Linus Onwuka & Anor V. R. I. Omogui (1992)

LawGlobal-Hub Lead Judgment Report

O. BABALAKIN, J.S.C.

This appeal once more brings into focus the quantum of evidence required to sustain proof of facts pleaded in a Statement of Claim.

The facts that led to this appeal are that the respondent as plaintiff took action against the appellants as defendants in Sapele High Court of the then Bendel State but now Delta State of Nigeria for damages done to his Steyr kerosine tanker with Registration No. LP 7875 which was hit and damaged by a Mercedes Benz trailer with Registration No. LAA 8084 A driven by the 1st appellant and owned by the 2nd appellant. The defendants/appellants denied the plaintiff/respondent’s claims and thereupon pleadings were ordered, filed and exchanged. In course of trial these pleadings were amended. At paragraphs 13 and 15 of the further amended Statement of Claim dated 27th June, 1983, the plaintiff/respondent set out the particulars of negligence and his claims for special and general damages respectively as follows:-

“13. PARTICULARS OF NEGLIGENCE

The 2nd Defendant by his agent and or servant the 1st defendant were negligent in that they:-

(i) Failed to keep any proper look out or at all.

(ii) Failed to keep their motor vehicle registration number LAA 8084 A under proper control thereby colliding with plaintiff’s vehicle with number LP 7875 on its proper side of the road.

(iii) Drove their motor vehicle at a speed which was excessive in the circumstances.

(iv) Failed to apply the brakes on their said vehicle in time to avoid the said collision or at all.

(v) Failed both to steer their said vehicle so as to avoid the collision and to sound any warning of the approach of their motor vehicle.

15. WHEREOF the plaintiff claims from the Defendants as follows:-

(a) Special Damages

(i) 6,818 litres (1500 gallons) of kerosine

at 50K a gallon valued ………. at N750.00

(ii) Cost of repairing Steyr diesel tanker

with registration number LP 7875 …. N8,493.37

(iii) Cost of repairing the kerosene

pump and discharge meter N1,700.00

Total N10,943.37

General Damage N1,056.63

TOTAL N12 000.00

(b) Loss of use of the plaintiffs tanker from 6th August 1981 at N173.00 daily up to and inclusive

of the date judgment is given plus 7 (seven) days thereafter being the estimated period of repairs constituted as follows:-

(i) After sales profit on a full tanker load of kerosene

(6,810 litres or 1,500 gallons) N96.00

(ii) Amount credited to plaintiffs retention account daily

for 6,810 litres at 0.3k per litre N22.00

(iii) Transport allowance at N36.92 per ton per full load

at 6,819 litres for 105 ton daily N55.00

N173.00

At the end of hearing of the case before the trial court the learned trial judge dismissed the plaintiff/respondent’s claims.

The plaintiff/respondent then appealed to the Court of Appeal, Benin Division against the judgment. The appeal was allowed.

The facts relied upon are that on the 5th day of August, 1981 the plaintiff/respondent’s kerosine tanker fully loaded with kerosine was being driven by P.W.1 from Benin to Warri. At Okirigwe junction the trailer lorry Mercedes Benz driven by the 1st defendant/appellant was observed to be coming from the opposite direction. At a certain point in time the 1st defendant/appellant in his attempt to overtake a taxi which was in front of him swerved to the side of the plaintiff’s tanker and collided with it. P.W.1 the driver of the plaintiff/respondent’s vehicle tried to avoid the collision by driving the tanker completely off the tarred road. As a result of the collision the plaintiff/respondent’s tanker was damaged. A kiosk belonging to P.W.3 was also damaged as a result of the accident. The kiosk was repaired by the 2nd defendant/appellant. After the accident, the representative of the 2nd defendant/appellant agreed to repair the plaintiff/respondent’s tanker and caused it to be towed to their premises. Later, the 2nd defendant/appellant wrote to the plaintiff/respondent in Exhibit 8 that their Insurance Company will settle the bill for any repairs of the tanker. The said Exhibit was dated 6th August, 1981. There was also tendered a letter, Exhibit C dated 21st August, 1981, in which the defendants/appellants had asked the plaintiff/respondent to remove the tanker and repair it and later forward the bill to them for settlement. It was when the plaintiff/respondent refused to remove the vehicle that he instituted the action in this case.

In his judgment the learned trial judge dismissed the plaintiff/respondent’s claim because he came to the conclusion that the evidence adduced in proof of negligence by P.W.1 and P.W.2 the eye witnesses, was not pleaded. He held that the accident was caused by the 1st defendant/appellant while he was attempting to overtake a taxi and this fact was not pleaded. He expunged the evidence from the proceedings and held that the plaintiff/respondent had failed to prove negligence against the 1st defendant/appellant and he accordingly dismissed the plaintiff/respondent’s case.

As pointed out above the plaintiff/respondent dissatisfied with this judgment appealed to the Court of Appeal, Benin Division where the appeal was allowed. The Court of Appeal held that there is sufficient evidence to prove the particulars of negligence contained at paragraph 13 (ii) of the further amended Statement of Claim. The Court examined the evidence led in support of the averment in paragraph 13 (ii) of the further amended Statement of Claim and held that these pieces of evidence clearly established that the 1st defendant/appellant while in control and management of the trailer left his proper side of the road, swerved to his wrong side and collided with the plaintiff/respondent’s vehicle on his proper side. That it was not also contradicted that P. W.I tried his best to avoid the collision by completely leaving the tarred road and this is clearly pleaded under paragraph 13(ii) of the further amended Statement of Claim.

The court further held that this case can also succeed under the doctrine of res ipsa loquitur. The court however ordered that the case be remitted to Sapele High Court for the trial of the issue of damages only.

Dissatisfied with the judgment about liability in negligence the defendants/appellants have now appealed to this Court.

The plaintiff/respondent also dissatisfied with the order of sending the case down to Sapele High Court for hearing in respect of damages has also cross-appealed against that order.

