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.
- 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.
- 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.
- Whether on the preponderance of evidence the item of damages claimed by the plaintiff was not challenged.
- 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.
Starting with issue 1,learned counsel for the appellants, Mr. Ogunseitan, in the appellant’s brief, submitted that the evidence of the 1st plaintiff/respondent and the pleadings of the respondents as relating to the ownership of vehicle No. BD 2426 BF are in conflict. The learned counsel went further and argued that the 1st respondent, under cross-examination, admitted that the vehicle was one of the assets of Konkon Nigeria Petrol Limited whereas, in the pleadings it was stated that the Ist respondent bought the vehicle from the 2nd respondent. Learned counsel thereafter submitted that the learned trial Judge ought to have rejected the evidence of the 1st respondent as to the ownership of the vehicle BD 2426BF. He referred to the cases of Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) at page 506 and African Continental Seaways v. Nigeria Dredging Road and General Works Ltd. (1977) 5 SC 235. Mr Ogunseitan concluded that the finding of the Court of Appeal on the state of pleadings on the issue of ownership of the vehicle was therefore incorrect. As a result of the incorrect finding the Court of Appeal failed to consider at all the arguments of the defendants/appellants on the issue of ownership of the vehicle.
I must pause here to explain that the learned counsel for the appellants, Mr. Ogunseitan, is not correct to say that the Court of Appeal did not consider all the arguments of the appellants on the issue of ownership of the vehicle. Ogundere, J.C.A. delivering his judgment, concurred in by Akpabio and Ogebe, JJ.C.A. considered the submission made by the learned counsel for the appellants on the issue and held as follows:-
“In the respondents’ brief it was submitted that ownership was pleaded by the plaintiff which the defendant denied in a general traverse. The defendant did not specifically deny the issues of ownership of the vehicle but in that brief there was no submission on the relevant evidence. The evidence of the 1st plaintiff that he was the owner of the vehicle was not challenged. He tendered the vehicle licence Exhibit 2, third party insurance Exhibit 3 and the sale agreement between 1st and 2nd plaintiff Exhibit 4. The finding of the trial court at page 68 o[the record would seem to answer that question. He said:-
‘First plaintiff was Peter Ogbeide. His business name was Konkon Petrol Nigeria Limited. Steyer tanker trailer registration No. BD 2426 BF was sold to him by second plaintiff for N400,000.00 (four hundred thousand naira) and had N100,000.00 (one hundred thousand naira) to pay.
It was agreed that the vehicle would pass to him when the accident happened. The vehicle had vehicle licence Exhibit 2 and third party insurance Exhibit 3. The agreement was Exhibit 4. PW 4 was his driver. This issue in the appeal also fails”
It is evidently clear that the appellants’ counsel before the High Court laid no emphasis on the issue of ownership of the vehicle. Infact when the learned counsel addressed the court he did not refer to the question about proof of ownership of the vehicle. Furthermore when the 1st respondent testified before the court during trial he was not cross-examined about the issue inspite of the fact that the 1st respondent had given clear evidence on how he possessed the vehicle. In the pleadings, the issue was only denied in general traverse. A proper traverse must be a specific denial or a specific non-admission. A general traverse ought not to be adopted in respect of essential and material allegations in the statement of claim. Lewis and Peat (NRl) Ltd. v. Akhimien (1976) 1 All NLR (Pt.1) 460 and Akintola v. Solano (1986) 2 NWLR (Pt.24) 598;(1986) All NLR 395 at 421. The appellants in this case in their statement of defence simply denied, in a traverse, the averment of the respondents in paragraph 1 of the statement of claim wherein the 1st respondent pleaded that he owned the vehicle. Since this is a major issue in this case the appellants are bound to plead more facts showing that the vehicle belonged to someone else. Rather than doing that in paragraphs 5, 6, 9 and 15 of the statement of defence the appellants referred to the oil tanker as “plaintiffs vehicle”. I have no doubt that the court below considered the submission of the appellants on the ownership of the vehicle. The lower courts were right that the 1st respondent was the owner of the oil tanker.
I will consider issues 2 and 3 together. Learned counsel for the appellants submitted that the court below was in error to affirm the decision of the trial High Court that the 2nd appellant, who was the driver of the luxury bus, drove the bus negligently, resulting in the accident in which the oil tanker was set ablaze. Learned counsel submitted that there were material contradictions and inconsistencies between the testimonies of PW2 and PW3 on the one hand and PW4 on the other hand. I have perused the testimonies of these witnesses and with respect to the learned counsel I do not see any such contradictions between the evidence they adduced before the court. I have earlier in this judgment reproduced the evidence of PW4 and I believe that for a proper picture to be seen the evidence of PW2 and PW3 should also be reproduced. PW2, in this testimony, said as follows:
“As myself and my wife were returning to Benin, through my inner mirror I saw a luxury bus coming behind me. It was corning in a terrific speed. Before I got off the road, the bus hit my car and pushed us off the road, my side was smashed and I was trapped inside the car. The on-looker helped us out. There I saw a car burning in the opposite direction. The luxury bus was AN 7298G. The scene was at Alifekede. I was knocked off to the right. I made a statement to the police. I testified at the Chief Magistrate’s Court at Agbor.
