Associated Business Company Limited V. Jonah Nwachinemelu Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the leading Judgment)

This appeal is over the decision of the lower court on a case of negligence. The respondents in this appeal who were the claimants in the High Court of Ogun State filed a suit against the appellant here as the defendant in that court. In summary, the case of the respondents in the lower court is that the appellant’s bus was driven negligently.

The driver of that bus without due display of the required duty of care, crashed the appenllant’s bus into the rear end of another bus and the respondents Mark truck. The impact of the crash was so serious that the conductor of the appellant’s bus died on the spot.

The respondents Mack truck was severally damaged and the driver of the truck who is the 2nd respondent in this appeal, was seriously injured. As a result of his injury he was rushed to Olabisi Onabanjo University Teaching Hospital where his broken right leg was encased in a Plaster of Paris (POP).

Further treatment of the leg was undertaken by a traditional bone setter or specialist in a place called Ifite-Dunu. The treatment of the 2nd respondent and the damage to the truck said to be owned by the 1st respondent’ cost the 1st respondent a pretty penny. The first respondent also suffered financial losses for as long as the truck was not available for the haulage business of the 1st respondent.

The appellant as the defendant in the lower court raised a defence of inventible accident and also raised the issue of the statement of claim not being competent having not been filed by a legal practitioner as the law requires, but by a law firm. The lower court rejected the defence of inevitable accident and found that the statement of claim could still be relied upon by the court.

It found the appellant liable for negligence and concluded that even if the negligence of the appellant was not established on the basis of evidence before the court, on the basis of res ipsa loquitun the appellant was still liable in negligence. The court therefore awarded a total of N1,200,000 in favour of the 1st respondent as special and general damages and a total sum of N680,000 to the 2nd respondent also as special and general damages. The judgment was delivered on 22/10/2009.

Dissatisfied with the judgment, the appellant on 5/01/2010 filed a Notice of Appeal in which it complained about the judgment on 4 grounds. It gave particulars of each ground of appeal except for the omnibus ground 4. The grounds of appeal together with the attendant particulars are the following:-

Ground 1

The learned trial court erred in law when it failed to apply the decision in OKAFOR v. NWEKE (2007) ALL FWLR (Pt. 368) 1016 at 1020 to nullify the Statement of Claim filed by the Claimants/Respondents.

Particulars of Error

(a) The Statement of Claim before the court was signed by Adejumo Ekisola & Ezeani, a law firm and not by a legal practitioner recognized under Section 2(1) and 24 of the Legal Practitioners Act.

(b) The Court in its judgment (at page 17) affirmed that the Statement of Claim of the Claimants/Respondents truly suffered from the defect complained of in OKAFOR v. NWEKE and still failed to follow the decision.

(c) The decision in COLE v. MARTINS which was preferred by the trial court is not similar to the case before the lower court.