In this Court briefs of arguments were filed and exchanged. In the defendants/appellants’ brief the following issues for determination are formulated:-

“(1) Whether the Court of Appeal was right in reversing the findings of the trial court which held that the plaintiff failed to prove negligence on his pleadings before the court especially as the evidence of the two eye witnesses, PW1 and PW2, was that the accident was caused by overtaking

(2) Whether the Court of Appeal was right in holding that this case falls within the principle of ‘res ipsa loquitur’ when the cause of the accident was known

(3) Assuming that the plaintiff/respondent did not plead the particulars of negligence as in paragraph 13 of the Statement of Claim but pleaded ‘res ipsa’, would the doctrine still apply where on his present showing the court ignores evidence of overtaking which is not pleaded”

The plaintiff/respondent stated issues for determination in the respondent’s brief as follows:-

“ISSUES FOR DETERMINATION:

The Respondent agrees with issues (1) and (2) as formulated by the appellant as being relevant to the consideration of this appeal but adds that his cross-appeal also raises the following issue for consideration.

(i) Whether the Court of Appeal should not have gone further to consider and award damages in line with the evidence on record especially as, to the knowledge of their Lordships, Hon. Justice Donald Ikomi, the judge of the trial court was no longer on the bench and on the authority of S. Ediagbonya v. Dumez, (1986) 3 NWLR (Pt.31) 753.”

For the cross-appeal the defendants/appellants formulated the issues for determination as follows:-

“Whether the Court of Appeal was justified on well known principles in sending the case back to the High Court Sapele for hearing of the case de novo but only on the issue of damages, especially as the trial judge though now retired did not assess damages at all.”

The contentions of learned counsel for the defendants/ appellants in the brief of argument filed on behalf of the defendants/appellants and in his oral argument before us are that the negligence relied upon by the plaintiff/respondent are hinged on paragraphs 5 and 13 of the further amended statement of claim dated 27th June, 1983 which run thus:-

5. “On the 5th day of August, 1981 at Okuriwren along Warri/Sapele road within the jurisdiction of this court, the 1st defendant in the course of his duty as a driver of the 2nd defendant’s vehicle with registration number LAA 8084 A drove the said vehicle negligently and collided with plaintiff’s vehicle with registration number LP 7875 being driven at that time by one Monday Omomazu with whom was his motor boy Gabriel Okorotete at the time the accident occurred.”
6. “PARTICULARS OF NEGLIGENCE

The 2nd defendant by his Agent and/or servant the 1st defendant were negligent in that they

(i) Failed to keep any proper look out or at all.

(ii) Failed to keep their motor vehicle registration number LAA 8084 A under proper control thereby colliding with plaintiff’s vehicle with number LP 7875 on its proper side of the road.

(iii) Drove their motor vehicle at a speed which was excessive in the circumstances.

(iv) Failed to apply the brakes on their said vehicle in time to avoid the said collision or at all.

(v) Failed to steer their said vehicle so as to avoid the collision and to sound any warning of the approach of their motor vehicle.”

That in the light of evidence adduced in support of these averments the doctrine of’ res ipsa loquitur’ is inapplicable. That the plaintiff/respondent did not even plead in the alternative that he will be relying on the doctrine of ‘res ipsa loquitur’. That the evidence led by eye witnesses P.W.1 and P.W.2 was to the effect that the accident occurred because of overtaking of a taxi by the 1st defendant/appellant and therefore the cause of the accident is known. That because these facts of overtaking were not pleaded the plaintiff/respondent cannot rely on them as these pieces of evidence are at variance with the pleadings. He relied on the cases of Barkway v. South-Wales Transport Co. Ltd. (1950) 1 All E.R. 392 at page 395; Bolton & Ors. v. Stone (1951) A.C. 850 at pages 859-860; and Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179 at page 191. That the Court of Appeal wrongly imported into the case the doctrine of ‘res ipsa loquitur’ which was neither pleaded nor raised at the trial. That the cases of Adebisi v. Oke (1967) NMLR64, Kuti v. Ugbobo (1967) 1 All NLR 311 and Thompson v. Adefowope (1969) 1 All NLR 322 on which the Court of Appeal relied to do so are inapplicable and for this reason this appeal should be allowed.

That both the trial court and the Court of Appeal having expunged the evidence that the accident was caused as a result of overtaking or attempting to overtake a taxi because that fact was not pleaded, the Court of Appeal should have held that there was no other evidence showing what caused the accident. Learned counsel for the defendants/appellants urged this court to uphold the findings of the trial judge that the evidence before him relates to overtaking and reject that of the Court of Appeal that there was evidence in support of other particulars of negligence pleaded in the further amended Statement of Claim. He urged us to allow the appeal.

In response learned counsel for the plaintiff/respondent in the brief of argument filed on behalf of the plaintiff/respondent and orally before us submitted that sufficient evidence was led to prove paragraphs 13(ii) of the further amended statement of claim that the defendants/appellants “failed to keep their motor with registration number LAA 8084 A under proper control thereby colliding with the plaintiff’s vehicle with No: LP7875 on its proper side of the road” by the evidence of P.W.1, P.W.2, P.W.3 and D.W.1 and that the Court of Appeal was right to make that finding.

That having rightly expunged reference of overtaking as cause of the accident the evidence of the above named witnesses raised a prima facie case of negligence against the defendants/appellants. That the 1st defendant/appellant who was the driver of the 2nd defendant/appellant’s vehicle did not testify nor was an explanation offered as to why their said vehicle veered off its normal course to collide with the plaintiff/respondent’s vehicle. That in these circumstances a presumption of negligence was raised. He referred to the case of Ashiru v. Benson (1967) L.L.R: 24 at 31 where it was held that “if a vehicle which is being driven on the left side of the road suddenly crossed the road to the right, without any just cause then a presumption of negligence is raised which the driver of which (sic) ought to rebut” and also the case of Faloye & 2 Ors v. Olaniyan & Anor. 14 WACA 608. He urged us not to disturb the conclusion of the Court of Appeal on this issue.

