Mr. Micheal Agbonavbare v. Mr. Johnson Ogbebor & Anor. (2006)

⦿ CASE SUMMARY OF:

Mr. Micheal Agbonavbare v. Mr. Johnson Ogbebor & Anor. (2006) – CA

by NSA PaulPipAr

⦿ AREA OF LAW

• Tort.

⦿ TAG(S)

• Negligence;
• Accident;
• Assault;

⦿ PARTIES

APPELLANT
Mr. Micheal Agbonavbare.

v.

RESPONDENT

1. Mr. Johnson Ogbebor.
2. Mr. William Ikponmwosa.

⦿ CITATION

(2007) 8 NWLR (Pt.1037) pg.605;

⦿ COURT

Court of Appeal

⦿ LEAD JUDGEMENT DELIVERED BY:

Stanley Shenko Alagoa, J.C.A.

⦿ APPEARANCES

• FOR THE APPELLANT
• K. O. Obamogie ESQ.
• FOR THE RESPONDENT
• O. M. Jamgbadi ESQ.

AAA

⦿ FACT (as relating to the issues)

The respondents as plaintiffs instituted an action against the appellant then defendant in Suit No. B/508/94 at the High Court of Edo State, holden at Benin City claiming the sum of N1,000,000.00 (One million naira) special and general damages for negligence and assault.

The defendant now appellant counter-claimed against the respondents claiming the sum of N2,000.000.00 (two million naira) special and general damages for negligence: The claim and counter-claim arose as a result of an accident which occurred in Benin City on the 8th March 1992 and which involved the appellant’s Peugeot saloon car with Registration number NG 2573 MA, the 1st respondent’s Mitsubishi bus with Registration number BD 5827 T driven by the 2nd respondent and a police patrol car.

Pleadings having been filed and exchanged were subsequently amended by leave of court. At the trial the respondents testified for themselves and also called three witnesses while the appellant testified for himself and called three witnesses. The learned trial Judge listened to addresses of counsel and in a reserved judgment delivered on the 23rd July 1997 found in favour of the respondents in the claim for negligence in the sum of N46,850.00 (Forty six thousand eight hundred and fifty thousand naira) as special damages while dismissing the appellants counter-claim for negligence.

Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal.

⦿ ISSUE(S)

1. Was the trial court right in finding for the respondents for negligence. Could not the appellant’s counterclaim for negligence have succeeded?
2. Granted that Exhibit JO3 was wrongly admitted, could the trial court from the totality of the evidence placed before it still have found in favour of the respondents for negligence?

**CROSS-APPEAL

1. Whether the learned trial Judge was justified in law in refusing to award the plaintiffs/cross-appellants damages for assault on the ground of lack of corroboration of the evidence of the plaintiff when in fact evidence of PW5 John Osagie was not evaluated and the entire evidence and pleadings on this point not properly considered.

⦿ HOLDING & RATIO DECIDENDI

[APPEAL: DISMISSED]

1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.

RULING:
i. It is the primary duty of a trial court to ascribe probative value to the evidence of witnesses that testified before it and the Court of Appeal will not interfere with such finding except it is seen to be perverse. The question now is whether this finding of the learned trial Judge is unsupportable. I cannot find any shred of evidence on the part of the appellant to counter this finding of the learned trial Judge. It is not enough for the appellant to assemble bits and pieces of evidence and seek to give them an interpretation of his own which tend to portray the finding of the court as being perverse or dwell on perceived contradictions to the same effect. As has rightly been argued by the respondents, not all contradictions are of a kind which can puncture a watertight case. Such contradictions must be such as to substantially shake the credibility of evidence of witnesses at the trial. I find no contradiction of such a substantial kind. I think it is a fair assessment or evaluation of the evidence that had the appellant fully crossed into Ogbelaka Street from Amosa Street, traversing Sakponba road the accident would not have occurred and therefore the finding of the court below on wrong estimate of distance by the appellant resulting in the accident cannot in my view be faulted.

2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.

RULING:
i. Although resort to the sketch of the scene of an accident is of some assistance in a court’s determination of a road traffic case, there is nothing sacrosanct about it if there are other overwhelming pieces of evidence from those who were either themselves involved or were eye witnesses at the scene of the accident. The court’s evaluation of the evidence adduced need no further reproduction here and I’ll resolve issue No 2 also in favour of the respondent.

[CROSS-APPEAL: DISMISSED]

1. ISSUE 1 OF THE CROSS-APPEAL WAS RESOLVED AGAINST THE CROSS-APPELLANT BUT IN FAVOUR OF THE CROSS-RESPONDENT.

RULING:
i. An allegation of the commission of assault on a person is an allegation of the commission of a crime on that person by the provision of S. 138 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. Such an allegation whether in a civil or criminal proceeding must be proved beyond reasonable doubt and not on a balance of probability. Suffice it to say that this is an elementary principle of law. If the 2nd cross-appellant was assaulted and sustained injuries and was treated he would have discharged that onerous burden of proof by calling evidence to establish the injury sustained. Even more so he would have called as witness whoever administered some treatment on him. The learned trial Judge was therefore right in his finding that the respondents/cross-appellants had not proved the commission of assault beyond reasonable doubt.

⦿ REFERENCED

⦿ SOME PROVISION(S)

Section 179(4) of the Evidence Act Laws of the Federation of Nigeria 1999 states that “A person charged under the Road Traffic Law of a state with driving at a speed greater than the allowed maximum shall not be convicted solely on the evidence of one witness that in his opinion he was driving at such speed”.

⦿ RELEVANT CASE(S)

Okere v. Fashawe (2006) VOL. 12 WRN 1 Musdapher JSC has this to say and I quote: “There are two categories of inadmissible evidence that is absolutely inadmissible in law which is not within the competence of the parties to admit by consent or otherwise. The second class of inadmissible evidence is for example a document which is admissible in law but fulfilling certain conditions, parties may by consent admit it not withstanding the conditions not being fulfilled. It is also the law, in the latter case where a party fails to object to the admission of an inadmissible evidence, at the trial, he can not be allowed to raise an objection at the appeal stage unless the evidence was absolutely legally inadmissible”.

AAAA

⦿ CASE(S) RELATED

⦿ NOTABLE DICTA

• PROCEDURAL

The given rule on the effect of the admission of inadmissible evidence is that a court is expected in all proceeding before it to admit and act only on evidence which is admissible in law (i.e. under the evidence act or any relevant enactment in a particular case or matter) and so if a court should inadvertently admit inadmissible evidence it has the duty not to act on it. ALADE v. OLUKADE (1976) 2 SC 183. The rule is very strict. Thus where a court wrongfully admits inadmissible evidence it ought as a duty to disregard the inadmissible evidence in the consideration of the judgment in the matter. Where such evidence has been wrongly admitted and acted upon as whether or not the opposing party objects or not an appellate court has a duty to evaluate such evidence and decide the case only on the legally admissible evidence. – Shoremi, J.C.A. Agbonavbare v. Ogbebor (2006)

• SUBSTANTIVE