[PDF copy of this judgment can be sent to your email for N300 only. Just order through firstname.lastname@example.org and email@example.com or text 07067102097]
FEDERAL SUPREME COURT OF NIGERIA
16TH JUNE, 1959.
3PLR (1959) 22
MYLES JOHN ABBOTT, AG. F.C.J. (Presided)
LIONEL BRETT, F.J.
LOUIS NWACHUKWU MBANEFO, F.J. (Read the Judgment of the Court)
E. O. ARAKA – for Appellant.
Respondents absent and unrepresented.
TORT AND PERSONAL INJURY: – Fatal accident – Negligence – How proved – Burden of proof which lay on defence – Effect of failure to discharge same – Damages – Heads – How treated
MOTOR VEHICLE AND TRANSPORT LAW: – Fatal accident involving omnibus and cyclist – Where negligence is alleged and contributory negligence alleged against deceased person – Burden of proof showing contributory negligence – Relevant technical and other considerations
CHILDREN AND WOMEN LAW: – Widows and Children – Fatal Accidents Act – Death of bread winner via motor accident caused by negligence of defendant – Claim of damages by dependents – Relevant considerations thereto
PRACTICE AND PROCEDURE – ACTION: – Fatal accident claims – Contributory negligence – How inferred from pleading – Whether use of special words compulsory – Evidence – Onus of proof
PRACTICE AND PROCEDURE – APPEAL: – Notice of hearing sent to parties – Absence of Respondent – Whether Appellate Court can hear the appeal notwithstanding.
MBANEFO, F.J. (Delivering the Judgment of the Court):
The appellant is a brother of the deceased, Emmanuel Nwobi, and brought this action on behalf of the dependants of the deceased under the Eastern Region Fatal Accidents Law, 1956, against the respondents, driver and owner respectively of lorry number E 2807, for damages resulting from the death of the deceased. The plaintiff alleges that the first respondent, a servant of the second respondent, drove the said lorry negligently and was thereby responsible for the collision which caused the death of the deceased. The respondents in their joint statement of defence deny that they were negligent and say that on the contrary it was the deceased who was negligent and that the collision was caused by his negligence.
The facts briefly are that the deceased was riding a motor-bicycle on which he carried behind him another person. The lorry, which could properly be described as an omnibus, driven by the first respondent was coming in the opposite direction. The respondent wanted to turn into Owa Street which is a side road on his right, an operation which involved his cutting across the deceased’s line of traffic. The collision took place when the omnibus was taking the bend. According to the learned Chief Justice’s finding at the trial, at the moment of impact the body of the omnibus, 23 inches long, must have been blocking almost the whole of the deceased’s half of the road. The road is 30 inches wide and from the spot of the accident it was possible at the time, about 6 p.m., to see clearly 300 yards in either direction. The Judge accepted the evidence of the first respondent that the omnibus was moving slowly in bottom gear “grounding” as it took the bend. Although it was not possible to say how far from the crossing the deceased was when the omnibus began to turn, the Chief Justice found that the deceased was travelling at a high Speed and that no attempt was made by him to check the speed until the last split second. He found further that if the deceased had kept a proper look out he would have observed the movement of the omnibus long before it appears he did so. As he put it: It seems to me that a combination of speed and the faulty look out on the part of the motor cyclists are to say the least contributory causes of the accident. He found that there was contributory negligence on the part of the deceased and that it was the cause of the accident. This finding assumes, although it does not actually say so in his judgment, that the driver of the omnibus was also negligent.
The appellant’s counsel in attacking the judgment of the court below has filed altogether nine elaborate grounds of appeal, but in the end only two were argued. The respondents were not in Court. Notices of hearing were sent to them under registered post through their Counsel and also separately to each of them to the addresses given by them. Neither the counsel nor any of the respondents appeared at the hearing of the appeal. Appellant’s counsel told us that two gentlemen who represented the insurance company from whom the first respondent held a policy of insurance in respect of the omnibus and who had been in Court instructing counsel at the trial in the Court below were in Court and had been for the whole of the previous day before the case came up for hearing and that they had informed him that they were not retaining counsel for the appeal. The notices of appeal registered to the respondents were all sent on the 7th April, at the same time as the appellant’s notice was despatched by the same method. It seemed to us that there was sufficient ground for believing that the respondents had due notice of the appeal and so we decided to hear the appeal notwithstanding their absence.
The first ground argued by appellant’s counsel was that the Judge erred in law in considering and upholding the defence of contributory negligence when such a defence was never pleaded or proved. Counsel’s argument on the first leg of this ground seems to be based on a misconception of what a pleading should contain. His argument boils down to this: that since the defence did not specifically say that they were relying on contributory negligence it did not matter what facts they have pleaded. The plea according to him would not be sufficient without the words contributory negligence.” In paragraph 7 of the statement of defence it is pleaded that it was the deceased “who was travelling at excessive speed and recklessly on that occasion whereby he collided with the said lorry number E 2807.” Although the paragraph is not happily worded it seems to me to contain all the ingredients necessary for a plea of contributory negligence. The respondents were saying in that paragraph that the deceased was negligent and that it was his negligence that caused the accident. The changes introduced into the law of negligence in England by the Law Reform (Contributory Negligence) Act, 1945, with the consequence to the form of pleading which follows on that legislation do not apply to this country. The old form of pleading still obtains in the Eastern Region as in the other parts of the Federation and it seems to me that the respondents have pleaded sufficient facts on which the defence of contributory negligence could be raised. I agree with the learned Chief Justice that it was sufficiently raised and he was right, in my view, to have considered it.
