B. O. Benson Vs Lawrence Otubor (1975) LLJR-SC

B. O. Benson Vs Lawrence Otubor (1975)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

This is an appeal against the judgment of George, J., in Suit No. LD/232/71 delivered in the Lagos High Court on November 24, 1972 in which the plaintiff was awarded the sum of 750 as general and special damages suffered by the plaintiff in a motor accident resulting in damage to his Mercedes Benz Saloon car on July 15, 1970. The plaintiffs claim against the defendant is for the sum of 750 (Seven Hundred and Fifty Pounds) being special and general damages suffered by the plaintiff in a motor accident on the 15th of July, 1970 along the Carter Bridge, Lagos, as a result of the negligent driving of Francis Anizor the defendant’s driver in the course of his employment and in the management of the defendant’s vehicle No. MB 8132 whereby the plaintiff’s vehicle Mercedes Benz No. LN 594 was badly damaged and the plaintiff suffered loss thereby.

Particulars of Negligence:
The defendant’s driver was negligent in that

1. He failed to keep a proper look out;
2. He drove on the wrong lane on the Carter Bridge;
3. He failed to keep traffic regulations operative on the Carter bridge  between 7.00 and 8.30 a.m. on working days;
4. He failed to keep his vehicle under proper control so as to avoid collision with the plaintiff’s vehicle;
5. The defendant refused to pay the said sum of 750 despite repeated demands by the plaintiff.
6. As a result of the negligence of the defendant’s driver aforesaid the plaintiff suffered loss.
7. Particulars of Damages:

Special Damages
Cost of Repair to LN 594  487.2.6
Fee for Independent Engineer’s Report   7.7.0

General Damages
Loss of use for 28 days-15/7 /70 to 11/8/70
and inconvenience allowance   255.10.6
Total = 750.00.0

8. During the period that the plaintiff’s car was laid up, he suffered great hardship moving around in attending to his work both as Legal Practitioner and Secretary of various organisations like the Nigerian Bar Association, Church Committee and other Social functions.
Whereof the plaintiff claims the sum of Seven Hundred and Fifty Pounds (750.0.0d) as special and general damages from the defendant.

According to the plaintiff, the defendant’s vehicle (a Mercedes Benz lorry) was being driven on July 15,1970 on Carter Bridge, Lagos, by his servant, Francis Anizor, in the course of his employment in such a negligent manner that the said servant emerged furiously from the direction of Lagos Island into the third lane (on the Carter Bridge) in which the plaintiff was lawfully driving his car from the opposite direction of Ebute Metta between 7.00 a.m. and 8.30 a.m. There was in consequence a head-on collision with the plaintiff’s car in this third lane reserved only to traffic coming from Ebute Metta during that period every morning on working days.

The defendant, in his Statement of Defence, denies that his servant drove the vehicle in a negligent manner, and also denies the particulars of negligence and of the special and general damages claimed by the plaintiff whom he put to the strictest proof of his allegations of facts. In particular, the defendant challenged the plaintiff’s averment that it was the defendant’s servant that drove in the wrong lane at the material time on the day of the accident.

At the trial of the action, the plaintiff gave evidence of how the accident occurred as follows:

“On that day between 7.30 a.m. and 7.45 a.m., I was driving my car from the Mainland towards Lagos. The car is LN 594. It is a Mercedes Saloon Car, as I was on the Carter Bridge on the 3rd lane towards Lagos, I suddenly saw a Mercedes Benz lorry MB 8132 owned by the defendant which was on the 1st land from Lagos towards Ebute Metta when the defendant’s lorry suddenly left that lane and came to my own lane facing me directly. There were four lanes on the Carter Bridge, two towards Lagos and two towards Ebute Metta.

As a result of police direction vehicles coming from Ebute Metta were allowed to use lanes 1, 2 & 3 between 7.00 a.m. and 9 a.m. to ease traffic congestion. That was why I was on the 3rd lane. The defendant’s lorry left the 4th lane (or 1st lane from Lagos to Ebute Metta) and came to the 3rd lane directly opposite me. I applied my brakes and slowed down and the defendant’s car drove headlong and jammed my car. The driver of the defendant car was Francis Anizor. He came down and apologized. He explained that he was a stranger and did not know that he ought not to use that lane. I could not avoid the accident because vehicles were going on the 2nd lane towards Lagos and on the 4th lane towards Ebute Metta. As the driver admitted that he was at fault I did not press for police action. I reported the matter to my insurance company, the Guinea Insurance Company, who authorised and paid for my repairs.”

