ONOVAE OGHENOVO vs SEVEN-UP BOTTLING CO. PLC & ANOR.

IN THE HIGH COURT OF LAGOS STATE

IN THE IKEJA JUDICIAL DIVISION

HOLDEN AT COURT 4, GENERAL CIVIL DIVISION

TODAY MONDAY THE 24^TH DAY OF JANUARY, 2011

BEFORE THE HON. JUSTICE OKE (MRS)

SUIT NO LD/1415/05

BETWEEN

ONOVAE OGHENOVO                                                         CLAIMANT

AND

SEVEN-UP BOTTLING CO. PLC & ANOR.               DEFENDANTS

JUDGMENT

The Claimant's Writ of Summons is dated 29^th day of August, 2005 and was filed on the same day with a 24 paragraph Statement of Claim.

The Claimant later filed an Amended Writ or Summons and Statement of Claim of 41 paragraphs dated 10^th day of June 2008 with other processes front loaded in compliance with the Rules of Court.

The Claimant's claim against the Defendants jointly and severally as indorsed on the Amended Statement of Claim dated 10^th day of June 2008 is for:

1. The sum or N420,000.00 being cost or acquiring a replacement vehicle of same specifications as the Claimant's wrecked vehicle (i.e after the deduction of the cost or the said vehicle's scrap).

2. The sum N1, 193,600.00 being cost of hiring a vehicle per alternative transportation arrangement by the Claimant from his residence, No. 21, Okuyemi Street, Itire, Lagos, to his office, No. 23, Awolowo Road, Ikoyi. Lagos at the rate N1, 600.00 per working day (excluding weekends and Public holidays (i.e N800 to and N800 fro) covering the period Friday 22nd April 2005 to Thursday 27^th March 2008.

3. The sum of N360,000.00 being cost of hiring a vehicle per alternative transportation arrangement by the Claimant for his weekend outings/engagements i.e social functions such as weddings, Birthdays, funerals. Church services/religious activities, meetings, visits to friends and relatives etc, activities invariably involving the entire members of the Claimant's household, covering the weekend of 23rd /24th April 2005 to the weekend 23rd of March 2008 Saturdays/Sundays), at the rate of N2,000.00 per weekend.

4. The sum of N684,900.00 as cost  of sundry Transportation expenses in respect of the Claimant's Dependants vis-a vis attendance of schools, attendance of coaching centers after school and running of domestic errands, among others at the rate of N900 per week-day with effect from 22nd of April 2005 to 27^th March 2008.

5. Interest on the reliefs sought above at the prevailing banking rate, in view of inflation, and thereafter at the rate of 10°o until finally liquidated.

6. The sum of N800, 000.00 as general Damages.

7. The cost of this suit.

The Defendants filed a Statement of Defence 11 paragraph dated 9th day of June 2006 and later filed an Amended Statement of Defence dated 15^th day of February, 2007.

The Claimant testify in support of his claim and called one other witness (Lekan Savage) while the Defendants called only one witness to testify in support of their defence (Obinna Chima).

Briefly the Claimant's ease was that while driving on the 21^st day of April, 2005 at Apongbon, Lagos, the 1^st Defendant's truck with full load of the Company's product wrecked his car (An Audi saloon car) in an accident involving two other cars beyond any economical repair and to which the 1st Defendant had accepted total liability but refused to compensate him for the damaged done to his car.                                                                   

According to C.W.L he is a banker with LSB International Bank and knows the Is' Defendant as a Public Limbed Company and the 2'HI Defendant as a truck driver in the employment of the 1^st Defendant and that on 21^st day of April, 2005 at Apongbon, Lagos Island, Lagos, his car, an Audi 80 saloon car with registration Number Lagos AY 990 EPE was ran into from rear by the 2nd Defendant while driving one of the sales trucks belonging to the Is' Defendant.

It was his testimony that the 2^nd Defendant was driving recklessly on that day since the lane was in a relatively free How of traffic and in the process suddenly veered off his lane and hit the CW1’s car from rear on his own rightful lane while stationary in a traffic jam. He stated that this was as a result of the 2^nd Defendant's negligence.

He stated that his car was not only hit from the rear but was also forced to hit the vehicle in front of it and was later forcefully pressed against the wall by the road side with the 1st Defendant's truck by the 2^nd Defendant and this resulted in a lot of damage to the car and that 2nd Defendant took to his heels and fled the scene of the accident immediately after the accident occurred for fear of being mobbed -by people for his manner of driving.

It was also his testimony that the accident was promptly reported to the police and investigation was carried out and the 2^nd Defendant found to he at fault.

He stated that the accident occasioned a whole lot of damage to the vital parts of the car which arc: the vehicle's right side rear door and the ventilation glass, the front grill, the side headlamp, the trafficators, the fuel tank, the bonnet, the boot cover and floor, the rear windscreen, the vehicle's led and right side rear fender, the front and rear bumpers, the vehicle's-left and right side brake lamps and trafficators, right side rear suspension the electric circuits and the right side rear chassis.