He further submitted that the submissions of counsel for the defendants/appellants on the issue of res ipsa loquitur, were misconceived.That all references to overtaking having been expunged from the record that evidence no longer existed for consideration in relation to the cause of the accident. That the admissible evidence left in support of pleadings is to the effect that the defendants/appellants’ vehicle left its side of the road to collide with the plaintiff/respondent’s vehicle on its proper side of the road. That the Court of Appeal found that such situation raised a prima facie case of negligence for which an explanation was required of the 1st defendant/appellant to state why he so swerved as his reason for leaving his own side of the road must peculiarly have been within his knowledge in the con of pleadings and admissible evidence in this case. That it was in this con that the Court of Appeal made reference to the doctrine ofres ipsa loquitur and it is to this situation that the doctrine applies. Counsel then referred to the case of Lawal Adebisi & Ors. v. Saliu Oke (1967) NMLR 64 where it was held that it is not strictly necessary to raise the issue of res ipsa loquitur only by reproducing the Latin maxim but a description of the effect on the pleading which will suggest that a plea of res ipsa loquitur is intended is sufficient.” He further contended that similar opinions were expressed in the cases of (i) FSC 345/1960 Orajekere v. Mbiere & Anor; and (ii) Okeke v. Obidife (1966) 1 All NLR 50. He finally submitted that in so far as the circumstances of the accident raised a prima facie case of negligence against the appellant and in so far as it was the 1st appellant alone who can properly explain why he swerved, the principle of res ipsa loquitur is relevant and applicable. He urged us to dismiss tile appeal.

On the cross appeal he contended that in the peculiar circumstances of this case the Court of Appeal ought to have gone further in its judgment to consider the plaintiff/respondent’s claims for damages and he set out the peculiar circumstances to be that:

(i) The trial judge ceased to be a judge during the pendency of the appeal;

(ii) the case had lasted for about six years at that material time;

(iii) the appeal record contained detailed evidence by the respondent backed by documentary evidence and the manner of computing the various heads of his claim.

That the defendants/appellants did not lead any evidence to contradict the various heads of damages claimed. That the attention of the Court of Appeal was drawn to the case of Sampson Ediagbonya v. Dumez (Nig) Ltd & Anor (1986) 3 NWLR (Pt.31) 753 where the Supreme Court in similar circumstances as in this case assessed the damages but the Court of Appeal declined to be persuaded in adopting a similar stand. That Section 22 of the Supreme Court Act of 1960 empowers the Supreme Court in appropriate cases to exercise full jurisdiction over the whole proceedings and deal with the case in the same manner in which the trial judge ought to have dealt with it and this court is now urged to do so in respect of this case, He urged us to allow this cross appeal.

The issue for determination formulated by the defendants/ appellants who are the respondents to this cross appeal is as follows:-

“Whether the Court of Appeal was justified on well known principle in sending the case back to the High Court Sapele for hearing of the case de novo but only on the issue of damages especially as the trial judge though now retired did not assess damages at all.”

Their counsel made the following submissions in reply to the plaintiff/respondent’s counsel’s argument in support of the plaintiff/respondent’s cross appeal: –

That neither Section 22 of the Supreme Court Act 1960 nor the case of Ediagbonya v. Dumez (Nig) Ltd. (1986) 3 NWLR (Pt. 31) page 753 applies to this case.

That in fact counsel for the plaintiff/respondent now appellant in this cross appeal had argued in the alternative that the Court of Appeal should send the case back to the trial court to make a decision on the question of damages. That in the case of Ediagbonya v. Dumez (Nig.) Ltd. the trial court had awarded N50,000.00 as damages but the Court of Appeal reduced the award to N15,000.00, it was in such circumstances that the Supreme Court acted and awarded a sum of N32,000.00 as damages. That in the case of James v. Mid Motors Nig. Co. Ltd. (1978) 11- 12 SC 31 at pages 73-74, the Supreme Court remitted the case to the Benin High Court, Benin for assessment of damages only because:

(i) The trial judge had not assessed any damages leaving us to determine whether it was too high or too low; and

(ii) It would afford the parties better opportunity of calling further evidence on the issue.

He therefore urged us to dismiss the cross appeal.

The most important issues for determination in this appeal are whether the Court of Appeal is justified in finding the defendants/appellants liable in negligence to the plaintiff/respondent having regard to the pleadings and evidence led in this case and whether the Court of Appeal is justified in reversing the decision of the trial court which had earlier dismissed the plaintiff/respondent’s case.

I will now examine the pleadings and the evidence led in support to decide these two important issues.

Paragraphs 5, 13 and 15 of the further amended statement of claim have been reproduced above. I will further reproduce paragraph 13 for a critical examination:-

“13. PARTICULARS OF NEGLIGENCE

The 2nd defendant by his Agent and/or servant the 1st defendant was negligent in that they:-

(i) Failed to keep any proper look out or at all.

(ii) Failed to keep their motor vehicle registration number LAA8084 A under proper control thereby colliding with plaintiff’s vehicle with number LP 7875 on its proper side of the road.

(iii) Drove their motor vehicle at a speed which was excessive in the circumstances.

(iv) Failed to apply the brakes on their said vehicles in time to avoid the said collision or at all.

(v) Failed both to steer their said vehicle so as to avoid the collision and to sound any warning of the approach of their motor vehicle.”

The evidence led in support of these averments were as follows:-

P.W./ Monday Omenaze testified as follows:

“I live at No.2 Omezie Street, Benin City. I am a driver. I know the plaintiff. I am one of his drivers. I know one Linus Onwuka. He drives for Julius Berger (Nig) Ltd. I drive a tanker lorry for the plaintiff. The number of the tanker lorry which I drive is LP 7875. The make of the vehicle is Steyr Diesel. I remember 5/8/81. I normally carry kerosine in my tanker.

On 5/8/81, I left Benin-City for Warri in my tanker. I was carrying kerosine in my tanker. As I got to Okirigwe junction. I saw a trailer lorry belonging to Julius Berger (Nig) Ltd. coming from Warri direction. On that day it was raining. There was a taxi in front of the trailer. The trailer tried to overtake the taxi.

