Odebunmi V Abdullahi (1970)

LawGlobal-Hub Lead Judgment Report

S. M. A. BELGORE, J.S.C.

The first plaintiff, now appellant, is the widow of the late Augustine Oyewole Odebunmi who died in an accident whereby he got burnt. She brought this action, in the High Court of Kwara State (former Kwara State) under the Fatal Accidents Law 1963. She therefore represented herself and her children to wit, Folashade, Femi, Wunmi and Bukola.

Joining her as co-plaintiff is the mother of the deceased, Madam Adebusu Odebunmi. According to the final amended statement of claim, the defendant, Alhaji Isa Abdullahi, also known as Alhaji Abdullahi Ibrahim Isa, was the registered owner of a tanker-trailer vehicle registration number KN 5645 K and registered at Motor Registry, Kano.

The plaintiffs’ case is that on the 5th day of November, 1980 Augustine Oyewole Odebunmi (hereinafter called and referred to as “the deceased”) was in his vehicle of Volkswagen make, being driven by one Raymond Orifunmise along the highway between Okene and Ogaminana (both now in Kogi State).

On getting to a narrow bridge, the vehicle halted to allow a motorcyclist to get out of the bridge. While so stationary, the vehicle No. KN 5645 K aforementioned, driven by one Mohammed Ibrahim Albasa, coming from the rear ran into the deceased’s vehicle. As a result of this crash into the stationary vehicle of the deceased, the trailer-tanker pushed the volkswagen vehicle into the river.

Thus both vehicles ended up in the river and the tanker immediately exploded into a ball of fire which engulfed the volkswagen vehicle with the deceased inside. As the deceased was trapped inside the wreckage he was burnt to death. The case for the plaintiff clearly was that the tanker-trailer driver was in the employment of the defendant and he drove the vehicle with the authority of the defendant, that is to say, in the course of his employment.

It took a long time to get the defendant served with the writ of summons. He rejected service initially and had to be served through the High Court, Kano.

Finally the court made an order for pleadings which were duly filed and exchanged. The defendant’s statement of defence was filed on 12th November, 1985. The plaintiff however filed another amended statement of claim which was filed with leave of the court and not objected to by the defendant on 14th August, 1986 when hearing was actually in progress.

The answer of the defendant in his statement of defence was a complete denial of all the averments in the statement of claim. He denied ownership of the tanker-trailer that caused the fatal accident, he denied knowing any driver of the said vehicle or any driver by the name Mohammed Ibrahim Albasa. He therefore on the premises of these denials dissociated himself from any liability as the owner of the vehicle or the employer of its driver. He also denied his name being Alhaji Ibrahim Isa in whose name the vehicle was registered in Kano. Thus he denied any vicarious liability for the accident that led to the death of the deceased. He then raised the issue that at any rate the action was statute barred for the reason that it was filed more than three years after the accident giving rise to the action. He also denied liability because the writ was served on him outside the jurisdiction of Kwara State High Court etc.

The evidence for the plaintiff was clear as to how the fatal accident occurred. The vehicle occupied by the deceased stopped before entering a narrow bridge to allow a motorcyclist to cross the bridge. While so stationary, the tanker-trailer No. KN 5645 K came from the rear, hit it and pushed it whereby the two vehicles ended up in the river over which the bridge stood.

The tanker-trailer, apparently carrying inflammable material, on landing in the river with the deceased in the vehicle it pushed along, burst into flames and was in no time engulfed in a ball of fire. The deceased was trapped in his own Volkswagen vehicle even though its driver and the driver of the erring taker-trailer escaped.

The deceased died in the fire as he was burnt to death. Upon all this evidence, and with the plea, aside from Fatal Accident Law, of res ipsa loquitur, the defendant never gave evidence but sent one Alhaji Husman who lived at Okene in the then Kwara State to testify. This witness never claimed to know all the defendant’s vehicles and the main plank of his evidence is clear, i.e.
“DW1: Moslem, sworn on Holy Quran speaks Yoruba.

I am Alhaji Usman of 36 Lafiya Street Okene and 21 Unity Road Kano. I am the supervisor in the business of Alhaji Isa Abdullahi. I do not know of any vehicle with registration number KN 5645 K belonging to Alhaji Isa Abdullahi. I am aware that Alhaji Isa Abdullahi is sued in respect of the vehicle but he denies any knowledge of the vehicle. We went to Licensing office at Kano for clarification and we sent the findings to our Lawyer. This is the document obtained from the licensing office, Kano.”

Therefore it is not difficult for the trial court to come to the conclusion that the defendant’s defence was based on total denial. He denied the vehicle was his own, “and that it was registered in his name.

However, the plaintiffs” evidence that the vehicle was his own could not be contradicted on the meagre evidence of D.W.1 which at best is hearsay. He denied knowing any driver by the name Mohammed Ibrahim Albasa, much less employ that person as a driver. The writ originally bore the name of Mohammed Ibrahim Albasa as co-defendant. When the case finally came to court after several efforts to serve the defendants failed, the present defendant accepted service and told the bailiff that Mohammed Ibrahim Albasa had died. As a result of this information from the defendant the name of Mohammed Ibrahim Albasa was struck out by the court on the plaintiffs application.

