Innocent Okafor & Anor V. Johnson Okitiakpe (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C

The present respondent was the plaintiff in an action which arose from a traffic accident which occurred on the 4th March, 1964. He instituted the action in the High Court, Ughelli (Mid-West State) against one Innocent Okafor and the Monier Construction Company (Nigeria) Limited, who were the employers of the said Innocent Okafor. According to the evidence in the case, on the day of the accident Innocence Okafor, the 1st defendant, was driving a Volkswagen car No. EP 6099 belonging to the Monier Construction Company (Nigeria) Limited and in which the plaintiff had been given a lift.

It was alleged by the plaintiff, now respondent, that the said Innocent Okafor, now 1st appellant, drove the said car negligently; that as a result of his negligence the car became involved in a road accident in the course of which the plaintiff suffered extensive injuries and that the Monier Construction Company (Nigeria) Limited, the 2nd appellants, were, as employers of the 1st appellant, liable as well in damages to the plaintiff.The parties duly filed their pleadings and paragraph 4 of the plaintiff’s statement of claim avers that the 1st defendant was employed as a driver by the 2nd defendants and paragraph 5 of the statement of claim avers as follows:-

“5. On 4th March, 1964, plaintiff was a passenger in a Volkswagen Motor Car No. EP 6099 owned by the 2nd defendant and driven by the 1st defendant in the course of his duty for the 2nd defendant and was driving from Ughelli town towards Warri direction.”

so the Statement of Claim also alleged that the said car at the material time owned by the 2nd defendants was being driven by the 1st defendant in the course of his duty. The statement of claim further describes the injuries sustained by the plaintiff and gives in some details the particulars of the negligence on which the action was being founded. The Statement of Defence filed by both defendants admits some of the averments in the statement of claim but denies paragraphs 5 and 6 and furthermore avers as follows:-

“5. In further answer to paragraph 5 of the Statement of Claim the 1st defendant denies that the plaintiff was a passenger in the 2nd defendant’s car EP 6099.

6. In further answer to paragraph 5 of the Statement of Claim the 2nd defendants state that EP 6099 was apparently a private car and the 1st defendant was under strict instruction not to carry passengers.”

The Statement of Defence finally denies liability on the part of the 2nd defendants and indeed denies the injuries claimed by the plaintiff to have been sustained by him.

The action went to trial and the plaintiff called witnesses to show that he got a lift in the Volkswagen car No. EP 6099 belonging to the 2nd defendants; that the road accident occurred and that as a result of injuries he received he was treated in a hospital and the nature and the extent of those injuries in respect of which he claimed damages. One of the witnesses called by the plaintiff was Chief Miller Kpohrarho who testified, inter alia, as follows:-

“It is the petrol station close to the bridge. Whilst there, plaintiff came; he asked for a lift. Mr. John said plaintiff should wait and that one of their cars will soon come along and he would tell the driver to give him a lift. Soon after a Volkswagen car came along and Mr. John stopped him. He told the driver to give him a lift to Warri. The plaintiff entered the car and they drove away. Later that evening I heard that there was a motor accident between one of my lorries and the same Volkswagen car in which the plaintiff travelled. I went to the hospital to see the plaintiff that day. I found him unconscious. He was covered with a blanket.”

At the close of the plaintiff’s case, the defence called a witness, Dr. Benjamin Oni-Okpako who testified only as to the nature of the injuries which he saw on the plaintiff when he examined him after the accident and gave it in his evidence that although the plaintiff would thereafter walk with a marked limp, he did not think that the injuries which the plaintiff had sustained could “shorten his life span”. The defence thereafter closed its case and learned counsel for the defence adressed the court first. In this regard, the judge’s notes read as follows:-

“AKPEDEYE ADDRESSES :We do not deny that there was an accident and that the plaintiff was injured in the accident. We do not deny that the vehicle of the 2nd defendant caused the accident. We do not deny that the 1st defendant was the driver of the vehicle and at the time of the accident he was in the Company of the 2nd defendant. What we dispute is the particulars of claim.”

Learned counsel for the defence then addressed the court at some length on the measure of damages. After this, learned counsel for the plaintiff addressed the court. In the course of a reserved judgment, the learned trial Judge held both defendants liable and awarded the plaintiff damages with costs.

This appeal is from that judgment and before us it was argued that the learned trial Judge erred in holding the 2nd defendants as well liable to the plaintiff and also in his assessment or measure of damages awarded to the plaintiff.

The learned trial Judge in his judgment did not deal with the question whether or not the 2nd defendants were liable and his judgment pre-supposed that they were. Indeed, at the beginning of the judgment he observed thus :-