Chief Otonyeseigha Ololo Vs Nigerian Agip Oil Co Ltd (2001)

LAWGLOBAL HUB Lead Judgment Report

I.L. KUTIGI, J.S.C.

At the Port-Harcourt Division of the Federal High Court, the Plaintiff sued the Defendants for the sum of N500,000.00 being special and general damages arising out of the Defendants’ negligence in causing the collision and total wreckage of his (Plaintiff) local passenger/goods boat “M.V. Ololo” near Degema along Nembe – Port Harcourt inland waterway. Only the 1st Defendant was originally sued, but on its application, it was granted leave to join the 2nd Defendant.

After the filing and exchange of pleadings the case proceeded to trial. At the hearing the Plaintiff testified on his own behalf and called no witnesses. He tendered a number of documentary exhibits in evidence. The 1st Defendant also called one witness while the 2nd Defendant called two witnesses.

After the conclusion of evidence learned counsel for the parties addressed the court. In a reserved judgment delivered on 30th July 1987, the learned trial Judge held amongst others that the 2nd Defendant was an independent contractor which was not under the control of the 1st Defendant and that since the 1st Defendant cannot be held liable for the tort committed by the 2nd Defendant, the case against the 1st Defendant was dismissed. The learned trial judge however, entered judgment in favour of the Plaintiff against the 2nd Defendant in the sum of N67,484.16.

Dissatisfied with the judgment of the trial court, the 2nd Defendant lodged an appeal in the Court of Appeal holden at Port-Harcourt. In a reserved judgment, the Court of Appeal in a unanimous judgment delivered on 31st March 1993 dismissed 2nd Defendant’s appeal against the 1st Defendant as being without merit. The 2nd Defendant’91s appeal against the Plaintiff however succeeded in part. The Plaintiff was found to have been contributorily negligent to the tune of 75% in causing the accident. The damages awarded by the trial court above was reduced to N55,297.50 because certain items of claim were disallowed and the 2nd Defendant was finally adjudged to be liable to the Plaintiff in the sum of N1 3,824.38 being 25% or ‘bc of N55,297.50.

Aggrieved by the decision of the Court of Appeal, the Plaintiff has now appealed to this court in respect of that part of the judgment which found him contributorily negligent and thereby reducing the amount of damages payable to him as awarded by the trial court. There was thus no appeal against the concurrent dismissals of the claims against the 1st Defendant. This appeal is therefore clearly a fight between the Plaintiff and the 2nd Defendant only.

Written briefs were filed and exchanged between the parties in accordance with the Rules of Court. Additional oral submission were also made by counsel on both sides at the hearing of the appeal.

In the Plaintiff’s brief, the following three issues have been formulated for determination:-

“1.Whether the Court of Appeal was correct in law by contradicting itself when it held that the Plaintiff was contributorily negligent despite its earlier upholding in the same judgment of the finding of fact by the court below that the collision was caused by the negligence of the 2nd Defendant/Respondent herein.

2.Whether the Court of Appeal was right in law to have considered and found upon a Defence of Contributory Negligence which was neither specifically pleaded nor canvassed by the parties in the High Court but raised for the first time in the Court of Appeal and without its leave.

3.Whether the Court of Appeal can properly set aside the award of damages for the loss of two outboard engines by the High Court when it had earlier on in the same judgment constructively upheld the same award by rejecting the 2nd Defendant/Respondent’s contention in relation to the very same award as misconceived.”

Before going into the issues, it is convenient to state briefly the facts of the case which are largely not in dispute thus-

The Plaintiff was the owner of a 72 foot long Local/Passenger boat named “M. V. Ololo.” The 1st Defendant owned a 40m long Dumb Barge named “NOAC 502,” while the 2nd Defendant owned a Tug Boat named ‘M. V. Obuta.” The 2nd Defendant was a sub-contractor of the 1st Defendant at the material time of the accident herein. In the night of 16/10/82 the Plaintiff’s “M. V. Ololo” was sailing from Nembe to Port-Harcourt when it had a collision with “NAOC 502” in motion. The “NAOC 502” was sailing in opposite direction when the accident occurred. As a result of the accident Plaintiff’s “M.V. Ololo” was ship wrecked. The Plaintiff thereafter sued the Defendants as stated above.

Now, back to the issues. Issues (1) & (2) will be taken together as they both relate to contributory negligence. Issue (3) will be treated separately.