Samson Ajibade V. Mayowa & Anor (1978)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

This is an appeal against the decision of Mu’azu Mohammed, J., as he then was, sitting in the High Court, Minna, wherein the appellant as plaintiff commenced proceedings in which he claimed against the respondents as defendants as follows:-

CLAIM

The plaintiff’s claim against the defendants jointly and severally is for the sum of 10,000 Pounds being special and general damages representing the pecuniary loss sustained by the plaintiff and all other dependant relatives of Fatimo Alake killed in the vehicle owned by the 1st defendant and negligently driven by the 2nd defendant on keffi/Abuja Road North Western State of Nigeria on or about the 18th day of September, 1967.

PARTICULARS OF DAMAGES

SPECIAL DAMAGES

Funeral Expenses 100 Pounds =: =

General 9,900 Pounds:=:=

10,000 Pounds: =:=

Pleadings were ordered and were duly filed and delivered by the plaintiff and the 1st defendant but the 2nd defendant did not file any Statement of Defence. Paragraphs 3-6, 9-10 of the Statement of Claim read:-

“3. The 2nd defendant is a driver who at all material times is the servant of the 1st defendant and lives at Alutierin village, Ife District.

4. The plaintiff takes this action in a representative capacity and acts for himself, Madam Joke Sedu (mother of the deceased), Sedu Timi (father of the deceased), Kayode Ajibade and Yemisi Ajibade (children of the deceased).
5. The plaintiff brings this action under the Fatal Accident Act 1946 and 1864 and Fatal Accident law Northern Nigeria, 1956.

6(a)That on the 10th of October, 1966 he entered into a contract with the 1st defendant hiring the vehicle No. WF 1544 owned by the 1st defendant for a period of twelve months by paying down 302 Pounds and paying monthly rental of 106 Pounds per month.

6(c) That the 1st defendant as the owner employed the services of the 2nd defendant to manage and take care of the vehicle No. WF 1544 as the person covered by the comprehensive insurance taken out by the 1st defendant which remained in force and covered the 19th of September, 1967.

6(f) That the period covered by the hire remained almost a month to complete when the lorry was negligently driven and killed the deceased and others on Keffi/Abuja Road, North Western State of Nigeria on or about 18th September, 1967.

9(a) Considering the weight of the said motor vehicle the width of the road, the 1st defendant’s lorry was driven too fast to enable its driver to maintain control of the said lorry.

(b) The driver of the 1st defendant’s lorry failed to keep any proper look out or to have any sufficient regard for traffic and the condition of the said road.

(c) The driver failed to pay due regard to the narrow bridge ahead of him which abuts a corner.

(d) The driver of the 1st defendant’s lorry failed to heed the warnings of the passengers when he was speeding excessively.

(e) The driver failed to have control of the lorry in the circumstances he found himself having travelled to the spot where it crashed in a speed more than the circumstances of the case required and knocked the lorry against the edge of the narrow bridge on its off-side thus getting into the river headlong on its off-side and damaged the lorry beyond repairs.

(f) The plaintiff would rely on the maxim “Res Ipsa Loquitor.”

10. As a result of the crash of the vehicle No. WF 1544 against the edge of the narrow bridge and capsizing into the river from its offside 9 passengers including the deceased Fatimo Alake were killed and many others injured including the plaintiff.” The driver (2nd defendant) did not file any Statement of Defence.

At the trial of the action the plaintiff testified that on 18th September, 1967, he was a passenger in the motor vehicle driven by the 2nd defendant when it had an accident which resulted in the death of his wife; that the 2nd defendant drove the vehicle with excessive speed despite the protest of his passengers; that after it had hit a narrow bridge, the vehicle fell under the bridge on the right-hand side of the road which was then the wrong side of the road. He described the road approaching the bridge as narrow and had a bend. A police officer P.W. 2, who visited the scene of the accident found the vehicle in the river having fallen down the bridge on the wrong side of the road. The 1st defendant called two witnesses. The 2nd defendant appeared at the hearing but the learned trial Judge ruled that because he did not file any Statement of Defence, he had no right to be heard and consequently the 2nd defendant did not testify and did not call any witness to give evidence on his behalf.

