Chukuka Ossai Nwabuokei Vs Francis Iwenjiwe & Ors (1978)
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This is an appeal from the High Court of Sapele Judicial Division of the then Mid-Western State of Nigeria against the Judgment of R.A.I Ogbobine, J., in a suit in which the plaintiff, who was a legal practitioner, claimed against the defendants, jointly and severally, a sum of N100,000 PAGE| 2 “for injuries, pain severe loss of earnings caused the plaintiff on 23rd January, 1974 due to the fault and/or negligence of the 1st defendant and/or 3rd defendant”.
The 4th defendant (Nicholas Ugono) was not originally a party in the suit but was brought in by application of the 3rd defendant who claimed that the 4th defendant, and not himself, was the driver of the vehicle with which the vehicle driven by the 1st defendant came into collision the subject matter of these proceedings.
The claim as endorsed on the Writ of Summons stated that-
“1. The plaintiff claims for himself in virtue of the Western State of Nigeria Torts Law (Cap 122) in force in the Mid-Western State of Nigeria the sum of N100,000.00 (One Hundred Thousand Naira) against the defendants jointly and severally for injuries pain sufferings loss of earnings caused the plaintiff on 23rd January, 1974 due to the fault and/or negligence of the 1st defendant and/or 3rd defendant who (1st defendant) being the driver in charge of Peugeot taxi Car bearing registration No. MWX 537, driving within the scope of his employment negligently drove same along Oria/Abraka Road, within the jurisdiction of the Sapele Judicial Division and collided with Datsun Saloon Taxi Car No. MPX 233 owned and negligently driven by the 3rd defendant and thereby caused plaintiff a fee paying passenger in the said vehicle No. MWX 537 severe injuries pain and sufferings.”
The learned trial Judge held both drivers equally liable in negligence to the plaintiff. He found that both drivers drove at a speed which was too fast and that each was unable to control his vehicle resulting in the collision. He also accepted the suggestion of plaintiff’s counsel that none of the drivers was willing to give up the centre of the road to the other and that “It was in this act of gross irresponsibility that the vehicles came face to face with each other and because of the high speed at which they were travelling when the accident occurred the impact caused by the high velocity was so great that it made both vehicles beyond any repair.” The learned trial Judge was satisfied that each driver had the opportunity of avoiding the accident but for his own negligence. Detailing this in his judgment he held that – “the 1st defendant was negligent because he drove on the centre of the road and refused or failed to clear to his proper side of the road when he saw another vehicle coming in the opposite direction, and similarly the 4th defendant also failed to leave the centre of the road on the approach of the 1st defendant’s vehicle”.
He therefore held that both drivers were equally liable to the plaintiff and that each driver’s degree of liability was fifty per cent. On the principle of vicarious responsibility he found the 2nd and 3rd defendants liable as owners of the vehicles which were driven negligently by the 1st and 4th defendants in the course of their employment. He awarded special and general damages for negligence against all the four defendants for a total sum of N18,054.09 and N250.50 costs.
The plaintiff filed a Respondent’s Notice cross-appealing against part of the judgement are requesting this court to vary the decision by substantially increasing the damages awarded. The plaintiff’s counsel later, in the course of the hearing of this appeal, withdrew the cross-appeal which is hereby dismissed. The record shows that the 1st and 2nd defendants appealed against the judgment, but it is equally clear from the same record that they did not pursue their Notice of Appeal which is deemed to have been abandoned. They did not appear for this appeal either by themselves or by counsel. In the circumstances the judgment of the court below stands against them. The 3rd and 4th defendants have also appealed against the judgment on the omnibus ground that the decision of the learned trial Judge is against the weight of evidence. It is with that appeal that we are mainly concerned in this judgment.
The resume of the facts of the case as appeared from the record, is that on 23rd January, 1974 the plaintiff travelled in a Peugeot taxi car with a registration No. MWX 537, returning from the town of Ogume. He boarded the Peugeot taxi at Obiaruku as a fare-paying passenger and sat in the front seat with the driver and another passenger. Immediately they took off from Obiaruku, plaintiff noticed that the driver (the 1st defendant) was driving too fast. He warned him to lessen his speed but the 1st defendant told him he was an experienced driver and that he should not be afraid. Soon after the College of Education at Abraka they got to a corner which the driver negotiated “most carelessly”, forcing the plaintiff to tell him that if he continued with his carelessness he would disembark at Eku Village and take another transport. By the time they got on to the straight road again, the 1st defendant was driving “almost on his left side” of the road. The plaintiff shouted on him to clear.
The 1st defendant applied his breaks which made great screeching noise but it was too late as he came into collision with an on-coming vehicle – a Datsun saloon taxi car with registration No. MPX 233 – driven by the 4th defendant. The impact was so great that it resulted in serious damage to both vehicles and multiple injuries to the plaintiff who was rushed to the nearby Eku Baptist Hospital where he remained for many months undergoing treatment. Appellant’s counsel, in the course of his argument, informed the court that up to the date this appeal was heard the plaintiff was still in semi-permanent physical disability.
The evidence of the plaintiff pointed to negligence against the 1st defendant. He testified that it was the 3rd defendant who drove the Datsun saloon taxi car MPX 233. As it turned out, and this was accepted by the learned trial Judge, it was the 4th defendant and not the 3rd who drove the Datsun Saloon car. Plaintiff had testified that “If the 3rd defendant had kept to his side of the road the accident could have been avoided”. Since, as found, it was the 4th defendant who drove the Datsun car, this evidence of the plaintiff should then read that if the 4th defendant had kept to his side of the road the accident could have been avoided.