With regard to the claim for special and general damages, the plaintiff stated in evidence:

“The car was first examined by SCOA Automobile Engineering who examined the vehicle and estimated the repairs at 634.7.6d. This is their estimate. (Tendered admitted and marked Exhibit A). I paid 7.7.0d for the service of the Engineers. This is the receipt from the Engineers. (Tendered admitted and marked Exhibit B).

My car was repaired by Messrs Benson Engineering Works, who carried out the repairs and sent a bill for 487.2.6d. My insurers paid part of this amount and I paid part of it. (Bill tendered and marked Exhibit C). I instructed my solicitor to make a formal claim on the defendant. This is the reply I received (tendered admitted and marked Exhibit D). The Insurers of the defendant supposed to settle the claim because the defendant was in breach of a condition of the insurance (letter tendered admitted and marked Exhibit E).

Subsequently this action was brought against the defendant. As a result of the accident I could not use my car from 15th July to 11th August. I claim 255.10.6d. Sometimes, I hired a taxi to Lagos. Sometime I hired a taxi to Benin. I spent about 5 to 7 per day. On the day of the accident, traffic was heavy towards Lagos, but light towards Ebute Metta. The defendant’s driver was driving fast to overtake the vehicle in his front hence he ran into my vehicle. I therefore claim 750 damages… The driver agreed to repair my vehicle. The driver gave me his name and address and that of his Insurance Company. ”

The plaintiff later caused his solicitor to make a formal claim on the defendant who replied as follows:

“Suit No. LD/232/71
B. O. Benson v. Lawrence Utubor
Lawrence Utubor,
4 Abraka Road,
Agbor, P.O. Box 130
20th February, 1971.
T, O. Shobowale Benson & Co.,
119 Yakubu Gowon Street,
Lagos.
Sirs,
Re Accident Between MB 8132 and LN 594 on 15/7/70 at Lagos. We acknowledge receipt of your letter reference TOSB/NU/119 of 11th February, 1971, in respect of the above accident.

My vehicle MB 8132 was insured with Nigerian States Assurance Corporation Ltd., P.O. Box 3,389, Lagos, on a Third Party cover. Will you please advise your client (Guinea Insurance Company Ltd.) to direct their claims to Nigerian States Assurance Corporation Limited for settlement. Guinea Assurance Company should insist that Nigerian States Assurance Corporation adheres to (Third Party) principles of indemnity. For it was in this wise, that the vehicle was insured on Third Party cover, as contained therein in Insurance Law.

The threat of instituting proceedings against me betrays the fact, that your client (Guinea Insurance Company) has not taken pains to demand their right from Nigerian States Assurance Corporation Ltd. As an insurance company, they are better informed on how to recover their claims. More so as they are aware that my vehicle was insured on a Third Party cover, with Nigerian States Assurance Corporation Ltd.
Please inform your client (Guinea Insurance Company) that they should be assured of my co-operation in pressing the claims with Nigerian States Assurance Corporation Ltd., and would be grateful to be apprised of further development.
Thanks in anticipation of your fullest co-operation. Yours faithfully,
(Sgd.) Lawrence Utubor.
cc. Nigerian States Assurance Corporation Ltd.”

The defendant later denied having written the above letter (Exh. D), denied being the owner of the lorry in question, denied all knowledge of the driver, and denied being in Lagos in July 1970. Under cross examination, he later admitted that the lorry was his, but still disowned the driver. The learned counsel for the defendant made the following submission in his address before the court:

“The accident occurred as a result of a mistake of facts. Negligence has not been established. If the court finds negligence proved, it should disallow the claim of 225.10.6d. The cost of labour is excessive on the special damages head.”

After a careful review of the evidence adduced by both sides, the learned trial judge concluded thus:

“I am satisfied on the evidence before me on the issues joined by the parties, the negligence of the defendant’s servant while acting in the course of his employment was the cause of the accident.

The plaintiff did not over estimate the damages claimed. (It is only a modest sum of 750). In my view he is entitled to the damages claimed.

Judgment is therefore entered for the plaintiff for the sum of 750 with costs assessed at 60 guineas to the plaintiff.”

