T.O. Kuti & Anor. V. Oludademu Jibowu & Anor (1972)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
This is an appeal by the 1st and 2nd defendants from the decision of the Western State Court of Appeal which gave judgment in favour of the plaintiff (now respondent) in a claim for damages for negligence.
The claim originated in the Ibadan High Court in Suit No. 1/219/67 where the plaintiff claimed against the 1st and 2nd defendants jointly and severally the sum of 31,000pounds as special and general damages for the damage done to the plaintiff’s motor car (identification No. WE 1981) when the 1st defendant’s minibus (identification No.LM 7986) negligently driven by the second defendant collided with the plaintiff’s motor car along Agodi double carriage way, Ibadan, on the 1st May, 1967.
Paragraphs 2, 3 and 4 of the plaintiff’s statement of claim read:
“2. The 1st defendant is a trader and owner of a Morris minibus index No. LM 7986 at the material time of the accident.
- The 2nd defendant was a driver of the Morris minibus index No.LM 7986 at the material time of the accident.
- On the 1st May, 1967, the 2nd defendant negligently drove the said Morris minibus index No. LM 7986 and collided with the plaintiff’s motor car registered No. WE 1981, a Morris 1100, as it was being driven by the plaintiff along Agodi double carriage way, Ibadan,at about 9 p.m.”
In his statement of defence, the 1st defendant admitted that he was the owner of the Morris minibus (No. LM 7986) at the time of the accident but averred further that the said vehicle was not in his possession and control at the material time. He then explained further in paragraphs 3 to 7 of the said statement of defence as follows:-
“3. By a hire-purchase agreement dated 29th July, 1966, the 1st defendant had hired out the said vehicle No. LM 7986 to one Mr. Joseph Adenuga of 13 Bogije Lane, Atikori, Ijebu-Igbo in whose possession and control the said vehicle was at the material time of the accident.
- The first defendant delivered the hired vehicle No. LM 7986 to the said Mr. Joseph Adenuga (hirer) new and without any mechanical defects whatsoever.
- The first defendant avers that there is a contractual agreement between him and the said Mr. Joseph Adenuga (hirer) that he (Adenuga) would be responsible for (a) road worthiness including tyres of the hired vehicle, (b) any accident caused by or to the said vehicle No. LM 7986.
- The said hirer, Mr. Joseph Adenuga, employed the 2nd defendant Mr. Mufutau Ajagbe, who drove the said vehicle No. LM 7986 at the time of the accident. The 1st defendant will, at the trial, contend that the 2nd defendant was not his servant and/or agent.
- The first defendant further avers that the said vehicle No. LM 7986 was registered in his name for the purpose only of facilitating the recovery of the hire-purchase charges between him and his customers. ”
In his statement of defence, the second defendant admitted in paragraph 2 thereof that he was the driver of the Morris minibus No. LM 7986 at the time of the accident and averred further that he was employed to drive the said vehicle by one Mr. Joseph Adenuga of 13 Bogije Lane, Atikori, Ijebu-Igbo. The second defendant, while further admitting in paragraph 3 of his statement of defence that there was a collision between the plaintiff’s car No. WE 1981 and vehicle No. LM 7986 on 1st May, 1967, as stated in paragraph 4 of the statement of claim, denied “that he drove negligently at the material time of the accident.” He further averred in paragraph 6 and 7 of his statement of defence as follows:-
“The second defendant avers that while he was carefully and skilfully driving along Agodi-Bere Road at a decidedly slow speed the off side front tyre of the vehicle No. LM 7986 suddenly got burst; immediate and energetic control was taken to avoid colliding with the plaintiff’s car.
- The second defendant further avers that the collision was caused by inevitable accident without any negligence or default on his part.”
Both the first and second defendants filed their respective statement of defence on 22nd May, 1968 and on that same day they both applied to the Ibadan High Court for an order to join Joseph Adenuga as a defendant in the action. The motion was heard on 17th June, 1968. At the hearing that day, Joseph Adenuga agreed to be joined and he was duly joined as 3rd defendant without any objection by the plaintiff.
In his own statement of defence filed thereafter, Joseph Adenuga (hereinafter referred to as the third defendant) admitted that he bought the Morris minibus No. LM 7986 new on hire-purchase from the first defendant, that there was a written hire-purchase agreement dated 28th July, 1966 between him and the first defendant in respect of the said vehicle which contained various terms including liability for accidents, that the said vehicle was under his control at the time of the accident, and that he employed the second defendant as a driver to drive the said vehicle at the time of the accident.
