Slee Transport Ltd V. Oladipo Oluwasegun & Anor (1973)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C. 

The appeal in this case turns on three grounds; whether the Western State Court of Appeal could in the peculiar circumstances of the case substitute its own findings of facts on appeal from a court of first instance; (2) whether it is open to a court of appeal, without taking any fresh or additional evidence and without any new point being canvassed by either side, to decide an appeal on grounds other than those argued before it; and (3) whether it is open to a court of appeal to question the findings of a court of first instance on the grounds that it did not set out “how” and “why” it came to certain conclusions.

The judgement on appeal before this court arose from the decision of the Western State Court of Appeal in Suit No. CAW/80/70 dated 11th march, 1971 by which it set aside the judgement of Ayoola J. in Suit No. 1/127/68 delivered in the High Court holden at Ibadan in the Western State.

The writ of summons and the particulars of claim before the High Court read thus:

“The plaintiff s claim against the defendants is for the sum of three thousand, eight hundred and twenty-four pounds and six pence (3,824:s:6d)(pounds) being special and general damages for the loss sustained by the plaintiff through the negligence of the 2nd defendant who is the servant or Agent of the 1st defendant when on the 3rd day of February, 1968 at Ife-Ibadan Road, the 2nd defendant drove and managed commercial vehicle No. WAX. 865 property of the 1st defendant negligently and recklessly and collided with Petrol Tanker No. LM. 2692 property of the plaintiff which said vehicle was extensively damaged and has been unable to ply the road ever since.

Special Damages:-

1. 2,064: ’97 6d(pounds) estimated cost of repairs to Petrol Tanker

No. LM. 2692.

2. 440: – – Cost of Petrol lost in Petrol Tanker No.

LM. 2692.

3. 720: – – Loss of earnings for estimated six weeks

period of repairs.

B. General Damages:-

600(pounds) :

3,824:6d(pounds) .”

Pleadings were duly filed and the matter went to trial. In their Statement of Claim, the plaintiffs averred:

“7. That the 2nd defendant as driver, servant and agent of the 1st defendant drove and managed the said vehicle No. WAX. 865 negligently and recklessly on Ife-Ibadan Road, in the afternoon on the 3rd day of February, 1968 and swerved from his own side of the road and collided with Petrol Tanker No. LM. 2692 property of the plaintiff.

8. That at the material time, the plaintiff’s Petrol Tanker was carrying 3,000 gallons of petrol.
9. That as a result of the aforesaid collision the plaintiff’s tanker fell on its side and 2,200 gallons of petrol valued at 440(pounds), at 4/’97 a gallon, were lost.
10. That as a result of the collision the plaintiff’s Petrol Tanker was extensively damaged and has not been able to ply the road ever since.
11. That the estimated cost of repairs to the said Petrol Tanker submitted by a reputable GARAGE is 2,064:’97:6d(pounds) .
12. That the said repair which would take at least six weeks has not commenced as 1st Defendant’s Insurance Company-West African Provincial Insurance Company Limited of 21 Marina, Lagos refuse to bear cost of repairs.
13. That the plaintiff’s net earnings on the Petrol Tanker is minimum of 20(pounds) per day before accident.
14. That plaintiff will also rely on the doctrine of ‘res ipsa loquitur’ at the trial”

The defendants in their Statement of Defence in reply, averred as follows:

“2. The defendants deny paragraph 7 of the Statement of Claim and put the plaintiff to the strictest proof of the averments contained herein.

