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3RD MARCH, 1960.

F.S.C.. 181/1959

3PLR/1960/89 (SC)




LIONEL BRETT, F.J. (Read the Judgment of the Court)










TORT – NEGLIGENCE: Road Accident – Claim and Counter-claim for damages – Where onus lies – Need for trial court to give judgment supported by evidence



Mr. G.C.M. Onyiuke – for the Appellants.

Mr. B.C.I. Obanye -for the Respondent.


BRETT, F.J. (Delivering the Judgment of the Court):

This is an appeal from a judgment of Savage, J., in the High Court of the Eastern Region on a claim and counterclaim for damages for negligence.


The proceedings arose out of a collision which took place on the 4th January, 1956, about 2½ miles from the centre of Onitsha on the road to Owerri (known at that point as Oguta Road) between lorry No. ON 2619, owned by the first appellant and driven by the second, and Vauxhall car No. ON 3137 owned by the respondent and used at the time in question as a taxi. Both vehicles were damaged, so that the respondent claimed damages of £650 and the appellants counterclaimed for £300. After holding that the col­lision was caused by the negligence of the second appellant, the Judge awarded the respondent £441 .5. 0. damages on his claim and dismissed the counterclaim.


The evidence would have been easier to understand if there had been a plan of the scene drawn to scale, or even a moderately accurate sketch-plan, but by the end of the argument, I think I had grasped enough to be able to follow the evidence. The accident took place at what is known as a “halt” on the Oguta Road, where a number of roads converge. Oguta Road runs straight across the halt. If one visualises the “halt” as the centre of a clock­face, with the centre of Onitsha in the direction of 12 o’clock and Oguta road running from 6 to 12, the other roads are Obosi Road in the direction of about 4.30. Fegge Road 9.00 and Iweka Road 10.30. In other words, Iweka Road and Obosi Road are continuations of one another and cross Oguta Road diagonally. Iweka Road slopes upwards towards the halt.


Just before the collision the taxi was travelling along Oguta Road in the direction of Onitsha and the lorry was entering Oguta road from Iweka Road and turning down Oguta road away from Onitsha; this meant that in order to face straight down Oguta Road the lorry had to turn through an angle of about 45 degrees. When the driver of the taxi saw the lorry entering Oguta Road, he formed the opinion that a collision was likely and that the only way in which he could avoid it was by steering right over to his off-side and passing the lorry on the wrong side. The driver of the lorry did not carry out the corresponding manoeuvre and the two vehicles collided on the off­side of the road facing towards Onitsha, the taxi having moved across so far that the damage to each vehicle was on its near side. After the collision both vehicles were facing more or less straight along Oguta Road and both had one pair of wheels on the tarmac surface and one pair off it on the right-hand side facing Onitsha. The skid marks made by the taxi extended 39 feet and those made by the lorry 10 feet.


Since the taxi was admittedly on the wrong side of the road when the collision took place, I would regard the onus of justifying the taxi-driver’s ac­tion as resting on the respondent. At some unspecified distance from the “halt” in the direction from which the taxi was coming there is a bend in the Oguta Road, at which the driver of the taxi agreed it was his duty to slow down. When the Judge in the Court below visited the scene the taxi driver pointed out where he was and where the lorry was when he first saw the lorry and the distance was found to be 34 yards. According to the taxi driver the lorry took the turn into Oguta Road so far over on its wrong side that he did not think it could get over to its proper side before the vehicles met, and he could not avoid it by moving further to his own near side because of a culvert on that side.


In his judgment, Savage, J., did not reach express findings of fact on a number of the points in issue. He did find, however, that the driver of the lorry did not stop before entering Oguta Road, and that he thereby created a situation in which the action taken by the driver of the taxi was not un­reasonable, so that the cause of the collision was the negligence of the driver of the lorry. With respect, I do not consider that this finding can be sup­ported. Accurate figures are not available of how far along Oguta Road the lorry had travelled before the collision, but the distance does not appear to have been great enough for the lorry to have reached the position in which it was found after the collision, facing squarely down the road and with its near-side wheels off the tarmac, if it had cut the comer in the way alleged by the driver of the taxi. If the lorry did not cut the comer and the taxi was on its proper side when the lorry was first seen, the driver of the taxi could have had no justification for not keeping to his near side.


In my view the evidence as a whole, including the skid marks and the position of the vehicles after the collision, points to the conclusion that the taxi was on its wrong side of the road when its driver first saw the lorry, either through having taken the bend too fast or for some other reason, and that the driver of the taxi lost his head and acted in an unreasonable way. I would regard it, therefore, as proved that it was the taxi driver’s negligence that was the cause of the collision, and I do not consider that any negligence has been proved against the lorry driver. I would set aside the judgment of the Court below on the claim, and the counterclaim, with the order for costs, and enter judgment for the appellants on the claim. As regards the coun­terclaim, the evidence of special damage is barely adequate. It appears that the damaged parts were replaced, with second-hand parts, on which £16 was spent, and the labour cost £4; the work took 10 days to carry out. As for the claim for loss of profit, the profit of £5 a day is only an estimate and no proper figures were produced. I would allow the first appellant special dam­ages of £40, with costs in the Court below assessed at 25 guineas and costs in this Court assessed at 45 guineas.


ADEMOLA, F.C.J.: I concur.


HUBBARD, AG. F.J.: I concur.


Appeal Allowed.



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