3PLR – EMIONAVI ERINMWIONGHAE V MATINA CHUKWUDEBELU AND OTHERS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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EMIONAVI ERINMWIONGHAE
V
MATINA CHUKWUDEBELU AND OTHERS
FEDERAL SUPREME COURT OF NIGERIA
F.S.C. 426/1961
15TH FEBRUARY, 1963.
3PLR/1963/88 (FSC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, AG. C.J.F. (Presided and Read the Judgment of the Court)
JOHN IDOWU CONRAD TAYLOR, F.1.
SIR VANE BAIRAMIAN, F.J.
REPRESENTATIVES:
- SOFOLA (with him, Messrs IDOWU and OBONNA) – for the Appellant.
- O. ARAKA – for the Respondents.
MAIN ISSUES
TORT AND PERSONAL INJURY– FATAL ACCIDENTS:- Negligence – Contributory negligence – Ingredients – Effect of successful plea of same – Fatal Accidents Law, 1956 of Western Nigeria.
TORT AND PERSONAL INJURY – FATAL ACCIDENTS:- Damages – How assessed – Duty of court in respect of.
TORT AND PERSONAL INJURY – NEGLIGENCE:- Negligence – Whether question of law or of fact.
CHILDREN AND WOMEN LAW:- Fatal Accident – Claims of wife and other dependants of dead victim of motor accident – Fatal Accident Act – Relevant considerations thereto
PRACTICE AND PROCEDURE – DAMAGES – Fatal accidents – Duty of court in respect of.
PRACTICE AND PROCEDURE – EVIDENCE – Unchallenged evidence – Whether raises presumption of truth – How treated
MAIN JUDGMENT
BRETT, AG. C.J.F. (Delivering the Judgment of the Court):
The plaintiff in this case is the widow of Sylvanus Chukwudebelu, who was killed by accident while traveling as a passenger in a vehicle belonging to the defendant. The estate was unrepresented, and by leave of the court she brought an action in the High Court of Western Nigeria claiming damages under the Fatal Accidents Acts on behalf of herself and the other dependants of Sylvanus, namely his father and mother and five children. Thomas, J., found liability proved and awarded damages to a total amount of £5,400 and the present appeal is brought against that decision.
Negligence on the part of the driver of the defendant’s vehicle was not admitted, and in order to prove it the plaintiff called a passenger in the vehicle named Frederick Ogbegbunam, and a police constable called Seidu Momo, who had visited the place where the accident took place the following morning, and taken certain photographs of the two vehicles concerned, one of which was produced as an exhibit. The defendant’s driver, Igbineweke Ojiata, gave evidence for the defence. The defendant’s vehicle is a lorry designed to carry both goods and passengers. There is a separate cab for the driver and perhaps one or two others, and the main part of the bodywork has a compartment immediately behind the driver’s cab which can accommodate six second-class passengers. Frederick Ogbegbunam and the deceased were travelling as second-class passengers, and the deceased occupied the place on the extreme near or left-hand side. The side of the lorry was not completely enclosed when in motion but had apertures of some size permanently there.
The lorry left Lagos some time during the night of the 27th February, 1958, and followed the road which leads through Shagamu to Ibadan. It had reached Iperu, seven miles north of Shagamu, when, according to the driver, he saw the lights of a vehicle approaching from the other direction about a “pole” away. The other vehicle’s lights were not dipped and he was dazzled by them, and could not see the road. He moved over towards his near side, not having seen any other vehicle on the road, and became aware from hearing a bang that he had struck something. He stopped, and discovered that the side of his vehicle had come into contact with the tailboard of a stationary lorry which was parked without lights at the side of the road. The tarred roadway at that spot is 22 feet wide and there is an ample laterite shoulder. The photograph shows that the front wheels of the stationary vehicle were completely off the tarred roadway. There are indications that the bodywork at the back may have extended a foot or two over the roadway, but this is not clear, and no questions were asked about it at the trial.
Unfortunately, the point of impact on the defendant’s vehicle was just at the compartment for second-class passengers, and Sylvanus Chukwudebelu’s left leg was completely severed, above the knee, apparently. He died of shock and haemorrhage. The severed portion of his leg was found underneath the stationary vehicle and a piece of his flesh was found stuck on the side of the defendant’s vehicle.
