Dalhatu Audu & Anor V. Ademola Alamo & Anor (2000)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal against a judgment of Umar, J. of the Bauchi State High Court, holden at Bauchi in suit No. BA/276/93 delivered on 20/12/95, wherein he entered judgment in favour of plaintiff in the sum of N518,000.00 being special and general damages for negligent driving against the three Defendants jointly and severally with costs of N3.000.00 in favour of plaintiff.

“The plaintiff’s claim at the trial Court was worded as follows:

“The plaintiff claims against the Defendants jointly and severally as follows:

(1) The sum of N340,000.00 being special damages on account of the plaintiff s Liteace Motor (Bus) which was smashed as a result of the Defendants’ negligence which culminated in the hitting and damaging of the plaintiff’s motor Vehicle beyond repairs at Buzaye Bishiki Town of Bauchi state.

(2) loss of earning at the rate of N1,000.00 per day from 29/10/93 till judgment is delivered”.

The evidence in support of plaintiff’s case was that on or about the 28th day of October, 1993 he was driving his Liteace Motor (Bus) a commercial vehicle with registration No. OD 8396 R along Jos-Bauchi Road, when on getting to a place known as Tashan Rijiya Mallam, he saw a trailer wrongly parked on the right hand side of the road in that half of the trailer was on the main road, while the remaining half was on the grass verge. At about the same time, plaintiff (who testified as P.W 1) said there was a heavy, long truck coming, from the opposite direction i.e. from Bauchi to Jos. The plaintiff therefore applied his brakes and stopped behind the parked trailer for the on-coming vehicle to pass before he could continue. While in that position, a Peugeot 504 station Wagon Vehicle, with Registration No. KN 3542 OF driven by the 1st defendant Ahmed Sa’ad came from behind and hit plaintiff’s bus with such force that it was pushed forward and collided with the wrongly parked trailer with registration No. BA 2003 BA driven by the 2nd defendant (Dalhatu Audu) and owned by one Alhaji Galoji (3rd defendant) The plaintiff’s bus was so severely damaged both from the rear and the front that it was incapable of repairs and so became a write off or total loss. The incident occurred around 7.30 pm. Plaintiff later testified that he bought his said bus at N340,000.00 in 1993, and also called a salesman Ibrahim Idris (P.W.2.) from the Motor Company from where he bought the car to testify and confirm. Purchase receipts were also tendered as exhibits. Plaintiff also testified that he had an average of N1,000.00 (One Thousand Naira) per day using his mini bus to carry passengers.

There were occasions he made even more.

The 1st Defendant in his defence admitted hitting plaintiff’s mini bus from behind as alleged on the date in question. He however contended that, the whole episode was caused by the wrongful parking of the trailer along the highway by the 2nd Defendant. Also was the fact that vehicles from the opposite direction had their full headlights on. He finally contended that plaintiffs bus had already hit 2nd Defendant’s trailer before he ran into plaintiff’s vehicle from the rear.

The 2nd Defendant in his defence testified that he had parked his trailer properly by the side of the road in question and went down to pray, as it was time for prayers. But soon after his prayer, he saw the plaintiff’s vehicle come and stop behind his vehicle instead of passing along like all others. But not long after that the 1st Defendant’s station wagon came along and hit plaintiffs vehicle from the rear. Without saying who hit his own trailer, he stated that the two left tyres of his trailer, and the left rear lights were damaged. He contended that his trailer was properly parked as all other vehicles before plaintiff’s bus were passing freely without any collision. He had also put on his parking light, so that all could see it from a distance. It was a straight piece of road, and not a bend. He said he had his triangular reflectors but did not put them down as he was only going to pray at about 6.30 pm, and not that his trailer was broken down. The L.P.O who came to measure the scene of the accident and drew,sketch, and the V.I.O. who came to examine the extent of damage of plaintiff’s vehicle were also called to testify for the plaintiff The rough sketch of the scene of accident was tendered and admitted as Exhibit ‘PLX’. It is also on record that at the conclusion of evidence, Ben Ogbuchi, the learned Counsel for plaintiff invited the trial Court to come and visit the Bauchi Motor Park to see the extent of damage to plaintiff’s minibus; but there was no indication in the record as to whether such inspection was ever undertaken, and what was observed by the Court.

