T.O. Kuti And Another V Salawu Tugbobo (1967)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C. 

In suit J/35/64 the plaintiff claimed damages for the injuries he suffered in a lorry crash on the Ogbere/Ijebu-Ode Road on the 12th October, 1961, due he alleged to the negligence of the second defendant, a driver of the lorry which was owned by the first defendant, and on the 16th of July, 1965, In the Ijebu-Ode High Court, Oyemade, J, gave judgment for the plaintiff awarding him £2,000 damages and costs of £130, and against that decision the defendants have appealed on a number of grounds.

The first ground of appeal was that-

“The learned trial Judge erred in law and in fact in holding that the first defendant was liable because the prima facie evidence of ownership was rebutted by proof of the actual facts and because actual possession and control of the vehicle have both been abandoned to the second defendant as real owner or bailee.”

In this regard the learned trial Judge said in his judgment-

“As regards the liability of the defendants there is evidence that at the material times the vehicle was registered, licenced and insured in the name of the first defendant though the second defendant was still paying the purchase money by instalments. It is therefore obvious that the first defendant was virtually the owner of the vehicle; it is not denied that the second defendant was the driver of the vehicle at the time of the accident; I am therefore of the view that both defendants were properly sued.”

In support of this argument that the learned trial judge was wrong to find the first defendant liable solely because he was the owner of the vehicle. Mr. Sofola cited the case of Smith v. Bailey [1891] 2 Q.B. 403 where Kay, LJ. in the Court of Appeal said at page 407-

“The action here is founded upon the negligence of the person actually using the locomotive. He, as the jury have found, was not the servant or agent of the defendant, but a person who had hired the traction engine for a period of three months.”,

thus acknowledging that the test of liability was based not on ownership but on whether the person driving the vehicle was the servant or agent of the owner. Here the first defendant was undoubtedly the owner but the car was used by the second defendant on hire purchase from the first defendant and it was not pleaded or suggested at the trial that he was the servant or agent of the first defendant. Mr. Okusaga for the plaintiff/respondent tried to argue before us that there was evidence that the lorry was run In partnership between the first and second defendants but as hire purchase rather than partnership was what was pleaded and as in any case no notice to uphold the judgment on other grounds was filed we did not allow him to proceed with that argument. In our judgment the learned trial judge on the evidence before him could not have found that the second defendant was either the servant or agent of the first defendant as he was driving the vehicle upon his own business and not that of the first defendant and accordingly the ownership of the vehicle in question by the first defendant was immaterial and he should have been found not liable. The judgment against the first defendant is accordingly set aside.

A number of grounds were then argued which went to the question of the establishment of negligence by the second defendant and it is convenient therefore now to set out what was pleaded by the plaintiff in his amended Statement of Claim In regard to the question-

“3. On 12th October, 1961, on the Ogbere/Ijebu-Ode Road which is a public highway the second defendant, in the course of his employment, drove LF 2869 with such circumstances of negligence that it struck the side of a steel and concrete bridge on the road and eventually crashed on its side.

4. Particulars of negligence alleged:-

(i) Driving without due care and attention.

(ii) Excessive speeding having regard to all the surrounding circumstances.