Julius Berger Nigeria PLC & Anor V. Mrs. Philomena Ugo (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment)

In this Appeal and Cross Appeal, action was commenced at the High Court of Imo State Sitting at Owerri by writ of summons issued on the 1st day of November, 2007 at the instance of the Claimant, (who in this Appeal is the Respondent/Cross-Appellant) against the Defendants (who in this Appeal are the Appellants/Cross-Respondents).

At paragraph 31 of the Claimant’s Statement of Claim, the Claimant claimed against the Defendants as follows:

“WHEREFORE the Claimant claims against the Defendants as follows:

1. A Declaration that the 2nd defendant’s negligent driving of the 1st defendant truck with Registration No. XA 493 BWR and fleet No. B 4690 on the 8th December, 2006 which collided with the Plaintiff’s car was unlawful, malicious, reckless and negligent.
2. A Declaration that the 1st defendant is vicariously liable for the reckless, malicious and negligent driving of the aforesaid truck by one Godwin Obado, its employee, servant and/or agent.
3. The sum of N3,000,000,000.00 (Three-Billion) Naira being special, exemplary, and aggravated damages against the 1st defendant.

For purposes of convenience in the rest of this judgment and up to the point of determination of the main Appeal, the parties hereby are hereinafter characterized as; “Claimant/Respondent” and

“Defendants/Appellants’, simpliciter. Pleadings were ordered and duly filed. They consisted of an Amended Statement of Claim together with its front-loaded processes dated and filed on the 15th day of January, 2009;

A Further Amended Statement of Defense and Counter-Claim, together with its front-loaded documents filed on the 28th day of January, 2009.

The Claimant’s Reply and Defense to Counter Claim was dated and filed the 18th day of March, 2009. Thereafter, the matter went to trial.

It is important at this stage to set out the Reliefs sought by the Defendants as per their paragraph 46 of the Amended Statement of Defense and Counter-Claim thus:

“WHEREOF the Defendants/Counter-Claimants counter-claims against the Claimant as follows;

a. A Declaration that the 2nd Defendant had a valid driver’s license (issued on 15-09-2004, expired on 15-07-2007) as at the date of the accident (8-12-2006) forming the subject matter of this suit and also currently has a drivers license (issued on 15-08-2007 to expire on 15-07-2010)

b. AN ORDER deeming both the 2nd Defendant’s drivers license as at the date of the accident (8-12-2006) between the Defendant’s truck with Registration number XA 493 BWR and the Plaintiff’s Nissan Primera car with Registration number BJ 810 ENU (which driving license was issued by Federal Republic of Nigeria on 15-09-2004, expired on 15-7-2007) and also the 2nd Defendant’s current driver’s/driving license (issued on 15-08-2007 to expire on 15-07-2010) as valid and subsisting for all intent and purposes connected thereto.”

The case of the claimant/Respondent for which she testified and called ten (10) witnesses, while the 2nd Defendant/Appellant also testified, and called a witness, is that on the 8-12-2006, along the Okigwe-Owerri Highway at a spot somewhere within Onuimo-Okwelle Road section, a vehicular accident occurred between the Claimant/Respondent’s Nissan Primera Car with Registration no. BJ 810 ENU and the Defendants/Appellants’ articulated truck with Registration no. XA 493 BWR, driven by the Defendant/Appellant’s employee and driver, the 2nd Defendant/Appellant herein.

In the meantime, the 2nd Defendant/Appellant who had earlier on been arrested and charged was convicted on Wednesday, the 21st day of May, 2008 at the Magistrate Court, Onuimo, Imo State on a two count charge of driving without a driver’s license and for negligent/reckless driving in Charge No. MCO/64C/2007. At some point in time, the Defendants were said to have commenced a 3rd Party-Proceedings against Equity Assurance Plc, their Insurers but that they discontinued the action abruptly, without any reasons disclosed.