3. The defendants are in no position to admit or deny paragraphs 1, 4, 5, 8, 9, 10, 11 and 12 of the Statement of Claim and put the plaintiff to the strictest proof thereof.
4. The defendants furher aver in answer to paragraph 7 of the Statement of Claim that the plaintiff’s driver in charge of the Petrol Tanker No. LM. 2692, at the time and place of the accident, drove recklessly and negligently and lost control of the said vehicle, whereby it collided with the 1st defendant’s vehicle.
5. The defendants further aver that the vehicle No. WAX. 865 had completely stopped on its left side of the road when and where the plaintiff’s vehicle came and collided with, and overturned it.
6. The defendants deny and entirely refute liability for any damage resulting to the plaintiffs vehicle or from the said accident whatsoever; and aver that the collision had been caused by plaintiffs driver’s acts of gross negligence and utter recklessness.
7. The defendants shall also contend at the hearing that the plaintiff’s driver had committed a breach of the rule of the road in failing to stop his vehicle in order to allow a lighter motor traffic to pass, and that this breach had caused the aforesaid collision.
8. That consequent upon the collision, the 2nd defendant suffered serious injuries and was carried unconscious from the spot.
9. That when the said 2nd defendant had recovered sufficiently to make a statement to the Police he persistently demanded that the investigating policeman should accompany him to the site of the collision to take measurements in accordance with his evidence, but the said policeman refused to do so.
10. The defendants will contend that the doctrine of ‘res ipsa loquitur’ is irrelevant and does not apply in this case.”

The issue to be resolved was as to which of the two vehicles were involved in the accident.see para. 7 of the Statement of Claim and paras; 4 and 5 of the Statement of Defence above. Evidence was led by both parties and the learned trial judge on the 1st of December, 1969 gave judgement in favour of the plaintiffs. The learned trial judge examined the evidence before him carefully as well as the law applicable. He made the following findings of fact:

“Therefore my first duty is to examine the two divergent descriptions of the 3rd P. W., on the one hand and that of the 2nd defendant as to how the accident occurred, so as to find out which of the two is more probable or acceptable as the truth. Upon a calm reflection on the whole evidence before me, I am satisfied that the description of how the accident occurred as given by the 3rd P.W. is the truth. It is indeed more probable than the description given by the 2nd defendant. I believe the account of the 3rd P. W. as to how the accident occurred. I disbelieve the evidence of the 2nd defendant on this material issue wherever it conflicted with that of the 3rd P. W. I find as a fact that the 2nd defendant as alleged in paragraph 14(e) of the Statement of Claim at the material time and place swerved from his own side of the road and collided with the plaintiff s petrol tanker which was then on its own proper side of the road. I draw the inference from this view of the case which I have taken that the 2nd defendant failed to do the things averred in paragraph 14(b) (c) and (d). Even if paragraph 14(b) (c) and (d) of the Statement of Claim are not to be inferred, my acceptance of the 3rd P.W.’s evidence in proof of paragraph 14(e) is enough to sustain the claim on the issue of negligence, unless the defendants rebut the prima facie inference of negligence.”

………….

“In this case, the 2nd defendant has failed to show any circumstances which made it reasonable for him to swerve to the wrong side of the road. Applying as I do apply the maxim res ipsa loquitur to this case, the onus is on the 2nd defendant to explain why he swerved to the wrong side of the road. This onus he has failed to discharge. Accordingly, I find as a fact that he was negligent and that the plaintiff’s claim, based on the tort of negligence must succeed against both defendants, the 1st defendant being vicariously liable.”

On the above findings of fact, the learned trial judge came to the conclusion that the driver of the defendant’s vehicle was liable in negligence. He next dealt with the quantum of damages which for purposes of this appeal was not questioned before us.

The 1st defendant appealed against the judgement of Ayoola J. to the Western State Court of Appeal. Three grounds of appeal were filed. Later, three additional grounds of appeal were filed and leave was granted for them to be argued.

When the appeal came before the Western State Court of Appeal on the 10th day of December, 1970 it would appear that only the second additional ground was argued. The record of the proceedings before the Court of Appeal is short. We consider it essential to quote it in full for purposes of appreciating what was canvassed and the issue for the decision by the Western State Court of Appeal. We wish firstly, to refer to the ground of appeal that was argued.