At the end of the trial, the learned trial Judge, Umar, J, had no difficulty in holding that the two Defendants (1st and 2nd) were negligent, and therefore found them liable to plaintiff in damages. He however found that the plaintiff had not taken any steps to mitigate his losses or damages, rather he waited for over two years for the case to be heard and determined without taking any steps to either repair his damaged vehicle or buy a new one. He also adverted his mind to the case of Kerewi v. Odegbeson (1965) 1 All N.L.R. 95 and held that since the claim of plaintiff was on total loss basis, and not for cost of repairs the correct measure of damages was the value of the car at the time of the accident plus such further sum as would compensate the owner for loss of earnings and the inconvenience of being without a car during the period reasonably required for procuring another car. He noted that in the instant case the plaintiff only gave the value of his bus at the time of purchase to be N340,000.00 and did not give the value at the time of the accident. However, having regard to the evidence of P.W.2 that a brand new bus of the type or plaintiff, then cost N400,000.00 and also having regard to ‘severe inflationary pressure’ in the economy of which he took judicial notice, he finally used his discretion to estimate the value of the minibus at time of the accident to be N340.000.00 (same as when it was new) and awarded same. He then went further and estimated a reasonable period for which the plaintiff could be without a car, while waiting to get a new car under the rule in Kerewi v. Odegbeson (supra) and came down to six months from 29/10/93. He accepted plaintiff’s evidence that he was making an average income of N 1000.00 per day. He therefore came to a total of N178,000.00, and awarded same for loss of use. So, for value of the car, and loss of use he awarded a total of N518,000.00 plus N3,000.00 for costs against the Defendants jointly and severally, with no mention of a Counter-claim.

Against the above judgment, the 2nd and 3rd Defendants were dissatisfied and so appealed to this court on live grounds. The 1st Defendant, apparently satisfied with the said judgment did not appeal.

In due course briefs of argument were filed and issues for determination formulated.

For the 2nd and 3rd Defendants, who will hereinafter be referred to as the ‘Appellants’ four issues for determination were formulated as follows:

“It is humbly submitted that having regard to the Appellants’ Amended Notice and Grounds of Appeal dated 10th/11/97, the following issues arise for determination by this Court:

(1) Whether the judgment of the Court dated 20/12/95 is a nullity;

(2) Whether the accident occurred as a result of the negligence of the 2nd defendant (i.e. the 1st appellant).

(3) Whether the learned trial Judge was right in awarding the respondents the sum ofN5 I 8,000.00 as special damages;

(4) Whether the judgment of the Court below is proper having regard to the evidence adduced at the trial:’

For the plaintiff who will hereinafter be referred to as the ‘respondent’, three issues were formulated as follows:

“Issues For Determination

(i) Whether having regard to the pleadings and evidence, the respondent proved his case and thereby discharged the general burden imposed upon him by law.

(ii) Whether in the circumstances of the case and the uncontroverted evidence adduced, the learned trial Judge was right to have awarded special damages of N340,000.00 for damaged motor vehicle and N178,000.00 for loss of earning for 6 months.

(iii) Whether ‘In Chambers’ which appears on page 24 of the Record of Proceedings without more. is a clear evidence of the fact that the lower court sat in Chambers on 22/5/95 at 11.45 am.”

After careful consideration of all the issues formulated above, I find that it is only the appellants who were the 2nd and 3rd defendants at the trial Court that are appealing, while the 1st Defendant has not appealed. Therefore, it is only the issues that concern the present appellants that will be considered. In this regard I find that Issue No. I in Appellant’s brief is the same as Issue No.3 in Respondent’s brief. They both concern the question whether the whole trial was a nullity as the proceedings of 22/5/95 was conducted in Chambers. I shall consider that issue first, because if that issue succeeds it will become unnecessary to consider any of the other issues. But if it fails, I shall then proceed to consider Issues No.2 of Appellant’s brief which affects Appellants alone. It is only if that issue fails that I shall then proceed to consider Issues 0 and 4 in Appellants’ brief.

