Management Enterprises Ltd & Anor V. Jonathan Otusanya (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

On the 20th January, 1987, when this appeal came up for hearing the Respondent was not in Court and he was not represented by counsel. Chief Oriade for the Appellants then informed the Court that the Respondent’s counsel Chief Okusaga was in Court on the 17th June, 1984 to oppose his motion for a stay of execution. He knew of this appeal.

The Respondent did not even file any Brief of argument. Under order 6 Rule 9(1) of the Supreme Court Rules 1985 this appeal can proceed without learned counsel for the Respondent who even if he is present will not be entitled, without leave of Court, to oral hearing in the circumstances.

There are very many facts that are not in dispute in this case. It is common ground that the Plaintiff in the Court of first instance and the Respondent in this Court, Jonathan Otusanya, was on the 22nd day of April, 1969, travelling as a farepaying passenger on board a commercial lorry No. LG 3145 driven by one Buraimoh Bakare. It is not in dispute that this lorry was travelling from Ago Alaiye to Ijebu-Ode along the Benin-Ijebu-Ode road.

It is admitted that along that road there is an arrow bridge about 1 1/2 miles after Ajebandele. Both side concede that on that fateful day a ghastly accident occurred on or around the vicinity of the bridge involving a trailer No. LN 9801 and the lorry No. LG 3145. Jonathan Otusanya was severely injured in that accident of 22nd April, 1969. On the 9th day of July, 1972, almost 3 years and 3 months after the accident, Jonathan Otusanya took a Writ of Summons against both the owners and the drivers of the two vehicles involved in the accident. The main dispute centered around the precise cause of the accident and which of the two drivers was the guilty party. The mere fact that the Plaintiff sued the two drivers together is a point to a possible conclusion that he either did not know the guilty party or he wanted to make assurance doubly sure or that his action was speculative. Which one it is will be revealed by the pleadings.

The pleadings will certainly settle the issues in controversy, issues that went to trial in the Court of first instance. It is better to reproduce the relevant paragraphs of the Statement of Claim:

“5. Upon reaching the approaches to the Ajebandele Bridge another vehicles to wit, No. LN 9801 also approached the said bridge from the other side.

6. Neither driver stopped to give way to the other driver but they both entered the bridge and their vehicles evidently collided with each other upon the said bridge.
7. Both vehicles tumbled in to the river bed below, spilling their contents and passengers onto the river bed.
8. The accident occurred on a narrow bridge which could not take two vehicles abreast.
9. The Plaintiff says that the accident was caused by the negligence of both drivers but is not in a position to apportion liability”.

In paragraph 12 of the Statement of Claim, the Plaintiff gave full particulars of the accident as the failure of both drivers to give way, to steer clear or stop for each other; failure to exercise reasonable prudence in the circumstances; excessive speeding; plying the road with vehicles in unsafe and dangerous conditions and permitting their vehicles to get out of control. The Plaintiff also pleaded that “the circumstances of the accident entitle him to invoke the doctrine of res ipsa loquitor”. Alternatively the Plaintiff pleaded in paragraph 24 as follows:

“24. The Plaintiff claims the sum of N16, 000.00 being damages for breach by the Defendants of Section 3(1) Cap.126 Laws of Federation of Nigeria.

26. The 2nd and 4th Defendants used the said vehicles in circumstances when no insurance availed to protect them in respect of liabilities to Third Parties for personal injuries and deaths caused by them during such user.
27. The Plaintiff says that the 1st and 3rd Defendants had failed to provide the 2nd and 4th Defendants with such insurance cover and had thereby committed a breach of the aforesaid statute”.

These are the relevant paragraphs of the Plaintiff’s Statement of Claim detailing the facts on which he relies – the props of his case.

The action against the 3rd and 4th Defendants was withdrawn without any corresponding amendment to the Plaintiff’s Statement of Claim. The case that went to trial was the case against the 1st and 2nd Defendants. How did these two meet the material averments of the Plaintiff As to the cause of the accident the 1st and 2nd Defendants pleaded:

“4. The 1st and 2nd Defendants… aver that vehicle No. LG 3145 said to belong to the 3rd Defendant and driven by the 4th Defendant suddenly emerged from Ajebandele end ofthe bridge and recklessly, violently and carelessly collided with vehicle No. LN 9801.

