Linus Onwuka & Anor V. R. I. Omogui (1992)

LawGlobal-Hub Lead Judgment Report

O. BABALAKIN, J.S.C.

This appeal once more brings into focus the quantum of evidence required to sustain proof of facts pleaded in a Statement of Claim.

The facts that led to this appeal are that the respondent as plaintiff took action against the appellants as defendants in Sapele High Court of the then Bendel State but now Delta State of Nigeria for damages done to his Steyr kerosine tanker with Registration No. LP 7875 which was hit and damaged by a Mercedes Benz trailer with Registration No. LAA 8084 A driven by the 1st appellant and owned by the 2nd appellant. The defendants/appellants denied the plaintiff/respondent’s claims and thereupon pleadings were ordered, filed and exchanged. In course of trial these pleadings were amended. At paragraphs 13 and 15 of the further amended Statement of Claim dated 27th June, 1983, the plaintiff/respondent set out the particulars of negligence and his claims for special and general damages respectively as follows:-

“13. PARTICULARS OF NEGLIGENCE

The 2nd Defendant by his agent and or servant the 1st defendant were negligent in that they:-

(i) Failed to keep any proper look out or at all.

(ii) Failed to keep their motor vehicle registration number LAA 8084 A under proper control thereby colliding with plaintiff’s vehicle with number LP 7875 on its proper side of the road.

(iii) Drove their motor vehicle at a speed which was excessive in the circumstances.

(iv) Failed to apply the brakes on their said vehicle in time to avoid the said collision or at all.

(v) Failed both to steer their said vehicle so as to avoid the collision and to sound any warning of the approach of their motor vehicle.

15. WHEREOF the plaintiff claims from the Defendants as follows:-

(a) Special Damages

(i) 6,818 litres (1500 gallons) of kerosine

at 50K a gallon valued ………. at N750.00

(ii) Cost of repairing Steyr diesel tanker