Akinyemi Dare & Anor. V. Caleb Fagbamila (2009)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A,

On a dark night of 6th January, 2001 at about 8.00pm, on the Aisegba – Ekiti road in Ekiti State, Akinyemi Dare, a salesman with the Nigerian Bottling Company, was involved in a collision with the vehicle of Caleb Fagbamila, a businessman and sawmiller. Dare was driving the 2nd Appellant’s truck which was carrying crates of Cocacola, while Fagbamila was in his own car with his wife, daughter and PW2, even as the vehicle, a Peugeot 504 saloon car, was driven by one Lamidi Seidu. As a result of the impact, the Respondent’s vehicle went off the road into the bush and was damaged. The 1st Appellant raced off without rendering any assistance to the occupants of the Peugeot 504 Saloon car. Owing to the two crates of Coca-cola which fell onto the road during the course of the accident, the Respondent was able to trace the truck to the 1st Appellant’s employer’s office, i.e. the Coca cola Depot at Ado-Ekiti The Respondent met the Depot Manager and reported the accident involving the 2nd Appellant’s vehicle to him and they proceeded that night to the scene to inspect the damage to the Respondent’s car. The Police arrested the 1st Appellant a few days later at the instance of the Respondent. In the meantime, the Peugeot 504, which had remained at the scene of the accident at the insistence and on the instruction of the Depot Manager of the 2nd Appellant, was consumed by fire on the afternoon of the 8th January, 2001. The driver of the 2nd Appellant was subsequently charged to Court and convicted, while the Respondent filed a civil action before the High Court of Justice, Ado-Ekiti, Ekiti State seeking special damages for the losses he sustained as a result of the accident. At the close of trial, the learned trial Judge, Akeju, J., on the 6th July, 2001 found in part in favour of the Respondent and awarded him special damages to the tune of N750,000.00. Dissatisfied with this decision, the Appellants filed an Appeal to this Court wherein they prayed the Court to set aside the decision of the lower Court.

At the hearing of the Appeal on the 28th October, 2008, Mr. Akindele, learned Counsel for the Appellants, adopted the Appellants’ Brief dated 24th and filed on 25th April, 2008. He urged the Court to allow the Appeal and set aside the Judgment of the trial Court. Mr. Adediji, learned Counsel for the Respondent, in the same vein, adopted the Respondent’s Brief dated 9th June, 2008 and filed on the same day. He urged the Court to affirm the decision of the lower Court and to dismiss the Appeal.

The Notice of Appeal comprised of six grounds. From these Grounds, the Appellants distilled four issues for the determination of the Court thus:

1. Whether from the state of the pleadings and evidence on record, the Plaintiff/Respondent proved a case of dangerous driving or motor traffic offence of negligence and recklessness against the first Appellant as provided for by Section 6(1) of the Federal Highways Act, Cap 135, Laws of the Federation, 1990 as a result of the accident of 6/1/2001.
2. Whether or not the Respondent’s action in Tort of negligence and/or damages caused by fire to the Respondent’s said Peugeot 504 car at the resultant position of the vehicle on 8/1/2001 as a result of the accident on 6/1/2001 was properly constituted having regard to the circumstances of this case and applicable principles of law.
3. Whether given the circumstances of this case, the Respondent was entitled to the payment of N750,000.00 (Seven Hundred and Fifty Thousand Naira) as value of his Peugeot 504 Saloon No. ONDO AE242ADKand whether there were (are) circumstances which would justify the Court of Appeal in dismissing the award of N750,000.00 damages awarded by the trial Court.
4. Whether from the evidence on record the trial Court properly appraised and evaluated the evidence adduced before the trial Court embarked on making findings of fact that cannot be supported by facts or evidence adduced and accorded with the relevant and applicable principles of law and whether there are good reasons or circumstances that would make the Court of Appeal to intervene by making fresh findings in replacement.

The Respondent adopted the issues as formulated by the Appellants and paraphrased an additional issue which essentially is the same as issue number four formulated by the Appellants. Even so, upon a dispassionate consideration of the Grounds of Appeal filed, I consider the following issues, which are a hybrid of the issues formulated by the parties, appropriate for the just determination of the Appeal:

1. Whether a case of negligent driving which led to the accident of 6th January, 2001 was established by credible evidence against the 1st Appellant.
2. Whether the Appellants were entitled to the defence in the principle of volenti non fit injuria in respect of the subsequent fire which gutted the vehicle of the Respondent on the 8th January, 2001.
3. If the answers to the above two issues are in the affirmative, whether the award of N750,000.00 as special damages to the Respondent is justified and borne out by the evidence before the trial Court.
4. Whether from the evidence on record, the trial Court properly appraised and evaluated the evidence adduced in arriving at its decision.

Taking on issue one, which is whether a case of negligent driving which led to the accident of 6th January, 2001 was established by credible evidence against the 1st Appellant, the Appellants submit that the Respondent failed to prove the essential ingredients of dangerous driving against the 1st Appellant as provided under Section 6 (1) of the Federal Highways Act, to wit: recklessness, negligence, the speed at which the driver drove his vehicle, the condition and use of the highway, the amount of traffic expected to be on the highway, the time of the day and the condition of the road at the time of the accident. The Appellants argue that the manner of driving by the 1st Appellant which constituted recklessness and negligence was not described by the Respondent. They contend that the Respondent only proved the fact of an accident but failed to prove how the accident occurred. The Appellants argue that this is important to show that the Appellants owe a duty of care and acted in breach of the duty. He cited Ngilari V Mothercat Ltd (1999) 12 SCNJ 101 at 105 – 107; & Otaru & Sons Ltd V Idris (1999) 4 SCNJ 156 at 159. They therefore submit that the Respondent failed to discharge the burden on him to plead and prove dangerous driving, negligence and recklessness against the Appellants.