As the trailer tried to overtake the taxi, it hit my tanker at the side damaging my wheel. The trailer brushed the wheel of the left side of my vehicle. The trailer was being driven by Linus Onwuka (the 1st defendant). The registration No. of the trailer is LAA 8084 A. The trailer damaged the bumper and the left door of my vehicle in addition for (sic) the metre. The said bumper was also damaged.

After the accident, I went to the Motor Traffic Division of the Police at Sapele. I went there to lodge a report of the accident. When I got there I saw a policeman. His name is Clement Adodo. When I reported to Clement Adodo, he told me that he was the only person on duty and so could not accompany me to the scene of the accident. I had to go back to the scene of the accident. On getting there, I saw the workers of Julius Berger (Nig.) Ltd. at the scene of the accident. I also saw their senior engineer (an expatriate) at the scene.

The expatriate told me that he did not want any case and that his Company will repair my vehicle. I accepted his offer. He then towed my vehicle to their yard at N.P.A. Sapele.

At the N.P.A. yard, I was taken to the Chief Accountant who told me to go and call the owner of the vehicle. This was on 5/8/81. I went to the owner of the vehicle in Benin City and we returned together on 6/8/81 to Julius Berger compound at N.P.A. Sapele.

On 5/8/81 when I was going to Warri Iwas driving on the right hand side of the road. At the time of the accident, I was carrying 6,810 litres of kerosine at 1,500 gallons of kerosine. As a result of the accident, the kerosine leaked away. I collected the kerosine at the refinery Depot in Benin City. We are distributors of kerosine to Agip (Nig) Ltd.

Whenever I collect kerosine from the Depot I am given an invoice. I was given an invoice in respect of the load which I was carrying on 5/8/81. If I see the invoice given to me I will recognise it. This is the invoice.

Mr. Mazie: I seek to tender it.

Mr. Okonedo-Egharegbemi: I am objecting to the tendering of this document on the ground that, it was not pleaded.

Mr. Mazie: I am referring the court to paragraph 14 of our amended statement of claim wherein we pleaded that we will found upon the waybill and other relevant documents relating to the load of kerosine.

Court: I am satisfied that the pleading as stated in paragraph 14 of the amended statement of claim covers the document sought to be tendered. It would have been a different matter if paragraph 14 had been completely silent about any documents relating to the litres of kerosine. The objection is over-ruled. The document is admitted in evidence and would be marked Exhibit ‘A’

Witness continues: I collected the load of kerosine on 4/8/81 from the Depot.

On 6/8/81 the plaintiff and myself saw the Chief Accountant. On the day of the accident, I was with my motor boy by name Gabriel Olutete. xxd by Mr. Okonedo-Egharegbemi: The driver of taxi which the trailer was trying to overtake drive away. I left the road for the trailer and still it came to hit me on my side of the road.

At the time when the trailer was trying to overtake the taxi, it was about 14 metres from me.

I am telling the truth. I took part in the loading of my vehicle. I now say that I did not take any part in the loading of the vehicle. I did not understand the question which I was earlier asked about the loading of the vehicle. When my vehicle was loaded it was sealed. It can only be opened at its destination. I can read and write a hit. I was carrying the load in my vehicle to our office at Warri i.e. the Agip office. I was driving at 50 k.m.h at the time of the accident. I can’t say how big my vehicle is, it is however a 7 ton lorry. I cannot say how long the trailer which was loaded trying to overtake me is.

I saw the taxi. I do not know the number of the taxi. The taxi was in front of the trailer that was trying to over-take it.

P.W.2 Gabriel Okotete testified as follows:

“I live at Ogharefe. I am a student. I know the plaintiff. I know one Monday Omenaze. He was my worker. He used to teach me how to drive. He was using a Steyr Diesel vehicle to teach me how to drive. The Sieyr diesel carried kerosine. The registration No. of the vehicle is LP7875. The vehicle belongs to the plaintiff. I know one Linus Onwuka (the 1st defendant). I know him when he hit with our vehicle. I know a company called Julius Berger (Nig) Ltd (the 2nd defendant). Linus Onwuka collided/hit our own vehicle. (LP7875). He used a Mercedes trailer in hitting our vehicle. The No. of the trailer is LAA 8084 A. The trailer belongs to Julius Berger (Nig) Ltd. (the 2nd defendant).

The accident happened on 5th August, 1981. The accident happened at Okirigwe.

On 4th August,1981 we loaded our vehicle at Benin City with Kerosine. We loaded 1,500 gallons in our vehicle.

On 5th August, 1981 as we are going to Warri at Okirigwe junction a trailer belonging to Julius Berger (Nig) Ltd hit our vehicle on our side. We were driving on the right hand side of the road while going to Warri. Our vehicle was driven by Monday Omenaze (PW1). The Julius Berger vehicle was, coming from Warri. There was a taxi in front of the vehicle belonging to Julius Berger. As the driver of the vehicle belonging to Julius Berger (Nig) Ltd tried to overtake the taxi in front of him, he swerved to our side of the road. As PW I tried to avoid being hit by the vehicle, it (the Julius Berger vehicle) still collided with our vehicle. In an attempt to avoid collision our vehicle hit a kiosk. PW1 drove our vehicle from the tarred road completely in an attempt to avoid the accident but the vehicle belonging to Julius Berger stilt hit our vehicle.

The Julius Berger vehicle damaged one part of our engine, the door of the vehicle, the metre, the valve and the bumper at the back of the vehicle. As a result of the accident, all the kerosine in our vehicle leaked out.

After the accident, the driver of the Julius Berger vehicle went to his company while my master (PW1) went to lodge a report with the Police. I remained at the spot of the accident.

The 1st defendant (Linus Onwuka) later returned to the scene of the accident with two of their workers, one a white man and the other a black man. They waited until my master (PW 1) returned from the police station. They told my master that they did not want any case and that they will pay for the damage to our vehicle. I was present when they were talking to my master. My master (PW1) agreed with them. They then used their towing vehicle to tow our vehicle to their compound, yard.