Learned trial Judge, after considering the pleadings and all the evidence before him finally found:
“(i) that the vehicle of the defendant, the tanker-trailer No. KN 5645 K was driven negligently and hit the vehicle in front in which the deceased was a passenger
(ii) that as a result of the negligent driving of the aforementioned tanker-trailer the vehicle carrying the deceased was pushed from the rear whereby both the tanker-trailer and the vehicle carrying the deceased, with the deceased inside crashed, into the river as a result of which the tanker-trailer burst into flames which engulfed the vehicle occupied by the deceased.
(iii) that the deceased unable to extricate himself from the wreckage of the two crashed vehicles, was consumed by the resultant inferno and he there and then died as a result
(iv) that the erring tanker-trailer was driven by Mohammed Ibrahim Albasa, now said to be dead, and that at the time of the accident he was driving in the employment and with the authority of the defendant and that the defendant was therefore vicariously liable for the negligence which resulted in the death of Augustine Oyewole Odebunmi.

The defendant was therefore found liable and plaintiff was awarded lump sum damages as claimed and proved. This led to the appeal to the Court of Appeal. Court of Appeal, in an unanimous decision allowed the appeal. The Court of Appeal’s reversal of the trial court’s decision was based on
(i) failure to identify with certainty the driver of the offending tanker-trailer
(ii) the identification of the registration number of the tanker-trailer was not clear, and
(iii) the identity of the owner of the tanker-trailer was not properly established.
Trial Court, however, on the clear evidence of P.W.1 (first witness for plaintiff) being an eye witness of the accident, believed the registration number is that pleaded, i.e. KN 6545 K. The court also, on the evidence before it, found that both Alhaji Isa Abdullahi and Alhaji Abdullahi Ibrahim Isa are one and the same person and refer only to the defendant as the owner of the tanker driver. It also found that the registration number of the offending tanker-trailer is KN 5645 K and also found that it was on the fateful day in question driven by Mohammed Ibrahim Albasa, an employee of the defendant and that the said driver was in the course of his duty as employee of the defendant.

The best person to deny all the findings of facts by the trial court in the clear circumstances of this case was the defendant, but he chose not to give evidence. He was perfectly entitled to adopt this line of defence and the court was equally obliged to make its legal conclusions on the failure of the defendant to testify in person. Unfortunately, his sole witness, D.W.1, never saw the accident occurred, he only testified that he never knew Mohammed Ibrahim Albasa as one of the drivers employed by the defendant, and he never claimed to know all his drivers either.

It is therefore a grave error for the Court of Appeal to have set aside the clear findings of facts on the clear evidence of the plaintiffs before the court. An appellate court must be wary of interfering with the findings of fact by the trial court except in certain circumstances, e.g. where the finding is not supported by any pleading or far from the claim of any party, where there is no evidence to support the pleadings, or where the evidence received in support of the findings is against any statute – being either against Evidence Act or any other statute prohibiting reception for such evidence or prescribing the procedure to receive such evidence which procedure is not followed; or given without jurisdiction. Also findings of fact that offend any of the aforementioned may be perverse and lead to miscarriage of justice in circumstances like not hearing all the parties on the point by denying one party the opportunity to be heard.

The category of such perverse circumstances remains open. [See this court’s decisions in Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325; Ajuwa v. Odili (1985) 2 NWLR (Pt.9) 710; Chukwueke v. Nwankwo (1985) 2 NWLR (Pt.6) 195; Oilfield Supply Centre Ltd. v.Johnson (1987) 2 NWLR (Pt.58) 625; Kimdey v. Governor of Gongola State (1988) 2NWLR (Pt.77) 445; Ekwunife v. Wayne (WA.)Ltd. (1989)5 NWLR(Pt.122) 422].
This action was also brought under Fatal Accidents Law of Northern Nigeria 1963 (Cap. 43 LN 1963) by the “immediate family” of the deceased as defined in section 2 of the statute. The Law was the applicable law in Kwara State at the time of the action. This was not challenged by the defendant either in the pleadings or by evidence. S. 3 of the statute confers right of action in respect of death caused by wrongful act, neglect or default of another person for the benefit of the immediate family of the deceased (see S. 4 of the Law].

The interesting aspect of this case is that the defendant never contested that an accident occurred in the circumstances enumerated in the statement of claim and that the accident was caused by negligent driving of the tanker-trailer whereby the deceased got killed in the resultant inferno. What was denied was that neither the vehicle i.e. the tanker-trailer nor its driver had any link with the defendant. This defence was not pursued with any acceptable evidence in the light of clear evidence to support the statement of claim of the plaintiffs/appellants which the trial court accepted.

The plaintiffs also relied on the rule of res ipsa loquitur. It is a rule of practice and not rule of law; it is to assert the right of a party claiming injury and damages due to negligence. There must be evidence of negligence in a reasonable way. Thus where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process, and that accident is such as does not occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the aforementioned management as to how the accident occurred, the accident is, presumed to occur due to lack of care.  Thus negligence is presumed in such cases; for in such cases negligence is inferred to have resulted from the want of care by the persons in the management of their agents or servants. The maxim res ipsa loquitur means “things speak for themselves”. It is a convenient way to explain an unusual accident and it is entirely a rule of evidence, not of law. In the absence of any defence to this principle, the plaintiffs/appellants case was not controverted.

I find that the trial court came to correct conclusion to find for the plaintiffs and that the Court of Appeal was in error to venture to disturb the correct findings of fact by the trial court. I allow this appeal therefore for the reasons given above.

I set aside the decision of the Court of Appeal and I hereby reinstate the judgment of the High Court of Kwara State. I award N500.00 as costs in the Court of Appeal and N1,000.00 as costs in this court in favour of the appellants against the respondent.

Other Citation: (1997) LCN/2781 (SC)