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.

3. The 2nd defendant was a driver of the Morris minibus index No.LM 7986 at the material time of the accident.
4. 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.

4. The first defendant delivered the hired vehicle No. LM 7986 to the said Mr. Joseph Adenuga (hirer) new and without any mechanical defects whatsoever.
5. 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.
6. 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.
7. 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.

7. 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:-