M. J. Evans Vs S. A. Bakare (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

This appeal is from the judgment of Adebiyi J., High Court, Lagos, in an action instituted by the respondent, as plaintiff, against the appellant who was the defendant in the High Court.

In the action, the plaintiff had claimed against the defendant damages “for personal injuries caused by negligent driving of the defendant of a motor vehicle No. MS 248 on the 25th day of March, 1967 at Apapa Wharf in Lagos.” The plaintiff also endorsed on the writ the particulars of the negligence of the defendant on which he would rely at the trial as follows

“Particulars of Negligence

The defendant was negligent in that he:

1. Failed to keep proper or any look out or to observe or heed the presence or approach of the plaintiff.
2. Drove at a speed which was too fast in the circumstance.
3. Failed to stop, to slow down or to swerve or in any other way so as to manage or control the said vehicle MS 248 so as to avoid hitting plaintiffs Solex cycle.
4. Collided with the right side of the plaintiffs Solex cycle to the extent of which and so far as may be necessary the plaintiff will rely upon the doctrine of res ipsa loquitur.”

Both parties filed their pleadings and as stated in his statement of claim, the plaintiff’s case was that on the 25th March, 1967 as he rode his autocycle, No. LD 1387, along a road in the Apapa Wharf, the defendant, driving his motor car No. MS 248, suddenly emerged and hit him and his autocycle on the right side causing him extensive injuries and his auto-cycle damage of a very serious nature. On the other hand, by his statement of defence, the defendant denies any negligence in himself or indeed any liability for damages and stated that the sole cause of the accident was the negligence of the plaintiff himself. Paragraphs 5 and 6 of the statement of defence told the whole story of the defendant and are as follows:

“5. The defendant states that on 25th March, 1967 at about 11.10 a.m. while he was carefully, slowly and skilfully driving his car No. MS 248 along one of the major roads running the length of Apapa Wharf and on approaching the entrance to a small minor road bisecting stacking areas Nos. 9 and 10, the plaintiff suddenly and without warning negligently dashed with his Solex Auto Cycle from the said minor road across the said major road and so caused the accident.

6. That as a result of the matters referred to in paragraph 5 thereof, the defendant took necessary avoiding action as he reasonably could in the circumstances but the accident could not be avoided as there was insufficient separation of time, place and space of doing so.”

At the trial, both parties gave evidence and called witnesses to support their stories. The learned trial judge in the course of his judgment observed as follows with respect to the conflict in the evidence:

“I do not believe the story of the plaintiff and his witness that he had completed crossing the road and was on his right side of the road proceeding in an opposite direction from that in which the defendant was travelling when the accident occurred. I prefer the evidence of the defendant as to how the accident happened to that of the plaintiff. I find that the accident took place when the plaintiff, having misjudged the nearness of the approaching car, tried to go on to the major road from the intersecting road. I think the defendant’s description of what happened after he had suddenly seen the plaintiff in his path was essentially true. There was no evidence on the plaintiffs part of the speed at which the defendant was travelling down this wet and slippery road and I am left with the defendant’s estimate of his speed at between 15 and 20 miles per hour. The witness Kehinde did appear stupid but I think he was essentially a witness of truth and he said the speedometer, which he was watching, registered 18 miles per hour.”

Strangely enough, after this positive and crucial finding, the learned trial judge then proceeded to deal with the defendant’s case again as if re-hearing it. He referred to the stacking which the parties agreed existed on the righthand side of the road in the direction of the defendant and with regard to this observed as follows:

“I think the stacking described by the defendant made the possibility of danger apparent and the defendant ought to have taken some precaution and I did not hear of any. See, e.g., Lang v. London Transport Executive [1959] 1 W.L.R. 1160. It was only after he saw the plaintiff in his path that he swerved and went on his brakes.”

He then concluded his judgment as follows:

“In the circumstances I find that the defendant was negligent although I think that the plaintiff was far more to blame and that his share of responsibility and culpability far greater. I find the plaintiff two-thirds to blame and defendant driver one-third to blame.”

Eventually, he awarded the plaintiff total damages amounting to 500 pounds (or N1,000) on the basis of one third of the total amount found due by him to the plaintiff, namely 1,500 pounds (or N3,000) and on the ground that he held the defendant contributorily negligent and one third liable for the accident.