Mrs. Olubunmi Ogunde V. Gateway Transit Ltd. & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Ayobode Lokulo-Sodipe, J (as he then was) of the Ogun State High Court, Abeokuta, delivered on the 4th day of February, 2003, in which the Appellant was the plaintiff. The initial Notice of Appeal filed on 23/4/2003 comprised of five (5) grounds of Appeal. Pursuant to an order of this court of 4th July, 2005, the appellant filed four (4) additional grounds of appeal, both were incorporated in the Amended Notice of Appeal dated 1st July, 2004 and filed on the 8th July, 2004, containing nine (9) grounds of Appeal.

The background facts are that on the 9th day of April, 1993 at Gbagada, along Oworonsoki – Apapa Express way in, Lagos, an accident occurred involving the first Respondent’s Coaster Commercial bus with Registration No. OG 841 ES driven by the second Respondent and a Bedford Lorry with Registration Number OD 2912 M which was allegedly driven wrongly, recklessly and unlawfully against the one way direction of the Ibadan bound section of the Apapa – Oworonsoki Expressway and collided with the first Respondent’s bus driven on the right side direction of the road.

The Appellant, a passenger in the bus belonging to the first Respondent, sustained injuries as a result of the accident. She was taken to the National Orthopaedic Hospital Igbobi, Lagos where she was admitted for about 15 months. After her discharge from Hospital, her legs were noticeably deformed.

Thereafter, the Appellant commenced a civil action against the 1st Respondent the owner of the bus and the 2nd Respondent, the driver of the bus. Her amended claim for special and general damages was for the sum of N290.1 Million (Two Hundred and Ninety Million, One Hundred Thousand Naira). In her claim, as reflected in the writ of summons taken out on 18/5/98 she alleged that the accident occurred along Lagos/Ijebu-Ode, Route Road. Her suit was instituted at the Ogun State High Court, Abeokuta.

At the trial, in proof of her case, the Appellant (as plaintiff) testified and called four other witnesses. In defence, an officer of the 1st Respondent’s and the 2nd Respondent testified. In his judgment, the learned trial judge dismissed the case of the plaintiff on its merit but made an order striking out the case having declined jurisdiction.

Dissatisfied with the decision of the trial court, the appellant filed this appeal. The appellant formulated three (3) issues for determination, they are:-

(i) Whether this suit was wrongly commenced at the Ogun State High Court, Abeokuta as a result of which the trial court lacked necessary jurisdiction to entertain it. (Ground 1 of the grounds of Appeal).

(ii) Whether or not in view of the evidence before the court, oral and documentary, the appellant has not established negligence against the 2nd defendant. (Grounds 2, 3, 6 and 9).

(iii) Whether or not in view of the evidence and the general circumstances of the case, the learned trial judge properly assessed damages awardable to the Appellant if he had found in her favour. (Grounds 4 and 8).

The Respondents agreed with the three (3) issues as formulated by the Appellant, adopted same and responded to the arguments proffered in their support accordingly.

When the appeal was argued, the learned counsel to the Appellant Adewale Adegoke Esq, adopted and relied on his brief of argument dated 20th, June, 2007, filed on 27th June, 2007, regularized on 19th November, 2007.

In arguing the appeal, the learned counsel in respect of his first issue submitted that the Appellant in paragraph 2 of her Further Amended. Statement of Claim averred that the 1st Respondent Company is a limited liability company incorporated by the government of Ogun State, we were urged to take judicial Notice of the fact that the capital of Ogun State is Abeokuta. This paragraph, it was argued was admitted by the Respondents in paragraph 1 of their joint Further Amended Statement of Defence. The learned counsel to the Appellant was of a contrary opinion to that of the learned trial judge at page 124 of the printed records where the trial court found as a fact that the accident occurred at Gbagada in Lagos State and the holding that only the High Court of Lagos State has the jurisdiction to adjudicate over the case based on which the learned trial court struck out the appellant’s case.

The learned counsel argued that a court cannot exercise jurisdictional power over a subject matter outside the territory of that state of the federation, the primary rule being that causes of action arising from within a state are justiceable by the State High Court in the same state. However, that where there is a dispute as to which High Court has jurisdiction in the matter a reference has to be made to the constitution to resolve the issue, he cited and relied upon the cases of WEMA BANK PLC. V. CHRISROCK LAB IND. LTD. (2002) 8 NWLR (PT.770) P.614 and NWANA V. U.B.N. PLC. (2003) 16 NWLR (PT.846) P.218.