Jarmakani Transport Ltd V Wulemotu Abeke (1963)

LawGlobal-Hub Lead Judgment Report

COKER, Ag. F.J.

This is an appeal from the judgement of the High Court, Abeokuta, whereby the appellants were adjudged jointly and severally with the second defendant in the action (who has not appealed) to pay to the respondent damages in the amount of #1,750 with costs assessed at 100 guineas.

The respondent had claimed against the appellants and one Ladipo Akanmu, a total of #5,020 being special and general damages for the negligence of the defendants resulting in injuries to her as follows:
Hospital and Medical Examination Fees    20d
General damages          5,000
TOTAL                   #5, 020

The claim of the plaintiff respondent was founded on injuries received by her when a lorry owned by the appellants and driven by the second defendant and on which she was riding was involved in an accident along the Abeokuta Lagos Road on the 30th September, 1958.

On the day of the accident the appellants’ driver who was driving an open lorry designed only to carry goods went to the Abeokuta (Lafenwa) lorry park and invited passengers to come on the lorry for transport to Lagos. The respondent was one of the passengers at the park waiting for transport to Lagos and she acceded to the invitation of the second defendant and went on the lorry. She paid a fare but there was no evidence that she received a ticket.

At the time she boarded the lorry there were about twenty other passengers on the lorry all sitting on their loads as there were no seats provided on the body of the lorry. As the lorry was already full of passengers and loads the second defendant, the driver, invited her to sit by him in the driver’s cab and she did so. On the way to Lagos she observed that the second defendant was speeding excessively and she requested him to allow her to get off the lorry.

This request was apparently unheeded by the second defendant and near the Lafenwa railway crossing the lights of the lorry went out. The driver continued to drive the lorry without lights zigzagging along the road and paid no attention whatsoever to the entreaties of the respondent to allow her to get off the lorry. Shortly afterwards the lorry collided with and rammed another stationary vehicle parked on the left side of the road near Wasinmi on the road to Lagos.

The respondent sustained serious injuries to her legs and feet and indeed her feet were trapped in the metal floor of the front seat of the lorry on which she was sitting.

The learned trial Judge, after listening to the evidence of both sides and in particular the medical evidence on behalf of the plaintiff/respondent to the effect that she sustained fractures on the right leg and foot, lacerations over the tendo Achillis and a one inch shortening in the right lower limb (involving a total disability of 17 per cent), gave judgment in favour of the respondent against the appellants and the second defendant, the driver, for #1,750 general damages and awarded 100 guineas costs against both defendants.

It was contended on behalf of the appellants that the second defendant was not acting within the scope of his employment when contrary to the express prohibitions of the appellants he had carried passengers in the lorry which was manifestly not built for carrying passengers. The learned trial Judge came to the conclusion that the appellants were vicariously liable for the negligence of the second defendant who was at the material time their driver and in charge of a lorry owned by them.

A number of grounds of appeal were filed and argued on behalf of the appellants but on account of the view which I have formed of this appeal I propose to deal fully with only two of the grounds, as follows:-
“A. That the learned trial Judge erred in law in holding that the second defendant was acting within the scope of his employment with the 1st defendant in view of
(a) The uncontradicted evidence of the defence that the lorry LB 6841 was licensed to carry goods only, that it bore the inscription “Passengers Not Allowed” and the terms of Exhibit “B”;

(b) the fact that the second defendant was acting on a jaunt of his own by neglecting the duties of his employment in carrying the plaintiff as a passenger when the lorry was not designed to be and was not in fact a passenger lorry, a fact established by the lack of provision of seats of any kind in the lorry thereby showing that the driver was acting outside the ostensible scope of his employment.”

“That the damages of #1,750 awarded are excessive in view of the evidence of the second witness for the plaintiff.”
I observe in passing that on a close reading of the several grounds of appeal filed in this matter it would be found that they are all, apart from the grounds of appeal dealing with the weight of evidence and quantum of damages, directed against the finding that at the time of the accident the second defendant was acting within the scope of his employment with the appellants.

It was not complained or suggested before us that in the events that happened the second defendant who drove the lorry in question on the particular day was not negligent. There can be no doubt as to his own negligence as at the material time he was driving and indeed speeding with an open lorry in the dark after his lights had failed and then collided with a stationary lorry correctly parked on its own side of the road.