Daye Benjamin Gata V. Paulosa (Nig) Limited (1998)

LawGlobal-Hub Lead Judgment Report

KALGO, J.C.A.

The action giving rise to this appeal was based on negligence arising from the collision of two vehicles coming from opposite directions on a highway along Keffi-Suleja road. The accident took place on the 1st day of July 1983 at about 8. am and the vehicles involved were Toyota Panel Van registration number NC9942A driven by the appellant and a peugeot 504 pick-up van registration No. BD334BE belonging to the respondent.

The appellant who was the plaintiff at the trial, original sued the respondent and one Simeon Adie. Pleadings were then filed and exchanged. In his original Statement of Claim, the appellant pleaded that Simeon Adie, who drove the said respondent’s pick-up van on the day of the accident and was negligent in so doing, was the employee and servant of the respondent. He then itemised the particulars of negligence against Simeon Adie in paragraph 4 of the original Statement of Claim.

On the 13th of June 1984 when the trial commenced, the learned counsel for the appellant applied to discontinue the actions against Simeon Adie as the 2nd defendant in the case. The record of the trial court on page 16 of the record of appeal reads:-

“Mr K. Tunyan:

I no longer want to proceed against the 2nd defendant.

I am therefore applying that his name be struck out from this suit.

Mr.Ogbebor:

I am not opposing the application.

Court:

The application of the plaintiff s counsel is granted.

The name of the 2nd defendant is hereby struck out from this suit.

SGD

OSENI OYEWO