The Appellants further submit that the Respondent failed to establish negligence against the Appellants. They submit that the negligence to be proved was in two categories, namely criminal negligence and the tort of negligence. In order to prove negligence, the Appellants submit that the Respondent needs to prove the duty of care owed by the Appellants to the Respondent, that the Appellants acted in breach of that duty and that the conduct of the Appellants was careless as a result of which the Respondent suffered damages. Hanseatic International Ltd V Usang (2002) 13 NWLR (pt. 784) 378 at 407; Universal Trust Bank of Nigeria V Ozoemena (2007) 1 SCNJ 318 at 326; and (2007) 13 NWLR (Pt. 1022) 448 are referred to. The Appellants submit that the Respondent must plead all the particulars of the negligence alleged and the duty of care owed by the Appellant, as well as the acts constituting the breach. In respect of criminal negligence, the Appellants contend that the Respondent ought to but failed to plead and prove the following: the manner of driving of the 1st Appellant, the nature and condition of the road at the time of the accident, the speed of the 1st Appellant, the amount of traffic or people actually using or normally expected to use the road, the time of day and the condition of the weather. The Appellants submit that having failed to plead and prove all these, the Respondent cannot succeed on the allegation of dangerous driving. Moses v State (2006) 11 NWLR (Pt. 992) 458 is relied upon.

Additionally, the Appellants submit that the failure to call one Lamidi Seidu, the driver of the Respondent’s vehicle on the night of the accident, to testify raises a presumption that the evidence of the driver would be unfavourable to the case of the Respondent. They therefore invoked Section 149(d) of the Evidence Act. Finally under this issue, the Appellants contend that dangerous driving is a criminal offence and therefore all the ingredients of the offence must be proved beyond reasonable doubt. They submit that this was not done and cite the cases of Ologe V Ukaeje (1998) 12 NWLR (pt. 576) 23 and Remawe V NACB CFC Ltd (2007) 2 NWLR (Pt. 1017) 155 in support.

In his response, the Respondent submits that there is overwhelming evidence that the 1st Appellant drove recklessly and carelessly. He refers to 1st Appellant’s conduct after the accident wherein he failed to stop, but went to his Depot, quietly parked the truck and, without making any report of the accident either to his employers or to the Police, went home. Respondent submits that the conduct of the 1st Appellant before, during and after the accident cannot be said to be that of a reasonable person in the circumstance. Respondent argues that negligence may be inferred from the conduct of the 1st Appellant immediately before and immediately after the accident. He relies on the definition of negligence in Black’s Law dictionary which defines it as the failure to exercise the standard of care that a reasonable, prudent person would have exercised in a similar situation. He submits that in road traffic cases, the slightest negligence is required to sustain a conviction. Respondent further argues that since findings of facts are within the exclusive competence of the trial Court which saw, heard and believed the witnesses, and subsequently ascribed probative value to such evidence, an appellate Court, such as this, will not interfere with those findings of facts except they are perverse and lead to a miscarriage of justice. Reliance for this was placed on Ahmed V State (1998) 9 NWLR (Pt. 566) 389; (1998) 7 SCNJ 60; Odinaka V Moghalu (1992) 4 NWLR (pt. 233) 1; Ojo V Gharoro (2006) ALL FWLR (pt. 316) 197.

The Respondent in his statement of claim alleged that the 1st Appellant caused the accident on the night in question by driving his truck with only one headlight switched on thereby giving his driver and other occupants in his vehicle, (including himself), the impression that the on-coming vehicle was a motor-cycle and not a big truck. Subsequently there was a collision when the truck the 1st Appellant was driving collided with the Respondent’s vehicle causing it to veer off the road, but not before two crates of Coca-cola fell off the truck. Evidently, the case of the Respondent is that the 1st Appellant caused the accident by the fact that he was driving his truck at 8.00pm with only one headlight on and then subsequently colliding with the Respondent’s vehicle on his own lane. That being so, the Respondent had the onus and the duty to prove that the 1st Appellant was negligent in the way and manner he drove his truck on the date in question. The general principle is that the tort of negligence arises when a legal duty owed by the Defendant to a plaintiff is breached. Therefore, to succeed in an action for negligence, the Plaintiff must prove by the preponderance of evidence or on the balance of probabilities that:

(a) The Defendant owed him a duty of care;

(b) The duty of care was breached;

(c) The Plaintiff suffered damages arising from the breach.

See the case of Agbonmagbe Bank Ltd V C.F.A.O. (1966) 1 ALLNLR 140 at 145. The most fundamental ingredient of the tort of negligence is the duty of care, which must be actionable in law and not be just a moral liability. Until a plaintiff can prove by evidence the actual breach of the legal duty of care, against a defendant, the action must fail. See Strabag Construction (Nig.) Ltd V Ogarekpe (1991) 1 NWLR (pt. 170) 733; Nigeria Airways Ltd V Abe (1988) 4 NWLR (pt. 90) 524; Benson V Otubor (1975) 3 S.C. 9. Therefore, in order to find the Defendant liable for negligence, there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part. Such evidence may be direct or inferential depending on the circumstances of each particular case.