B. O. Famuyiwa Vs Folawiyo & Ors (1972)

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FATAYI-WILLIAMS, J.S.C. 

On 27th November, 1959, Isaac Fafiolu (5th P.W.), a motor driver in the Ministry of Agriculture, Western Region, was driving one of the Ministry’s vehicles (identification No. 009856) from Ilaro to Abeokuta. The plaintiff (now appellant) then a 3200(pounds) per annum road overseer in the said Ministry, was one of the passengers in the said vehicle.

At a place called Ibese, Isaac Fafiolu saw a tipper lorry (identification No. LD 4429) driven by Ogundeji (2nd defendant) approaching in the opposite direction. When they met, the tipper lorry passed so close to the vehicle in which the plaintiff was travelling that it “brush passed” the said vehicle and severely injured the plaintiff who sustained a fracture of the right arm as a result. Having found that the 1st defendant was the owner of the said tipper lorry, the plaintiff commenced proceedings in the Lagos High Court in which he claimed against the two defendants as follows:

Particulars of Claim

The plaintiff’s claim against the defendants is for the sum of 317,000(pounds) being damages suffered by the plaintiff from the negligence of the second defendant in the driving and management of a motor vehicle No. LD 4429 at Ibese Village on the 27th November, 1959, as a servant or driver of the 1st defendant and in the course of his (2nd defendant’s) duty, whereby the said motor vehicle was driven with great force and speed against the vehicle No. 009856 in which the plaintiff was travelling and he (plaintiff) was severely injured and was thereby put to great pain and incurred and suffered loss.

Particulars of Personal Injury

The plaintiff sustained a fracture of his right arm and shoulder; he suffered severely from shock and had his right arm permanently injured.

Particulars of Negligence

The second defendant:-

(a) drove the said motor vehicle at an excessive speed;

(b) failed to keep a proper look-out;

(c) failed to keep properly to the left side of the road;

(d) failed to manage his motor vehicle as to avoid “brush passing” the vehicle in which the plaintiff was travelling;

(e) failed to keep the said motor vehicle under proper control.