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.