Julius Berger (the 2nd defendant) has not repaired our vehicle. The vehicle had to be towed because it could not start after the accident. I had been working for about 3 years with PWI before the accident occurred. Throughout these 3 years, we were selling kerosine. We used to sell the kerosine at 50k per gallon.

We sell kerosine every day.

xxd by Mr. Okonedo -Egharegbemi: My worker’s vehicle is now at the premises of the 2nd defendant. Our vehicle is not an old one. I was sitting in front of the vehicle on the left hand side.

I saw the taxi first before I saw the trailer, I do not know the number of the taxi. The two vehicles were about a pole from our vehicle at the time when I first saw them.

My master (PW1) has not repaired our vehicle up till now because the 2nd defendant first promised to repair the vehicle but later refused to do so. My master (PW 1) therefore refused to repair it. The 2nd defendant refused to repair the vehicle since accident happened. After the accident, the driver of the taxi drove away.”

D.W. 1 Agbinsi Ebiwarebo, testified as follows:-

“I live at Ogorode Road, Sapele. I am the security officer of Julius Berger (Nig) Ltd. Sapele.

I know the plaintiff. The 2nd defendant is my employer.

On 5/8/81, the 1st defendant our driver came to me in the yard and reported that his trailer No. LAA 8084 A collided with a kerosene tanker on its way coming towards Sapele. I inquired the mechanical supervisor (one Mr. Race). Mr. Race and myself followed the 1st defendant to the scene of the accident. On getting there we met the two vehicle, our trailer and the kerosine tanker (LP 7875). We did not meet the driver of the kerosine tanker on the spot. I left Mr. Race and our own driver behind and went to the MTD to look for the other driver. At the MTD I was told that someone had come to report also the accident, that it was treated as a minor, accident as no life was lost.

I returned from the scene. This time the driver was around. We decided to settle the matter with him. The driver said that his master was not around. We nevertheless towed the vehicle to our yard. On the following day 6/8/81 the plaintiff came to our yard. He came to me and and I told him to go to the Accountant (Mr. Sandkuehler) who then negotiated to settle with the plaintiff. Later, they could not arrive at a settlement and the plaintiff then sued us to court.

The vehicle is still lying in our yard. The plaintiff was asked to remove the vehicle but he refused to do so. It was within that week that the 2nd defendant told the plaintiff to remove the vehicle.

The vehicle is an old vehicle. The steering is on the right:”

xxd by Mr. Mozie: The kerosine tanker was on its own side of the road. I saw PW2 standing by, the kerosine tanker. I met a corporal at the MTD. The corporal did not tell me that he could not go to, the scene as he was alone in the station. He made an entry-by minor motor accident. We offered to repair the plaintiff’s vehicle for him.

The first defendant did not tell us that he was worrying. We decided to repair the vehicle because we did not want any trouble.

We told the plaintiff to remove the vehicle, repair it and send us the bill but he refused to do so.

The left side of the vehicle and the door were damaged.”

The evidence about overtaking a taxi was wrongly received by the learned trial judge as it was not pleaded. The learned trial judge later expunged it from the record which is the proper step to take. At that stage it is as if that piece of evidence has not been led at all. The learned trial judge then held:

“Having expunged this piece of evidence relating to overtaking. I am afraid there is no other evidence before me showing what caused the accident. It is not for the court to speculate or engage in guess work as to the cause of the accident. I am bound strictly by the pleadings and the evidence before me.”

The crux of the matter is – was he right in so holding The pleading at paragraph 13(ii) above was that the 1st defendant/appellant collided with the plaintiff/respondent’s vehicle on its own side of the road i.e. that the 1st defendant/appellant left his own side of the road to meet the plaintiff/respondent in his own side of the road. There were pieces of evidence to support this pleading and the Court of Appeal found as follows:-

“In my view, these are evidence which clearly establish that the 1st respondent while he was in control and management of the trailer left his proper side of the road swerved to his wrong side and collided with the appellant’s vehicle on its proper side. It is not also contradicted that PW 1 tried his best to avoid the collision by completely leaving the tarred road and this is clearly pleaded under paragraph 13(ii) of the Further Amended Statement of Claim.”

I too agree with this conclusion. It was therefore wrong for the trial judge to hold as he did above that the evidence led does not support the pleadings. When the totality of the evidence led is considered with the pleadings in this case it is obvious that the Court of Appeal was right in reversing the trial court’s decision. It is true that the essence of pleading is to compel the parties to define accurately and precisely the issues upon which the case is to be contested to avoid element of surprise by either party; and not to adduce evidence which goes outside the facts pleaded. See the case of Ugbodume & Ors. v. Abiegbe & Ors. (1991) 8 NWLR, (Pt. 209) 261. However, in my view pleadings are facts on which evidence would be led i.e. in support of facts pleaded. The trend of submission of learned counsel for the defendants/appellants is to suggest that evidence led must agree word for word with the facts pleaded. This is a misconception as this is not always possible. Relationship of pleadings and evidence led depends entirely on the facts of each case.

It must be understood that during the course of a trial a witness may lead evidence on facts pleaded and add matters not pleaded. The addition of evidence of what is not pleaded to evidence about facts pleaded does not destroy the evidential value of evidence in support of facts pleaded. All the trial court would do is either not to receive such evidence because they are not pleaded or if it is erroneously received, to expunge it from record; but certainly the remaining relevant evidence about the facts pleaded can be used to support the case of the party who has pleaded such facts but has provided evidence in excess of facts pleaded.

I wish to emphasize that where the trial court has drawn the wrong inference from primary facts the appellate court can reject the inference and make what it consider to be the right inference supported by evidence. See the case of Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt.167) 290. This is what the Court of Appeal has done in this case and I agree that the court was right in so doing in the circumstances of this case.

