the defendant!
- When two vehicles are going in the same direction on the highway, one after the other, and the one at the rear hits the one in front of it, the presumption is that the driver of the rear vehicle drove negligently. This presumption is based on the reasonable supposition that a driver observes all the time the road leading to his destination and only occasionally looks at the rear-view mirror to know the traffic situation at his rear.
- When an employee of another drives the vehicle of his employer on the highway he is presumed to be driving that vehicle in course of his employment and the employer will be vicariously liable for the negligence driving leading to injury to a person this is more so when the facts of the case indicate the employee was driving the employer’s vehicle at the time of the accident.
In the instant case the Court of Appeal had to disturb, albeit partly, the findings of fact by the trial court. I believe the Court of Appeal, on the facts on the record, ought to have gone further. What was before the trial courts were the uncontradicted evidence of the accident as given by the plaintiff both in the pleadings and in the testimonies of witnesses. It is not always right for the appellate court to disturb the findings of fact by trial court but this is a rule with exceptions. If the findings of the trial court, on the plain facts before it is unsound either because the findings have no bearing on the facts or the facts as admitted in evidence at the trial are inadmissible under the law [Balogun v. Labiran (1988) 3 NWLR (pt.80) 66 at 68,; Ebba v. Ogodo & Anor (1984) 1 SCNLR 392; (1984) 4 S.C. 84,98]. When the evidence is incompetent, or legally inadmissible. the appellate court shall set aside any decision based on that evidence by the trial court. {Umar v. Bayero University (1988) 4 NWLR (pt.86) 85 at 86, 87].
Learned trial Judge dismissed the case in toto in the face of overwhelming evidence based on the pleadings before him. The defendants, now respondents, never gave evidence and the averments in their statement of defence never conclusively traversed the facts pleaded in the statement of claim.
The averment that first defendant was a servant of the second defendant was pleaded and given in evidence; similarly the averment that he drove the vehicle belonging to second defendant. All these stand uncontroverted and the presumption that first defendant was negligent in driving the tipper lorry into the car in which the appellant was travelling remains unrebutted. As such it was wrong of the Court of Appeal to have ignored or overlooked that the facts on record remain uncontradicted, and to have found only the first respondent responsible in negligence. The second respondents as owners of the truck were vicariously liable for the negligence of the first respondent who was presumed to have acted in course of his employment.
As for damages, it is true the appellant never itemised any special damage but claimed only general damages. Once there is evidence of injury, pain, discomfort and permanent scarring and pain, even though those items are not quantified in money, the plaintiff is entitled to reasonable general damages. She claimed N250,000.00 as “damages for injuries received, pains and suffering and loss of earning power”. Her evidence on this pleading was clear. She could not write with her right hand which was her natural habit, she could not lift anything with the same right hand. But the worst was that Keloids developed in the hand necessitating her constant visit to the hospital. The medical evidence was very clear and the doctor was not even cross-examined. She (appellant) had, by the time she gave evidence spent N30,000.00on medical treatment as a result of the injuries, a fact not contradicted.
In a case of this nature, justice of the award of damages must be based on certain circumstances. Relevant are similar awards made by courts, what is reasonable in the circumstance of the particular case considering the pain, status of the injured person, the office or call, whether the injury is merely transient or permanent, the pain’- will it be permanent so that the injured wil1live with it for life It is not possible to standardise the award of general damages in cases of this nature but one must adhere to what is reasonable. [Ijisun v. M. Ajao & Ors. (1975) 1 NMLR 5, 7; Shuaibu v. Maiduguri (1967) NMLR 204 at 207; Obere v. Board of Management, Eku Baptist Hospital (1978) 6-7 S.C. 15, 24; Agaba v. Otobusin (1961) 2 SCNLR 13; (1961) 1 All NLR 299].
The plaintiff was the only female Chief in her town, she lost the use of her right hand, she had to live with the pain to her hand for the rest of her life as she died just before her appeal was heard by the Court of Appeal. I believe the award of N10,000.00 was on the very low side in view of her unchallenged evidence. There is no cross-appeal by the respondents and I find that the sum of N50,000.00 is more appropriate.
For the foregoing reasons, I allow this appeal. I find the second respondent vicariously liable for the negligence of the first respondent. I set aside the award of N10,000.00 general damages against the first appellant alone. I award N50.00.00 as damages to the appellant jointly and severally against the respondents. I award N300.00 as cost in the Court of Appeal, N200.00 as costs in the High Court and N1,000.00 as costs in this court all jointly and severally against the respondents.
SC.267/1991