It was his testimony that in separate letters dated 25^th April, 2005 and 28^th April, 2005, the 1^st Defendant admitted liability for the accident though attributed the cause to brake failure and that alter waiting for almost 30 days for the 1^st Defendant to take definite step as per compensation and nothing was done, he wrote the Is' Defendant demanding immediate replacement of the wrecked car since the technical opinion was that any repair of the car would amount to perpetual drain on his finances.

He stated that as a result of the absence of any definite commitment on the part of the Is' Defendant to compensate him, he wrote another letter dated 27^th June, 2005 intimating them of his displeasure about the 1^st Defendant's attitude towards his being compensated and gave them an ultimatum to do something about it or he would seek redress in court.

He stated that based on the above letter, he instructed his Solicitors to write the 1^st Defendant with specific instruction demanding for replacement of the wrecked car and compensation 1br alternative transportation and that in response, the 1^st Defendant on the 22^nd July, 2005, in a letter, stated that the issue has been referred to their insurer and that the CW1 should wait for the response of their insurer.

He went further to state that 126 days after the accident, the 1^st Defendant neglected, failed and/or refused to remedy the wrongs suffered by CWI hence the institution of this suit and that in view of the pressing needs of his immediate dependants it was difficult for him to acquire another vehicle in replacement of the wrecked car but had to make alternative arrangement for transportation by hiring a taxi to convey him to and fro from his residence at Itire to his office in Ikoyi on working days and also for his weekends engagements to which she transporter issued him invoices.

He stated that based on the market survey and as confirmed by the expert opinion the pre-accident market value is N500, 000.00 and the scrap of the wrecked car was only worth N80,000.00 . According to him, the failure of the 1^st Defendant to promptly compensate him necessitated the recourse to the alternative transportation which the 1^st Defendant must take responsibility. CW1 urged the court to grant his claims.

On Cross examination by the Defendants' Counsel, he maintained that the accident occurred on 21^st of April, 2005 and he made arrangement for alternative transportation the night of the accident with the cab driver that look him home just as he was coming out of the Police Station. He told the court that he has seen Exhibit "R" the contract commenced on 22/4/05 and that he was not the only one involved in the accident.

He said that it was agreed between him and the taxi driver that he would pay the driver after the case has been determined. He told the court that the 1^st Defendant claimed that the accident was a result of brake failure. He also said that he has been a banker since 1996 and that he has a car now which he bought in 2008 through a loan being a Manager now. He told the court that he was the one that wrote Exhibit “1” and the same driver took them out at weekends for engagement from 2005 to 2008.

On re-examination, he told the court that Exhibit "I" was a gentleman's arrangement made with Nosiru Mohammed, a transport officer of the 1st Defendant and was written in order to reach a comprise that within a week everything will be sorted out which the 1^st Dependant failed to accomplish.

According CW2, he is a Technical Director" in an automobile company known as Associated Investment Motor Nig. Ltd and has been an automobile technician for the past 20 years with specialization in Honda, Audi and Mercedes Benz It was his testimony that the his company was engaged in May, 2005 to carry out a technical inspection of an Audi 80 Saloon Car with Registration number AY 990 EPE belonging to CW1 which was involved in an accident. He stated that it was after a comprehensive assessment of the car that it was found that the chassis of the car has been affected and if repaired it will not be within the factory fitted alignment.

He stated that it was also discovered that the areas where heat would be applied in repairing the chassis will weaken the body of the car and that this will eventually cause an early rusting of the body of the car and wearing of tyres at the affected sides. He staled further that upon further assessment, it was revealed that car's accessories cannot be transferred to an entirely new body since it was terribly damaged in the accident. He told the court that since he had the opportunity of servicing the car before the accident, the pre-accident market value of the car was N500, 000.00 but after the accident and based on the inspection carried by his company, it was discovered that the scrap of the accident far is only worth N80,000.00

On Cross examination by Defendants' Counsel, he told the court that he has 20 years experience as a motor mechanic and that he was an Assistant Engineer with Leventis Motors before starting his own company, lie maintained that to repair the car will be beyond economical repair because the major part of the car is beyond repair. He maintained his evidence in his statement on oath.

According to DW1, he is the Assistant Legal Services/ Property Manager of the 1^st Defendant. He told the court that the 1^st Defendant's truck was involved in an accident with three other vehicles of which the Claimant's Audi 80 saloon car was one of them and inspite of the contributory negligence of the other drivers involved in the accident the 1st Defendant magnanimously agreed to compensate the vehicles owners through their insurer UN 1C Insurance Plc.

It was his testimony that the 1s1 Defendants corporate responsibilities by the 1^st Defendant's insurer is to pay claim ranging between the sum of N161,000.00 to N950,000.00 as assessed by the independent Assessor/Adjuster/lnvestigator based on the level of damaged and pro accident value of the vehicle notwithstanding the contributory negligence of the owners.

He stated that the 1st Defendant received a high level cooperation from the referred vehicle owners who apart from the requirement to prove their ownership of the vehicles agreed promptly on the proposed terms and condition of compensation which mitigated their losses and reduced further damaged to their vehicles.