The other ground argued on behalf of the respondents was on weight of evidence, and in arguing it, counsel had to deal with the question of onus of proof which was specifically raised in ground 3. It is well known that where a defendant relies on a plea of contributory negligence the onus is upon him to prove it. This principle is clearly stated by Lord Watson in Wakelin v. London and South Western Railway Company (1886) 12 A.C. 41, at page 47 in the following passage referred to in the course of argument:
“I am of opinion that the onus of proving affirmatively that there was contributory negligence on the part of the person injured rests in the first instance upon the defendant and that in the absence of evidence leading to that conclusion the plaintiff is not bound to prove the negative in order to entitle her to a verdict in her favour …….. I have added the words in the first instance because in the course of the trial the onus may be shifted to the plaintiff so as to justify a finding in the defendant’s favour to which they would not otherwise have been intended.”
Clearly the onus to prove contributory negligence is on the defence in this case and they must prove it affirmatively. Now, how have the respondents tried to discharge that onus? The first respondent said he was in bottom gear and was moving at a speed which the Chief Justice accepted was about 5 m. p. h. The road was straight for about 600 yards, that is to say, 300 yards in either direction from the point of impact. The deceased had the right of way on his side of the road. The first respondent driving the omnibus must keep a proper look out before cutting into and blocking the deceased’s way. On this vital issue he says as follows in his evidence:
“I approached Owa Street, a turning on my right. At Ejindu Street I stopped and dropped a passenger. I went on I saw a taxi coming in the opposite direction. I braked because my intention was to turn up Owa Street and I was approaching Owa Street at the time. I was not yet near to Owa Street. The taxi passed. When it passed I changed to bottom gear and put my right hand out to signal I was going up Owa Street. Just as I got my front wheels into Owa Street I heard a bump on my lorry behind. Before I made my turning I looked ahead. I saw nothing coming. When I heard the bump I stopped at once. I was going very slowly of course only 5 m.p.h. I got down and saw a motor-cycle had struck me and that a man was lying injured.”
Later in cross-examination he said:
“If I had seen the motor-cycle coming I would have stopped.”
There was no explanation as to why he did not see the motor cycle. It is clear from his evidence that in cutting into the deceased’s line of traffic the first respondent had not kept a proper look out; for, if he had, he would have seen the motor-cycle (Even if the deceased was travelling very fast along his path as the Chief Justice found he was, he was entitled, as he had the right of way, to assume that the omnibus, if he saw it, would not rashly cut into his path. If the driver of the omnibus did that he must show that the deceased had the opportunity of avoiding the collision, that his failure so to avoid it was due to negligence, and that his negligence was the ultimate cause of the accident. The respondents must prove that before the onus could shift back on the appellant. Apart from the first respondent whose evidence on this vital point has been referred to, the defence called only one other witness, Pius Nwachukwu, who was sitting beside the first respondent in the omnibus at the time of the accident. The relevant portion of this witnesses evidence is as follows:
“We entered Agbani Road, I was looking the way the lorry, was going. We stopped between Ejindu Street and Owa Street and dropped a passenger. After that we went on and got near Owa Street. First defendant signalled the right hand turn. A taxi came from the opposite direction and passed. Then we turned into Owa Street. The front wheel had gone into Owa Street when we heard a knock at the back. We stopped, got down and found a motor-cycle had rammed into us ……. This happened between 6 and 7 p.m., it was not dark.”
His evidence, like that of the first respondent, was purely negative in the sense that he tried to establish that the first respondent was not negligent. As to the events before the accident he made no mention of the motor-cyclist. On his own admission he did not see the motor-cyclist until after the accident. His reason for not seeing him was that he was looking up Owa Street and did not look down Agbani Road, along which the deceased was travelling. The Chief Justice’s finding that the deceased was travelling very fast was based on inferences drawn by him from the medical evidence of the injuries on the deceased, the apparent rebounding of the motor-cycle ten feet from the omnibus and the damage to the motor-cycle and the omnibus. But the fact that the deceased was travelling fast is not enough, as there was no suggestion that he was travelling in excess of the allowed speed limit in the area. Even so he had the right of way and was at the material time on his side of the road. Something more than the defence was able to prove in this case is required before the onus could shift back on the appellant. As, in my view, the respondents had not discharged that burden of proof which lay upon them the appellant was entitled to succeed.
Notwithstanding his finding the learned Chief Justice also stated what he would have awarded as damages had he found in favour of the appellant. He would assess damages at £1,550 to be divided as follows:
To the widow 1,250
To the youngest child 100
To each of the two 150
Remaining children 75
To the deceased’s mother 25
Funeral expenses 25
There has been no argument against this assessment of damages which on the evidence I consider are reasonable. I would, therefore, allow the appeal, set aside the judgment of the Court below with order as to costs and enter judgment for the plaintiff for £1,550 to be divided as above with the costs in the Court below assessed at £75 and of this appeal assessed at forty-five guineas.