Odebunmi V Abdullahi (1970)

LawGlobal-Hub Lead Judgment Report

S. M. A. BELGORE, J.S.C.

The first plaintiff, now appellant, is the widow of the late Augustine Oyewole Odebunmi who died in an accident whereby he got burnt. She brought this action, in the High Court of Kwara State (former Kwara State) under the Fatal Accidents Law 1963. She therefore represented herself and her children to wit, Folashade, Femi, Wunmi and Bukola.

Joining her as co-plaintiff is the mother of the deceased, Madam Adebusu Odebunmi. According to the final amended statement of claim, the defendant, Alhaji Isa Abdullahi, also known as Alhaji Abdullahi Ibrahim Isa, was the registered owner of a tanker-trailer vehicle registration number KN 5645 K and registered at Motor Registry, Kano.

The plaintiffs’ case is that on the 5th day of November, 1980 Augustine Oyewole Odebunmi (hereinafter called and referred to as “the deceased”) was in his vehicle of Volkswagen make, being driven by one Raymond Orifunmise along the highway between Okene and Ogaminana (both now in Kogi State).

On getting to a narrow bridge, the vehicle halted to allow a motorcyclist to get out of the bridge. While so stationary, the vehicle No. KN 5645 K aforementioned, driven by one Mohammed Ibrahim Albasa, coming from the rear ran into the deceased’s vehicle. As a result of this crash into the stationary vehicle of the deceased, the trailer-tanker pushed the volkswagen vehicle into the river.

Thus both vehicles ended up in the river and the tanker immediately exploded into a ball of fire which engulfed the volkswagen vehicle with the deceased inside. As the deceased was trapped inside the wreckage he was burnt to death. The case for the plaintiff clearly was that the tanker-trailer driver was in the employment of the defendant and he drove the vehicle with the authority of the defendant, that is to say, in the course of his employment.

It took a long time to get the defendant served with the writ of summons. He rejected service initially and had to be served through the High Court, Kano.

Finally the court made an order for pleadings which were duly filed and exchanged. The defendant’s statement of defence was filed on 12th November, 1985. The plaintiff however filed another amended statement of claim which was filed with leave of the court and not objected to by the defendant on 14th August, 1986 when hearing was actually in progress.

The answer of the defendant in his statement of defence was a complete denial of all the averments in the statement of claim. He denied ownership of the tanker-trailer that caused the fatal accident, he denied knowing any driver of the said vehicle or any driver by the name Mohammed Ibrahim Albasa. He therefore on the premises of these denials dissociated himself from any liability as the owner of the vehicle or the employer of its driver. He also denied his name being Alhaji Ibrahim Isa in whose name the vehicle was registered in Kano. Thus he denied any vicarious liability for the accident that led to the death of the deceased. He then raised the issue that at any rate the action was statute barred for the reason that it was filed more than three years after the accident giving rise to the action. He also denied liability because the writ was served on him outside the jurisdiction of Kwara State High Court etc.

The evidence for the plaintiff was clear as to how the fatal accident occurred. The vehicle occupied by the deceased stopped before entering a narrow bridge to allow a motorcyclist to cross the bridge. While so stationary, the tanker-trailer No. KN 5645 K came from the rear, hit it and pushed it whereby the two vehicles ended up in the river over which the bridge stood.

The tanker-trailer, apparently carrying inflammable material, on landing in the river with the deceased in the vehicle it pushed along, burst into flames and was in no time engulfed in a ball of fire. The deceased was trapped in his own Volkswagen vehicle even though its driver and the driver of the erring taker-trailer escaped.

The deceased died in the fire as he was burnt to death. Upon all this evidence, and with the plea, aside from Fatal Accident Law, of res ipsa loquitur, the defendant never gave evidence but sent one Alhaji Husman who lived at Okene in the then Kwara State to testify. This witness never claimed to know all the defendant’s vehicles and the main plank of his evidence is clear, i.e.
“DW1: Moslem, sworn on Holy Quran speaks Yoruba.

I am Alhaji Usman of 36 Lafiya Street Okene and 21 Unity Road Kano. I am the supervisor in the business of Alhaji Isa Abdullahi. I do not know of any vehicle with registration number KN 5645 K belonging to Alhaji Isa Abdullahi. I am aware that Alhaji Isa Abdullahi is sued in respect of the vehicle but he denies any knowledge of the vehicle. We went to Licensing office at Kano for clarification and we sent the findings to our Lawyer. This is the document obtained from the licensing office, Kano.”

Therefore it is not difficult for the trial court to come to the conclusion that the defendant’s defence was based on total denial. He denied the vehicle was his own, “and that it was registered in his name.