Francis Osa We Eseigbe V. Friday Agholor & Anor. (1993)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C

The appellant was the plaintiff at trial court in this action based on negligence causing injuries to the appellant. Appellant, a prominent woman and a Chief at Ekpoma was in a car registration number BD 2913 K driven by the local traditional Chief, the Onogie of Egoro. That was on 3rd day of February, 1986, and they were on Ebelle-Agbor road. The vehicle belonged to the Onogie.

Thomas Osobaghase Ogbebor. It was a straight road and the weather was very clear. Suddenly a vehicle with registration number BD 9846A hit the vehicle in which the appellant was from the rear, whereby it tumbled and caught fire. The Onogie and the appellant were rescued by passersby but the appellant had in the process sustained second degree burn on her right hand, and several lesser burns on her body. She was on admission at lruekpen General Hospital receiving treatment for about ten days; thereafter she was an out-patient in several other hospitals in Benin, lruekpen and Lagos and spent Thirty Thousand Naira on treatment. She could not use the right hand again.

At the time she was taken to the hospital immediately after the accident, she was, according to medical evidence, in a state of shock and confusion. The burns extended from the forearm to the tip of her fingers and by the time she was discharged. Keloids had developed. The hand could not thereafter be used to pick anything or to write. The doctor that gave this evidence also was of the opinion that the Keloids could be cured only by plastic surgery. He was not cross-examined by the defence on this all important evidence that was clearly pleaded. The appellant also testified that on medical treatment alone she spent Thirty Thousand Naira.

The plaintiff amended her Statement of Claim after given her own evidence but before closing her case. Her further witnesses gave evidence e.g. a police constable who tendered Exhibit B the sketch of the scene of the accident signed by first respondent and the Onogie. The Statement of Defence was not amended even after the Statement of Claim was amended. The Statement of claim specifically avers in its paragraph 1 and 2 that (1) the plaintiff was a prominent woman and a chief at Ekpoma and that she was a prominent business woman as well as a farmer; and (2) that the first defendant was a professional driver and was at the material time in the employment of the second defendant, limited liability company, as a driver of the vehicle registration No. BD 9846 A, a tipper lorry. The defendant in the statement of defence admitted the lorry belonged to the company but never specifically denied the clear and unambiguous pleading. All the statement of defence did was a general traverse by saying “The 2nd defendant admits ownership of the vehicle but denies other averments in paragraphs 2 and 3 of the Statement of Claim” and also “the defendants deny paragraphs 1, 4, 5, 6, 7, 8, 10 and 11 of the Statement of Claim and puts her to the strictest proof thereof’.

The plaintiff testified to prove her averments but the defendants never testified. What remained as evidence before the Court was the evidence proferred by the plaintiff based on her pleadings. In a curious judgment, trial judge held as follows:

“Paragraph 6 of the amended statement of claim reads as follows:

”The plaintiff further avers that as a result of 1st defendant’s negligent act of hitting the vehicle from behind, vehicle registration No. BD 2913 K was caused to tumble and overturn, bursting into flames in the process.” There is no other paragraph of the amended statement of claim in which the negligence of the 1st defendant or any of the defendants was pleaded, and no particulars of the negligence in paragraph 6 of the amended statement was pleaded. Besides, paragraph 6 of the amended statement of claim as formulated does not disclose a cause of action in tort because the mere act of hitting the vehicle from behind per se does not amount to negligence on the part of the person so hitting the vehicle from behind. The hitting of the vehicle from behind could result from the negligence of the driver of the vehicle hit from behind.”

For the foregoing reasons trial judge dismissed the claim. There was an appeal to Court of Appeal, Benin Branch, where Uche Omo, J.C.A (as he then was) held as follows in respect to the aforementioned quoted passage in trial court’s judgment:

“There is clearly no evidence to support this speculation {in the trial Judge’s finding}. What is apposite here is the case of Abdullahi v. The State (1985) 1 NWLR (Pt.3) 523 Where it was held in a running down case resulting from a motor accident that:

‘To leave one’s lane for another when another vehicle is approaching from the opposite direction and thereby causing one’s vehicle to hit that other in the process is a dangerous piece of driving.’

“Such an act was also found to be sufficient evidence of negligence.”

Learned appellate judge (as he then was) went on to find

”There is however in addition before the trial Judge evidence from the appellant which was substantiated (not being challenged), and which is strongly suggestive of negligence on the part of the respondents. In addition to the hitting of the Peugeot car from the rear by the tipper lorry, there are the following pieces of evidence (1) that the car was travelling slowly and carefully on a straight road, on a dry clear day on its right hand side of the road (2) that it was travelling in the same direction with the tipper lorry (3) that as a result of this hit at the back by the lorry the car somersaulted and caught fire (4) that the tipper lorry, which belonged to the 2nd respondent was driven by the respondent, on that day and at the time of the accident. What is more, although not specifically pleaded, the learned trial Judge should have considered if the appellant in the circumstances was not entitled to rely on the doctrine of res ipsa loquitur”.