The Judge held that negligence had been proved, on the ground that “if the defendant’s driver had not been speeding and/or failed to keep a good look out as contended by the plaintiff, the accident would have been avoided”. I do not, with respect, consider that there was any satisfactory evidence of speed which was excessive in itself. Frederick Ogbegbunam did say that the vehicle was being driven “at a big speed”, but apart from the vagueness of this, an inside seat in the second-class compartment is not a place from which any reliable estimate of speed can be formed. The vehicle was halted 22 feet from the stationary vehicle according to the police officer, and this does not indicate any very great speed. Nevertheless, on the driver’s own evidence the road was straight and the approaching vehicle was still in front of him when he came into collision with the stationary vehicle, and he did not explain how he failed to see the stationary vehicle in the lights of the approaching vehicle. If he was completely dazzled, so as to be unable to see anything in front of him I think it was his duty to stop. He does not say that the lights of the approaching vehicle were switched on suddenly and he can hardly plead the agony of the moment. He knew that he was in a township area, and granting in his favour that the person in charge of the stationary vehicle was negligent in leaving it without lights, negligence of that kind is not so uncommon that there is no duty to foresee it. I would uphold the judge’s finding that on the facts of this case – and in view of Mr. Sofola’s arguments I should like to emphasise that this is a decision of fact, not of law – the defendant’s driver was negligent in coming into collision with the stationary vehicle.
In addition to denying negligence, the defendant pleaded contributory negligence on the part of the deceased in negligently projecting his left leg outside the vehicle in which he was being carried. The judge found that this had not been established but, with respect, I find his reasoning on this issue less satisfactory. The only direct evidence on the point was that of Frederick Ogbegbunam, who said that both the legs of the deceased were inside the lorry, and the judge took the view that there was nothing in the evidence adduced before him to support the contention of the defence. He made no reference to the fact that the severed part of the leg was found under the stationary vehicle or to the piece of flesh stuck to the side of the defendant’s vehicle, though as the evidence to this effect was not challenged in cross-examination it is to be presumed that he accepted it as true. If this evidence is true, I can see no way to account for it except by the hypothesis that the deceased had, as pleaded, projected his left leg outside the vehicle. Mr. Araka’s submissions on behalf of the respondent seem to me quite inadequate to explain it. A human leg after severance does not possess the power of independent motion which a hen with its head cut off is said to exercise, or if it does the fact is not well enough known to be assumed without expert evidence. Nor does the theory that the leg was thrown out of the defendant’s vehicle by centrifugal force after a hypothetical swerve seem to me any more probable. In any event, neither of these theories explains the piece of flesh stuck to the outside of the defendant’s vehicle. I would hold that the circumstantial evidence of contributory negligence was sufficiently strong to outweigh the direct evidence of Frederick Ogbegbunam, and that the plea of contributory negligence succeeded. It is common ground that under the law of Western Nigeria as it was on the 27th February, 1958, contributory negligence, if established, is a complete defence: see Okoli v. Nwagu 5 F.S.C. 16; [1960] S.C.N.L.R. 48 and I would allow the appeal.
This makes it unnecessary to consider the arguments addressed to us by counsel on both sides as to the quantum of damages, but as it appears from various Nigerian decisions which were cited to us that judges sitting at first instance have varied considerably in their approach to the matter, I may perhaps without impropriety express the hope that this court may some time have the opportunity of considering the principles to be applied, an opportunity which does not appear to have arisen in any of the cases under the Fatal Accidents Acts which have come on appeal before this court; only one aspect of the question was considered in Anamali v. ljirigho 5 F.S.C. 97; [1960] S.C.N.L.R. 172, I would also express the hope that where damages are awarded under the Fatal Accidents Acts or under Nigerian legislation replacing those Acts, the courts will consider making such an order as will ensure that the damages recovered are used for the benefit of the dependants for whom they were awarded, and not treated merely as a contribution to the general resources of the family at large. It seems that in ljirigho v. Anamali (1958) W.R.N.L.R. 195, Duffus, J., made such an order, and even if there is no statutory rule in the matter, as there is in England under Order l6b, rule 12, of the Rules of the Supreme Court, and in Eastern Nigeria under section 11 of the Fatal Accidents Law, 1956, I cannot doubt that the High Court has power to make a suitable order. In the present case the affidavit of the brother of the deceased which was filed in support of the motion asking for leave for the widow to sue suggests that the “immediate family of the deceased”, apart from his dependants, suppose that they have some direct interest in the result of the action, which indicates the need for an order protecting the interest of the dependants on whose behalf the action was brought.
I would allow the appeal, set aside the judgment of the court below and enter judgment dismissing the action, with costs in the High Court assessed at 80 guineas and costs in this court assessed at 43 guineas.
TAYLOR, F.J.: I concur.
BAIRAMIAN, F.J.: I concur.
Appeal Allowed.
