Negligence-Motor Vehicle-Collision-Evidence-Point of impact shown on plan not within personal knowledge of policeman-Whether admissible by virtue of section 90 of Evidence Act.

Evidence-Witnesses-Credibility-Trial judge not making any findings as to which witnesses he believed-Court of Appeal reluctant to put itself in place of trial Court in regard to evidence adduced.

Appeal from the High Court of Lagos.

HELD:

(1)     The point shown on the plan as the point of impact not being within the personal knowledge of the policeman and not being admissible by virtue of section 90 of the Evidence Act was inadmissible, being hearsay evidence.

(2)     The trial Judge never made any findings as to which witnesses he believed and it is not the practice of a Court of Appeal to put itself in his place make a determination which he should have made.

(3)     As the trial Judge made no proper findings of fact and wrongly relied on matters in the sketch plan which were in fact inadmissible there was no alternative but to order that this case be re-heard.

PER CURIAM:

Normally where a vehicle is a total loss or "write off" the plaintiff is entitled as damages only to the pre-accident market value of the vehicle less the value of the vehicle as scrap (if any) plus damages for loss of earnings apart from any specific items of special damage proved.

Appeal allowed: judgment of High Court set aside: re-hearing ordered.

Cases referred to:

Simpson v. Lever (1962) 3 W.L.R. 1374.

Benmax v. Austin Motor Co. Limited (1955) 1 All E.R. 326.

Akinola v. Oluwo (1962) 1 All N.L.R. 224.

Liesbosch, Bredger v. Edison (1933) A.C. 449.

Ubami-Ukoma v. Nicol (1962) 1 All N.L.R. 105.

Kerewi v. Odugbesan (1965) 1 All N.L.R. 951.

Act referred to:

Evidence Act section (1)(b).

Appeal from the High Court of Lagos.

Sofola for the Defendants/Appellants.

Lambo for the Plaintiff/Respondent.

Lewis, J.S.C. (delivering the judgment of the court)-In Suit No. LD/33/66 the plaintiff claimed £3,223.10s damages for the negligent driving by the defendants' driver of an omnibus which collided with the plaintiff's tipper on the Lagos/Ikorodu Road on the 10th of November, 1965. On the 12th of September, 1966, Omololu, J. gave judgment for the plaintiff on her claim for £1,218.10s damages together with 20 guineas costs and against that decision the defendants have appealed to this Court.

The plaintiff in her statement of claim set out the particulars of negligence as follows:-Particulars of Negligence

(a)     Driving too fast and/or at a speed that was excessive in the circumstances.

(b)     Failing to keep any proper lookout or to have any or any sufficient regard for traffic emerging from the said bridge.

(c)     Emerging onto the bridge without first ascertaining or ensuring whether it was safe so to do and when it was unsafe and dangerous so to do.

(d)     Driving onto the wrong side of the road.

(e)     Failing to give the said Bedford tipper any or any sufficient time to leave the immediate approach to the Owode Bridge.

(f)     Failing to stop, to slow down or in any other way so to manage or control the said omnibus as to avoid the said collision.

(g)     Colliding with the said Bedford tipper at the said Owode bridge."

The defendants denied liability but in paragraph 6 of their statement of defence pleaded:-

"6.     The defendants state that before the action was commenced by the plaintiff, the defendants, on 4th January, 1966 tendered to the plaintiff's solicitor, Mr A. A. Lambo, the sum of £373 in an effort to settle the plaintiff's claim out of court and as act of good gestures on their part and now bring that some into court",

in order as Mr Sofola informed us to comply with Order XXVII, rule 5 of the Supreme Court (Civil Procedure) Rules (which are the rules of court in force in the Lagos High Court) which deals with the effect of payment into court coupled with a denial of liability. The plaintiff did not however here seek to take out money paid in.

After reviewing the evidence the learned trial Judge in his judgment dealt first with the question of proof that the driver of the omnibus was in fact the defendants' driver and held that he was (an issue not raised before us on this appeal) and then turning to the issue of negligence said-

"I would prefer to accept the evidence of the police officer as shown in the sketch of the accident (exhibit J). This proves that the omnibus had left its side of the road and had careered to the wrong side of the road before the collision. Apart from the evidence, I have no means of deciding the speed of the two vehicles but I take judicial notice of the fact that a Bedford tipper which was on the Owode bridge could not have been driven at speed as the bridge is narrow and only a mad man would negotiate it at any speed.

I would not take seriously the evidence of Afolabi Lambo when he wrote on exhibit G that the accident was probably caused by the failure of the brakes of the omnibus.

In the first place he was not an eye witness, secondly, he is not expert nor did he give his evidence after a professional examination of the wrecked lorry. In other words he only gave his own view or opinion which he was not competent to give as he was called before me only as a witness of fact.

I consider that on the facts before me and on the evidence as a whole I would find that the defendants' bus being driven by their driver Mathew Ekhator in the course of his employment, was negligently driven by the driver and collided with the plaintiff's lorry thereby resulting in a complete wreck of the plaintiff's Bedford tipper."

Mr Sofola for the appellants first argued his ground of appeal which read-

"(1)    the learned trial Judge erred in law and in fact in holding that the defendants' omnibus left its side of the road to go across the crown of the road to meet the plaintiff's tipper lorry and/or that the defendant's omnibus had left its side of the road and had careered to the wrong side of the road when the sketch tendered by the plaintiff as exhibit J showed that the point of impact indicated that the plaintiff's tipper lorry occupied 16 feet out of the 28 foot long (sic) road."

He submitted that the learned trial Judge wrongly interpreted the sketch plan (exhibit J) produced by the PW6 who was a police constable who went to the scene of the accident, as it did not show, as stated by the learned trial Judge earlier in his judgment that "the point of impact was 14 feet from the left side of the road facing Lagos," but that it showed the point of impact was 14 feet away from the Owode bridge over which the plaintiff's tipper had just driven and that according to the sketch plan the road was 28 feet wide there and the tipper took up 16 feet of it. In Mr Sofola's submission the statement by the learned trial Judge that-"this indicates that the omnibus had left its side of the road to go across the crown of the road onto meet the Bedford tipper which was on its own left side of road" was not a correct interpretation of the sketch plan and the learned trial Judge wrongly therefore rule on the plan when he later in his judgment said-

"I would prefer to accept the evidence of the police officer as shown in the sketch of the accident (exhibit J). This proves that the omnibus had left its side of the road and had careered to the wrong side of the road before the collision."

He submitted that apart from that finding the learned trial Judge made no finding as to specific acts of negligence but solely made a general finding that the defendants' bus was being negligently driven. He submitted that the learned trial Judge did not deal with any other specific acts of negligence alleged in the statement of claim to which we have referred or made findings on them and that accordingly the plaintiff should not have succeeded on her claim. However, in view of the fact that the learned trial Judge had not evaluated the evidence Mr Sofola asked us to send the case back for rehearing.

Mr Lambo for the respondent for his part eventually conceded that the learned trial Judge did not make findings of fact other than that with regard to the sketch plan, but he asked us to make findings of fact from the evidence as shown on the record.

We must first of all indicate that the evidential value of exhibit J. the sketch plan, was very limited. The plan was not agreed by the parties and could only therefore be produced by the witness to support his evidence of what he actually saw at the spot and had recorded at the time. In his own evidence the police constable the (PW6) said under cross-examination-"the people in the bus showed me the point of impact. I do not know their names and they did not sign the sketch" and though under re-examination he said-"I can identify anyone on the bus who spoke to me if I see him" and the judge then recorded "witness identifies one John Ogunleye called from witness room" this did not establish that John Ogunleye was one of those who specifically showed him the point of impact. John Ogunleye who was the PW8 was never asked any question about showing the PW6 the point of impact and it was not shown that the persons who informed the PW6 of where the point of impact was could not be found and called as witnesses so that the plan could not be admitted as a whole by virtue of the provisions of section 90 of the Evidence Act as it could have been if in respect of such a witness he could have been shown to fall within an exception in the proviso of section 90(1)(b) that reads-

"Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success."