KUTI & ANOR. V. TUGBOBO

• Pages: 321-328

KUTI & ANOR. V. TUGBOBO

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321

point. The case was not cited in argument before

us, but it

appears that the same

submission was made unsuccessfully before Adefarasin.J., in the High Court of

Lagos in

British and French Bank Ltd. v. Sala! El-Assad

(1967) N.M.L.R. 40. We

agree with his decision and we hope that legal practitioners will not repeat this

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groundless submission, which, if acceded to by oversight, prolongs litigation and

adds to its expenses without lasting benefit to either party. The present case ought

to have been heard on the merits in March 1962; it is deplorable that it should still

not have been heard in December, 1967.

Appeal allowed.

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KUTI & ANOR. V. TUGBOBO

15

T.O. KUTI AND ANOTHER

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APPELLANTS

V

SALAWU TUGBOBO

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RESPONDENT

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SUIT NO. SC 636/1965

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

25 22nd December, 1967

Negligence - Road Traffic - Driver's duty of care on wet laterite - Lorry

overturning

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after

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skid - Burden of proving skid not due to driver's

negligence - Whether skid ever 'neutral' - Lorry on hire-purchase - Hirer's

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negligence - Owner riot liable as such

Civil Action - Practice and Procedure - Pleadings - Negligence - Method of

Pleading res ipsa loquitur

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Remedies - Damages - Appeal against quantum - Award not manifestly too high

- Evidence Act Section 90.

ISSUES:

1.

Whether in a claim for damages for negligence involving personal injuries

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caused by a road traffic accident, and founded on the negligence of the driver

the test of liability is based on ownership (of the vehicle) or on whether the

person driving was the servant or agent of the owner.

2.

Whether

res ipsa loquitur

must be pleaded only as an alternative claim in a

claim for negligence.

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3. Whether a defence that a skid was no fault of the driver's and that he did

everything possible to control the vehicle is sufficient without more, to displace

a

prima facie

case of negligence ( or rebut the inference that the accident was

due to his negligence).

4.

Whether as a defence to such claim of negligence , it is enough to show that

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the accident was due to a skid without showing that the skid was not caused by

the negligence of the driver.

5.

What is the nature of the duty of care where the defendant driver is aware that

dangerous conditions exist on the roads.