Okeke V Obadife & Ors (1965)

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BRETT, J.S.C. 

This is an appeal by the second defendant against the judgment of Somolu J., in the High Court of Western Nigeria awarding damages for negligence both at common law and under the Fatal Accidents Law of the Region.

The case for the plaintiffs was that about 8.30 p.m. on the 11th May, 1959, the appellant was driving lorry No. ON 680 on the road between Ibadan and Ife when it overturned through his negligence, killing some of the passengers and injuring others. The particulars of negligence set out in the Statement of Claim were as follows-

(a) Considering the weight of the said motor vehicle, the width of the road and the time of the journey which was half past eight o’clock in the night, the 2nd defendant before the accident was driving the said lorry too fast for him to be able to maintain regular control.

(b) Failing to keep any or any proper look-out or to have any or any sufficient regard for traffic and the condition of the said road.

(c) Driving with defective worn out tyres.

(d) Failing to exercise or to maintain any or any sufficient or adequate balance control of the said lorry.

Only one of the passengers gave evidence for the plaintiffs and the only portion of his evidence which might be considered relevant to the cause of the accident was to the effect that it had been raining and was drizzling at the time when the accident took place.

The plaintiffs also called a police officer from the Motor Traffic Department, Ibadan, who tendered a file containing the official records of the accident, which was admitted without objection. The file contained a statement purporting to have been made by the driver of the lorry, Nathaniel Okeke, and the judge made use of this statement in coming to his findings of fact. It read as follows-

“On 11th May, 1959, I was returning from Lagos to Onitsha with my Stage Carriage No. ON 680. I left Lagos round about 3 p.m. When I got to Ibadan there was heavy rain and I stopped a little, when the rain was less I started the journey and I was on 30-35 miles per hour.

The torrent was on the road. When we got to mile thirteen near Ibadan on Ibadan-Ife road the two front tyres of my vehicle bent to the right. I have no time to apply brakes or to control the vehicle. The vehicle simply tumbled and fell in the bush with six wheels up. There were about 28 passengers in the vehicle. The place was measured in my presence and I signed the sketch as being correct. The road was somewhat slippery during the rain. The two front tyres raised up small before bending to the bush.”

No evidence was called for the defence, and in this state of the evidence the judge could not have found that the appellant was negligent without invoking the maxim res ipsa loquitur. One of the submissions made on behalf of the appellant is that in view of the particulars of negligence set out in the Statement of Claim it was not open to him to invoke the maxim.

This point of pleading was considered by the Federal Supreme Court in Orajekwe v. Mbiere and Anor, F.S.C. 345/1960 to 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 in sufficient, that “this plea of res ipsa loquitur may be raised in one of 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.

Pleading in Nigeria is frequently less precise than could be wished and the court must try to do substantial justice to both parties. Items (a), (b) and (c) of the particulars of negligence pleaded in this case refer to specific acts of negligence, but in our view item (d) says in substance that the cause of the accident is not known but that it could not have taken place without a negligent failure to exercise proper control of the vehicle. If it does not say this it says nothing at all and should have been struck out, but no application to strike out was made by the defendant. In our view the judge was entitled to apply the maxim.

Secondly, the appellant submits that the judge ought not to have treated the statement contained in the police file as admissible evidence, on the ground that the officer to whom it was made was not called as a witness. In a criminal case this would be a valid objection, but in a civil case formal proof of a document can always be waived. One of the first questions which a lawyer instructed for the defence in a running-down case might be expected to ask his client is whether he had made any statement about the accident and it would have been open to the defence to ask for discovery of any documents on which the plaintiff intended to rely. In our view the appellant must be treated as having waived any objection to the statement, though we would add that the correct course would have been for the witness producing the file to draw attention to the statement, which appears to have been the only thing in the file which was relevant evidence in the case.

The learned trial judge found that it was negligence on the part of the driver to “put the vehicle in such a state that he found it impossible to control it, either because he was over speeding in the circumstances of the road that night or because of any other defect in it that could have been discovered with reasonable diligence on his part before he got on to the road.”

The application of the maxim res ipsa loquitur implies that the cause of the accident is not known and we think it unnecessary to speculate on the nature of the negligence displayed by the appellant, but we agree with the trial judge that on the evidence the accident could not have occurred without negligence of some sort on the part of the appellant and we uphold the finding as to liability.

The appellant also appealed against the amount of damages awarded. We see no ground for reducing the awards to the 4th, 5th and 6th respondents. The 5th respondent is now a helpless cripple with no prospect of recovery, and an award of £3,000 general damages (which was all she claimed) is by no means excessive; the fact that she occupied a comparatively modest station in life is not a reason for reducing the award since there is nothing to show anything was awarded for loss of earning power.

The first three respondents, however, who claimed under the Fatal Accidents Law, called no evidence to show the degree of their dependence on Pius Obidife who was the husband of one and the father of the other two, and the case must be remitted to the High Court for a retrial limited to the issue of the amount of damages to be awarded to the first, second and third respondents.

The respondents have been jointly represented throughout and a single award of 20 guineas costs is made in their favour.

Other Citation: (1965) LCN/1288(SC)