Cross-examined by Ovrawa
The accident occurred at the bend. The driver’s side of my vehicle was dented. The car was hit from behind and the door was jammed. The luxurious bus before the accident was behind my car. I was not overtaking the bus at a bend. it was not true that there I saw an on coming trailer. I did not overtake the bus. The bus was behind me. The bus rushed on me. I know the bus was coming. It happened in a second. When I was hit off the road I did not know” what happened afterwards.”
PW3 who was a passenger in the luxury bus gave similar evidence. Being a driver by profession he told the trial court that he sat in the bus as a passenger and saw how the 2nd appellant was driving the bus. He went on in his testimony thus:
“I am a driver, I know 2nd defendant. I remember 4/1/88. On that day I was a passenger in 2nd defendant’s luxurious bus with my family at Onitsha. We were going to Lagos. After Asaba the driver, 2nd defendant. was speeding. The passengers cautioned him to take it easy but he continued and that caused a quarrel between 2nd defendant and the passengers. When we got to a market place, there was as low movement of vehicles. The luxurious bus was following a 504 and it hit the 504 2nd defendant to avoid smashing the 504 swerved to the left. It collided with an oncoming trailer. The trailer went on but started to burn. The police took me and my family 12 in number to Abudu General Hospital. Our bus was coming with excessive speed. The driver applied his brake but the brake could not hold. There the bus hit the 504 we were following. To avoid not to smash the 504, the bus swerved to the left and hit a trailer. It was an on coming trailer. After a short distance the tank trailer started to burn.”
The learned trial Judge evaluated all the evidence adduced before him, including the three witnesses whose testimonies I reproduced above and concluded that Peugeot 504 was in front of the luxury bus and that the accident occurred when the luxury bus was attempting to overtake the Peugeot car at a sharp bend. The learned trial Judge thereafter pointed out that it was reckless to overtake at a sharp bend and close to a market. He supported his opinion by reference to the case of Hudston v. Viney (1921) 1 Ch. 98 at 104. Finally, Gbemudu, J. held that there was overwhelming evidence that the bus driven by the 2nd appellant was the cause of the accident.
This decision of the trial High Court that the accident was caused through the negligence of the 2nd appellant was affirmed by the Court of Appeal in the following words:
“Having considered with close attention the submission of the parties on the issue of negligence, and consequential damages as to whether the special or general damages were excessive, my opinion is as hereunder. As to proof of negligence, the evidence adduced by the plaintiffs especially PW 2 the driver of the 504 Peugeot car, PW 3 an on-looker in the luxury bus, and the driver of the tanker, a clear case of res ipsa loquitur was established. The learned trial Judge quoted above correctly found the second defendant not only negligent but reckless. The lower court’s finding is unimpeachable. The more so as the appellants neither pleaded contributory negligence nor testified in that regard. Rather the driver of the tanker was impliedly praised for swerving to the right to avoid the collision with luxury bus driving straight at the tanker on its right lane. The issue of negligence is accordingly resolved in the respondents’ favour.”
All the three witnesses, PW2, PW3 and PW4 agreed that the accident occurred when the driver of the luxury bus attempted to overtake the Peugeot 504 at a sharp bend and in excessive speed. It is evidently obvious and clear from the facts that the 2nd appellant, who was the servant of the 1st appellant, had the management and control of the luxury bus and the accident could not have happened if he had used proper care. Ogundere, J.C.A. is however in error to say that the doctrine of res ipsa loquitur applied to this case. Since there is evidence from the witnesses on how the accident occurred it is inappropriate to apply the doctrine. The question of the 2nd appellant’s negligence must be determined from the evidence of the witnesses.
The issue of damages has been considered adequately by the court below. The value of the tanker was given as N400,000.00. The assessment was made by PW 5 and expert automobile engineer. Learned counsel for the respondents submitted that PW5 could assess the value of automobiles in whatever condition, whether whole or burnt. I do not see where the appellants pleaded that the oil tanker was an old vehicle. The submission of the learned counsel for the appellants that the tanker was an old one will be disregarded and ignored. Idahosa v. Oronsaye (1959) SCNLR 407;(1959) 4 FSC 166. I think this case fits in very well with the decision of this court in A.G. Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt.121) 255 at 277 wherein it was held that party claiming damages should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he indeed is entitled to award of damages.
The burnt tanker was valued at N400,000.00 less N2,000.00 depreciation value. Part of this award has still not been paid by the appellants. The amount nowadays may not buy even a scrap of the vehicle. The value of the petrol in the burnt tanker as given by the 1st respondent during his testimony before the trial court had not been challenged. He was not cross-examined on the assessed value of the destroyed fuel. Therefore any submission by the appellants’ counsel on the value of the burnt petrol cannot be sustained now – see Adisa v. Afuye (1994) 1 NWLR (Pt.318) 75 at 88-89. The decision of the Court of Appeal on the assessment of damages is, in my view, unimpeachable. Normally where the vehicle which is involved in an accident through the negligence of another is a total loss “or write off’ the plaintiff is entitled as damages only to the pre-accident market value of the vehicle less the value of the vehicle as scrap (if any) plus damages for loss of earnings apart from any specific items of special damage proved. See Armel’s Transport Ltd. v. Madam Tinuke Martins (1970) 1 All NLR 27. It is plain therefore that the issue formulated by the appellants’ counsel in the appellant’s brief on the assessment of damages must also be resolved in favour of the respondent.
In the result, this appeal fails and it is dismissed. The judgment of the Court of Appeal is hereby affirmed. I assess N10,000.00 costs in favour of the respondents.
SC.83/1994