Mr. Micheal Agbonavbare V. Mr. Johnson Ogbebor & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

The respondents as plaintiffs instituted an action against the appellant then defendant in Suit No. B/508/94 at the High Court of Edo State, holden at Benin City claiming the sum of N1,000,000.00 (One million naira) special and general damages for negligence and assault. The defendant now appellant counter-claimed against the respondents claiming the sum of N2,000.000.00 (two million naira) special and general damages for negligence: The claim and counter-claim arose as a result of an accident which occurred in Benin City on the 8th March 1992 and which involved the appellant’s Peugeot saloon car with Registration number NG 2573 MA, the 1st respondent’s Mitsubishi bus with Registration number BD 5827 T driven by the 2nd respondent and a police patrol car. Pleadings having been filed and exchanged were subsequently amended by leave of court. At the trial the respondents testified for themselves and also called three witnesses while the appellant testified for himself and called three witnesses. The learned trial Judge listened to addresses of counsel and in a reserved judgment delivered on the 23rd July 1997 found in favour of the respondents in the claim for negligence in the sum of N46,850.00 (Forty six thousand eight hundred and fifty thousand naira) as special damages while dismissing the appellants counter-claim for negligence. Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal by a notice of appeal dated the 25th July, 1997 which contains only the omnibus ground viz –

“The judgment is against the weight of evidence. Additional grounds of Appeal shall be filed on receipt of the record.”

Still within time allowed to do so, the appellant on the 22nd August 1997 filed four additional grounds of appeal which are reproduced hereunder:

ADDITIONAL GROUNDS OF APPEAL

GROUND 1

The learned trial Judge erred in law in admitting exhibit J03 in evidence and copiously making use of same in his judgment.

GROUND 2

The learned trial Judge misdirected himself on the facts when he held that:

“What is certain from the nature of the testimony of the defendant on the issue of the kind of damage to the vehicle on impact from the vehicle of the plaintiff is that the defendant’s vehicle was hit from the rear. It is the push of the impact of the collision which caused damage to the defendant’s driver (sic) to collide with NPF 4686 A on Ogbelaka Street. Exhibit JO3, shows that the defendants (sic) vehicle after the collision is still substantially on Sakponba Road.”

GROUND 3

The learned trial Judge misdirected himself on the facts when he held that

“Evidence in this suit shows that the defendant sighted the 2nd plaintiffs vehicle on Sakponba Road and wrongly estimated the distance it would take the 2nd plaintiffs (sic) vehicle to reach the junction while the defendant crossed. The result of the wrong estimation of the defendant caused the collision.

GROUND 4