Re issue No. 1 in Appellant’s Brief (same as Issue No. (iii) In respondent’s brief)

“Whether the judgment of the Court dated 20/12/95 is a nullity as the proceedings on 22/5/95 was allegedly conducted ‘In Chambers’.

It was the submission of the Appellants under this issue that the judgment of the court below was a nullity and should be set aside as it contravened Section 33(1) and S.33(3) of the 1979 Constitution of Nigeria as amended as well as order 39 R. 1 and Order 48 Rule 2 of the High Court Civil Procedure Rules of Bauchi State. 1987. The said provisions of the Constitution and the High Court Rules were reproduced at p.8 of Appellant’s brief. The Supreme Court cases of Oviasu v. Oviasu (1973) 11 S.C. 315 at 325 and NAB. Ltd v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt.415) 257 were cited and heavily relied upon. It was then pointed out that from the words ‘In Chambers’ which appear at page 24 of the Record of Proceedings on 22/5/95 clearly showed that the cross-examination by the Counsel to the 1st Defendant, and the evidence-in-chief of DW2 (1st defendant) Ahmed Sa’ad, and the cross examination of the said DW2 by plaintiff’s Counsel were done in chambers, and not in open court. Since that was a contravention of the Constitutional and Statutory provisions mentioned above, the court was urged to declare the entire trial a nullity, and set aside same.

In reply to the foregoing, Mr. Ben Ogbuchi, learned Counsel for Respondent, who was also the counsel for the plaintiff at the Court below, drew Court’s attention, to p. 24 of the record, which shows that on 22nd May, 1995, the lower Court had commenced sitting normally in open Court at 9. am. However, following a letter received from Mr. Ben Ogbuchi, the learned counsel for the plaintiff, that the matter be stood down for him till 12 noon, the matter was stood down to 12 noon, and the learned trial Judge retired to his chambers, in anticipation of having the matter adjourned should counsel fail to show up. At about 11.45 am. learned Counsel for Plaintiff showed up pursuant to which proceedings resumed in Court at 11.45 am. with all the three Counsel involved in the case in attendance. In view of the foregoing, this court was urged to hold that this appeal lacks merit and should be dismissed.

With the above explanation by Mr. Ogbuchi, learned Counsel for Respondent, who was the counsel for Plaintiff/Respondent right from the trial Court, I have again looked at p.24 of the records and found that the case was actually stood down to 11.00 a.m. for plaintiffs counsel. The record was then signed by the learned trial Judge ‘Bala Ulmar” (Judge) 22/5/95.

But later the same day, there was the following entry in the record book.

“In Chambers

Court resumed at 11.45am

Mr. Ben Ogbuchi for the plaintiff

Mr.. S. Lawal for the 1st Defendant

Mr. A.H. Suleiman for the 2nd and 3rd Defendants…”

From what is reproduced above. it will be seen that Mr. G. Ofodile Okafor, learned Senior Counsel for the Appellants was not yet a Counsel at the trial Court, when this episode of hearing case in Chambers arose. Mr. Okafor’s complaint in his brief will appear to have been rounded on hearsay information from his clients.

Having said the above, I must observe that the appeal records itself was not unequivocal or free from doubt. Having stood down the case earlier in the day, and wrote ‘in Chambers’ in the record book, when he later came out, if he actually came out, he should either have crossed out the words ‘in Chambers’ or written ‘Resumed in open court’ However, since the heading of recordbooks in Court are always written by Court Clerks and not by the trial Judge, one may take it that the words ‘Court Resumed at 11.45’ implied that the Judge had come out to the open court to be able to ‘resume’

Having said the above, l must add that even if the learned trial Judge in the instant case had continued the trial in his Chambers, the trial would not be a nullity because the cases relied upon by the Appellants’ Counsel were all decided on their peculiar facts and not on all fours with the instant case. For example in the case of N.A.B. Ltd v. Barri Eng. (Nig.) (1995) 8 NWLR (Pt.413) 257 cited by learned Senior Counsel for Appellants, the learned trial Judge, after having taken evidence and addresses of both parties in open Court, adjourned for judgment to 29th August, 1991. According to the report:

“On that day, he for no reasons advanced to either party, called the Counsel to his Chambers and delivered the judgment there, granting all the prayers of the respondent.”