At the hearing on 18th October, 1968, the first defendant testified as follows:-
“I know the 3rd defendant. I gave a minibus No. LM 7986 to him on hire-purchase. This is the agreement between us-(tendered, no objection, marked exhibit N)-I delivered the vehicle new to the 3rd defendant. The tyres too were new…I do not know the 2nd defendant. I did not employ him.”
Under cross-examination by Chief Okubadejo who then appeared for the plaintiff, the first defendant stated that he was trading under the name and style of Abusi Odu Transport and that he delivered the minibus to the third defendant on 29th July, 1966. He admitted that on the day of the accident, he was the registered owner of the vehicle and that he signed the hire-purchase agreement (exhibit N) as such owner. He was not cross-examined as to the validity or otherwise of the agreement (exhibit N). To a question asked by the court, he replied:-
“When I hire the vehicles out to the hirers, I allow the hirers to engage any drivers they please.”
The first defendant was not cross-examined by Mr. Akande who appeared as counsel for the third defendant who was also present at the hearing that day.
In his own defence, the driver of vehicle No. LM 7986 (2nd defendant) testified as follows:-
“I know the 3rd defendant. He is my master. I am the driver of lorry No. LM 7986. I am employed by the 3rd defendant to drive the vehicle. I was employed three days after the 3rd defendant got the vehicle. I was driving the vehicle on the day of the accident. I know the 1st defendant but I do not work for him. He did not employ me to drive any vehicle.”
He then explained how, on 1st May, 1967, the front right hand tyre of his vehicle got burst, how he lost control of the vehicle as a result, and how the vehicle crossed the island and went to the other side of the road where it collided with the plaintiff’s car No. WE 1981 which was coming from the opposite direction. In answer to a question from Chief Okubadejo for the plaintiff he replied that he was the first driver employed by the third defendant to drive the minibus. He denied driving the vehicle negligently on the day of the accident. Although the second defendant was cross-examined by Mr. Akande about other matters, he was not cross-examined about his admitted relationship with the third defendant.
The third defendant did not testify in his defence at the trial.
In a reserved judgment, the learned trial judge, after a careful consideration of the evidence adduced before him, observed as follows:-
“I am of the view that the questions which have to be resolved in reaching a decision in this matter are these:-
(1) Who is the owner of the vehicle No. LM 7986 against whom the plaintiff must establish his case
(2) Is the 2nd defendant negligent as averred in the statement of claim
(3) If so, what, if any, damages were proved”
On the issue of ownership of the minibus, the learned trial judge found as follows:-
“As far as the first point is concerned I am satisfied both on the evidence and on the law that the 3rd defendant is the owner of the offending vehicle. By virtue of exhibit N a rather curious and one-sided hire-purchase agreement, the 3rd defendant took possession of the vehicle No. LM 7986, and agreed to be:-
‘solely responsible and liable for any litigation that may arise as a result of any accident’ and to ‘indemnify the owner on all claims.’
He also agreed to be responsible for renewing the vehicle licence, the certificate of road-worthiness and the insurance policy whenever they fall due for renewal. Furthermore, the evidence, which I accept, shows that he employed the 2nd defendant as his driver and that he had an overall control of the vehicle.”
With respect to the claim against the 1st defendant, the learned trial judge then found as follows:-
“Having found that the 3rd defendant was the owner of the vehicle at the material time, and that the 2nd defendant was his driver, it follows that the plaintiff’s case against the 1st defendant fails and it is accordingly dismissed.”
The learned trial judge also dismissed the claim against the 2nd and 3rd defendants for the following reasons:-
“In the present case, the 2nd defendant explained that the cause of the accident was due to a front tyre-burst. This bit of evidence was confirmed by plaintiff’s first witness P. C. Akinpelu. Since the cause of the accident is known I hold that the maxim res ipsa loquitor does not apply.
It now remains for me to decide whether on all the facts as are now known the plaintiff has proved negligence against the defendants, and if so, what damages the plaintiff is entitled to ….
I accept the story of these two men as to how the accident happened, and I am satisfied that the defendants have discharged the onus of proving that the accident was inevitable. As I had previously observed,the plaintiff had advance notice of the defence which the defendants were putting up, but led no evidence to show that the accident could have been avoided by due care and skill, or that the tyre got burst because of faulty maintenance or that the defect (if any) in the tyre could have been detected by the exercise of due care.
I am satisfied that the 2nd defendant drove with due diligence on the day and that the accident which later occurred was one over which he had no control. In the result, regrettable as it may seem I hold that the plaintiff has failed to prove negligence against the defendants.”