On the issue of res ipsa loquitur this is how the Court of Appeal came to apply this principle to the facts of this case and I quote:-

“In ASHIRU v. BENSON (1965) L.L.R. 24 It was held that if a vehicle which was being driven on the left side of the road suddenly crossed the road to the right side and off the road, then a presumption of negligence was raised which the driver of the vehicle ought to rebut. An examination of paragraph 13(ii) clearly in my mind shows that the appellant was relying on the fact that the 1st respondent had collided with the appellant’s vehicle on the proper side of the appellant’s vehicle’s way as the facts upon which the appellant was relying to establish proof of negligence on the part of Ist respondent. This in my view, falls within the doctrine of RES IPSA LOQUITUR. See Okeke v. Obidife (1965) 1 All N.L.R. 50 at page 54 BREIT, J.S.C. said thus:-

“This point of pleading was considered by the Federal Supreme Court in Orakwe v. Mbiere and Anor. F.S.C. 345/1960 which counsel referred us. The members of the court differed as to the sufficiency of the pleading in that case, but they were agreed, in the words of Taylor F.J. who thought the pleading insufficient, that, ‘this plea of RES IPSA LOQUITUR may be raised in one of the two ways – either specifically by reciting the Latin maxim or in the alternative by making it known that the plaintiff intends to rely on the very collision itself as evidence of negligence.’

They were also agreed that there was nothing to prevent a plaintiff from pleading a specific act of negligence and Res Ipsa Loquitur in the alternative.”

(vide p,137 line 10 to p.138 lines 1-30 of the printed record of proceedings).

The Court of Appeal also stated correctly this principle when it stated:

“The doctrine of Res Ipsa Loquitur means that an accident may by its nature be more consistent with its being caused by negligence for which the defendant is responsible than other causes, and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. In such a case, the burden of proof is on the defendant to explain and to show that it occurred without fault on his part. The principle only shifts the onus of proof, which is adequately met by showing that despite the collision, the defendant was not infact negligent. He is not to be held liable because he cannot prove exactly how the accident happened, it is sufficient if he satisfies the coun that he personally was not negligent. See Woods v. Duncan (1946) A.C. 401.” (vide p. 138 line 34 to p.139 lines 1-9 of the printed record of proceedings).

The Court of Appeal has a clear picture of the purpose and intendment of res ipsa loquitur but I am of the opinion that it was wrong to equate the circumstances of this case to the doctrine because the doctrine was not pleaded in the Further Amended Statement of Claim in this case either in the main or in the alternative that the plaintiff/respondent will rely on the doctrine.

Furthermore, in this case the cause of the accident is known and therefore the doctrine of res ipsa loquitur is out. Per Lord Porter in the case of Bolton & Ors. v. Stone (1951) A.C. 850 at 859 where he held:-

“Nor am I assisted by any reliance upon the doctrine of ‘res ipsa loquitur’. Where circumstances giving rise to the cause of accident are unknown that doctrine may be of great assistance, but where, as in the present case, all the facts are known, it cannot have any application. It is known exactly how the accident happened as it is unnecessary to ask whether this accident would have happened had there been no negligence; the only question is, do the facts of omissions which are known and which led to the injury amount to negligence. ”

See also the case of Management Enterprises Ltd & Anor. v. Otusanya (1987) 2 NWLR (Pt.55) 179.

The Court of Appeal was therefore in error to hold that the doctrine of res ipsa loquitur applied to this case.

However this error has occasioned no miscarriage of justice in the circumstances of this case because without this finding the defendants/appellants have already been found to be negligent in this case. It therefore did not affect the decision appealed against. It is not every slip of lower court that will result in an appeal being allowed; for a mistake to warrant such a result it must be substantial in the sense that it affects or influences the decision appealed against. Osafile & Anor v. Odi & Anor (No.1) (1990) 3 NWLR (Pt.137) 130. See also the case of Osho & Anor v. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt.184) 157.

This disposes of the defendants/appellants appeal which fails and is hereby dismissed.

Now to the consideration of the plaintiff/respondent’s cross appeal. The damages claimed by the plaintiff are at paragraphs 14 and 15 of the further amended statement of claim thus:-

“14(a) The plaintiff avers that at the time the defendant’s vehicle collided with him, it (his vehicle) was loaded with 6,818 (six thousand, eight hundred and eighteen) litres of kerosine (a full tanker load), all of which got damaged and/or spilled as a result of the collision. The waybill and relevant other documents will be founded upon at the trial.

14(b) The Plaintiff in proof of the fact that he usually collected 6.810 litres (1.500 gallons) of kerosine everyday will rely on Invoices Numbers 32-1969/WR of 19/9/79 and 32-1983/WR of 20/9/79 and Receipt Numbers 133879 of 2/10/79; 133889 of 3/10/79; 133894 of 4/10/79 and 133904 of 5/10/79 all issued by Agip Nigeria Limited.

15. WHEREOF the plaintiff claims from the defendant as follows:-

(a) SPECIAL DAMAGES

(i) 6,818 litres (1.500 gallons) of N K

kerosine at 50k a gallon valued N750.00

(ii) Cost of repairing Steyr Diesel tanker

with registration No. LP 7875 N8493 .37

(iii) Cost of repairing the kerosine pump

and discharge meter N1,700.00

Total N10,943 37

GENERAL DAMAGES 1,056.63

12,000,00

(b) Loss of use of the plaintiff’s tanker from 6/8/81 at N 173.00 daily up to and inclusive of date judgment is given plus 7 (seven) days thereafter being the estimated period of repairs constituted as follows:-

(i) After sales profit on a full tanker load of kerosine (6,810 litres or 1,500

gallons) N96.00

(ii) Amount credited to plaintiff s retention account daily for 6,810

litres ot 0.3k per litre N22.00

(iii) Transport allowance at 36.92k

per ton per full load of 6,810 litres

for 105 ton daily N55.00

173.00

(See page 101 of the printed record of proceedings).

The usual practice is that in order to minimize the prolongation of litigation and to prevent further unnecessary expenses the trial judge should always assess damages he should have awarded even if his decision is against the party claiming it. (See the case of Yakassai v. Messrs Incar Motors Ltd (1975) 5 S.C. 107 at pages 115 -116).