The Supreme Court held that such a procedure vitiated S. 33(3) of the 1979 constitution. Belgore, J.S.C. at page 274 paras B-C had the following to say inter alia.

“On this issue alone of giving judgment not in public as demanded in Section 33(3) under Fundamental rights in chapter IV of 1979 Constitution, but in Chambers the judgment is a nullity and vitiates the entire proceedings.”

In the instant case, there is no allegation that judgment was delivered in Chambers and nor in open court. And even the allegation in Appellant’s brief that part of the proceedings was taken in Chambers was hotly disputed by the learned Counsel for Respondent who was plaintiffs counsel at that lime, and present in court, and I believe him.

I should also mention the recent case of Chime v. Ude (1996) 7 NWLR (Pt.461) 379, also decided by the Supreme court, per Ogundare, J.S.C. where it was held as follows:

On connotation of ‘Court sitting in Chambers’:

When a Court sits in Chambers all that it means is that the judges of the Court are transacting the business of the Court in chambers instead of open Court. It does not mean that the court is not sitting in public. A Court can sit in open court and yet exclude members of the public other than the parties to their legal representations from hearing in exercise of its statutory powers. Equally, a judge may sit in Chambers without excluding members of the public. It is therefore not unconstitutional to sit in chambers. Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356 referred to and followed (p.417 paras B- C).

In view of the foregoing, I hold that Issue No.1 in appellants brief must be answered in the negative i.e. in favour of Respondent, as no part of the proceedings was conducted in chambers, and even if it was, there was no evidence that members of the public were denied access into the said Judge’s Chambers. The judgment was therefore not a nullity. Re Issue No.2 in Appellants’ brief

“Whether the accident occurred as a result of the negligence of the 2nd Defendant (i.e. the 1st appellant).”

In arguing this issue, it was submitted on behalf of the Appellants that, the 1st Appellant parked his vehicle properly but the Respondent because of the light of on coming vehicle stopped behind 1st Appellants’ vehicle. It was also argued that the 1st Appellant did not block the road with his vehicle as to cause the accident that involved the respondent and the Appellants’ vehicle among others. It was also argued that it is the law that causation is a very important factor in determining negligence. In this regard the Court must ask the question ‘Whose negligence substantially caused the accident’ The case of A.N. T.S. v. Atoleye (1993) 6 NWLR (Pt.298). 233 at 246-247 C-B was cited in support. Finally, it was submitted that it is a principle of our law that when two vehicles are going in the same direction on the high way, one after the other, and the one at the rear hits the one in front of it, the presumption is that the driver of the rear vehicle drove negligently. (Eseigbe v. Agholor (1993) 9 NWLR (Pt.316) 128 at 141 to 142 H -A. The court was then urged to hold that the appellants were not negligent.

In reply to the above, it was submitted on behalf of the Respondent that it was the 1st Appellants’ wrongful parking of his master’s trailer along the public highway that caused the respondent to stop behind the trailer and wait for on-coming vehicles from the opposite direction to pass, that made it possible for the 1st defendant who did not appeal to run into the Respondents’ vehicle. The 1st Appellant and his master must therefore be made jointly liable with the 1st Defendant who did not appeal. The cases of Ndubuisi v. Olowoake (1997) 1 NWLR (Pt. 479) p. 62 at 71 and Umar v. Ahungwa (1997) NWLR (Pt.483) p.601 at 610-611 were cited in support.

I have carefully considered the arguments canvassed above by learned Counsel on both sides, and find first that there was no dispute that the 1st defendant (who did not appeal) was rightly found liable in negligence in this case. The only controversy is whether the appellants (who were 2nd and 3rd defendants at the trial court) should also have been found liable in respect of the same tort on the same collision.

