IN THE SUPREME COURT OF NIGERIA
On Friday, the 15th day of March 1963
1. ALHAJI SHITTU BAMIDELE
2. SHITTU ALAKA ............................................ APPELLANTS
1. ADERINOLA ADEYEMI
2. JEJELOLA ADEYEMI
3. MORILI ADEYEMI
4. MUFUTAU ADEYEMI
5. IDIATU ADEYEMI
6. AWULATU ADEYEMI
7. AKINADE ADEYEMI..................................................... RESPONDENTS
Appeal by defendants: High Court (West) Suit No. I/288/61.)
The plaintiffs claimed damages for the death of a passenger in a lorry. The driver testified that wishing to avoid hitting a cyclist he swerved and hit a tree; he was cross-examined on an alleged statement of his to the police, but he denied making it. The trial Judge used that statement, which was not proved, to discredit the driver's defence.
That was a flaw in judgment on the vital issue of negligence.
Appeal allowed; order for retrial.
Lawal and others v. Youman & others  All N.L.R. 245, 251 (FSC); (1959) W.N.L.R. 155 (High Court).
Appeal from the High Court of Western Nigeria.
O. Kolawole for the Appellant.
F.O. Akinrele for the Respondent.
Bairamian. F.J.:-In this appeal the defendants in the Ibadan Suit No. I/288/61 complain of the judgment given on the 30th March, 1962, awarding damages to the plaintiffs, of whom two are described as wives and the others as children of Isiaka Adeyemi, on the ground that through the negligent driving of the 2nd defendant, the driver in the service of the 1st defendant, the owner, the lorry swerved from the road and collided with a tree, whereby Adeyemi was killed.
The plaintiffs' allegations in their Statement of Claim were denied, save that the driver admitted that Adeyemi was a passenger in the lorry.
There were various objections to the judgment on appeal; that the first two plaintiffs who claimed to be wives did not prove they were ~with that degree of proof which is laid down in Lawal and others v. Youman and others  All N.R., 245, at 251, in the judgment of the Federal Supreme Court; see also the report of the judgment at first instance, in (1959) W.N.T,.R., 155; that a sketch of the sense of the accident was admitted though not produced by the police constable who had made it; that the post mortem report was put in without any evidence to verify it; and some other objections besides; but here, in view of that will be proposed, one point one will be discussed.
The driver gave evidence in his defence, in which the said that a cyclist ran across the road, and not wishing to hit the cyclist, he swerved and collided with the tree. He was cross-examined on a statement the had made to the police; he denied making any statement and disowned the signature on the statement shown to him; it was read out to him, and the said it was not his. That explanation had not been pleaded, but leave was given, in the course of Counsel's closing speech, to amend the defence and plead it. This passage deals with the point in the judgment:-
"He further testified that he was at the moment of impact, driving in third gear, and that the cyclist was 20 ft. away when he first saw him.
If I accept the story of the 2nd defendant as true, he could be exonerated from all blame.
But after hearing all the evidence and seeing the 2nd defendant testify, I am unable to accept his explanation as true. Furthermore, I fail to understand how he could be driving a five ton Lorry in third gear and was unable to avoid a Cyclist that he first saw about 20 ft. away without this mishap. Furthermore this defence was not pleaded in any shape or form whatever, in the Statement of Defence. His statement to the police, made soon after he was well enough to make one, did not mention this explanation. If this explanation was true, it would have been the first thing he would have mentioned and it might have been possible for some sort of check to have been made by investigation."
Now the trial Judge used that statement, which was not proved to be a statement made by the 2nd defendant and which he denied as a means of discrediting his evidence on a point which would have exonerated him. It has been argued for the plaintiffs that the trial Judge would have disbelieved him anyway, even without the test of the statement, for other reasons for disbelieving him were also given in the judgment. We cannot say. We are faced with a flaw in the consideration of the vital issue of negligence, and the only proper course is to have a fresh trial.
The parties should be at liberty to put in fresh pleadings and adduce whatever evidence may be needed on the issues raised. One hopes that things will be done better in that regard. One also hopes that the new judgment will give some light on the method used for assessing damages, if the plaintiffs succeed: the judgment under appeal gives no clue, and both sides found it hard to say anything useful on appeal.
I would allow the appeal and propose:-
That the appeal be allowed and the judgment or 30th March, 1962, in Suit I/288/1961 of the High Court of the Western Region, be set aside, and that it is hereby ordered that there shall be a new trial before another judge, with liberty to have fresh pleadings, with forty guineas as costs of appeal allowed to the defendants, and forty guineas as costs in the court below.
BRETT, F.J.:- I concur.
COKER, AG. F.J.:- I concur.