In the appeal by the plaintiff against this decision, the Western State Court of Appeal considered the liability of each defendant. With respect to the second defendant (the driver), the court, quite rightly in our view,observed as follows:-
“What is important and what the learned trial judge should have directed his mind to, in our view, was the cause of the tyre-burst. He clearly misdirected himself when he said that once the defendant explained that the cause of the accident was due to a front tyre-burst that explanation obviated the doctrine of res ipsa loquitor. The responsibility was on the respondent, in our view, to establish why that tyre burst. Evidence should have been called to show that the tyreburst was not due to the negligence of the respondent. … The onus is clearly on the respondent to establish the cause of the tyre-burst and it is only when this would have been satisfactorily done that the doctrine of res ipsa loquitor could be obviated.”
After referring to the decision in Barkway v. South Wales Transport Co. Ltd. [1950] 1 All E.R. 392, another case of a burst tyre, in support, the Court of Appeal, again quite rightly, disagreed with the learned trial judge that the accident which occurred was one over which the driver had no control. They expressed the view, with which we again agree, that this is a case of prima facie negligence shown by the plaintiff and not rebutted by the driver (2nd defendant).
On the issue of the vicarious liability of the 1st and/or 3rd defendants for the negligence of the 2nd defendant, the Court of Appeal observed as follows:-
“As we had earlier said the learned trial judge relied on this exhibit in determining that the 3rd respondent was the owner of the vehicle. However, on exhibit N the name of hirer was put as ‘Joseph Adenuga.’ Joseph Adenuga is the 3rd respondent but the exhibit was executed by one S. A. Adenuga’ whereas the same agreement was alleged to have been explained and interpreted to Joseph Adenuga. Mr. Okueyungbo who represented the 1st and 2nd respondents informed us that he would not be pressing the issue of the signatures. He admitted that ‘ A. Adenuga’ signed exhibit N as ‘hirer’ whereas the agreement was purported to have been made between Kuti the 1st respondent, and ‘Joseph Adenuga’ the 3rd respondent. Counsel further admitted that Mr. Joseph Adenuga, that is the 3rd respondent, did not sign the agreement. Mr. Akande took the course of not supporting the judgment in view of the revelation in exhibit N. It is obvious to us that counsel having conceded so much, the issue as to the ownership no longer arises and the ground of appeal filed against this issue must succeed as it stands. In other words, it can no longer be an issue that the 3rd respondent is liable on the facts as pleaded. The 1st respondent must be held liable as the owner or person responsible for the vehicle and the 2nd respondent liable as the driver. If then liability could be proved, first respondent would be vicariously liable for the fault of the 2nd respondent. This to put it simply, must be the position.”
The Court of Appeal thereupon allowed the appeal, gave judgment for the plaintiff against the first and second defendants jointly and severally, and awarded the sum of 500.15(pounds) as damages in his favour against the two defendants.
The 1st and 2nd defendants have now appealed against this judgment on the following grounds:-
“(1) The learned judges of the Court of Appeal erred in law in holding that the 1st defendant was vicariously liable whilst there was evidence that the 2nd defendant was unknown to the 1st defendant and that the 1st defendant did not employ the 2nd defendant to drive the hired car No. LM 7986.
(2) The learned judges of the Court of Appeal erred in law in holding that the 1st defendant was the owner of the car No. LM 7986 whilst the 3rd defendant admitted in his statement of defence that he (3rd defendant) executed a hire-purchase agreement (exhibit N) in respect of the car No. LM 7986.
(3) The learned judges of the Court of Appeal erred in law in holding that the 3rd defendant did not sign the hire-purchase agreement exhibit N because of the signature only whilst the execution of the document exhibit N was admitted by the 3rd defendant in his statement of defence and therefore not in issue in the High Court and there was no evidence of a handwriting expert to contradict it and the Court of Appeal substituted its own view.
(4) That the decision of the learned judges of the Court of Appeal cannot be supported having regard to the weight of evidence.”
The contention of Mr. Sofola, learned counsel for the 1st defendant/appellant who argued all the grounds of appeal together, may be summarised as follows. It was erroneous of the Court of Appeal to hold that ownership of a vehicle determines liability because before an owner can be held liable, the driver must not only be the servant of the owner by he must also be acting in the course of his duty at the time of the accident. There is evidence which the learned trial judge accepted that the 1st defendant was not the master of the 2nd defendant at the material time. Moreover, there was no plea, not even by the plaintiff, that the driver (2nd defendant) was driving the car under the authority of 1st defendant. Furthermore, nowhere in his writ of summons or pleadings did the plaintiff aver that the 2nd defendant was the agent or servant of the 1st defendant. All the plaintiff averred both in his writ and in his statement of claim was that the 2nd defendant was the driver of the mini-bus at the time of the accident. Mr. Sofola then referred us to three cases- Hewitt v. Bonvin [1940] 1 K.B. 188 at page 191; Higbid v. R. C. Hammett Ltd. (1932-33) 49 T.L.R. 104; and Droke v. Ede (1964) N.N.L.R. 118 at page 119.
