(1) MANAGMENT ENTERPRISES LTD (2) DANGA MUSA (APPELLANT)
v.
JOHNATHAN OTUSANYA (RESPONDENT)
(1987) All N.L.R. 375
Division: Supreme Court of Nigeria
Date of Judgment: 16th April, 1987
Case Number: (SC.100/1985)
Before: Obaseki, Nnamani, Karibi-Whyte, Kawu, Oputa; JJ.S.C.
The respondent claim N16,000.00 general and special damages for negligence against the appellant jointly and severally in that vehicle No. LM 9801 owned the 1st appellant and driven by the 2nd appellant, Danga Musa negligently collided with vehicle No. LG 3145 belonging to the 3rd defendant and driven by the 4th defendant who were dismissed form the suit when the respondent withdrew action against them. Alternatively, he claimed the sum of N16,000.00 as damages for breach of defendant's duty under section 3(1) of Motor Vehicle (Third party Insurance) Act Cap. 126 Laws of the Federation of Nigeria 1958. The respondents pleading blamed the collision on the negligence of the two drivers who were in charge of the vehicles.
The evidence on record established the death of Danga Musa, the 2nd appellant on the spot. Yet the writ of summons was issued against him as if he were alive. Further, the 1st appellant's liability was vicarious and dependent on the proof of the negligence of the 2nd appellant, Danga Musa.
The trial Court dismissed the respondent's claim for special and general damages. The respondent was dissatisfied with this judgment, and he therefore appealed to the Court of Appeal which allowed the appeal. The 1st appellant aggrieved by the judgment of the Court of Appeal, he therefore appealed to the Supreme Court and the major question for determination by the Supreme Court is whether the action against the 2nd appellant was valid or void or whether the proceedings in the High Court and Court of Appeal were void.
HELD:
(1) The action against the 2nd Defendant was a nullity not because he was dead when the writ was issued, but because there was no application by the plaintiff for an order under Order 15, rule 6A/4 R.S.C. (England) for the Court to appoint someone else to carry out on the action. The action was also and thereby a nullity because there was no proper service of the writ against the 2nd Defendant through his such representative appointed by order of Court.
APPEAL allowed
Chief R.O.A. Oriade for Appellants (with him H. Olu-Taylor, M.A. Babafemi)
No appearance for respondent.
Cases Referred to
1. Barkwa v. South Wales Transport (1950) 1 ALL E.R. 392
2. Batavia (1845) 2 W. Rdf 407
3. Clay v. Oxford (1866) LR 2 Exch. 54
4. Conneticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473 at 480
5. Dawson (Bradford) Ltd & Ors. v. Dove & Anor. (1971) 1 ALL E.R. 544
6. Donaghey v. Bouton & Paul Ltd. (1968) A.C. 1 at 31
7. Donaghey v. P. O'Brien & Co. & Ors. C.A. (1966) W.L.R. 1170
8. Dr O.G. Sofekun v. Akinyemi & Ors. (1980) 5-7 S.C. 1 at 21
9. Johnson v. Williams (2 W.A.C.A 248 at 254
10. Madukola & Or. v. Nkemdilim (1962) 1 ALL N.L.R. 587 at 595
11. Margaret Nzom & Anor. v. S.O. Jinadu S.C. 113/1985 decided on 27th Feb., 1987
12. Obajimi v. Attorney-General & Ors. (1968) N.M.L.R. 90
13. Odiase & Anor. v. Agho & Ors. (1972) 1 ALL N.L.R. (Part 1) 170 at 176
14. Skenconsult (Nig) Ltd. & Anor. v. Godwin Sekondy Ukey (1981) 1 S.C. at 26
15. Skinner v. L.B. & S.C. Ry (1850) 5 Exch. 787
16. Smith v. Cammell Lairds & Co. (1938) 2 K.B. 700 at 713 on (1938) 3 ALL E.R. 52 C.A.
17. The Tasmania (1890) 15 A.C. 223 at 255
18. Tetlow v. Oredola Ltd (1920) ALL E.R. Rep. 419
19. The Valdis (1915) 31 T.L.R. 111
Statutes Referred to
1. Motor Vehicles (Third Party) Insurance Act (Laws of the Federation of Nigeria 1958)
Rules Referred to
1. Rules of the Supreme Court (England)
Oputa, J.S.C. On the 20th January, 1987, when this appeal came up for hearing the Respondent was not in Court and he was not represented by counsel. Chief Oriade for the Appellants then informed the Court that the Respondent's counsel, Chief Okusaga was in Court on the 17th June 1984 to oppose his motion for a stay of execution. He knew of this appeal. The Respondent did not even file any Brief of argument. Under Order 6, rule 9(1) of the Supreme Court Rules 1985 this appeal can proceed without learned Counsel for the Respondent who even if he is present will not be entitled, without leave of Court, to oral hearing in the circumstances.