The trial judge was therefore in error, when he stated that:

“As earlier pointed out the present action is founded on negligence. That being the case, the very first point which I have to consider is whether the plaintiff has established a case of negligence against the defendants. If he has not, I will dismiss his action as it will be unnecessary to go into the other issues raised e.g. damages. If on the other hand I find that a case of negligence has been established, I will proceed to consider the question of damages.” (page 50 lines 1 – 9 of the printed record of proceedings).

Where, however the trial court fails to consider the question of damages an Appeal Court is entitled to proceed to assess the damages when it allows the appeal without the necessity of referring the case to the trial judge for that exercise. See the case of Dumbo & Ors. v. Idugboe (1983) 1 SCNLR 29; (1983) 2 SC 14. The application of this principle however depends on the position of the pleadings and proceedings of the case at the trial court before the matter comes up on appeal.

Section 22 of the Supreme Court Act in particular makes provisions that enable this court to assess damages if the lower court fails to do so. The section provides as follows:-

“The Supreme Court may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court; or, in the case of an appeal from the High Court in its appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.”

Whether or not this Court will infact exercise these powers depends entirely on the circumstances of each case. In this case I have reproduced above the pleadings of the plaintiff/respondent in respect of the damages claimed. The pleadings of the defendant/appellant (who are respondents in this Cross-Appeal) are contained in their amended Statement of Defence. The defendants/appellants pleaded thus at paragraphs 4 and 11:-

“4. The defendants deny paragraphs 5,6, 7,8,9,10, 11, 12, 13, 14, 15 and 16 of the plaintiff’s Amended Statement of Claim and put the plaintiff to the strictest proof thereof. (See page 13 lines 1 – 4 of the record)

11. Further to paragraph 4 of this Amended Statement of Defence, the defendants put the plaintiff to the strictest proof in Law and otherwise value of kerosine and vehicle and/or loss of use.”

(See page 15 lines 1 – 4 of the record)

During the course of proceedings the plaintiff/respondent abandoned claim for general damages under paragraph 15(a) amounting to N1,056.63. See page 41 lines 17 – 18 of the printed record of proceedings.

He also abandoned claim 15(b)

(iii) – transport allowance at 36.92k per ton per full load of 6,810 litres for 105 tons daily. (See page 42 line 4 of the printed record of proceedings.

The plaintiff’s evidence in support of the remaining claims and the cross examination thereon as they appear on the printed record of proceedings are as follows:-

Evidence in support of claim 15(b)(i) – N750.00 is at page 30 lines 1 – 9 of the printed record of proceedings thus:-

“At that time of the accident my vehicle was carrying 1,500 gallons of kerosine or 6,818 litres of kerosine. The whole of the kerosene leaked out as a result of the accident. I purchased the kerosine for Agip. The maximum capacity of my vehicle is 1,500 gallons. I bought the kerosine for N654.00 I was then selling a gallon of kerosine for 50k. The total out (sic) which I realise after selling a full load of kerosine of 1,500 gallons is N750.00.”

Evidence in support of claim 15(a)(ii) – N8,493.37 – is at page 29 lines 10 to 27 of the printed record of proceedings thus:-

“After the mechanic had listed out the damages we both went to NITECO to obtain the correct prices of the damaged parts. We also went to Wayne to obtain the price of kerosine pump of my vehicle.

The name of my mechanic is Mr. P.I. Omorogbe. I personally took a copy of the list containing the item of damages to the Accountant of the 2nd defendant. This was on 27/8/81. Mr. Omorogbe also gave me a copy.

This is a copy of the estimate which I sent to the company.

NOTE: The defendants were served with a Notice to produce, but they can’t produce the original.

Mr. Mazie: I seek to tender it.

Mr. Okaneda -Egharegbemi: No objection.

Court: TAM Exhibit ‘D’

Exhibit D is at page 58 of the printed record of proceedings and it reads as follows:

“EXPERT VALUATION OF DAMAGED STEYR (5862) DIESEL 7 TON TANKER LORRY NO. LP 7875

1. Front Bumper 484.00
2. Left Hand Lights 61.58
3. Radiator 794.69
4. Complete Water Pump 290.70
5. Complete Cab 2,013.26

6 Front Axle 200.00

7. Complete Propeller Shaft 1,085.00
8. One Tyre and Tube 242.86
9. One Servo Tank 1,028.00
10. One front Mudguard 459.56
11. Two 12 V Battery 331.68
12. Labour Charges 500.00

N8,493.37

Prices as obtainable from NITECO Benin City Major Dealer on Steyr vehicles.

13. The kerosene pump and discharge meter parts required cost N1,700.00 (Prices from Wayne, Benin City).

GRAND TOTAL: NI0,193.37k”

I wish to point out that the correct total of items 1 – 12 in this Exhibit D is N7,491.91 and not N8,493.37 indicated therein. This amount of N7,491.91 plus N1,700.00 cost of kerosine pump and discharge meter parts make a grand total of N9,191.91.

Evidence in support of claim 15(a)(iii) -N1,700.00 – is at page 29 lines 10 to 14 of the printed record of proceedings thus:-

“After the mechanic had listed out the damages, we both went to NITECO to obtain the correct prices of the damaged parts. We also went to Wayne to obtain the price of the kerosine pump of my vehicle. ”

See also item 13 of Exhibit D

Evidence in support of claim 15(b)i) – N96.00 – is at page 30 lines 9 to 11 of the printed record of proceedings thus:-

“I made a profit of N96.00 after selling a full tanker load of 1,500 gallons.”

Evidence in support of claim 15(b)(ii) – N22.00 is atpage30 lines 11 to 28 of the printed record of proceedings thus:-

“I also have a retention account for every full load and this out at N22.00. This is monthly credited to my account.

This is the letter.

Mr. Mazie: I seek to tender it.

Mr. Okonedo -Egharegbemi: I am objecting on the ground that the witness is not the maker of the document. The maker could have been called to tender it.

RULING

The objection is completely lacking in merit and I see it as one designed to waste the court’s time.