From this judgment the present appeal has been brought on the following four grounds:

“(1) The trial court erred in law in giving judgment against the defendant when the plaintiff did not prove that the driver of the vehicle at the material time was a servant of the defendant.
(2) The damages awarded were excessive.
(3) The learned trial judge erred in law in making an award for both Special and General damages contrary to the claim before the court.
(4) The learned trial judge erred in law in holding that negligence was proved when there was no evidence on record to prove the particulars of negligence averred in the Statement of Claim.”
Learned counsel for the appellant urged us to allow the appeal on each of the several grounds.

As regards ground 1, the short answer to the learned counsel for the appellant is the learned trial judge’s finding as follows:

“Counsel for the defendant rather confused the issue when he said that the first issue was whether Arizor was a servant of the defendant. The defendant did not deny that Francis Arizor was his servant although the plaintiff specifically pleaded it in para. 3 of his Statement of Defence.

Para. 4 of the Statement of Defence puts the plaintiff to the strictest proof of the allegation of negligence contained in paras. 3 and 4 of the Statement of Claim.”

The issue joined by the defendant was whether his servant acted in a negligent manner or not. ”

In view of the particulars of both special and general damages, supported by documentary evidence, given by plaintiff at the trial, which evidence was not challenged by the defendant with any particulars, we think that the learned trial judge was right in holding that “the plaintiff did not over estimate the damages claimed”. Counsel for the defendant’s only observation on this item at the trial was: “If the court finds negligence proved, it should disallow the claim of 225.10.6d. The cost of labour is excessive on the Special Damages Head”. No evidence was led to show that the amount involved was excessive. The third ground is hard to understand as it seems to us that what the plaintiff claimed and proved before the court is for an award for special and general damages and that is what he got. On the issue of proof of negligence, the learned trial judge was well aware that “the Issue joined by the defendant was whether his servant acted in a negligent manner or not”, and he nevertheless came to the conclusion that “the negligence of the defendant’s servant while acting in the course of his employment was the cause of the accident.”

It is to be noted that the plaintiff/respondent’s evidence as to how the accident happened was not contradicted either by the production of the driver of the lorry or by other evidence. All that the defendant/ appellant’s counsel seriously urged on the point was to ask any receipt which the plaintiff/respondent might have obtained from the driver immediately after the accident. The respondent explained that the learned trial judge would seem to have accepted his explanation when he wrote:

“As the driver admitted his fault, the plaintiff did not report the matter to the Police but informed his Insurance Company who authorised and paid for the repairs.”

Indeed, learned counsel for the defendant/appellant had in the trial court said in his address: “The accident occurred as a result of a mistake of facts”. In the absence of any concrete evidence to the contrary, this appears to be a euphemism for an admission of negligence. At any rate, the story of the respondent to the effect that the appellant admitted his fault, apologised and gave him his name and address and also the owner’s insurance particulars has remained uncontradicted. We think that the learned trial judge was right in his finding that negligence had been established against the driver and that the appellant was vicariously liable for the driver’s tort committed against the respondent in the course of his employment on Carter Bridge on July 15, 1970. It is not for a Court of Appeal to begin to doubt the learned trial judge’s finding on this and to speculate as to why the respondent had not called police witness as to whether or not traffic was directed as alleged by the respondent on the fateful day. No doubt, if the respondent had done that, it would have strengthened his case, but he gave the convincing reply that he did not consider it necessary to take the matter any further once the wrongdoer had admitted his fault, apologised and given his particulars. We think he would have had to produce the kind of evidence now being demanded on the appeal before us if the wrongdoer had disowned liability or refused to co-operate with the respondent in the manner reported of him. Moreover, the defendant/appellant would appear to have admitted liability in his letter of February 20, 1971 quoted above when he wrote inter alia; “Will you please advise your client (Guinea Insurance Company Ltd.) to direct their claims to Nigerian States Assurance Corporation Ltd. for settlement”.

In the result, we think that the appeal fails and it is dismissed. We affirm the judgment of George, J., delivered in Suit No. LD/232/71 on November 24, 1972, together with the order as to costs. We award to the respondent costs assessed at N110 in this Court. And this shall be the judgment of the Court.