There are very many facts that are not in dispute in this case. It is common ground that the Plaintiff in the Court of first instance and the Respondent in this Court, Jonathan Otusanya, was on the 22nd day of April, 1969, travelling as a farepaying passenger on board a commercial lorry No. LG 3145 driven by one Buraimoh Bakare. It is not in dispute that this lorry was travelling from Ago Alaiye to Ijebu-Ode along the Benin-Ijebu-Ode road. It is admitted that along that road there is an arrow bridge about 1½ miles after Ajebandele. Both side concede that on that fateful day a ghastly accident occurred on or around the vicinity of the bridge involving a trailer No. LN 9801 and the lorry No. LG3145. Jonathan Otusanya was severely injured in that accident of 22nd April 1969. On the 9th day of July 1972, almost 3 years and 3 months after the accident, Jonathan Otusanya took a Writ of Summons against both the owners and the drivers of the two vehicles involved in the accident. The main dispute centred around the precise cause of the accident and which of the two drivers was the guilty party. The mere fact that the Plaintiff sued the two drivers together in a pointer to a possible conclusion that he either did not know the guilty party or he wanted to make assurance doubly sure of that his action was speculative. Which one it is will be revealed by the pleadings.
The pleadings will certainly settle the issues in controversy, issues that went to trial in the Court of first instance. It is better to reproduce the relevant paragraphs of the Statement of Claim:
"5. Upon reaching the approaches to the Ajebandele Bridge another vehicles to wit, No. LN 9801 also approached the said bridge from the other side.
6. Neither driver stopped to give way to the other driver but they both entered the bridge and their vehicles evidently collided with each other upon the said bridge.
7. Both vehicles tumbled in to the river bed below, spilling their contents and passengers onto the river bed.
8. The accident occurred on a narrow bridge which could not take two vehicles abreast.
11. The Plaintiff says that the accident was caused by the negligence of both drivers but is not in a position to apportion liability."
In paragraph 12 of the Statement of Claim, the Plaintiff gave full particulars of the accident as the failure of both drivers to give way, to steer clear or stop for each other; failure to exercise reasonable prudence in the circumstances; excessive speeding; plying the road with vehicles in unsafe and dangerous conditions and permitting their vehicles to get out of control. The Plaintiff also pleaded that "the circumstances of the accident entitle him to invoke the doctrine of res ipsa loquitor." Alternatively the Plaintiff pleaded in paragraph 24 as follows:
"24. The Plaintiff claims the sum of N16,000.00 being damages for breach by the Defendants of Section 3(1) Cap. 126 Laws of Federation of Nigeria.
26. The 2nd and 4th Defendants used the said vehicles in circumstances when no insurance availed to protect them in respect of liabilities to Third Parties for personal injuries and deaths caused by them during such user.
28. The Plaintiff says that the 1st and 3rd Defendants had failed to provide the 2nd and 4th Defendants with such insurance cover and had thereby committed a breach of the aforesaid statute."
These are the relevant paragraphs of the Plaintiff's Statement of Claim detailing the facts on which he relies-the props of his case.
The action against the 3rd and 4th Defendants was withdrawn without any corresponding amendment to the Plaintiff's Statement of Claim. The case that went to trial was the case against the 1st and 2nd Defendants. How did these two meet the material averments of the Plaintiff? As to the cause of the accident the 1st and 2nd Defendants pleaded:
"4. The 1st and 2nd Defendants... aver that vehicle No. LG 3145 said to belong to the 3rd Defendant and driven by the 4th Defendant suddenly emerged from Ajebandele end of the bridge and recklessly, violently and carelessly collided with vehicle No. LN 9801.
5. The 1st and 2nd Defendants... aver that vehicle No. LG 3145 travelled at such great speed that it pushed vehicle No. LN 9801 off the bridge.