The document duly signed was endorsed to the witness who produced it from his custody.

The document is tendered in evidence and marked Exhibit “E”.

Exhibit E is at pages 59 to 60 of the printed record of proceedings and it reads thus:-

“KERO PEDDLING – SALES AND DISCOUNT

In reply to your appeals and further to the meetings we have had on various occasions to discuss problems pertaining to the supply and distribution of kerosene by Peddlers, we are pleased to confirm that we have approved a fresh condition of supply. After giving full consideration to your presentation, and in order that the Kero Peddling business may be encouraged, a new discount rate fixed at 1.2 kobo per litre shall be granted for all purchases by Kero Peddlers from our company, with effect from 1st of February, 1977. This discount includes a retention of 0.3 kobo per litre which shall be credited to the account of each peddler, monthly. This retention shall be made available as usual, to the Peddler for the maintenance of the Peddling Truck and shall be paid, on request, by the District Manager after satisfactory proof of the need for the money has been established.

It is also agreed that kerosene will be sold to peddlers in quantity requested subject to availability and other causes which may be beyond our control.

This letter supersedes all previous agreements and you are kindly requested to countersign and return the second copy for acceptance.

Yours faithfully,

AGIP (NIGERIA) LTD.

Managing Director

(R. GRILLO)Counsel for the defendants/appellants however pointed out that whereas on Exhibit D the claim for N484.00 was for front bumper but the evidence of P.W.2 at page 25 lines 8 to 12 is that it was the back bumper that was damaged. The evidence is as follows:-

“The Julius Berger vehicle damaged one part of our engine, the door of the vehicle, the metre, the valve and the bumper at the back of the vehicle. As a result of the accident, all the kerosine in our vehicle leaked out.”

The claim for N484.00 on Exhibit D in respect of front bumper is therefore disallowed. I have earlier reproduced the evidence proffered on behalf of the defendant/appellants by D.W.1 Agbinsi Ebiwarebo above. He admitted that left side of the plaintiff/respondent’s vehicle was damaged. He also stated that the vehicle is an old vehicle and that the steering is on the right.

He led no evidence to dispute the amount of damages indicated on Exhibit D or the various amounts given in evidence by the plaintiff/respondent and his witnesses as damages incurred by the plaintiff/respondent as a result of the accident.

It is therefore obvious that apart from bare denial in the amended Statement of Defence there was no serious opposition to or denial of the plaintiff/respondent’s claims. The evidence is one sided and for a greater part remains unchallenged. This is therefore in my view, it proper case to exercise this court’s powers under Section 22 of the Supreme Court Act quoted above i.e. to assess the damages where the lower courts have failed to do so.

In addition, other factors that make justice of this case demand that this court should assess the damages are that the trial judge Hon. Justice Ikomi has since died and the case has spread over a period of more than 10 years namely from November 1981 up to date. I hold from the totality of the evidence of the plaintiff/respondent and his witnesses analysed above that the plaintiff/respondent has by preponderance of evidence proved the claims enumerated above in his further statement of claim and he is therefore awarded same, namely claim 15(a)(i) – N750.00, claim 15(a)(ii)- N7,491.91,claim 15(a)(iii)- N1,700.00 totaling N9,941 .91 less N484.00 disallowed; balance N9,457.91.

In respect of the loss of use which I find proved at N118.00 per day, the plaintiff/respondent claimed this amount from 6/8/81 till the day that judgment is delivered plus seven days thereafter being the estimated period of repairs. Judgment was delivered on 6th day of September, 1983. There was evidence that the plaintiff/respondent was asked to remove his vehicle for repairs and submit the cost of repairs for refund by the defendants/appellants as early as August 1981 vide Exhibit C dated 21st August, 1981 which reads as follows:

EXHIBIT “C”

Mr. R. I. Omogui,

No.3 Ekiomo Street, Ijora Causeway

3rd East Circular, P.O. Box 3643

Benin City. Lagos.

Phone 83210, 832901

Telegrams

Bauberger Lagos

Telex 21486 Juberg ng

Union Bank of Nig Ltd.,

Lagos.

Your Ref: Letter of Our Ref: Date 21st August, 1981.

We ask you herewith to kindly remove your vehicle No. LP7875 from our YARD. After receiving your bill for the repair, we will forward the same to our Insurance.

Yours faithfully,

(Sgd)

for JULIUS BERGER (NIG.) LTD

SAPELE, PORT DEVELOPMENT.”

(See page 57 lines 16-31 of the printed record of proceedings)

The plaintiff/respondent firmly refused to remove the vehicle because according to him, that was contrary to their original agreement that the defendants/appellants will repair the vehicle which was then lying in their yard.

In law, a plaintiff is under an obligation to minimize damages. See cases of British Westinghouse Electric and Manufacturing Company, Ltd. v. Underground Electric Railways Company of London Ltd. (1912) A.C. 673 and Owners of Dredger Liesbosch v. Owners of Steamship Edison (1933) A.C.449. The evidence is that the plaintiff/respondent uses the vehicle for conveyance of kerosine daily. It is therefore unreasonable for him to leave this vehicle idle in the defendants/appellants’ yard from 6/8/81 till 6th September. 1983.

I have carefully examined the circumstances of this case and I am of view that an award of six months for loss of use to the plaintiff/respondent will meet the justice of this case. I hereby award him loss of use for the period 6/8/81 to 5/12/82 a total of 184 days at N118.00 per day which amounts to N21,712.00.

This amount plus the above sum of N9,457.91 already awarded make a total of N3L169.91 (Thirty one thousand, one hundred and sixty-nine Naira ninety-one kobo) hereby awarded in favour of the plaintiff/respondent.

For avoidance of doubt this cross appeal also succeeds and I award the sum of N31,169.91 (Thirty one thousand, one hundred and sixty-nine Naira ninety-one kobo) as damages in favour of the plaintiff/respondent in this case.

This cross-appeal, also succeeds. I award N1,000.00 (One thousand naira) costs in favour of the plaintiff/respondent.

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SC.163/1987