After a cursory review of the evidence relating to the case against the 1st defendant, the learned trial Judge dismissed the joint and several claims against the 1st and 2nd defendants. He did not consider at all the undisputed claim against the 2nd defendant. It is against the dismissal of the claim against the 2nd defendant that the appellant has appealed to this court on the only ground that the learned Judge erred in law in not considering the liability of the 2nd defendant for negligence separately from the vicarious liability of the 1st defendant for the negligence of the 2nd defendant. Learned counsel for the appellant submitted that since the 2nd defendant filed no defence to the action, the learned trial Judge ought to have found the 2nd defendant liable for negligence. He referred us to the pleadings and the evidence of the plaintiff which, in his submission, would support such a finding. In his short reply, the 2nd defendant stated that he had no other explanation to offer than that the accident was an act of God. We think the submission of learned counsel has merit. Order XXXII rule 9, of the former Supreme Court Rules, Cap. 211 of the 1948 Laws of Nigeria, which were the rules applicable to the case provided:

“9. The defendant’s pleading or defence shall deny all such material allegations in the petition as the defendant intends to deny at the hearing. Every allegation of fact, if not denied specifically or by necessary implication, or stated to be not admitted, shall be taken as established at the hearing.” Furthermore, Order II rule 12 (b) of the Judgments (Enforcement) Rules, 1963 Laws of Northern Nigeria, Cap. 123, provides:-

“12. without prejudice to any other means of enforcement authorised by the law or these rules, an interlocutory order may be enforced according to the following provisions:-

(b) If a defendant in any suit makes such default or failure the court may give judgment by default against such defendant or make such other order as to the court may seem just. But any such judgment by default may be set aside by the court upon such terms as to costs or otherwise as the court may think fit.”

It follows from the foregoing provisions that since the 2nd respondent had not filed a Statement of Defence denying specifically any of the particulars of negligence alleged in paragraph 9 of the statement of claim, the learned trial Judge ought to have taken all those particulars of negligence as established at the hearing and ought to have found the 2nd respondent liable for negligence. The claim being for unliquidated damages, the learned Judge would have been right under the circumstances to have based a finding of liability solely on the pleadings without having recourse to any evidence and thereafter could have proceeded to hear evidence for the purpose of assessment of damages. Such was the procedure adopted by this court in Eko Odume & Ors. v. Ume Nnachi & Ors. (1964) 1 All NLR. 329, a case on appeal from the High Court of the former Eastern Nigeria, wherein it was held that since the High Court Rules (Eastern Nigeria), 1955 did not contain any specific provisions for entering interlocutory judgment in a claim for unliquidated damages following a defendant’s default on a previous order for pleadings, the Rules of Court in England which made such provisions were applicable by virtue of Section 15 of the High Court Law (Eastern Nigeria), 1955. It is pertinent, however, to point out that the circumstances of the case in hand do not necessarily call for the invocation of the Rules of court in England because the circumstances of the case are on a higher pedestal than those in Odume v. Nnachi (supra). In the case in hand, the appellant relied not only on his undenied pleadings but also on his unrebutted and unexplained evidence showing that the 2nd respondent was prima facie negligent under the doctrine of res ipsa loquitor by driving his motor vehicle in such a manner that it collided with the bridge and thereafter plunged into the river on the wrong side of the road. It is our view that had the learned Judge adverted his mind to the pleadings and the evidence and had assessed it correctly, he ought to have found the 2nd respondent liable for negligence.

In the final result, the appeal is allowed. The decision of the learned Judge dismissing the claim against the 2nd defendant is set aside. We order that the case be remitted to the court below for damages to be assessed by Muazu Muhammed CJ., from the evidence as already adduced before him and to enter judgment for the plaintiff against the 2nd defendant accordingly. The costs in this appeal in favour of the appellant is assessed at N300 against the 2nd respondent. The costs in the court below should abide the assessment of damages. We make no order as to costs in favour of the 1st respondent because there has been no appeal against the judgment dismissing the claim against him.

Other Citation: (1978) LCN/1981(SC)