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

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

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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.

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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.

(iii)The circumstances of the accident were such that the plaintiff will invoke the doctrine of “res ipsa loquitur.”

(iv) Failing to exercise reasonable prudence and skill in the circumstances.

(v) Using a vehicle which the defendants knew or should have known was in an unsafe and dangerous condition and therefore not roadworthy.”

The facts established in the evidence were that the plaintiff hired the second defendant’s lorry at Ijebu-Ode to get to Oloto in the Okitipupa area on the evening of the 11th of October, 1961. On route they passed a bridge where contractors were working on the road, which was not a tarred one, on the Ijebu-Ode side of the bridge where fresh laterite had been put on the road. After loading at Oloto with abora leaves the lorry set off back to Ijebu-Ode In the night about 12.30 a.m. The plaintiff was sitting in the driver’s cab with another man between him and the driver. After about two hours in a drizzle they came to the bridge where work had been in progress when they had passed earlier on the Ijebu-Ode side of the bridge. It had rained on the spot and the bridge was visible from about 100 yards. Fresh laterite had in fact been put upon the road on the Oloto side of the bridge to a distance of about 40 feet. There was a slight slope down from the bend which was about 100 yards before the bridge which in turn was a narrow one being only some 11 feet in width. The lorry swerved from right to left on the wet laterite and hit a pillar before entering the bridge and managed to cross the bridge before the lorry fell on its left side of the road injuring the plaintiff. The only person who could see and read the speedometer on the lorry was the witness for the defence who was a motor driver sitting between the plaintiff and second defendant and he said that the lorry was going at about 20 miles an hour when it got on to the wet fresh laterite. In his evidence the second defendant said-

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“There was a bend about 100 feet to the bridge from Aye direction. The laterite surface did not begin from the bend. There was rain before we arrived there. I could see the bridge ahead with my headlamps after the bend. I saw the bridge and saw the fresh laterite on the road. It was when I got on the road that I knew it was slippery.”,

and the plaintiff said that he first saw the road works about 50 yards ahead. One of the claims of the plaintiff was that the cause of the accident was that the tyres of the lorry were bad but as this was raised at the last minute and the evidence as to their state was considered inadequate the learned trial Judge rejected this allegation. The plaintfiff, however, said that the facts of the accident raised the doctrine of res ipsa loquitur as he had pleaded and the learned trial judge agreed with him. We should perhaps here state that Mr. Sofola objected that having regard to the judgment of this court in Orajekwe v. Mbieri and Anor. F.S.C. 345/1960 delivered on the 5th of January, 1962, it was necessary to plead res ipsa loquitur in the alternative in the claim for negligence. Far from so stating, what Taylor F.J. In fact said was-

“It will be seen that this plea of res ipsa loquitur is raised in one of two ways: either specifically by reciting the Latin maxim or in the alternative by making it known that the plaintiff intends to rely on the very collision itself as evidence of negligence.”,

and the method that the plaintiff in fact adopted in his Statement of Claim which we have quoted follows the example given in Bullen and Leake’s Precedents and Pleading 11th Edition at Page 536 in relying upon the doctrine of res ipsa loquitur under particulars of negligence. There was, therefore, no merit in this objection. In regard to the doctrine of res ipsa loquitur Lord Porter said in Barkway v. South Wales Transport [1950] 1 All E. R. 392 at 394-

“In these circumstances the appellant claims that the doctrine of res ipsa loquitur applies. Omnibuses, it is said, which are properly serviced, do not burst their tyres without cause, nor do they leave the road along which they are being driven. If the evidence stopped there, the statement is unexceptional. As was said by Erle, C.J. In Scott v. London Dock Co., (1865) 3 H & C. 596 at 601:

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‘………where the thing is shown to be under the management of the defendant or his servants, and the accident is such as In the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not.”

In our judgment the learned trial Judge was right here to consider that the doctrine of res ipsa loquitur was brought into play as a lorry properly driven does not prima facie zig-zag and then collide with a pillar of a bridge and then turn over on the left side at the end of the bridge.

The Inference was that the accident was due to the negligence of the driver and the onus is on him to rebut that. The second defendant sought to do so by relying on the fact that the lorry began to skid on the wet fresh laterite and although he claimed he did everything possible to control it he was through no fault of his not able to do so and was thus in his submission not liable. Now in Laurie v. Raglan Building Co.[1942] 1 K. B. 152 it was held that evidence of a skid is by itself neut

Other Citation: (1967) LCN/1500(SC)

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