FATAYI-WILLIAMS J.S.C.- The present appellant was the defendant in an action instituted against him by the plaintiff (now respondent) in the Lagos High Court and in which he claimed as follows:

“The plaintiff’s claim against the defendant is for the sum of 750 (Seven Hundred and Fifty Pounds) being special and general damages suffered by the plaintiff in a motor accident on the 15th of July, 1970, along the Carter Bridge, Lagos, as a result of the negligent driving of Francis Anizor the defendant’s driver in the course of his employment and in the management of the defendant’s vehicle Mercedes Benz No. LN 594 was badly damaged and the plaintiff suffered loss thereby.

Particulars of Negligence

The defendant’s driver was negligent in that-
1. He failed to keep a proper look-out;
2. He drove on the wrong lane on the Carter Bridge;
3. He failed to keep traffic regulations operative on the Carter Bridge between 7.00 a.m. and 8.30 a.m. on working days;
4. He failed to keep his vehicle under proper control so as to avoid collision with the plaintiff’s vehicle.

The defendant refused to pay the said sum of 750 despite repeated demands, by the plaintiff.”

In his statement of claim, the plaintiff, who is a legal practitioner, averred that the address of the defendant is at 4 Abraka Road, Agbor, in the Mid-Western State. He also repeated the particulars of negligence already stated in his claim and averred further in paragraphs 3,4 and 6 of the statement of claim as follows:

“3. The defendant’s said vehicle was driven on the 15th day of July, 1970 along Carter Bridge, Lagos, by his servant Francis Anizor in the course of his employment in a negligent manner.
4. The plaintiff was lawfully driving his car on the 15th day of July, 1970 along the third lane on Carter Bridge meant for traffic from Iddo to Lagos Island between 7 a.m. and 8.30 a.m. when the defendant’s driver, Francis Anizor emerged furiously from Lagos island direction and caused a head-on collision with the plaintiffs car on the plaintiffs lane.
6. As a result of the negligence of the defendant’s driver aforesaid, the plaintiff suffered loss.”
In his statement of defence, the defendant admitted that he lived in the address given by the plaintiff but denied all the other averments in the statement of claim including the averment as to the particulars of negligence of the defendant’s driver.
In support of his claim, the plaintiff testified on 9th November, 1972, as follows:

“I remember the 15th day of July, 1970. On that day between 7.30 a.m. and 7.45 a.m. I was driving my car from the mainland towards Lagos. The car is LN 594. It is a Mercedes Saloon Car. As I was on the Carter Bridge on the third lane towards Lagos, I suddenly saw a Mercedes Benz lorry No. MB 8132 owned by the defendant which was on the first lane from Lagos towards Ebute Metta when the defendant’s lorry suddenly left that lane and came to my own lane facing me directly. There were four lanes on the Carter Bridge, two towards Lagos and two towards Ebute Metta.
As a result of police direction, vehicles coming from Ebute Metta were allowed to use lanes 1, 2 and 3 between 7 a.m. and 9 a.m. to ease traffic congestion. That was why I was on the third lane.

The defendant’s lorry left the 4th lane (or 1st lane from Lagos Ebute Metta) and came to the third lane directly opposite me. I applied my brakes and slowed down and the defendant’s car drove headlong and jammed my car. The driver of the defendant’s car was Francis Anizor. He came down and apologised. He explained that he was a stranger and did not know that he ought not to use that lane. I could not avoid the accident because vehicles were going on the 2nd land towards Lagos and on the 4th lane towards Ebute Metta. As the driver admitted that he was at fault I did not press for Police action.”
As to the state of the road on the day of the accident plaintiff testified as follows:
“On the day of the accident, traffic was heavy towards Lagos, but light towards Ebute Metta. The defendant’s driver was driving fast to overtake the vehicles in his front hence he ran into my vehicle. ”
In his answers to the questions put to him under cross-examination, the plaintiff testified further as follows:
“I did not know Francis Anizor before the accident. At the time of the accident he was in control of the vehicle. I don’t know how long the vehicle had been in Lagos before the accident. The Police direction is on Sign Boards-there is one at Iddo and one at Lagos. In addition there were Police Officers on duty. ”
The only other witness called by the plaintiff was the engineer who testified that the car had had an accident and that he repaired all the damaged parts and also changed some parts.
Lawrence Utubor testified in his defence. He admitted being a trader and a transporter but denied being the owner of vehicle No. MB 8132 or that any of his vehicles was involved in an accident in July, 1970. He said that the identification number of his own lorry is MB 8132. He also denied that Francis Anizor was his driver.
In a reserved judgment, the learned trial judge observed, inter alia, as follows:
“Since the defendant has admitted in his pleading that he is the owner of vehicle No. MB 8132 his evidence that runs contrary to his pleadings is irrelevant. That the defendant was the owner of lorry No. MB 8132 is therefore not a matter in issue.