The 1st defendant in his evidence stated that when he got to Oria Abaraka he came to a bend and saw a car No. MPE 111 parked at the left side of the road facing the opposite direction. A Datsun taxi car was parked behind the car on the same side of the road. On getting near to where the cars were parked he saw the Datsun taxi car suddenly swerve to the road and then the collision occurred. This piece of evidence was denied by the plaintiff who stated in his evidence-in-chief: “I noticed no parked vehicle at the point of collision”.
The plaintiff swore, again in his evidence-in-chief, that: “The 1st defendant was virtually on the left side of the road before I shouted on him”. This evidence properly explained why the 4th defendant should have left his own side of the road for the crown of the road. Since the 1st defendant was keeping to his left side instead of his proper side of the road, namely, his right, it was he who forced the 14th defendant off his proper side of the road resulting in the 4th defendant moving to the crown of the road in order to avoid collision with the 1st defendant at the 4th defendant’s proper side. The natural inference one draws from the situation must be that when the plaintiff shouted on the 1st defendant, the 1st defendant, realising his carelessness, swerved from his left to his right and met the 4th defendant who had already veered left, at the crown of the road, and with no time left for disengagement, came into head-on-collision with the 4th defendant’s vehicle. In those circumstances the 4th defendant could not have kept to his own side of the road, having been forced out of it by the 1st defendant.
On the evidence, the 4th defendant could hardly be held to bear any responsibility for the collision. As Lord Wright has stated in M’Lean v. Bell (1932) 48 TLR 487, 469: “The decision of the case must turn not simply on causation, but on responsibility”. PAGE| 5 The learned trial Judge rejected the evidence of the 4th defendant that he was placed in jeopardy by the 1st defendant and that he had to swerve left, back to the road, from the grass verge to which he had driven his vehicle in order to avoid the collision. Instead, the learned trial Judge accepted the suggestion of counsel for the plaintiff that both drivers drove at a speed which was too fast and were unable to control their vehicles; that none was willing to give up the centre of the road to the other and because of the high speed at which each was travelling the impact was so great that both vehicles were damaged beyond repairs. This was hardly a conclusion fair to the 4th defendant in the light of the evidence of the plaintiff that the 1st defendant was virtually on the left side of the road before he shouted on him and the 4th defendant’s vehicle was then only 30 yards away. There was no evidence that the 4th defendant was driving at an excessive speed. Neither the plaintiff nor the 1st defendant said so. The evidence of negligence which the 1st defendant gave against the 4th defendant was that he suddenly drove out his parked car onto the road but this the learned trial Judge rejected as untrue.
Being a conclusion drawn by the learned trial Judge on the suggestion of counsel for the plaintiff and not a finding by the trial Judge on a question of fact, this court is in as good a position to evaluate the facts as the trial Judge and form its own independent opinion. As has been held by the House of Lords in Benmax v. Austin Motor Co. Ltd. (1955) 1 ALL E R 326, a distinction must always be drawn between the perception of facts and the evaluation of facts, and where there is no question of the credibility of witnesses but the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial Judge and should form its own independent opinion, although it will give weight to the opinion of the trial Judge.
Assuming however, that the 4th defendant was travelling at a speed, the question for the court to determine would still be: “Whose negligence was it that substantially caused the accident?”, as was decided by the House of Lords in Swadling v. Cooper (1931) AC 1, cited with approval by this court in Mungo Appah & Anor. v. Costain (W.A.) Ltd. & Anor. (1974) S.C. 23 at 31-32.
The facts and circumstances of the case the subject matter of this appeal show clearly that it was the 1st defendant’s negligence that caused the collision and we can find no evidence on the record upon which responsibility for the collision can be attributed to the 4th defendant. Although this case is not one of contributory negligence since no one is charging the plaintiff with “contributing” by his own negligence to what occurred, the principle remains as was stated by this court in M. J. Evans v. S. A. Bakare (1973) 3 S.C.77, that the party which is primarily liable in negligence for an accident bears the responsibility for it, whether, as in that case, the responsibility for the primary negligence is as a result of express finding by the trial court, or, as in this case, that the circumstances warrant that conclusion.
PAGE| 6 In the instant case, the 1st defendant being primarily responsible in negligence for the collision that occurred, there can be no basis for the finding by the learned trial Judge that the 3rd and 4th defendants were fifty per cent to blame for the collision and therefore should be liable for damages to the plaintiff to that extent. We consider that the portion of the conclusion of the learned trial Judge is wrong and we therefore set aside that portion of the judgment as it affects the 3rd and 4th defendants. The appeal succeeds and it is allowed. In the result, we hereby order that: A. the judgment against the 1st and 2nd defendants be and is hereby affirmed and that both defendants do pay the total damages hundred per cent; B. the judgment against the 3rd and 4th defendants be and is hereby set aside, including the award of costs against them, and that the claim of the plaintiff be and is hereby dismissed against them.
We order that the 1st and 2nd defendants pay the costs of the 3rd and 4th defendants’ appeal fixed in the court below at N50.00 and in this court at N195.00.
Other Citation: (1978) LCN/2118(SC)