It was also his testimony that that the Claimant just like other vehicle owners was also negligent and has not acted reasonably as a road user would in the circumstances of the accident and that the Claimant displayed a high level of uncooperative attitude towards negotiation according to their insurer which implies that the Claimant is either not the real owner of the vehicle or is just on an expedition to witch hunt and extort money from the 1st Defendant.

On Cross examination by the Claimant's Counsel, he told the court that he joined the company in 1990 and that his schedule of duties includes legal administration, human resources, transportation, production etc. He said that he had worked in Administration and Procurement Department but now he is in the Legal department and also managing the company properties nation wide. He stated that this include accident port folio, that is, all accident ceases come to him which makes him to interlace between the Company's Solicitors and the insurance company in respect of such accident.

He told the court that this accident occurred in April, 2005 at Apongbon and there was a fire incident in 2004 and 2005 which destroyed the store and achieves.

He said that he resumes at work by 7.30am and closes at 5.00pm daily officially and that the vehicles involved in the accident was their own truck, an Audi car and two other cars.

He stated that a loss adjuster gets approximate estimate of the loss and the insurance company uses loss adjuster and the 1s1 Defendant uses Unic insurance company as their insurer. He admitted seeing Exhibit "W" though he didn't know what "XS" stands for neither does he know what "TBA" stands for and that Exhibit "Y" was made by him with his signature appended on it. He told the court that he didn't recognize the signature on Exhibit "Z".

The Exhibits tendered in this case are:

Exhibit "A": CW 1 Written Statement on Oath.

Exhibit "B": Claimant's proof of ownership Certificate of the damaged Audi (A T) Saloon car.

Exhibit "C": Vehicle licence of the damaged Audi (AT) Saloon car.

Exhibit "D": Letter by the 1^st Defendant dated 25/4/05 where the 1^st Defendant accepted the liability for the accident.

Exhibit "E”: Letter by the 1^st Defendant dated 28/4/05.

Exhibit “F”: Letter by the Claimant dated 19/5/05 informing the 1^st Defendant as to the technical advice that the car is beyond repair.

Exhibit “G”: Letter by the Claimant dated 27/6/05 to the 1^st Defendant.

Exhibit “H”: Letter by the Claimant’s Solicitor to the 1^st Defendant dated 18/7/05

Exhibit “I”: Letter by the Defendant dated 19/7/05

Exhibit “J” to “J4”: Photographs of the scene of the accident.

Exhibit “K”: Claimant’s Marriage Certificate.

Exhibit “L”: Copy of Claimant’s Tenancy Agreement

Exhibit “M”: Claimant’s Office Identity Card.

Exhibit “N”: Copy of the School fees receipt in respect of the Claimant’s Son showing the location of the school he is attending.

Exhibit “O”: Personal identification slips issued to the National Population Commission per the 2006 census exercise to the Claimants and his dependants.

Exhibit “P”: Letter of Defendant’s Solicitor dated 8/3/06

Exhibit “Q”: Invoice for Claimant’s alternative transportation arrangement dated 31/3/08

Exhibit “R”: Invoice for Claimant’s alternative transportation arrangement for weekend engagement dated 31/3/08.

Exhibit “S”: A certified true copy of police abstract record of accident

Exhibit “T”: Letter by Claimant dated 27/4/03 to the 1^st Defendant

Exhibit “U”: Statement on oath of CW2.

Exhibit “V”: Statement on Oath of DW1.

Exhibit “W”: Inspection report from independent assessor/adjuster/investigators.

Exhibit "X" to "X5" Cash discharge Vouchers duly executed in the accident with 1^st Defendant truck.

In his final written address the Learned Counsel to the Defendants identified two issues for determination, namely;

1. Whether the Claimant established before this court his claim that the accident involving the 1^st Defendant's truck driver and the Claimant's car on 21^st April, 2005 was caused by the 2^nd Defendant's reckless or negligence.

2. Whether based on the available facts before the court the Claimant is entitled to the damages being claimed?

In respect of the first issue, he stated that the Claimant's case against the Defendant is that the 2^nd Defendant drove recklessly and negligently on the day the accident occurred but failed to bring solid facts before the court to establish his claim that the 2^nd Defendant was recklessly driving on that day.

lie stated further that the proof of negligence does not lie in merely claiming that someone was reckless or negligent but one must establish facts that will undoubtedly point to the conclusion that the Defendant was negligent and this the Claimant has failed to do in this suit. He stated that the Claimant has failed to establish how and what the Defendant ought to have done in order to be found negligent or reckless. He referred to the case of ELLOR V SELFRIGDE & CO Ltd (1930)41 T.L.R236.

He stated that the Claimant's purported particulars of negligence and evidence given only amount to narrating what happened regarding the accident and not what led to the accident, as it is from establishing what led to the accident that court can safely infer or conclude that the 2nd Defendant was negligent or not. He submitted that to establish a case of negligence against the Defendant the following ingredient have to be proved by the Claimant:

TO BE CONTINUED…