In any case, I do not accept the evidence of the defendant that he was not the owner of the vehicle No. MB 8132…The defendant did not deny that Francis Anizor was his servant although the plaintiff specifically pleaded it in para. 3 of his statement of defence.”

He then proceeded to find finally as follows:

“Paragraph 4 of the statement of defence puts the plaintiff ‘to the strictest proof of the allegation of negligence contained in paragraphs 3 and 4 of the statement of claim.”
The issue joined by the defendant was whether his servant acted in a negligent manner or not.

I am satisfied on the evidence before me on the issue joined by the parties, the negligence of the defendant’s servant while acting in the course of his employment was the cause of the accident.”

Three points were taken on the appeal before us against the judgment but only two of the points, in my view, merit any serious consideration. The first of these is the complaint that the learned trial judge erred in law in giving judgment against the defendant when the plaintiff did not prove that the driver of the vehicle at the material time was a servant of the defendant as averred in the statement of claim. The second complaint is that the judge also erred in holding that negligence was proved when there was no evidence on record to prove the particulars of negligence.

With respect to the first complaint, it will be recalled that the only reason given by the learned trial judge for holding that the driver, Francis Anizor, was the servant of the defendant was because he “did not deny that Francis Anizor was his servant although the plaintiff specifically pleaded it in paragraph 3 of his statement of defence.”

In coming to this conclusion, the learned trial judge seemed to have overlooked the averment in paragraph 1 of the statement of defence, which reads.
“Save as is hereinbefore specifically admitted or denied, the defendant denies each and every allegation of facts contained in the plaintiff’s statement of claim as if same were specifically set out and traversed seriatim. ”

This is a general traverse about which Lord Denning observed in Warner v. Simpson [1959] 1 Q.B. 297 at pages 310-311 as follows:

“Since so much effect has been given to this general denial, I would say a word about it. It is used in nearly every defence, which goes out from the Temple. It comes at the end. The pleader has earlier gone through many of the allegations in the statement of claim and dealt with them. Some he has admitted. Others he had denied. Whenever he knows there is a serious contest he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the   trial. At one time the use of this general denial was said to be embarrassing: see British and Colonial Land Association Ltd. v. Foster and Robins, (1888) 4 T.L.R. 574 but since 1893 it has been recognised as   convenient and permissible: see Adkins v. North Metropolitan Tramway Co. (1893) 10 T.L.R. 173. Sometimes the pleader “denies”, sometimes he “does not admit” each and every allegation; but whatever   phrase is used it all comes back to the same thing. The allegation is to be regarded “as if it were specifically set out and traversed “seriatim”. In short, it is a traverse, no more and no less.

Now the effect of a traverse has been known to generations of pleaders. It casts upon the plaintiff the burden of proving the allegations “denied”: see Bullen and Leake on Precedents, (3rd ed., p. 436. So this general denial does no more than put the plaintiff to proof.”
The above statement was referred to by this court with approval in Mandilas & Karaberis Ltd. v. Lamidi Apena [1969] 1 All N.L.R. 390 at page 393 where we observed as follows:
“We agree with Chief Williams on this submission and would point out that this court in Ace Fimona Ltd v. The Nigerian Electrical Contracting Co. Ltd. SC. 586/64 on the 20th of May, 1966 adopted the views that Lord Denning had expressed in that case which we have cited. In our view therefore the learned trial judge was in error in thinking that the defendant had not denied the plaintiff’s allegation of false imprisonment.”
Moreover, a close examination of the testimony of the plaintiff shows that all he said about the driver is as follows:
“The driver of the defendant’s car was Francis Anizor. As the driver admitted that he was at fault I did not press for police action. The defendant’s driver was driving fast to overtake the vehicles in his front hence he ran into my vehicle. I did not know Francis Anizor before the accident. At the time of the accident he was in control of the vehicle.”

