T.O. Kuti V. Mrs S. Balogun (1978)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

This is an appeal from the decision of the Lagos State High Court (Odesanya, J.) which gave judgment in favour of the plaintiff (now respondent) in a claim for damages.

The claim originated in the Lagos Chief Magistrate’s Court in Suit No. 2498/1967, where the plaintiff claimed against the 1st and 2nd defendants, jointly and severally, the sum of 500 Pounds (N1,000) as special and general damages for the damage done to the plaintiff’s shop and articles therein at No. 35 Karimu Street, Surulere, when the 2nd defendant’s taxi cab, negligently driven by the 1st defendant, hit the said shop.

At the trial, the learned trial Chief Magistrate accepted the plaintiffs evidence which was that she was in her shop sleeping when at about 11 p.m., she was woken up by a heavy bang caused by the taxi cab crashing against the walls of her shop. The taxi cab had left the main road, crossed a two feet drain, to hit the plaintiffs shop which was three feet away from the drain. The driver of the taxi cab, that is the 1st defendant, gave no evidence, nor was there in fact any other evidence in regard to the cause of the accident.

The defence of the appellant (2nd defendant) was however that he hired the cab to one Solomon Gbadegesin under a hire purchase agreement which he tendered as Exhibit E. He also said that he kept a record of the transaction between him and Solomon Gbadegesin, and he tendered this record as Exhibit F. He denied knowledge of the 1st defendant and said he did not even know who the driver of the taxi cab was on the day of the accident.

Under cross examination, the appellant said:

“Mr Gbadegesin was a hirer and I am the owner of the vehicle. I am still the registered owner of the vehicle. The arrangement was a private one between me and Mr. Gbadegesin and I insured the vehicle. The Policy of Insurance was current at the time of the accident. It is a taxi and I have it registered in my own name as a Taxi cab.”

When re-examined he said: “The Policy of Insurance is in my name. ”

After reviewing the evidence in the case, the learned Chief Magistrates held:

“I don’t accept the evidence of the 2nd defendant that the vehicle was hired out to the said Gbadegesin. Counsel for defendants said the plaintiff must show that 1st defendant was the servant or agent of the 2nd defendant. I don’t agree with him. I am guided by the decision of the Federal Supreme Court in the case of Laisi Ogunmuyiwa v. E.A. Solanke. There it was held that where the owner has the certificate of insurance in his name and even admitted that he owned the vehicle the presumption that the vehicle was being driven by his servant or agent is well founded and it is for him to rebut by proof of evidence. There is no such evidence before me”.

The learned trial Chief Magistrate then found for the plaintiff and awarded him damages totaling 170.30 Pounds (N340.30).

In the appeal by the 2nd defendant against the decision, to the High Court, Odesanya, J. upheld, rightly in our view, the application, by the trial court, of the maxim res ipsa loquitor to the case . We think the facts in this case justify the application of the maxim. The taxi cab left the main road, went over a drain two feet wide, sheared another three feet, to hit the wall of the shop. As the learned Judge rightly pointed out, the first defendant, that is the driver of the vehicle, did not call any evidence and so did not deny allegations made against him.

In regard to the defence of the appellant, the learned Judge held

“The defence of the appellant, was that he never had any dealings with the first defendant and that one Solomon Gbadegesin was the person to whom the motor vehicle was hired. He admitted that the vehicle was hired. He admitted that the vehicle was his own and that it was insured in his own name and registered also as a taxi cab in his name.