Management Enterprises Ltd & Anor V. Jonathan Otusanya (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

On the 20th January, 1987, when this appeal came up for hearing the Respondent was not in Court and he was not represented by counsel. Chief Oriade for the Appellants then informed the Court that the Respondent’s counsel Chief Okusaga was in Court on the 17th June, 1984 to oppose his motion for a stay of execution. He knew of this appeal.

The Respondent did not even file any Brief of argument. Under order 6 Rule 9(1) of the Supreme Court Rules 1985 this appeal can proceed without learned counsel for the Respondent who even if he is present will not be entitled, without leave of Court, to oral hearing in the circumstances.

There are very many facts that are not in dispute in this case. It is common ground that the Plaintiff in the Court of first instance and the Respondent in this Court, Jonathan Otusanya, was on the 22nd day of April, 1969, travelling as a farepaying passenger on board a commercial lorry No. LG 3145 driven by one Buraimoh Bakare. It is not in dispute that this lorry was travelling from Ago Alaiye to Ijebu-Ode along the Benin-Ijebu-Ode road.

It is admitted that along that road there is an arrow bridge about 1 1/2 miles after Ajebandele. Both side concede that on that fateful day a ghastly accident occurred on or around the vicinity of the bridge involving a trailer No. LN 9801 and the lorry No. LG 3145. Jonathan Otusanya was severely injured in that accident of 22nd April, 1969. On the 9th day of July, 1972, almost 3 years and 3 months after the accident, Jonathan Otusanya took a Writ of Summons against both the owners and the drivers of the two vehicles involved in the accident. The main dispute centered around the precise cause of the accident and which of the two drivers was the guilty party. The mere fact that the Plaintiff sued the two drivers together is a point to a possible conclusion that he either did not know the guilty party or he wanted to make assurance doubly sure or that his action was speculative. Which one it is will be revealed by the pleadings.

The pleadings will certainly settle the issues in controversy, issues that went to trial in the Court of first instance. It is better to reproduce the relevant paragraphs of the Statement of Claim:

“5. Upon reaching the approaches to the Ajebandele Bridge another vehicles to wit, No. LN 9801 also approached the said bridge from the other side.

6. Neither driver stopped to give way to the other driver but they both entered the bridge and their vehicles evidently collided with each other upon the said bridge.
7. Both vehicles tumbled in to the river bed below, spilling their contents and passengers onto the river bed.
8. The accident occurred on a narrow bridge which could not take two vehicles abreast.
9. The Plaintiff says that the accident was caused by the negligence of both drivers but is not in a position to apportion liability”.

In paragraph 12 of the Statement of Claim, the Plaintiff gave full particulars of the accident as the failure of both drivers to give way, to steer clear or stop for each other; failure to exercise reasonable prudence in the circumstances; excessive speeding; plying the road with vehicles in unsafe and dangerous conditions and permitting their vehicles to get out of control. The Plaintiff also pleaded that “the circumstances of the accident entitle him to invoke the doctrine of res ipsa loquitor”. Alternatively the Plaintiff pleaded in paragraph 24 as follows:

“24. The Plaintiff claims the sum of N16, 000.00 being damages for breach by the Defendants of Section 3(1) Cap.126 Laws of Federation of Nigeria.

26. The 2nd and 4th Defendants used the said vehicles in circumstances when no insurance availed to protect them in respect of liabilities to Third Parties for personal injuries and deaths caused by them during such user.
27. The Plaintiff says that the 1st and 3rd Defendants had failed to provide the 2nd and 4th Defendants with such insurance cover and had thereby committed a breach of the aforesaid statute”.

These are the relevant paragraphs of the Plaintiff’s Statement of Claim detailing the facts on which he relies – the props of his case.

The action against the 3rd and 4th Defendants was withdrawn without any corresponding amendment to the Plaintiff’s Statement of Claim. The case that went to trial was the case against the 1st and 2nd Defendants. How did these two meet the material averments of the Plaintiff As to the cause of the accident the 1st and 2nd Defendants pleaded:

“4. The 1st and 2nd Defendants… aver that vehicle No. LG 3145 said to belong to the 3rd Defendant and driven by the 4th Defendant suddenly emerged from Ajebandele end ofthe bridge and recklessly, violently and carelessly collided with vehicle No. LN 9801.

5. The 1st and 2nd Defendants … aver that vehicle No. LG 3145 traveled at such great speed that it pushed vehicle No. LN 9801 off the bridge.
6. The 1st and 2nd Defendants… aver that the accident, if any, was caused by the negligence of the 4th Defendant … who drove … carelessly and recklessly that his vehicle collided with vehicle registration No. LN 9801 on the Ajebandele bridge.
7. The 1st and 2nd Defendants … will contend at the hearing… that the plaintiff cannot invoke the doctrine of “Res Ipsa Loquitor” in this matter,

Alternatively

9. … the 1st and 2nd Defendants deny having committed a breach of Section 3(1) or of any other Section of Cap.162 Laws of the Federation of Nigeria…
10. …. the 1st and 2nd Defendants aver that they do not owe the Plaintiff any statutory duty and/or any statutory duty entitling the plaintiff to any damages, compensation or penalty from the 1st and 2nd Defendants under the said Law.
11. Should it be held that the Plaintiff is entitled as claimed under the said Law, the 1st and 2nd Defendants plead specially that the claim (if any) of the Plaintiff is statute-barred by virtue of the said Law. ”

From the pleadings above the main issues between the Plaintiff and the 1st and 2nd Defendants seem to be: