IN THE HIGH COURT OF LAGOS STATE
ON WEDNESDAY, THE 2ND DAY OF DECEMBER 1970
ADENIJI GBADEYANKA ............................................ PLAINTIFF
VICTOR ADELEKE OSHINJIRIN ............................................. DEFENDANT
BEFORE: Dosunmu, J.
The plaintiff brought an action against the defendant claiming special and general damages in respect of a collision which involved his taxi car. The defendant was the owner of a lorry alleged to be involved in the same accident.
From the evidence before the court it was impossible to hold that the plaintiff was the owner of the taxi car. The evidence showed that the defendants' driver was negligent. Counsel for the defendant submitted that since the driver who actually drove the defendant's vehicle was not employed by the defendant, but was only a relief to the defendant's driver the defendant could not be held liable. There was no doubt that both the defendant's driver and the relief were driving for the purposes of the defendant.
(1) It is not correct to suppose that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. The owner is also liable if the driver is his agent, that is to say, if the driver is with the owner's consent, driving the car on the owner's business or for the owner's purpose.
(2) On the evidence before the court there was clearly a case of negligence against the defendant's driver; however, since the proper plaintiff was not before the court the present claim could not succeed.
Cases referred to:
Manual v. Edever SC. 533/166 of 13/12/68
Ormrod and anor. v. Crosvill Motor Services (1953) 2 A.E.R. 733/754.
Ajiboye, for the Plaintiff.
Longe, for the Defendant.
Dosunmu, J.:-By his writ the plaintiff claims special and general damages in respect of a collision which involved his taxi car registration No. LN 2658 on the 19/11/67 along Iddo Road at about 9.30 pm. The defendant is the owner of Bedford Lorry No. LK 1186 alleged to be involved in the same accident.
The amended Statement of Claim which was filed on the 4th November, 1969 reads:-(1) "The plaintiff is a trader at 55 Idumagbo Avenue, Lagos.
(2) The plaintiff is the owner of Car plate No. LN 2658.
(3) The defendant is the owner of Lorry plate No. LK 1186.
(4) On the 19th November, 1967, at 21.30 hours the plaintiff's taxi Car registered No. LN 2658 was being driven along Iddo Road, Lagos, by a driver of the plaintiff with his authority.
(5) The defendant's vehicle registered No. LK 1186 was being driven at the time by one Mustafa Olaiya in such a negligent manner that the said vehicle LK 1186 collided with the plaintiff's vehicle and severely damaging same."
Then follow the particulars of negligence alleging excessive speed, failure to keep a proper look out and to stop at a major road.
The defendant puts the plaintiff to a strict proof of paragraph 2 of the Statement of Claim as above as well as the averments in the other paragraphs. In his evidence in chief, and in spite of the fact that his ownership of the taxi car is being challenged, the plaintiff merely stated that he is the owner of the taxi car concerned and no more. The abstract of the Record of the Accident made by the Police-exhibit A which he himself puts in evidence shows that the owner of vehicle No. LN2658 is one Madam Awodeinde. This is also shown to be the case in the Particulars of Vehicles-exhibit Q put in evidence by the Police witness who gave evidence for the plaintiff. Under cross examination, and re-examination, however, the plaintiff added that he owns the car together with one Madam Awodeinde but that he bought it from Leventis and paid wholly for it. He did not tender any receipt or call a representative of the Company to support this. He further testified that the Hackney Permit of the Taxi No. 152 is in the name of Madam Awodeinde and that he carries on the Taxi business in some kind of partnership with her. There is nothing to show for this besides his ipse dixit, and Madam Awodeinde was never called as a witness. As the position is that the vehicle is registered in the name of Madam Awodeinde in whose name the Hackney Permit to operate it as a taxi also stands, I find it difficult to hold that the plaintiff is the Owner of the taxi Car No. LN 2658 as pleaded.
This, perhaps, would be sufficient to dispose of the plaintiff's claim as he has not shown that he is the owner of the damaged taxi car. In the presentation of the claims on the merits, plaintiff's case is no better. In the pleadings it is stated that it is the defendant's lorry No. LK 1186 that collided with the plaintiff's taxi car on the road. This is clearly not so on the evidence. The investigating Police Officer PW3 testified that when he arrived at the scene, he found the four vehicles involved in the accident hooked together in this order, viz. LN 6429, LN 2658, WE 1870 and LK 1186. The plaintiff's car is the second in the line and the defendant's is the fourth; so that the defendant's vehicle never, in fact, had the chance to collide with the plaintiff's. But yet the plaintiff's pleadings remained unamended throughout in the face of this clear evidence. The driver of the plaintiff's taxi himself gave evidence to say that while he was in his car, he heard a bang from his rear, and he came out to discover that the defendant's car hit the vehicle WE 1870 and it was the latter vehicle (WE 1870) which hit his taxi as a result of the push by the defendant's car. This is the evidence of the plaintiff's witnesses and yet there was no application to amend the Statement of Claims. As a matter of fact there is no satisfactory evidence on the plaintiff's side as to how the accident occurred since there is no eye witness account and the doctrine of res ipsa loquitur could hardly apply where the cause of accident is known and expressly pleaded and particularised. But from all accounts it seems that what happened was that while all the vehicles were in position, there was a sudden bang from the rear and the plaintiff's driver came out to discover that he was hit by vehicle No. WE 1870 and that the latter was hit by the defendant's car. The plaintiff's car has two misfortunes. It involuntarily hit the vehicle before it and its front part was damaged. Its back was also damaged by being hit by vehicle WE 1870.
Nobody can believe the evidence of the defendant's driver. He said that while they were all going in a convoy with a Benson Bus in front, a military man sped across the road and the bus stopped suddenly. Then a taxi car following the bus collided with it. Another lorry following the taxi car rammed into the taxi. He, coming after, applied his foot-brakes to his own vehicle No. LK 1186 but to no effect; and in the result he hit the lorry. On his own showing, therefore, he hit the lorry after the latter has already run into the taxi on its own as a result of the military man crossing the road suddenly. First he is negligent for his own inability to control his own vehicle. Secondly, it is not true that there had been a collision in the front before he negligently hit the lorry which, in turn, hit the plaintiff's taxi car. His Statement to the Police made on the 20/11/67 exhibit L was different from his evidence in Court. There he said that vehicle No. WE 1870 immediately ahead of him suddenly stopped, and because the brakes of his vehicle failed he collided with it from the rear. In my view, there is clearly a case of negligence against the defendant's driver. It is only that the proper plaintiff is not before the court which means the present claim cannot succeed; and I will not burden this judgment by considering the items of damages claimed beyond saying that the special damages were not satisfactorily proved and have to be disallowed.
In his address, the defence Counsel raised a not uninteresting point that because the driver who actually drove the defendant's vehicle on the particular date-Mr Olaiya was not employed by the defendant, he (the defendant) cannot be liable. The evidence shows that Mr Olaiya who drove on the date was a relief to the defendant's driver-Mr Sako Olushoga and the defendant's evidence is that there used to be two drivers in a vehicle, and one takes over from the other. There is no question that both Olaiya and Olushoga are driving for the purposes of the defendant as whatever earnings are made for plying his vehicle on the road, will go into the defendant's pocket after they have taken their own shares. Both in my judgment are very much his drivers or agents. The case of Manuel v. Edever SC. 533/166 of 13/12/68 decided by the Supreme Court will make a profitable reading. There Madarikan, J.S.C., quoted a passage from Ormrod & anor. v. Crosvill Motor Services (1953) 2 A.E.R. 753/754 where Denning, L.J., (as he then was) said: "It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. That is not correct. The owner is also liable if the driver is his agent, that is to say, if the driver is with the owner's consent, driving the car on the owner's business or for the owner's purposes.
The law puts a special responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend or anyone else. If it is being used wholly or partly on the owner's business or for the owner's purposes, the owner is liable for any negligence on the part of the driver."
For the reason which I have earlier stated the plaintiff's claim is dismissed with 30 guineas costs.