5. The 1st and 2nd Defendants … aver that vehicle No. LG 3145 traveled at such great speed that it pushed vehicle No. LN 9801 off the bridge.
6. The 1st and 2nd Defendants… aver that the accident, if any, was caused by the negligence of the 4th Defendant … who drove … carelessly and recklessly that his vehicle collided with vehicle registration No. LN 9801 on the Ajebandele bridge.
7. The 1st and 2nd Defendants … will contend at the hearing… that the plaintiff cannot invoke the doctrine of “Res Ipsa Loquitor” in this matter,

Alternatively

9. … the 1st and 2nd Defendants deny having committed a breach of Section 3(1) or of any other Section of Cap.162 Laws of the Federation of Nigeria…
10. …. the 1st and 2nd Defendants aver that they do not owe the Plaintiff any statutory duty and/or any statutory duty entitling the plaintiff to any damages, compensation or penalty from the 1st and 2nd Defendants under the said Law.
11. Should it be held that the Plaintiff is entitled as claimed under the said Law, the 1st and 2nd Defendants plead specially that the claim (if any) of the Plaintiff is statute-barred by virtue of the said Law. ”

From the pleadings above the main issues between the Plaintiff and the 1st and 2nd Defendants seem to be:

i. Whose negligence caused the accident complained of Was it the negligence of the 2nd Defendant as the Plaintiff (having withdrawn his case against the 3rd and 4th Defendants) will now on the pleadings be held to imply or the negligence of the 4th as the 1st and 2nd Defendants alleged

ii. Was there any breach by the 1st and 2nd Defendants of the statutory duty imposed on them by Section 3(1) of Cap. 126 Laws of the Federation 1958

I have not mentioned Res Ipsa Loquitor’ as arising from the pleadings because in his paragraph 11 of his Statement of Claim the Plaintiff gave as his reason for pleading res ipsa the fact that the accident was caused by the “negligence of both drivers but that he is not in position to apportion liability”. These were the circumstances of the accident which he pleaded in paragraph 13 “of his Statement of Claim and which” entitle him to invoke the doctrine of “res ipsa loquitor” when the claim against the 4th Defendant was withdrawn those circumstances changed drastically. I will however consider this matter later on in this judgment.

Having thus stated the vital issues the next step is to examine the findings of the trial Court on those issues. The learned trial judge at p. 133 of the record of proceedings was careful to observe, after evidence had been adduced, that:

“It is also important to point out that although hearing continued to the end against two Defendants (the 1st and 2nd Defendants) only one defendant is in existence because the 2nd defendant died on the spot at the time of the accident. Again, even though this was and is known to the plaintiff, no step was taken to reflect this in the Statement of Claim in the action itself… This action against the 1st Defendant arose as a result of the negligent act on the part of the 2nd defendant” .

This point is important and it is understandably raised and canvassed fully in the Brief of the Appellants.

Finding on Negligence:

The evidence led by the Plaintiff/Respondent was at variance with the negligence pleaded. When the motion for amendment of the pleadings was refused by the trial Court the result was what the learned trial judge found at p. 135 of the record of proceedings:-

“As a result of the refusal to grant the amendment, it then remained that the negligence alleged against the two drivers in support of the plaintiff’s case remained as reflected in paragraph 12 of the Statement of Claim but unfortunately the plaintiff led no evidence in support of the nature of negligence as alleged against the two drivers. The nature of negligence in respect of which evidence was led was never pleaded … and since it was wrongly admitted the duty of the Court would be to ignore that evidence of negligence and never to act upon it”(the italics are mine to emphasise that the Court of Appeal cannot also act on evidence that was rejected as inadmissble by the trial Court).

The trial Court made the position very clear at p. 136:-

“This Court will have no alternative but to find that the plaintiff led no evidence in support of the alleged negligence against the two drivers. It will therefore be very difficult for the plaintiff’s case to succeed on the first leg of his claim based on negligence”.

I will only add that it will be more difficult for any appellate Court to discuss negligence or the doctrine of “Res Ipsa Loquitor” in vacuo. Unless there is a reversal of this finding an appellate Court will be estopped from discussing the liability of the 1st and 2nd Defendants/ Appellants based on an alleged negligence that was not proved by admissible evidence.