Additional Ground 2 reads thus:

“The learned trial judge erred in law in failing to make findings on or resolve contradictions in material evidence of the plaintiffs’ witnesses and thus, wrongly assessed the evidence and arrived at a wrong conclusion.”

The proceedings read:

”Oguntoye:

“Ground 2 additional-Refers to page 30 at line 3 etc. Duty of judge to examine evidence before him. He did not carry out that examination, before coming to a conclusion.

“Obadara & Ors. v. President Grade B Court 1965 N.M.L.R. 39, 43 at 44.

“In this case evidence has been led at length and the plaintiff failed to prove his case.

“Oyegoke:

”Judge made a finding of fact on the evidence before him. The evidence is that of the drivers of both vehicles as to how the accident happened. Page 30 lines 3 to 21.

“Pages 27 lines 27-28. The judge believed that the tanker fell on the left side of the road facing Ife direction and so the evidence of the policeman who said he saw both vehicles on the same side of the road could only mean the side referred to by the driver of the tanker.

“The sketch Exhibit “B” had been rejected. “Adjourned sine die for judgement.”

The appeal, as was earlier stated, was allowed and judgment of Ayoola J. was set aside. The plaintiffs who were respondents in the Western State Court of Appeal have appealed to this Court on three grounds. At the hearing, ground 3 was struck out for vagueness and only grounds 1 and 2 were argued. Before dealing with the arguments on the two grounds canvassed before us, we wish to refer to the relevant portion of the judgement of the Western State Court of Appeal complained about. The judgement, inter alia, reads:

“To ‘examine’ the ‘two divergent descriptions’ of how an accident was said to have happened was to evaluate the evidence adduced on both sides. This was what the learned trial judge said he would do, but did NOT do.

“But to say that a particular witness who gave evidence of a completely divergent nature to another witness was to be believed ‘wherever his evidence conflicts’ with the evidence of that other witness, and again without setting out any reasons for believing him, was to ADMIT that there had been no ‘examination’ of the ‘two divergent’ evidence. This was so because in any case, the two sets of evidence, being ‘divergent’,were in conflict from the beginning to the end. We consider this method of making findings of fact quite wrong.

“We also consider it a misconception which was obviously based on this wrong approach for the learned trial judge to conclude as he did when he said:-

‘In this case, the 2nd defendant has failed to show any circumstances which made it reasonable for him to swerve to the wrong side of the road. Applying as I do apply the maxim res ipsa loquitur to this case, the onus is on the 2nd defendant to explain why he swerved to the wrong side of the road. This onus he failed to discharge. Accordingly, I find as a fact that he was negligent and that the plaintiffs claim, based on the tort of negligence must succeed against both defendants, the 1st defendants, being vicariously liable.’

“because, the question of the 2nd appellant showing ‘any circumstances which made it reasonable for him to swerve to the wrong side of the road’ could only properly arise if he had been properly found to have so swerved. But, as we had shown, there was no such proper finding.

“On the facts before the High Court, the only witnesses to the acccident-people who could give direct evidence as to HOW the accident happened were the 3rd P.W. and the 2nd defendant/appellant and in fact, they were the only two witnesses to give evidence on this very important question-HOW did the accident happen In his evidence, the 3rd P.W., that is, the driver of the plaintiff/respondent’s lorry said:-

‘There was a mark on the road which showed how the other vehicle left its correct side and came to hit mine. Police and I saw the mark when we visited the scene.’

“Now, this policeman was called by the plaintiff/respondent. He was the 4th P.W. Surprisingly enough, he was not asked about this important piece of evidence in his examination in chief. However, the point was soon rectified, for Chief Oguntoye did ask him some questions to which he replied:-

‘I saw no mark on the road as if a piece of metal, had been dragged on the surface of the road. I did not see any skid mark.’

“This was a material contradiction in the case of the plaintiff/respondent. It goes to the root of the whole evidence as to HOW the accident was supposed to have happened as narrated by the 3rd P.W.”