If, as he said, the plaintiff did not know the driver before the day of the accident, he should have explained to the court how he came to know that he was the “defendant’s driver”. This is because it does not follow, particularly in the face of the defendant’s blunt and unequivocal denial, that because Francis Anizor was in control of the vehicle at the time of the accident, he must be the driver of the defendant. To my mind, this evidence falls short of the averment in paragraph 2 of the plaintiff’s statement of claim that Francis Anizor was the defendant’s servant and that he drove the vehicle in the course of his employment as such on the day in question. It is not impossible that the defendant does not know Anizor and that he drove the vehicle without the defendant’s authority. For this reason, more is certainly required from the plaintiff to prove that Anizor drove the vehicle as the servant of the defendant. In any case, the learned trial judge did not base his finding on this point on the evidence adduced by the plaintiff. In fact, he made no finding as to whether he believed this scanty piece of evidence or not. On the contrary, he based his finding on the erroneous view that the defendant admitted that Anizor was his servant. As there was no such admission, the learned trial judge was clearly in error in assuming that there was. In order to make the defendant liable in negligence there must be either an admission on the part of the defendant or evidence, which the learned trial judge accepted, not only that Anizor was the servant of the defendant, but also that he drove the vehicle in that capacity on the day of the accident. As there was no such finding, it follows that there is nothing on which the learned trial judge could base his conclusion that the defendant was vicariously liable for the act of Anizor. On this point alone, the plaintiff’s claim should have been dismissed.

But that is not the only criticism levied against the judgment. There is also the point as to whether the plaintiff proved the particulars of negligence alleged in his statement of claim. It will be recalled that the plaintiff, both in his writ and in his statement of claim, set out the particulars of negligence as follows:
“The driver was negligent in that
1. He failed to keep a proper look-out;
2. He drove on the wrong lane on the Carter Bridge;
3. He failed to keep traffic regulations operative on the Carter Bridge between 7.00 a.m. and 8.30 a.m. on working days;
4. He failed to keep his vehicle under proper control so as to avoid collision with the plaintiffs vehicle.

Not a shred of evidence was adduced by the plaintiff to support the particulars stated in items 1 and 4. All he said was that “the defendant’s driver was driving fast to overtake the vehicles in his front hence he ran into my vehicle”. As these particulars were not pleaded, they went to no issue and the learned trial judge was right in not adverting to them in his judgment.

This leaves only the particulars stated in items 2 and 3. In his evidence in support of these particulars, the plaintiff admitted that the Carter Bridge is a four-lane road, that two of the lanes are reserved normally for motorists going from Lagos to Ebute Metta, while the remaining two are reserved for motorists coming from Ebute Metta to Lagos. He also admitted, albeit by implication, that any motorist (such as Anizor) driving from Lagos to Ebute Metta has the right of way on the two lanes from Lagos to Ebute Metta for about 22 1/2 hours out of the 24 hours of the day. The only time he loses his right of way is between 7 a.m. and 8.30 a.m. when his second lane is used exclusively as a third lane by motorists coming into Lagos from Ebute Metta.

In his statement of claim, the plaintiff gave as authority for this curious division of a motorist’s right of way, the “traffic regulations operative on the Carter Bridge between 7 a.m. and 8.30 a.m. on working days.” In his evidence, he referred to “Police direction”. Not only is there a world of difference between “traffic regulations” and “Police direction” which the plaintiff made no attempt to reconcile, he did not tell the court whether 15th July, 1970, was a working day as he averred in his statement of claim or not. Under cross-examination, he stated, although this was not pleaded, “The Police direction is on Sign Boards- there is one at Iddo and one at Lagos.” He made no effort to tell the court the contents of these sign boards so that the court can determine whether the direction would make sense to the average motorist or not. When pressed further on the point, the plaintiff replied- “In addition there were police officers on duty.” But he made no effort to call at least one of these police officers. Anyway, I will have more to say about this omission later.