Breach of Statutory Duty: Finding on

The Plaintiff pleaded in paragraph 26 of his Statement of Claim that the 2nd and 4th Defendants used their vehicles without a Third Party Insurance Cover. The 1st and 2nd Defendants denied in their paragraph 9 of their Statement of Defence being in breach of Section 3(1) of Cap.126 of 1958 providing for the users of motor vehicle to be insured against third party risks. The Plaintiff posited his alternative claim for the sum of N16, 000.00 on the fact that the 2nd Defendant at the time of the accident was not provided by the 1st Defendant with a Third Party Insurance Cover. Whether on the 22nd April 1969 the 2nd Defendant driving trailers No. LN 9801 had a current Third Party Insurance Cover is a question of fact to be proved by the Plaintiff by admissible evidence. Both the trial Court and the Court of Appeal proceeded to discuss the law without the necessary foundation of a finding of fact on this issue.

The trial Court per Abimbola, J. dismissed the Plaintiff’s claim for special and general damages. The Plaintiff dissatisfied and aggrieved appealed to the Court of Appeal Ibadan Division Coram Uche Omo, Dosunmu and Omolulu Thomas, JJ.C.A. That Court allowed the Plaintiff’s appeal set aside the judgment of the trial Court and in its place “substituted a decision that the Plaintiff’s claim succeeds”. The 1st Defendant/Appellant aggrieved by the above judgment has now appealed to this Court on 8 grounds of appeal.

.Ground 1: The complaint here is:-

“1. The learned trial judge and the learned justices of the Court of Appeal… erred in law in entertaining respectively the action and the appeal of the Plaintiff/Respondent when neither the trial Court nor the Court of Apeal had jurisdiction to hear the action or appeal.

PARTICULARS OF ERROR

(a) The Second Defendant was not a juristic person because he was not alive when the Plaintiff/Respondent instituted his action in 1972 under Suit HCJ/29/72 and no legal personal representative was appointed by the Court.

(b) The vicarious liability of the First Defendant depended on the established liability of the Second Defendant.

(c) The service of the Writ of Summons in Suit HCH/29/72 on the dead Second Defendant through the First Defendant who was not appointed the legal personal representative of the Second Defendant, is void and all the proceedings of the trial Court and those of the Court of Appeal are automatically void.”

The appellate jurisdiction of the Court as conferred by Section 213 of the 1979 Constitution is to hear and determine appeals from the Court of Appeal and not from the High Court. In the above ground however the jurisdiction of not only the Court of Appeal but also the High Court is being questioned. The point is that ex nihilo nihil fit; one cannot possibly build up something on nothing. The Court of Appeal cannot possibly hear and decide on an appeal from a judgment (of a High Court) which is tainted with a fundamental vice, a judgment that is not voidable but void ab initio. So in a way one can excuse the Appellant for attacking in its Ground 1 above, both the judgment of the High Court as well as that of the Court of Appeal.

The second hurdle to clear before considering Ground 1 above is that the point was never taken in the Court below. The normal rule is that a point presented for the first time in a Court of Appeal ought to be most Jealously scrutinised. A Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time if it is satisfied that it has before it all the facts bearing on the contention as completely as would have been the case if, the controversy had arisen at the trial and next that no satisfactory explanation could have been offered by those whose conduct is impugned if any opportunity for explanation had been offered them: The Tasmania (1890) 15 App. Cas. 223 at p. 225 per Lord Herschell; also see Greer, L.J. in Smith v. Carmmel Lairds & Co. (1938) 2 K. B. 700 at p. 713 or (1938) 3 All. E.R. 52 C. A. In this case the Plaintiff was the Appellant in the Court below. To have raised the points contended in ground 1 above would have been to argue himself out of Court. Understandably the present Respondent would not advert his mind to those points. Also no issue of fact need here to be further resolved before ruling on jurisdiction.

Thirdly when a question of law is raised for the first time in a Court of last resort, upon the construction of document, or upon facts either admitted or proved beyond controversy, it is not only competent but also expedient, in the interest of justice to entertain the point: Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C.473 at p. 480. Fourthly an issue of jurisdiction is radically fundamental and can be raised at any stage of the proceedings and even for the first time in a Court of last resort: see Dr. O. G. Sofekun v. Akinyemi & Ors. (1980) & 5-7 S.c. 1 at p.21; see also Donaghey v. P. O’Brien & Co. & Others CA. (1966) W.L.R. 1170 and Donaghey v. Boulton v. Paul Ltd. (1968) App. Cas. 1 at p.31.