With respect to the views expressed by the Court of Appeal on the hire-purchase agreement (exhibit N), Mr. Sofola submitted that the Court of Appeal should have decided the appeal on the points on which issues were joined by the parties and should not have formulated new issues for the parties. The issue of the signature of “Joseph Adenuga” in exhibit N was not raised by the parties in the High Court, and although he did not testify at the hearing, the 3rd defendant admitted signing the hire-purchase agreement.
In reply, Mr. Cole, for the plaintiff, submitted that it was not necessary for the plaintiff to plead that the 2nd defendant was the servant or agent of the 1st defendant and that the owner of a vehicle at a particular time is deemed to be in possession and control of the vehicle. This relieved the plaintiff of the obligation of proving that the 1st defendant was in possession and control of the vehicle in this case. As the 1st defendant did not deny ownership, it is not incumbent on the plaintiff to file a reply saying that he was the owner. Learned counsel then referred to the case of Ogunmuyiwa v. Solanke (1956) 1 F.S.C. page 53 and page 54. He also referred to the hire-purchase agreement (exhibit N) and pointed out that the ownership of the vehicle by the 3rd defendant was based on exhibit N. Even though it contained recitals and jurat and showed the 3rd defendant as hirer, it bears the signature of a name different from that of the hirer. As there was no explanation from the 3rd defendant of the difference between Joseph Adenuga and S. A. Adenuga or that S. A. Adenuga was Joseph Adenuga’s attorney, the Court of Appeal was right in finding as it did that there was no proof that Joseph Adenuga was the owner of the vehicle concerned. Learned counsel then submitted that although the 3rd defendant was present in court, he did not identify exhibit N as the document executed by him; that the writer of the jurat on exhibit N did not give evidence and that the 1st defendant who gave evidence did not say that he saw the 3rd defendant sign the document. Learned counsel, however, conceded that more questions should have been put to the 1st defendant at the trial to clarify the issue of ownership and control of the vehicle. Finally it was submitted that because of the difference between the pleadings and the evidence (a point not raised in the Court of Appeal), we might consider sending the case for retrial.
The liability of the owner of a car for any damage for which the driver of the car was found to be responsible has been clearly stated by du Parcq LJ. in Hewitt v. Bonvin [1940] 1 K.B. 188 at page 194. It is this. The ownership of a car cannot of itself impose any liability on the owner. The owner, without further information, is, however, prima facie liable because the court is entitled to draw the inference that the car was being driven by the owner, his servant or agent, but when all the facts are given in evidence and therefore ascertained, as in the instant case, the court is not left to draw that inference. Moreover, the owner is only liable if the driver is his agent or if he had authority, express or implied, to drive the vehicle on the owner’s behalf. The above statement of the law was repeated by Denning LJ. (as he then was) with approval in Ormrod v. Crossville Motor Services Ltd [1953] 2 All E.R. 753 at pages 754 and 755.
In the case in hand, the plaintiff/respondent did not state in his writ of summons nor did he aver in his statement of claim that the 2nd defendant/appellant drove the minibus on the day of the accident with the authority of the 1st defendant/appellant. On the contrary, there is the admission of the 2nd defendant/appellant both in his statement of defence and in his testimony in court, which the learned trial judge accepted, that he was the driver, not of the 1st defendant, but of the 3rd defendant. Furthermore, there is also the evidence, which the trial judge also accepted, that it was the 3rd defendant who employed the 2nd defendant as his driver and he (the 3rd defendant) had an overall control of the minibus No. LM 7986. As for the case of Ogunmuyiwa v. Solanke (supra) referred to by learned counsel for the plaintiff/respondent, it is sufficient to point out that, unlike the instant case, the evidence in rebuttal of the primafacie evidence of ownership of the vehicle concerned was not believed by the Chief Magistrate who heard the case. That case is therefore not on all fours with the one in hand and is of no assistance to the plaintiff/respondent. Finally, it was common ground that it was the 2nd defendant who drove the minibus on the day it collided with the plaintiff’s car. In the face of all these findings of fact, we do not see how the difference between the name used by Joseph Adenuga (3rd defendant) in the hire-purchase agreement (exhibit N) and the signature “S. A. Adenuga”, even if this could have been regarded as a difference in identity (and we do not say it can be so regarded), could have made the 1st defendant/appellant vicariously liable for the negligence of the 2nd defendant/appellant. On this ground alone the appeal of the 1st defendant/appellant must succeed.