6. The 1st and 2nd Defendants... aver that the accident, if any, was caused by the negligence of the 4th Defendant... who drove... carelessly and recklessly that his vehicle collided with vehicle registration No. LN 9801 on the Ajebandele bridge.
8. The 1st and 2nd Defendants... will contend at the hearing... that the plaintiff cannot invoke the doctrine of "Res Ipsa Loquitor" in this matter,
Alternatively
9. ... the 1st and 2nd Defendants deny having committed a breach of Section 3(1) or of any other Section of Cap. 162 Laws of the Federation of Nigeria...
10. ... the 1st and 2nd Defendants aver that they do not owe the Plaintiff any statutory duty and/or any statutory duty entitling the plaintiff to any damages, compensation or penalty from 1st and 2nd Defendants under the said Law.
11. Should it be held that the Plaintiff is entitled as claimed under the said Law, the 1st and 2nd Defendants plead specially that the claim (if any) of the Plaintiff is statute-barred by virtue of the said Law."
From the pleadings above the main issues between the Plaintiff and the 1st and 2nd Defendants seem to be:
i. Whose negligence caused the accident complained of? Was it the negligence of the 2nd Defendant as the Plaintiff (having withdrawn his case against the 3rd and 4th Defendants) will now on the pleadings he held to imply or the negligence of the 4th as the 1st and 2nd Defendants alleged?
ii. Was there any breach by the 1st and 2nd Defendants of the statutory duty imposed on them by Section 3(1) of Cap. 126 Laws of the Federation 1958?
I have not mentioned Res Ipsa Loquitor' as arising from the pleadings because in his paragraph 11 of his
Statement of Claim the Plaintiff gave as his reason for pleadings res ipsa the fact that the accident was caused by the "negligence of both drivers but that he is not in position to apportion liability." These were the circumstances of the accident which he pleaded in paragraph 13 "of his Statement of Claim and which" entitle him to invoke the doctrine of "res ipsa loquitor" when the claim against the 4th Defendant was withdrawn those circumstances changed drastically. I will however consider this matter later on in this judgment.
Having thus stated the vital issues the next step is to examine the findings of the trial Court on those issues. The learned trial Judge at p. 133 of the record of proceedings was careful to observe, after evidence had been adduced, that:
"It is also important to point out that although hearing continued to the end against two Defendants (the 1st and 2nd Defendants) only one defendant is in existence because the 2nd defendant died on the spot at the time of the accident. Again, even though this was and is known to the plaintiff, no step was taken to reflect this in the Statement of Claim in the action itself... This action against the 1st Defendant arose as a result of the negligent act on the part of the 2nd defendant."
This point is important and it is understandably raised and canvassed fully in the Brief of the Appellants.
Finding on Negligence:
The evidence led by the Plaintiff/Respondent was at variance with the negligence pleaded. When the motion for amendment of the pleadings was refused by the trial Court the result was what the learned trial Judge found at p. 135 of the record of proceedings:
"As a result of the refusal to grant the amendment, it then remained that the negligence alleged against the two drivers in support of the plaintiff's case remained as reflected in paragraph 12 of the Statement of Claim but unfortunately the plaintiff led no evidence in support of the nature of negligence as alleged against the two drivers. The nature of negligence in respect of which evidence was led was never pleaded... and since it was wrongly admitted the duty of the Court would be to ignore that evidence of negligence and never to act upon it" (the italics are mine to emphasise that the Court of Appeal cannot also act on evidence that was rejected as inadmissible by the trial Court).
The trial Court made the position very clear at p. 136:
"This Court will have no alternative but to find that the plaintiff led no evidence in support of the alleged negligence against the two drivers. It will therefore be very difficult for the plaintiff's case to succeed on the first leg of his claim based on negligence."
I will only add that it will be more difficult for any appellate Court to discuss negligence or the doctrine of "Res Ipsa Loquitor" in vacuo. Unless there is a reversal of this finding an appellate Court will be estopped from discussing the liability of the 1st and 2nd Defendants/Appellants based on an alleged negligence that was not proved by admissible evidence. Breach of Statutory Duty: Finding on
The Plaintiff pleaded in paragraph 26 of his Statement of Claim that the 2nd and 4th Defendants used their vehicles without a Third Party Insurance Cover. The 1st and 2nd Defendants denied in their paragraph 9 of their Statement of Defence being in breach of Section 3(1) of Cap. 126 of 1958 providing for the users of motor vehicle to be insured against third party risks. The Plaintiff posited his alternative claim for the sum of N16,000.00 on the fact that the 2nd Defendant at the time of the accident was not provided by the 1st Defendant with a Third Party Insurance Cover. Whether on the 22nd April 1969 the 2nd Defendant driving trailer No. LN 9801 had a current Third Party Insurance Cover is a question of fact to be proved by the Plaintiff by admissible evidence. Both the trial Court and the Court of Appeal proceeded to discuss the law without the necessary foundation of a finding of fact on this issue.