The Plaintiff’s claim in the trial Court was for damages for negligence. The negligence alleged was that of the 2nd Defendant, Dangana Musa. The 1st Defendant/Company is the owner of the trailer No. 9801 driven by Dananga Musa on the 22nd April 1969 – the day of the accident. The liability of the 1st Defendant is not direct but consequential and vicarious. It rests on the successful action against the 2nd Defendant. The evidence of Abraham Samakinde, 3rd P.W. at p.54 of the record was that “the driver of the commercial vehicle No. LN 9801 died on the spot”. From paragraph 25 of the Statement of Claim the 2nd Defendant was the driver of vehicle LN 9801. He was the driver who died on the spot on 22nd April 1969. Also the evidence of Abioye Omijakun, Police Corporal No. 26995 at p. 70 lines 8-10 was:-

“I found the corpse of Dangana the driver of vehicle LN 9801 at the scene of the accident near a river”.

It is thus put beyond doubt that the 2nd Defendant Dangana Musa died on 22nd April 1969 . The Writ of Summons in this case was filed per Treasury Receipt CR. No. 843221 on 9th July 1972, almost 3 years and 3 months after the death of the 2nd Defendant.

1st Question for Determination

Was the action against the 2nd Defendant valid, or voidable or void

Was the Ijebu-Ode High Court competent to entertain the alleged action against the 2nd Defendant Was the case against the 2nd Defendant initiated by due process of law Was the 2nd Defendant a legal persona, a juristic person who could be sued If there is any defect in competence then the proceedings in HCJ/29/72 will be a nullity and it does not matter how well conducted and how well decided that suit was: Madukolo and Ors. v. Nkemdilim (1962) 1 All N. L. R. 587 at p. 595. If SUIT HCJ/29/72 is a nullity vis-a-vis the 2nd Defendant then the vicarious liability of the 1st Defendant will not arise. Now, service of process on a defendant is one of the fundamental conditions precedent to the exercise of jurisdiction. Sken Consult (Nig.) Ltd and Anor. v. Godwin Sekondy Ukey (1981) 1 S.C. 1 at p. 26. Unless the Court otherwise directed (and there is nothing on record to show that the Ijebu-Ode High Court did) service on the 2nd Defendant should have been personal. In this case the 2nd Defendant was served through the 1st Defendant. This obviously does not amount to proper service on the 2nd Defendant. The Court handled a similar problem in Margaret Nzum and Anor. v. S. O. Jinadu (1987) 2 S. C. 205 decided on 27th February 1987 (not yet reported). But in that case the Plaintiff, Jinadu obtained an order of Court to effect substituted service by publication in the Daily Times Newspaper. In Nzom’s case supra the Court was quite prepared to hold that service in accordance to an order of Court will pass as good or proper service.

Now the real problem is – Can the Plaintiff sue a dead defendant, Dangana Musa The common law view was that dead men are no longer legal personae as they laid down their legal personality with their lives at death. Thus being destitute of rights, duties or interests they can neither sue nor be sued. This common law view was expressed in the latin maxim – actio personalis moritur cum persona. But this comon law view has been drastically curtailed or eroded either by statute or/and by Rules of Court. This Court considered at some length the question of a living Plaintiff suing a dead Defendant in Nzom’s case supra. We have no local statute or Rules of Court dealing specifically with actions against dead defendants. Rather Section 8 of the High Court Law Cap. 44, of the Laws of the Western Region of Nigeria 1959 (which is the applicable law) provides that the High Court of the Western Region of Nigeria shall … possess and exercise all the jurisdiction, powers and authorities which are vested in, or capable of being exercised by, Her Majesty’s High Court of Justice in England.

Now what was and what is the position in England In Clay v. Oxford (1866) L.R. 2 Exch. 54 it was held that where an action had been commenced in the name of a dead man, there was no power under the Common Law Procedure Act 1852 to substitute his representatives as plaintiffs. Kelly C.B. at p. 55 said that the Act contained no provision in any part of it for substituting a plaintiff suing in a representative capacity for a deceased man who never was a party. Bramwell, B. in the same case (Clay v. Oxford supra) thought that the powers of amendment conferred by the Act did not apply to a case where there was no plaintiff and therefore no existing suit, and no question in controversy between the parties. In this case on appeal the reverse is the case. It is the dead 2nd Defendant who was sued. But the principle ought to be the same. If there is no 2nd Defendant there can hardly exist any question in controversy between the Plaintiff/Respondent Jonathan Otusanya and the 2nd Defendant.