We would like, however, to express our view on the observations and findings of the Court of Appeal with regard to the hire-purchase agreement (exhibit N). The doubt about the authenticity of exhibit N started, for the first time, during the hearing of the appeal in that court. How it all started could be gathered from the following notes taken by the court at the hearing of the appeal:-
“Okueyungbo for 1st respondent:
As to ownership
Exhibit N was signed by 1st and 3rd respondents.
Court:
Attention of counsel drawn to exhibit N that Joseph Adenuga the hirer did not sign the agreement. Okueyungbo says he is not pressing the issue of the signatories. He admits S. A. Adenuga signed as hirer whereas the agreement was supposed to be between Kuti and Joseph Adenuga. The latter did not sign the agreement.
Akande:
Says that in view of the discrepancies noticed in exhibit N, he is not supporting the judgment.”
This record shows that the point about the “discrepancy” in the signature of the 3rd defendant/respondent was not made an issue by any of the parties or their counsel either during the trial or at the hearing of the appeal. It was taken by the Court of Appeal suo motu and even then learned counsel for the 1st and 2nd defendants/appellants said that he was not pressing the issue. The statement of Mr. Akande, who appeared for the 3rd defendant/respondent, that he was “not supporting the judgment” could not be taken as conclusive proof that Joseph Adenuga did not execute exhibit N. Learned counsel for the plaintiff (who was then the appellant) was not even asked to express any opinion on the matter.
Throughout the trial before the High Court, there was no occasion when the authenticity of the hire-purchase agreement (exhibit N) was disputed by any of the parties nor was there any time when Joseph Adenuga (whose interest was adversely affected by the admission of the document) disputed his signature on the agreement. The only relevant point in this case, to our mind, is whether there was evidence which the trial judge could accept, and which he accepted, that exhibit N was an agreement between the 1st defendant/appellant and the 3rd defendant/ respondent. The 1st defendant/appellant testified that this was so in the presence of both the 3rd defendant/respondent and his counsel and produced the said agreement which was admitted in evidence without any objection either by the plaintiff/respondent and his counsel or by the 3rd defendant/respondent and his counsel. As a matter of fact, the genuineness of the agreement was accepted by all parties. In these circumstances, it is, in our view, not open to the Court of Appeal to raise issues which the parties did not raise for themselves either at the trial or during the hearing of the appeal. There may be occasions during the hearing of an appeal, however, when the genuineness of any document tendered during the trial of a case may appear to the court hearing the appeal to be in doubt. In such a case, and only if it is material to the determination of the appeal, the party or parties who were supposed to have executed the document in question should be given an opportunity to explain the discrepancy before any opinion is expressed as to the genuineness of the document. In the case in hand, the learned judges of the Court of Appeal gave neither the 1st defendant/appellant nor the 3rd defendant/respondent any such opportunity. With respect, we think it is unfair to castigate the 3rd defendant/respondent as they had done and on that basis hold that the 1st defendant/appellant was the owner of the vehicle. In any case, the 1st defendant/appellant had admitted in his testimony before the trial court that he was the owner of the minibus and had stated further that he gave the minibus on hire-purchase to the 3rd defendant/respondent. He also explained in answer to a question put by that court that when he hired his vehicles out to hirers, he allowed them to engage any drivers they pleased. This should have been the end of the matter particularly as the learned trial judge must have accepted this testimony before finding that the 3rd defendant/respondent was in control of the vehicle at the material time.
The views which we have expressed above, both on the question of liability and as to observations made by the Court of Appeal, do not affect the decision in so far as it affects the 2nd defendant/appellant who did not appear to argue his appeal before us and was not represented. His appeal is dismissed for want of substance with costs to the plaintiff-respondent assessed at 49 guineas.
Be that as it may, the judgment of the Court of Appeal, in so far as it affects the 1st defendant/appellant, cannot be allowed to stand. The appeal is allowed and the judgment of the Western State Court of Appeal in Appeal No. CAW/67/69, delivered on 31st March, 1970 in so far as it applies to T. O. Kuti (the 1st defendant/appellant), is hereby set aside.
So also is the order as to costs made against him. We accordingly order that the claim against him in Suit No. 1/219/67 in the lbadan High Court be dismissed with costs in the High Court assessed at fifty guineas, in the Court of Appeal at 70 guineas, and in this Court at 49 guineas. All the costs are against the plaintiff/respondent.
SC.291/1971