The trial Court per Abimbola, J. dismissed the Plaintiff's claim for special and general damages. The Plaintiff dissatisfied and aggrieved appealed to the Court of Appeal Ibadan Division Coram Uche Omo, Dosunmu and Omolulu Thomas, JJ.C.A. That Court allowed the Plaintiff's appeal, set aside the judgment of the trial Court and in its place "substituted a decision that the Plaintiff's claim succeeds." The 1st Defendant/Appellant aggrieved by the above judgment has now appealed to this Court on 8 grounds of appeal.
Ground 1: The complaint here is:
"1. The learned trial Judge and the learned Justices of the Court of Appeal ... erred in law in entertaining respectively the action and the appeal of the Plaintiff/Respondent when neither the trial Court nor the Court of Appeal had jurisdiction to hear the action or appeal.
PARTICULARS OF ERROR
(a) The Second Defendant was not a juristic person because he was not alive when the Plaintiff/Respondent instituted his action in 1972 under Suit HCJ/29/72 and no legal personal representative was appointed by the Court.
(b) The vicarious liability of the First Defendant depended on the established liability of the Second Defendant.
(c) The service of the Writ of Summons in SUIT HCH/29/72 on the dead Second Defendant through the First Defendant who was not appointed the legal personal representative of the Second Defendant, is void and all the proceedings of the trial Court and those of the Court of Appeal are automatically void."
The appellate jurisdiction of the Court as conferred by Section 213 of the 1979 Constitution is to hear and determine appeals from the Court of Appeal and not from the High Court. In the above ground however the jurisdiction of not only the Court of Appeal but also the High Court is being questioned. The point is that ex nihilo hihil fit; one cannot possibly build up something on nothing. The Court of Appeal cannot possibly hear and decide on an appeal from a judgment (of a High Court) which is tainted with a fundamental vice, a judgment that is not voidable but void ab initio. So in a way one can excuse the Appellant for attacking in its Ground 1 above, both the judgment of the High Court as well as that of the Court of Appeal.
The second hurdle to clear before considering Ground 1 above is that the point was never taken in the Court below. The normal rule is that a point presented for the first time in a Court of Appeal ought to be most jealously scrutinised. A Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time if it is satisfied that it has before it all the facts bearing on the contention as completely as would have been the case if, the controversy had arisen at the trial and next that no satisfactory explanation could have been offered by those whose conduct is impugned if any opportunity for explanation had been offered them: The Tasmania (1890) 15 App. Cas. 223 at p. 225 per Lord Herschell; also see Greer, L.J. in Smith v. Carmmel Lairds & Co. (1938) 2 K.B. 700 at p. 713 or (1938) 3 All. E.R. 52 C.A. In this case the Plaintiff was the Appellant in the Court below. To have raised the points contended in ground 1 above would have been to argue himself out of Court. Understandably the present Respondent would not advert his mind to those points. Also no issue of fact need here to be further resolved before ruling on jurisdiction.
Thirdly when a question of law is raised for the first time in a Court of last resort, upon the construction of document, or upon facts either admitted or proved beyond controversy, it is not only competent but also expedient, in the interest of justice to entertain the point: Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473 at p. 480. Fourthly an issue of jurisdiction is radically fundamental and can be raised at any stage of the proceedings and even for the first time in a Court of last resort: see Dr O.G. Sofekun v. Akinyemi & Ors. (1980) & 5-7 S.C. 1 at p. 21; see also Donaghey v. P. O' Brien & Co. & Others C.A. (1966) W.L.R. 1170 and Donaghey v. Boulton v. Paul Ltd. (1968) App. Cas. 1 at p. 31.