In Tetlow v. Orela Ltd. (1920) All E.R. Rep 419 an action was mistakenly commenced in the name of a man, as plaintiff, who was dead when the writ was issued. On application by the widow to be substituted as plaintiff, the Court held that there was no power under R.S.C. Ord 16 r 2 or r 11 which enabled the Court to substitute the representative of a man who was dead when the action was commenced as plaintiff. Commenting on r 11 above Rusell, J. held at p. 423:

“In my opinion, the name of ‘parties improperly joined’ and the name of ‘parties who ought to have been joined’ are, in the meaning of that rule, the names of living persons only”.

Applying the principle above to this case, I will make bold to say that the names of the Plaintiff and the Defendants in this case ought to be the names of living persons only. The 2nd Defendant was not a living person when this writ was issued. Tetlow v. Orela supra however dealt with an action commenced in the name of a dead plaintiff.

The case that dealt with an action commenced against a dead defendant was Dawson (Bradford) Ltd. & Ors. v. Dove & Anor. (1971) 1 All. E.R. 554. In that case, Mackenna, J. reviewed the existing authorities vis-a-vis the Rules of the Supreme Court (England) and ordered that the three Writs issued against Mr Dawson be set aside on the ground that when they were issued Mr Dawson was already dead. The principle in Dawson’s case supra is that when a Writ has been issued against a dead man, there is no power under the Rules to amend the Writ by substituting the executors in place of the deceased. But then the law had changed since Dawson’s case supra. The Law Commission Which Paper entitled Proceedings against Estates” had been published and Proceedings Against Estates Act 1970 had been passed to implement the Commission’s recommendations. It is therefore to this 1970 Act that one will look to find out whether the present action against the 2nd Defendant, Dangana Musa, deceased was a nullity.

By Order 15 r 6A/3 of the R.S.C.:-

“15/6A/3 If at the time an action is brought against a person named as the defendant, he is already dead, the action (where the cause of action survives) must be treated as having been brought against his estate… By virtue of paragraph 3 supra such an action will no longer be a nullity, but will be properly constituted as if it were an action brought against the estate of the deceased where no grant of probate or administration had been made. No order is necessary for this purpose, since this is the effect of the Rule itself”.

From the above the Writ issued against the 2nd Defendant, Dangana Musa, deceased, is not ex factor and ipso facto a nullity. But issuing a Writ is one thing and having a defendant to carry on the action is an entirely different thing. And this is where the present action against the 2nd Defendant is still defective. There was here no application as required by Ord. 15 r 6A/4 R.S.C. by the Plaintiff/Respondent for an order appointing a person to represent the estate of the 2nd Defendant, Dangana Musa deceased. It is against the person so appointed that service of process ought to have been made especially service of the Writ of Summons without which service the Plaintiff cannot proceed any further in the action against the 2nd Defendant. On the authority of Madukolu’s case supra, of Sken Consult’s case supra, and of Ord 15 r 6A/ 4, I hold that the Ijebu-ode High Court lacked the necessary competence to carry on this case against the 2nd Defendant. If then the trial Court could not validly deliver any judgment against the 2nd Defendant, and since the liability or otherwise of the 1st Defendant depended wholly on a verdict against the 2nd Defendant then the Court of Appeal was wrong in its judgment against the 1st Defendant/Appellant. My answer to Question No.1 For Determination is that the action against the 2nd Defendant was a nullity not because he was dead when the Writ was issued, but because there was no application by the Plaintiff for an order under Ord 15 r 6A/4 R.S.C. (England) for the Court to appoint someone else to carry on the action. The action was also and thereby a nullity because there was no proper service of the Writ against the 2nd Defendant through his such representative appointed by order of Court. Grounds 1 and 2 of the grounds of Appeal therefore succeed.

Ground 3 of the grounds of appeal complained:

“3. The Learned Justices of the Court of Appeal erred in law or otherwise misdirected themselves in holding that the Plaintiff/ Respondent did not sufficiently know the cause of the accident and that the plea or doctrine of res ipsa loquitur applied to the Plaintiff/ Respondent’s case in Suit HCJ/29/72”.

This ground of appeal raises an initial question – What is “res ipsa” and a secondary question – When does it apply Res ipsa loquitur literally means “the thing speaks for itself”. This Latin maxim is applicable to actions for injury by negligence where no proof of such negligence is required beyond the accident itself, which is such as necessarily to involve negligence. Thus where a ship in motion collides with a ship at anchor the Court will hold that ordinarily such collision do not and will not occur without the negligence of the ship in motion: see Batavia (1845) 2 W. Rolf 407; The Valdis (1915) 31 T.L.R. 111. “Res ipsa loquitur” is no more than a rule of evidence affecting the onus of proof. The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shifts the onus on the defendant. If the facts are sufficiently known or where the defendant gave an explanation, the doctrine will no longer apply: Barkwa v. South Wales Transport (1950) 1 All E.R. 392. Reliance on the doctrine of “res ipsa” is thus a confession by the Plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances amply establish such negligence.

In relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the Court to infer therefore negligence on the part of the defendant. The doctrine will not apply where:

i. The facts proved are equally consistent with accident as with negligence;

ii. There is evidence of how the accident happened and the difficulty (as in this case) arise merely from an inability to apportion blame between two negligent drivers. If these two drivers are servants of the same master the position may be different: Skinner v. L. B. & S. C. Ry (1850) 5 Exch. 787.

If there is evidence of how the occurrence took place, then an appeal to res ipsa loquitur is misconceived and inappropriate. There again the question of the Defendant’s negligence must be determined on the available evidence. In other words the doctrine of “res ipsa loquitur” is not meant to supplement inconclusive evidence of negligence on the part of a Plaintiff. Rather it is meant to apply where there is no other proof of negligence than the accident itself.

In the case now on appeal the Plaintiff in paragraphs 5,6, 7 and 8 of his Statement of Claim gave the details of the negligence he relied on in proof of his case. In paragraph 12 he summarises as follows:

“12. Particulars of negligence alleged against both drivers:

(a) Failing to give way to steer clear or stop for each other.

(b) Failing to exercise reasonable prudence in the circumstances.

(c) Excessive speeding, having regard to all the circumstances of the case.

(d) Using vehicles which the defendants knew or ought to know were in unsafe and dangerous conditions.

(e) Permitting their vehicles to get out of control.

In the face of the above the doctrine of res ipsa loquitor is out. What is required is proof of the averments made in those paragraphs.

It can be argued from paragraphs 13 of the Plaintiff’s Statement of Claim (pleading “without prejudice to all or any of the grounds of negligence hereinbefore alleged”) that the Plaintiff pleaded “res ipsa loquitur” in the alternative. That would have been alright if the 2nd Defendant and the 4th Defendant were servants of the same master like in Skinner v. L. B. & S. C. Ry supra where the Court held that the mere occurrence of a railway collision between two trains belonging to the Railways was enough to throw the onus on the railway authority of showing that this was not the result of negligence on the part of their drivers.

In the case on appeal the 2nd Defendant and the 4th Defendant were sued separately, they do not work for the same master. Furthermore the action against the 3rd and 4th Defendants had been withdrawn and it thus became necessary to prove that the negligence complained of was that of the 2nd Defendant rather than of the 4th Defendant. To make a hopeless situation intolerable, the 2nd Defendant died in the accident and the action against him was not properly constituted with the result that the trial Court had no competence to try him (2nd Defendant). Discussing whether the doctrine of res ipsa applied in this case was thus purely academic. One cannot on appeal discuss the negligence of the 2nd Defendant (whether that negligence was proved or it rested on the doctrine of res ipsa loquitur) unless and until it is shown that the 2nd Defendant was properly before the trial Court. I have earlier on held that the trial of the 2nd Defendant by the Ijebu-Ode High Court was a nullity. That really concluded this appeal. I only discussed the doctrine of “res ipsa” ab abundanti a cautela. Ground 3 of the grounds of appeal therefore succeeds.

Ground 4 of the 1st Defendant’s grounds of appeal complained as follows:-

“4. The learned justices of the Court of Appeal erred in law in holding that the Plaintiff/Respondent’s second Ground of Appeal which was the omnibus ground of appeal succeeded on the ground that the decision in the case of Monk v. Warbey (1934) All E.R. 373 rendered the First Defendant/Appellant liable to pay damages to the Plaintiff/Respondent for breach of statutory duty to insure against Third Party risks”.

PARTICULARS OF ERROR

(a) The Plaintiff/Respondent did not appeal on ground of breach of statutory duty by the First Defendant/Appellant and as such the learned justices of the Court of Appeal were on a frolic on their own when they applied the principle in Mon v. Warbey (1934) All E.R. 373 as establishing a ground of appeal which was not canvassed by the Plaintiff/Respondent at the hearing of the appeal.

(b) The general or omnibus ground of appeal that the decision is against the weight of evidence is not a ground of appeal in law as it deals merely with the totality of the facts adduced”.