“Now, there were no reasons whatsoever stated by the learned trial judge as to why he believed one version as against the other. It is true that the learned judge used the expressions:-

‘I am satisfied that the description of how the accident occurred as given by the 3rd P. W. is the truth. It is indeed more probable than the description given by the 2nd defendant.’

“but, we were not told why and for what reasons the version of the 3rd P. W. should be and was in fact considered to be ‘indeed more probable’ than that of the 2nd defendant/appellant or why and for what REASONS the learned judge was satisfied that the 3rd P.W.’s version was ‘the truth’. (italics are ours).

“We have no doubt whatsoever that civil cases are to be decided on the preponderance of evidence.

“Using that test properly and correctly, we are clearly of the view that the plaintiff/respondent cannot be said to have proved the case against the defendant/appellants and the claim ought to have been dismissed. On a correct and proper evaluation of the evidence, there was nothing to show that the plaintiff/respondent’s version of how the accident happened was ‘indeed more probable’ than that of the defendants/appellants, much less that it was the truth’.”

Although grounds 1 and 2 were argued separately, we wish to deal with them together as the relevant portions of the judgement which form the subject of complaint in the two grounds are intertwined. We now set out grounds 1 and 2.

“1. The Court of Appeal, Western State of Nigeria erred in law in setting aside the trial judge’s judgement on the ground that the trial judge did not state ‘why’ and ‘for what reasons’ he believed the versions of the 3rd plaintiff’s witness’ in respect of the accident when the views expressed by the trial judge on the evidence of the 2nd defendant and the 3rd plaintiffs witness on the material point are contained in the record before the Court.

“2. The Court of Appeal, Western State of Nigeria was wrong in holding that the trial judge did not make a proper finding on whether or not the 2nd defendant swerved from his right side of the road in a way that brought the case under the doctrine of ‘res ipsa loquitur’ when there was an unequivocal finding by the trial judge on the fact that the 2nd defendant swerved his vehicle from his right side of the road to the wrong side in such a manner that makes the doctrine of res ipsa loquitur applicable.”

On the criticism by the Western State Court of Appeal we wish to draw attention to the findings of the learned trial judge who saw and heard the witnesses for both parties. The learned trial judge in a very careful and judicious manner set out the evidence of each witness, so far as was relevant to the issues joined on the pleadings. He next referred to the undisputed fact that the vehicle of the respondent swerved from its own side of the road and collided with that of the appellants on the other side of the road, which was the correct side of the road on which the appellants’ tanker was being driven. This swerving and subsequent collision called for an explanation from the driver of respondent’s vehicle. None was given. In such circumstance, the learned trial judge held that that was a case in which the maxim or doctrine of res ipsa loquitur ought to be applied and this he did. The Western State Court of Appeal disagreed and held that, since the learned trial judge had failed to consider the ‘conflict’ in the evidence of the appellant’s driver and that of the policeman, who visited the scene of the accident and gave evidence that he did not see any skid mark as alleged by the appellant’s driver, he-the trial judge-was wrong in his conclusion. The presence or absence of a skid mark was not an issue before the learned trial judge and indeed the appellants who called the policeman as a witness did not ask him about any skid mark because it was not pleaded nor made part of their case. It was the Counsel for the respondent who raised the matter under cross-examination. If the Counsel for the respondent thought that the matter of a skid mark was relevant and material to the issue of negligence, it was for him to plead it and lead evidence on it. In any case, the police constable (4th P/W) who came to the scene soon after the accident, testified that he saw the two vehicles on the same side of the road in the gutter. This side, it was clearly proved, was the plaintiffs correct side of the road. In our view, the learned trial judge was right to ignore the ‘seeming conflict’ about the skid mark as it was immaterial in considering the issue of liability for negligence as was joined in the pleadings. The Western State Court of Appeal was therefore wrong in setting aside the judgment of Ayoola J. merely on an irrelevant matter which did not go to the determination of the issue of negligence. After all, the credibility of a witness is not determined merely because that witness said he saw something which the other did not see. Their powers of perception may be different. In our view, the learned trial judge was right to draw the inference which he did, and also to conclude that the doctrine of res ipsa loquitur applied. The appeal must be allowed on these grounds.