The Plaintiff's claim in the trial Court was for damages for negligence. The negligence alleged was that of the 2nd Defendant, Danagna Musa. The 1st Defendant/Company is the owner of the trailer No. 9801 driven by Dananga Musa on the 22nd April 1969-the day of the accident. The liability of the 1st Defendant is not direct but consequential and vicarious. It rests on the successful action against the 2nd Defendant. The evidence of Abraham Samakinde, 3rd P.W. at p. 54 of the record was that "the driver of the commercial vehicle No. LN 9801 died on the spot." From paragraph 25 of the Statement of Claim the 2nd Defendant was the driver of vehicle LN 9801. He was the driver who died on the spot on 22nd April 1969. Also the evidence of Abioye Omijakun, Police Corporal No. 26995 at p. 70 lines 8-10:
"I found the corpse of Dangana the driver of vehicle LN 9801 at the scene of the accident near a river."
It is thus put beyond doubt that the 2nd Defendant Dangana Musa died on 22nd April 1969. The Writ of Summons in this case was filed per Treasury Receipt CR. No. 843221 on 9th July 1972, almost 3 years and 3 months after the death of the 2nd Defendant.
1st Question for Determination
Was the action against the 2nd Defendant valid, or voidable or void?
Was the Ijebu-Ode High Court competent to entertain the alleged action against the 2nd Defendant? Was the case against the 2nd Defendant initiated by due process of law? Was the 2nd Defendant a legal persona, a juristic person who could be sued? If there is any defect in competence then the proceedings in HCJ/29/72 will be a nullity and it does not matter how well conducted and how well decided that suit was: Madukola & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587 at p. 595. If Suit HCJ/29/72 is a nullity vis-a-vis the 2nd Defendant then the vicarious liability of the 1st Defendant will not arise. Now, service of process on a defendant is one of the fundamental conditions precedent to the exercise of jurisdiction. Skenconsult (Nig.) Ltd and Anor. v. Godwin Sekondy Ukey (1981) 1 S.C. 1 at p. 26. Unless the Court otherwise directed (and there is nothing on record to show that the Ijebu-Ode High Court did) service on the 2nd Defendant should have been personal. In this case the 2nd Defendant was served through the 1st Defendant. This obviously does not amount to proper service on the 2nd Defendant. The Court handled a similar problem in Margaret Nzom & Anor. v. S.O. Jinadu (1987) 2 S.C. 205 decided on 27th February 1987 (not yet reported). But in that case the Plaintiff, Jinadu obtained an order of Court to effect substituted service by publication in the Daily Times Newspaper. In Nzom's case supra the Court was quite prepared to hold that service in accordance to an order of Court will pass as good or proper service.
Now the real problem is-Can the Plaintiff sue a dead defendant, Dangana Musa? The common law view was that dead men are no longer legal personae as they laid down their legal personality with their lives at death. Thus being destitute of rights, duties or interests they can neither sue nor be sued. This common law view was expressed in the latin maxim-actio personalis moritur cum persona. But this common law view has been drastically curtailed or eroded either by statute or/and by Rules of Court. This Court considered at some length the question of a living Plaintiff suing a dead Defendant in Nzom's case supra. We have no local statute or Rules of Court dealing specifically with actions against dead defendants. Rather Section 8 of the High Court Law Cap. 44 of the Laws of the Western Region of Nigeria 1959 (which is the applicable law) provides that the High Court of the Western Region of Nigeria shall ... possess and exercise all the jurisdiction, powers and authorities which are vested in, or capable of being exercised by, Her Majesty's High Court of Justice in England.
Now what was and what is the position in England? In Clay v. Oxford (1866) L.R. 2 Exch. 54 it was held that where an action had been commenced in the name of dead man, there was no power under the Common Law Procedure Act 1852 to substitute his representatives as plaintiffs. Kelly C.B. at p.55 said that the Act contained no provision in any part of it for substituting a plaintiff suing in a representative capacity for a deceased man who never was a party. Bramwell, B. in the same case (Clay v. Oxford supra) through that the powers of amendment conferred by the Act did not apply to a case where there was no plaintiff and therefore no existing suit, and no question in controversy between the parties. In this case on appeal the reverse is the case. It is the dead 2nd Defendant who was sued. But the principle ought to be the same. If there is no 2nd Defendant there can hardly exist any questing in controversy between the Plaintiff/Respondent Jonathan Otusanya and the 2nd Defendant.
In Tetlow v. Orela Ltd. (1920) All E.R. Rep 419 an action was mistakenly commenced in the name of a man, as plaintiff, who was dead when the writ was issued. On application by the widow to be substituted as plaintiff,