Chief E. A. Oshesan V Okin Biscuits Limited (2010)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

The Appellant in this appeal was the plaintiff at the trial High Court of Justice of Kwara State sitting at Ilorin where he instituted his action against the Respondents in this appeal who were the Defendants at the trial Court and claimed in the Writ of Summons and the statement of claim the following reliefs.

“(i) N900,000 (Nine Hundred Thousand Naira) special damages and

(ii) N50,000 (Fifty Thousand Naira) general damages.

Particulars of special damages:

N900,000 being money lost on the resale of the plaintiff’s car which loss was occasioned by the damage caused to the car by the defendants.”

The case was heard on pleadings duly filed and exchanged between the parties with the plaintiff/appellant filling a reply to the defendant/respondents statement of defence. The cases of the parties on their pleadings is straight forward. While the Appellant who was the Plaintiff put the blame for the accident that caused the damage to his car entirely on the 2nd Respondent/Defendant who was the driver of the tipper lorry belonging to the 1st Respondent/Defendant for failing to drive with due care and attention by observing the Traffic Regulations, the 2nd Respondent/Defendant on his part put the blame on the Appellant/Plaintiff as being solely responsible for the accident that caused damage to his car as the result of flouting the speed limit by driving at excessive speed in a built up area where there was a school and the Respondents factory. The Respondents accused the Appellant of driving his car with excessive speed so much so that he failed to notice the 2nd Respondent’s tipper lorry on the road where the accident occurred. In a reply to the Respondents statement of defence, the Appellant joined issue with the Respondent by denying that he was driving at an excessive speed at the time of the accident.

At the hearing of the Appellant’s claims at the trial High Court, the Appellant testified and called one other witness who also testified in support of the Appellant’s case. Two witnesses also testified on the side of the Respondents with the 2nd Respondent as DW2 while a Manager of an Insurance Company gave evidence as DW1 through whom the sketch map of the scene of the accident drawn up by the Police, was tendered and received in evidence as Exhibits D1. At the end of the hearing in the matter, the learned trial Judge in a well considered judgment found for the Plaintiff/Appellant and granted all his claims against the Defendants/Respondents. However, on appeal by the Defendants/Respondents to the Court of Appeal Ilorin, their appeal was allowed in part resulting in the reduction of the amount of damages awarded by the trial Court by 30% on account of finding the Plaintiff/Appellant liable for contributory negligence in causing the accident that resulted in the damage caused to this car. The present appeal therefore is against that judgment of the Court of Appeal delivered on 24th June, 2002.

At the hearing of this appeal, the learned Counsel to the Appellant filed the Appellants brief as well as the Appellant’s Reply brief on which he relied and urged the Court to allow the appeal. After adopting and relying on the Respondents brief of argument, learned Counsel for the Respondents urged this court to dismiss the appeal. The three issues identified in the Appellant’s brief of argument are:

“1. Whether the Court of Appeal was right in holding that PW1 contributed to the accident by driving at an excessive speed in a built up area – Ground 2, 3 and 4.

2. Whether the Court of Appeal was right in holding that Exhibit D1 was not an admission against the interest of the Defendants (the Respondents herein) Ground 5.
3. Whether the Court of Appeal was right in excluding from the entitlement due to the Appellant the interest that had accrued on the judgment – money ordered to be placed on an interest yielding account – Ground 1.”

In the Respondents’ brief of argument however, only two issues for determination were framed. They are-

(i)Whether the Court of Appeal was right in holding that Exhibit D1 was not an admission against the interest of the Defendants/Respondents and that PW1 contributed to the accident by driving at an excessive speed in build up area.

(ii) Whether the Court of Appeal was right in excluding from the entitlement due to the Appellant the interest that had accrued in the judgment money ordered to be placed in the interest yielding account.”

The facts of this case are simple. On 18th December, 1998, PW1 the Appellant was driving his car along Ajasse-Ipo-Offa Road in Kwara State. On getting to Ijagbo on the said road, tipper lorry driven by DW2 the 2nd Respondent coming from the opposite direction from Offa, suddenly come into the lane of PW1 the Appellant attempting to enter the premises of the 1st Respondent’s company and there was a collision between the two vehicles resulting in the damage to the two vehicles with the Appellant sustaining injuries. Taking into consideration of the reasons given upon which the court below allowed the Respondents’ appeal in part leading to the reduction by 30% of the amount of damages awarded to the appellant by the trial Court on the ground that the appellant was driving at excessive speed at the time of the accident, I am of the view that in addition to the minor issue of the failure of the Court below to include the interest that accrued on the judgment amount in the Court of Appeal judgment reducing the award by the trial Court, the main issue for determination in this appeal is whether the Court of Appeal was right on the evidence on record adduced by the parties and the findings of the trial Court on that evidence, to rely on the skid marks found on the sketch map Exhibit D1, to find PW1 the Appellant liable in contribution negligence in causing the accident. To say it differently, is the Court of Appeal right in reappraising the evidence to arrive at a different findings from that of the trial court