The alternative ground for the Plaintiff’s claim in this case was pleaded in paragraph 24 of the Statement of Claim namely “breach by the Defendants of Section 3(1) Cap. 126 Laws of the Federation of Nigeria”. Was there any admissible evidence that on the 22nd April 1969 when the accident happened the 2nd Defendant was not covered by any Third Party Insurance The evidence of the Plaintiff himself seems to be the only evidence available on this issue. At p. 48 lines 19 to 22 the Plaintiff testified:

“I made inquiries about Insurance Papers of both vehicles from my counsel Lawyer Owotomo and I was told that the vehicles were not covered by an Insurance Policy”.

(the italics is mine).

This hearsay surely is not admissible evidence: On the issue of the existence or otherwise of any Insurance Policy, the learned trial judge made no specific findings. He however made a general finding that the the negligence as pleaded in the original Statement of Claim was not proved and he refused to allow a motion for amendment of the pleadings. What he did at pages 137/138 of the record of proceedings was to discuss Section 3(1) of the Motor Vehicle (Third Party Insurance) Ordinance in vacuo ending up with an assertion that “an action based on the failure of a person to comply with the provision of Section 3(1) of the Motor Vehicle (Third Party Insurance) … cannot succeed on its own in a civil action without proving negligence against the party concerned”.

The above view by the learned trial judge is definitely not erroneous or contrary to the decision in Monk v. Warbey 8 Ors. (1934) All. E.R. Reprint 373. Surely a plaintiff injured through the negligent driving of a motor vehicle by a Defendant who was not insured against third party risks can maintain an action for damages against both the defendant and the owner of the vehicle even though he himself was insured against 3rd party risks. Monk’s case supra so decided and also established that it was the intention of the 1930 Road Traffic Act to protect road users and to give them a right of action against those in breach of the provisions of the statute.

“The power to prosecute for a penalty was no protection to an injured person”. But all said and done the mere breach of the provisions of Section 3(1) of Cap. 126 without attendant negligence may make the culprit liable to prosecution but will not give a right of action in damages unless negligence is proved.

Also it is the negligence of the 2nd Defendant that will on the Authority of Monk v. Warbey and Ors. supra make the 1st Defendant liable. But the action against the 2nd Defendant had been shown to be incurably defective, offending as it did, Order 15 Rule 6A/4 R.S.C. (England) and the principle in Skenconsult’s case supra.

Again even if the learned trial judge was wrong in its handling of the alternative claim based on an alleged breach of the Statutory duty imposed on the Defendants by Section 3(1) of Cap. 126 of 1958, the Court of Appeal can only correct such error if a ground of appeal complaining about that error was filed and argued before it. The Court of Appeal cannot like Christopher Colombus gratuitously embark on a voyage of discovery and deal with all errors in the judgment of the Court of first instance. It will have no jurisdiction to do that: Obajinmi v. Attorney-General and Ors.(1968) N.M.L.R. 96. Its appellate jurisdiction is confined only to issues raised in the grounds of appeal filed. Only two grounds of appeal were filed at p.146 of the record, namely the trial Court’s rejection of “the plead of res ipsa loquitur” and the omnibus ground that “the judgment is against the weight of evidence”. It is clear from pp.183/184 of the record of proceedings that the Court below considered the legal effect of failure to comply with Section 3(1) of Cap. 126 of 1958 under the omnibus ground. With respect, this seems to be a wrong approach. In fact the learned trial judge made no finding as to whether or not the Defendants were covered by any Third Party Risk Insurance and there was no admissible evidence on record to sustain a finding that they had none. One cannot possibly consider the legal effect of failure to comply with Section 3(1) without a definite finding that there was such a failure. Ground 4 of the Grounds of appeal to this Court therefore succeeds. There will be no need to consider all the other grounds filed and argued. Grounds 1 and 2 disposed of this appeal. I only considered grounds 3 and 4 out of an abundance of caution.

In the final result, this appeal succeeds. The judgment and consequential orders of the Court below are hereby set aside. I restore the judgment of Abimbola, J. dismissing the Plaintiff’s claim for special and general damages. I agree with the observations made by the learned trial judge as to the impecunious state of the Plaintiff and the fact that the accident had rendered him unable even to earn a living. In the circumstance, I will not order any costs against the Plaintiff in this Court or in the two Courts below.