At the outset of this judgment, we set out three questions which we considered to be involved in this appeal. We wish to refer to the principle outlining the approach of a court of appeal when findings of fact are sought to be challenged and in this regard we wish to refer to three cases. In the first case, Kodilinye v. Mbanefo 2 W.A.C.A., 336 at page 338, the Court held as follows:

“As to the weight of evidence, ground 11 with which may be added grounds 2 and 7, the principle has been established that the Appeal Court will not interfere with the verdict of the judge below unless such verdict is shown to be perverse or not the result of a proper exercise of his judicial discretion.

In the second case, Payin II v. Anquandah, 12 W.A.C.A., 284 at page 290, Verity C.J. (as he then was), in delivering the judgment of the Court, said:

“In the third place, the learned judge appears to have based his rejection of the custom upon the fact that there was conflicting evidence, without having attempted to resolve that conflict, or at any rate to record in his judgment the conclusions he arrived at as to the weight of the evidence on balance in making that attempt. Such conflicts are usual, if not inevitable, and it is for the trial Judge to weigh the evidence and determine either that the balance falls upon one side or the other or that there is so even a balance that he is unable to say which he should accept. The learned judge appears to have reached the latter conclusion, and, as he gives no indication as to his belief or disbelief of the evidence upon one side or the other, it appears that this inability to reach a conclusion is based rather upon his adoption of the assessor’s view as to the necessity for some form of acknowledgement and upon his own doubt as to the meaning of tacit consent than upon anything intrinsic in the nature of the evidence he was called upon to consider. In such case this Court is entitled to reconsider the conclusion of the trial Judge in the light of our own comparisons and criticisms of the witnesses and our own view as to the probabilities of the case, for the trial Judge has failed to use the advantage he possessed of having heard and seen the witnesses. Upon this basis we can have no doubt that the weight of the evidence on balance lies on the side of the appellant and we are fortified in the view that upon this evidence the learned trial Judge should have accepted the appellant’s contention as to the local custom, by the view of M’Carthy, J., in the earlier proceedings and the apparent acceptance of that view by the parties to those proceedings, of whom the first respondent was one.

“We have dealt at some considerable length with these matters for we wish to make clear the circumstances in which we feel that in the discharge of what Lord Summer has described as a ‘judicial obligation’ it is our duty not to shrink from overruling the judgment of the Court below if on full consideration we come to the conclusion that the judgment is wrong. ”

In the third case, Akinloye & anor. v. Eyiyola & ors. (1968) N.M.L.R. 92 at page 95, Coker, J. S. C., delivering the judgment of the Supreme Court, said inter alia:-

“The argument on behalf of the defendants needs no further consideration as we are of the view that the Judge clearly comprehended the entire case and came to a conclusion which is abundantly supported by the evidence. Where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a court of appeal to substitute its own views for the views of the trial court.”

We adopt the above views as setting out the correct approach which a court of appeal should follow when considering an appeal on questions of fact. The Western State Court of Appeal, in this appeal, failed to follow the above objective approach and therefore came to a wrong conclusion in allowing the appeal of the respondent. The appeal of the appellants before us succeeds and it is allowed. We make the following orders:-

(1) The judgment of the Western State Court of Appeal in Suit No. CAW/80170 dated 11th March 1971 is hereby set aside.

(2) The judgment of Ayoola, J., in Suit No. 1/127/68 delivered at the Ibadan High Court on 1st December 1969 is hereby restored.

(3) The respondent will pay to the appellants costs assessed at 60 Naira in the Western State Court of Appeal and 126 Naira in this Court.

And this shall be the judgment of the Court.

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SC.231/72