I think in order to answer this question properly, one must see the ‘particulars of Negligence’ alleged in the Statement of Claim, and then relate same to the evidence of the plaintiff. In the instant case, I regret to say that there were no ‘Particulars of Negligence’ set out any where in Respondents’ Statement of Claim as required by our rules of pleadings in cases of Negligence. See e.g. Garba Shehu & Anor v. Alere (1998) 7 N\VLR (Pt.556) 115 at 131 C.A. following Adeoshun v. Adisa (1986) 5 NWLR (Pt..40) 225 at 230 etc. However, the facts alleged to constitute Negligence on the part of 2nd Defendant (now 1st Appellant) were given at para 5 of the Statement of Claim as follows:

“On or about the 28th day of October, 1993 the plaintiff while driving his aforesaid Motor Bus, was coming from Jos to Bauchi with passengers and when he got to Buzaiye/Bishiki town (Rijiyan Mallam) in Taro Local Government Area, near Bauchi town at about between 7.300p.m and 8.p.m. he saw a trailer motor vehicle which was parked by the right side of the road, but not completely off the road as almost half of the trailer was on the major road facing towards Bauchi town. There was no triangular indicator showing that there was a parked or broken down motor vehicle”.

On the other hand, the facts of Negligence given in respect of 1st Defendant (who did not appeal) were given at para 8 of the Statement of Claim as follows:

“It was while the plaintiff was still waiting in his bus with his lights on for the on-coming long vehicle to pass, that the 1st Defendant who was driving his own motor negligently, drove his said vehicle into the plaintiff’s vehicle from the rear, latting it with full force and forced it to move forward and collide with the Trailer which was parked in the manner described in paragraph 5 (supra), this completely smashing the plaintiff’s vehicle and so mangled it that it became a write off. The plaintiff shall at the trial of this suit, tender and rely on the photograph of the Motor Vehicle and its negative. The plaintiff shall also move this Honourable Court to proceed to Jos Road Motor Park where the mangled body of the vehicle is being kept and inspect it.”

From the particulars of Negligence given in para 5 above, it will be seen that Appellants’ trailer played no direct or positive role in the collision or mangling of respondents’ vehicle. All that was alleged against the appellants was that their trailer was wrongly parked. There was no averment that it reversed backwards to hit the front of respondents’ minibus. And this was not a case of wrongful parking.

I cannot conclude this aspect of the case without mentioning the recent case of Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt.636) p.626 in which the supreme Court, per Onu, J.S.C., revisited the landmark case of R. v. Tatimu (1952) 20 NLR 60. In the Ngilari case the right hand side of a dual carriage way was closed by the Respondent who was carrying on excavation work and the laying of under ground water pipe across the said dual carriage way. Traffic was therefore diverted from the right hand side of the road to the left hand side. Consequent on this diversion, there was a collision between the appellant’s vehicle and another vehicle driven by one Festus Ayodele along the left hand side of the road.

Appellant sued Respondent in both Negligence and Nuisance. Both the High Court and the Court of appeal dismissed the claim. On a further appeal to the Supreme Court, it was also dismissed. The Supreme Court, per Gnu J.S.C., in the lead judgment held inter alia, as follows at p.642 para D-F

“Mere occurrence of accident is not proof of negligence. Thus, to succeed in a claim in negligence it is not enough to prove that there was an accident. The Plaintiff must prove that the accident was as a result of the negligence of the Defendant. Therefore, the circumstances, nature and extent of the accident must be pleaded and evidence adduced thereon.

Then the Court would be able to determine whether partially or wholly, either the plaintiff or the Defendant caused the accident. This was non-existent in the instant case. It was not shown how the non-fixing of a notice of diversion at points on the road other than the point of diversion caused the accident. Nor that such omission rendered the road dangerous to road users, including the Plaintiff. All that the Appellant succeeded in proving is that there was an accident involving his vehicle ( R v. Tatimu (1952) 20 NLR 60 referred to).

In his own contribution at p.661 para F-G of the report, Iguh, J.S.C, emphasized the same point in the following words:

“On the Appellant’s alternative claim, it is plain tome that negligence is a question of fact not of law, and that each case must be decided in the light of its own facts. See Alhaja Kalla v. Jarmakani Transport Ltd. (1961) All NLR 747 and Morris v. Luton Corporation (1946) 1 K.B. 114. The operation of vehicles on the highway does not give rise to strict liability nor does the fact that an accident has occurred by itself prove negligent or dangerous driving. See Simpson v. Pear (1952) 1 All E.R. 448. The plaintiff, to succeed, must establish negligence against the Defendant. The burden of proving such negligence is on the Plaintiff who alleges it and unless he is able to produce satisfactory evidence that the accident was caused by the defendant’s negligence. it is the duty of the trial court to dismiss the action and enter judgment for the Defendant.”