Under section 11 of the Road Traffic Act (Cap. 184) of the Laws of the Federation), it is the Lagos City Council and not the police which have the power to restrict the use of vehicles on specified highways and to control traffic generally in Lagos. In the exercise of this power, the Lagos City Council made the Road Traffic (Control of Traffic) (Lagos) Order, 1968 (see L.S.L.N. No.3 of 1968) by which restrictions were placed on the use of specified highways in Lagos. Carter Bridge together with other named streets was declared a major road in the ninth Schedule to the said Order. Certain streets were declared to be one-way streets in the Road Traffic (Control of Traffic) Lagos (Amendment) Order, 1969 (see L.S.L.N. No.4 of 1969). Nowhere in these Orders was any restriction placed on the right of way on the two lanes from Lagos on Carter Bridge at any time of the day or night.
However, in addition to the powers conferred on the Lagos City Council to which I have referred, it is also provided in regulation 36 (1) (j) made under section 34 of the same Road Traffic Act as follows:
“Any person driving or in charge of a motor vehicle when used on any highway, shall obey all directions, whether verbal or by signal, given by a police officer in uniform to stop the vehicle, or to make it slow down, or to pass on any indicated side of the police officer, or to keep to any indicated line of traffic. ”

Assuming that there was some notice about the alleged “direction by the police”, was it a permanent direction on a sign board (which, in my view, only the Lagos City Council can make-see regulation 36 (1) (m) or was it a verbal one or one by signal given every morning by a policeman in uniform” at a point near the Bridge where the two lanes start If the direction is on a permanent signboard, how is it worded and how does it work out in practice Is every motorist who happens to be driving from Lagos to Iddo over the Bridge in the morning expected to look at the clock in his car Is the clock always expected to keep the correct time Is the motorist supposed to remember, in the heavy morning traffic, to look at his clock every time he is driving towards the Bridge from Lagos in order to ascertain whether he is on the correct lane or not Will such a direction not unjustifiably assume that every motorist using Carter Bridge in the early morning is permanently resident in and around Lagos, and knows what time of the day he should be on this crucial second lane and when he should not On the balance of probabilities, and in practical terms, such a direction, unless it is given and supervised every morning on the spot, will not be reasonable; it will certainly not be fair to the average motorist. To my mind, therefore, the evidential value of the plaintiff’s evidence on this point is, to say the least, very limited. He could have done much more. It is not surprising, therefore, that the learned trial judge made no finding about any of the particulars of negligence alleged.

In fairness to him, the plaintiff did say that there were police officers on duty. This is more like it. If that is so, there must be evidence as to the “direction” which one of these policemen gave to Anizor on the morning in question before there can be a determination that he drove on the second lane contrary to that direction. Moreover, at least one of these policemen must have been aware of the accident, which must have held up the traffic on the Bridge for some time. Could he not have been called by the plaintiff to explain to the court why the driver was not prosecuted for disobeying the direction, assuming there was such direction known to the driver on the morning in question Furthermore, it is inconceivable, and indeed highly improbable, that the plaintiff would have allowed that lorry driver to go away on his mere verbal admission of guilt without reducing that admission into writing and getting him to acknowledge it.

It is clear from the evidence adduced by the plaintiff that the whole of his case as to the liability of the defendant, hinged on this “police direction”. Yet, none of the policemen on duty was called to explain this direction in detail, or how it works in practice, and to indicate whether or not the driver Anizor drove on the second lane between 7 a.m. and 8.30 a.m. knowing about this direction. Worse still, the learned trial judge made no finding on this meager evidence adduced by the plaintiff in support of the particulars of negligence. All he said in his judgment was that he was satisfied that on the evidence before him, “the negligence of the defendant’s servant while acting in the course of his employment was the cause of the accident”. By coming to this conclusion, the learned trial judge assumed, without making a clear finding in that respect, that the driver was negligent.

It must be remembered that the mere breach of a traffic regulation or direction does not give rise to a civil cause of action. It only provides a standard with reference to which the requisite care to be observed and which a defendant owes to a plaintiff could be assessed or estimated. So regarded, it merges with the crucial question whether such a defendant is liable in negligence. (See Winter v. Carding R.D. C. [1950] 1 All E.R. 819 (H.L.) as per Lord Porter at page 821).

With respect, I think it is impossible to support the conclusion of the learned trial judge without taking a wholly unrealistic view of the totality of the evidence adduced in support of the claim. Therefore, and for the reasons which I have set out above, I find myself, with due diffidence, unable to support the majority judgment of the court. I would allow the appeal, set aside the judgment of the learned trial judge in Suit No. LD/ 232/71, delivered on 24th November, 1972, and order that the plaintiff’s claim be dismissed.

Other Citation: (1975) LCN/2094(SC)