OBASEKI, J.S.C.(Presiding): The respondent to this appeal did not file his brief of argument in reply to the appellants’ brief of argument in this appeal despite the fact that the appellants’ brief was served on his counsel. The absence of the respondent’s brief did not place the appellants at undue advantage as the respondent already had judgment of the court below in his favour. That being so, the findings of the court below are in law presumed correct until they are proved wrong before this Court. See Odiase and Anor. v. Agho and Others (1972) 1 All N. L. R. (Part 1) 170 at 176; Johnson v. Williams 2 W.A.C.A. 248 at 254. The appellants therefore had the duty of establishing before this Court the errors in the judgment of the court below which they had set out in their grounds of appeal despite the absence of the respondent and his failure to file a brief in reply to the appellants’ brief. The appellants’ counsel was therefore given a hearing in oral argument to amplify the points already set down in his brief of argument. This was on 20th January 1987. After hearing the oral amplification of counsel, judgment was reserved till today. On receipt of notification of the date of judgment, the respondent rushed in an application for extension of time to file his brief of argument in reply to appellants’ brief of argument. The application was unsuccessful as he was unable to show exceptional circumstances warranting the grant of the prayer and it was refused.

This appeal deals with the issue of liability in negligence in a collision between two vehicles, which occurred on a bridge, and liability for the breach of a statutory duty imposed by section 3(1) Motor Vehicle (Third Party Insurance) Act Cap. 126 Volume IV Laws of the Federation of Nigeria 1958.

The respondent claimed N16,000.00 general and special damages for negligence against the appellants jointly and severally in that vehicle No LM 9801 owned by 1st appellant and driven by the 2nd appellant, Dagana Musa negligently collided with vehicle No. LG 3145 belonging to the 3rd defendant and driven by the 4th defendant who were dismissed from the suit when the respondent withdrew action against them. Alternatively, he claimed the sum of N16,000.00 as damages for breach of defendants’ duty under section 3(1) of the Motor Vehicle (Third Party Insurance) Act Cap. 126 Laws of the Federation of Nigeria 1958. The respondent’s pleading blamed the collision on the negligence of the two drivers who were in charge of the vehicles. This is brought out by paragraphs 6 and 11 which read:

“6. Neither driver stopped to give way to the other but they both entered the bridge and their vehicles evidently sic [violently] collided with each other upon the said bridge.

11. The plaintiff says that the accident was caused by the negligence of both drivers but is not in a position to apportion liability.”

The evidence on record established the death of Dagana Musa, the 2nd defendant on the spot. He died at the scene of accident. Yet, the writ of summons was issued against him as if he were alive. Further, the proceedings in the High Court continued against him despite the evidence of his death before that court. Further, judgment was given against him as if he were alive to answer the claim.

This point assumes great importance when viewed at or considered in the light of the fact that the 1st appellant’s liability was vicarious and dependent on the proof of the negligence of the 2nd defendant, Dagana Musa. Being dead, the 2nd defendant could not have been served with the writ of summons. And not being served, the case could not validly proceed to trial.

The major question for determination, therefore, is, whether the action against the 2nd defendant, Dagana Musa was valid or void or whether the proceedings in the High Court and Court of Appeal were void. This question has been exhaustively examined and dealt with in the Judgment just delivered by my learned brother, Oputa, J.S.C. I agree with him and I adopt the opinions expressed therein as my own.

The second question for determination is whether there was room for the application of the doctrine of res ipsa loquitur.

The third and last question for determination is whether the appellants were proved to have committed a breach of duty imposed by section 3(1) of the Motor Vehicles (Third Party Insurance) Act Cap.126 Laws of the Federation of Nigeria 1958.

My learned brother, Oputa, J.S.C. has dealt with these two issues also in his judgment. I also adopt his opinions on them as mine. They accord fully with my opinions on them.

I too will for the same reasons allow the appeal and I hereby allow the appeal, set aside the judgment of the Court of Appeal and enter judgment of dismissal of the claim of the respondent in favour of the appellants. The failure to serve the 2nd defendant with the various processes starting with the writ of summons is fatal to the claim. It is impossible to get the dead man to serve with the processes.

The recent case of Margaret Nzom and Anor. v. S. O. Jinadu (1987) 2 S. C. 205 decided on 27th February, 1987 has settled that issue.

The doctrine of res ipsa loquitur cannot apply to this case where the particulars of negligence were profusely pleaded. The breach of statutory duty under section 3(1) of the Motor Vehicles (Third Party Insurance) Act Cap. 126 Laws of the Federation of Nigeria 1958 cannot attract damages in favour of the respondent in the absence of proof of negligence and even in any event.

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SC.100/1985