From the foregoing, coupled with the total absence of any ‘Particulars of Negligence’ in Respondents’ Statement of Claim. I am of the firm view that the learned trial Judge was in error when he found the present Appellants liable in negligence. From the Police sketch of the scene, tendered in evidence in this case, it was shown that the grass verge, was rather narrow and could not have accommodated the whole width of Appellants’ trailer. It was therefore not evidence of negligence that a part of the trailer was parked on the grass verge, while only a part was parked on the main road. Coupled with that is the fact that, the Respondent herein had himself seen the trailer, stopped behind it for vehicles from opposite direction to pass, as he was rightly expected to do before proceeding. It was while he was so waiting that the former 1st Defendant (who did not appeal) came from behind and collided with Respondents’ vehicle. It is my respectful view therefore that the former 1st Defendant (who did not appeal) should be made responsible for all damages, both direct and consequential, that were caused in this case. The main averment about the cause of the collision was what was stated at para 8 of the Statement of Claim, which was mainly against the 1st Defendant who came from behind and hit Respondents’ vehicle. It is my view that if 1st Defendant (who has not appealed) did not hit respondents’ vehicle from the rear, the said Respondents’ vehicle could not have moved forward to hit appellants’ trailer. In my view the 1st Defendant must be made liable for all the direct and consequential damages caused by his negligent and excessive speeding of his vehicles. If the Respondent could stop without hitting Appellants’ trailer, why could not the 1st Defendant do so? The obvious answer is that 1st Defendant was either driving too fast at the time of the evening, or his car had no brakes. I must also state that the proposition of law stated in Eseigbe v. Agholor (supra) mentioned in Appellants’ brief has now become trite and was also given in the case of Chukwuemeka v. Iwerumor (1996) 9 NWLR (Pt.472) 327, decided by the Court of Appeal. (Benin Division), where it was held as follows: (See ratio 5 at p.330.)

“On presumption raised from circumstances of motor-accident. It is prima facie evidence of negligence if a vehicle coming from behind hits a vehicle in front of it. In the instant case, since there was no explanation whatsoever given by the 1st Defendant as to why he could not avoid collision with the trailer in front of him, for he clearly had the last opportunity of avoiding the collision, the trial Judge rightly found him guilty of negligence, Gbolade v. Oladejo (1994) 8 NWLR (Pt.362) 281 referred to and followed (P.336, paras D-E)”.

In view of the foregoing, I hold that it was unnecessary to have joined the Appellant as Defendants in the original suit. The liability of the 2nd Appellant as a master was clearly vicarious, and will not arise unless and until the servant has been round liable. See the cases of Eagle Construction Ltd. v.Ombugadu (1988) 1 NWLR (Pt.533) 231 CA; Obi v. Biwater Shellabear (Nig.) Ltd. (1997) 1 NWLR (Pt.484) 722 C.A. As for quantum of damages the learned trial Judge was correct in taking judicial notice of inflationary trends in this country, e.g. a brand new Peugeot 504 Car which in 1988 cost only N9.000.00 now (after establishment of SAP) cost one point eight million Naira (N1.8m). It is nothing unusual to see a second hand vehicle costing more than what it cost to buy it new. Also, none of the defendants ever disputed the amount of N1.000.00 per day claimed by Plaintiff at the court below as his daily income. As for the loss of use, or loss of earning, since the award was being made on a total loss basis, and not on cost of repairs, there was nothing wrong in the learned trial Judge using his discretion to estimate the award based on six-months as prescribed in case of Kerewi v. Odegbeson (supra).

This appeal therefore succeeds and is hereby allowed. While the amount of damages awarded in favour of respondent was rightly awarded, it was however wrongly awarded against the three defendants ‘jointly and severally’. The said judgment is therefore hereby set aside, and a new one hereby entered against only 1st defendant (who did not appeal) in the said sum of N340,000.00 as value of car at time of accident and N178,000.00 for loss of use for six months with N3,000.00 costs at trial court. Courts in this court is assessed at N2,000.00 in favour of Appellants.

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Other Citations: (2000)LCN/0707(CA)