Alphonsus Ibeanu & Anor V. Peter A. Ogbeide & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal from the judgment of the Court of Appeal, Benin Division. The suit originated from Agbor High Court of the then Bendel State. Agbor is now in Delta State. The respondents filed the suit in Agbor High Court and claimed N700,000.00 being special and general damages against the appellants jointly and severally.

From the facts, both in pleadings and the evidence, the 2nd appellant who was the servant of the 1st appellant and driver of a luxury bus, with registration No. AN 7298G, owned by the 1st appellant, drove the said vehicle along a public highway negligently and collided with a diesel tanker, owned by the 1st respondent.

The tanker with registration number BD 2426BF was set ablaze and all the fuel in it destroyed. The driver of the tanker gave evidence as PW4 and narrated how the accident happened in the following testimony:

“I remember 4/1/88. I was loaded with petrol from Benin to Umunede with our tanker truck BD 2026BF – trailer truck. When I got to Alifekede village, a 504 peugeot car with a luxurious bus was over-taking the 504, I then clear(sic) to my right. It hit the door of my vehicle…My vehicle burst into flames. I managed to jump out of the vehicle with my conductor. As the vehicle was burning I ran to Agbor Police Station. The police followed me to the scene of accident. The vehicle was pushed to the bush before it went into flame (sic). There was no rain.”

The second respondent joined the 1st respondent in filing this suit because the 1st respondent bought the tanker from the 2nd respondent for the sum of N400.000.00. The 1st respondent paid N300.000.00 to the 2nd respondent and by the time of the accident the 1st respondent had not paid the balance of N100,000.00. The parties had earlier agreed that the ownership of the vehicle would pass to the 1st respondent when he completed the payment. Six witnesses, including the 1st respondent, gave evidence for the plaintiffs.

The 2nd appellant who was the driver of the luxury bus testified for the defence. He described to the trial court how the ace idem happened in the following narrative:

“On 4/1/88 I loaded my bus at Onitsha for Lagos. I got to Alifekede. There was market there and a sharp corner is there. A 504 saloon was overtaking my bus, it was BD 8463 GB. A tanker trailer was coming in the opposite direction towards Asaba. The 504 did not overtake properly before it entered the lane of my bus. The 504 hit the front bumper of my vehicle. The tanker trailer was trying to avoid the 504, it turned to the right, then the tanker hit my bus. The tanker then ran into the bush and the 504 went to the right facing Benin, and off the road. The 504 caused the accident. I was unconscious and I was taken to the hospital at Orifite.”

The second defence witness was an assistant motor licensing officer and he was summoned to tender the motor licensing register in which the tanker was registered and given the number BD 2426 BF.

The learned trial Judge considered all the evidence adduced by the parties and found in favour of the respondents. In his judgment, he established that the appellants were jointly and severally liable to the respondents. He found that both special and general damages had been proved and awarded (he respondents N529,455.00 as special damages and N 168,545.00 as general damages.

Being dissatisfied with the decision of the trial High Court the appellants appealed to the Court of Appeal. The appeal succeeded in part. The Court of Appeal allowed the appeal against the award of general damages and reduced the award of special damages to N507,455.00.

The appellants are still dissatisfied. They therefore brought this appeal against the decision of the Court of Appeal. Learned counsel for the appellants identified the following five issues for the determination of the appeal:

“1. Whether the plaintiffs proved ownership of vehicle No. BD 2426 BF.

2. Whether on the pleadings and on the preponderance of evidence, it was the negligence of the 2nd defendant that caused the accident on the 4th of January, 1988.
3. Whether where the defence to an action in negligence is that of unavoidable accident caused by a third party, there is still a need to allege negligence against the 2nd plaintiff.
4. Whether on the preponderance of evidence the item of damages claimed by the plaintiff was not challenged.
5. Whether the judgment of the Court of Appeal is against the weight of evidence.”

The three issues formulated by learned counsel for the respondents are the same as issues 1,2 and 4 identified by the appellants’ counsel in the appellant’s brief.