This is an appeal from the High Court of Sapele Judicial Division of the then Mid-Western State of Nigeria against the judgment of R.A.I. Ogbobine. J. in a suit in which the plaintiff, who was a legal practitioner, claimed against the defendants, jointly and severally a sum of N100,000.
“for injuries, pain severe loss of earnings caused the plaintiff.”
“On 23rd January, 1974 due to the fault and/or negligence of the 1st defendant and/or 3rd defendant.”
The 4th defendant (Nicholas Ugono) was not originally a party in the suit but was brought in by application of the 3rd defendant who claimed that the 4th defendants, and not himself, was the driver of the vehicle with which the vehicle driven by the 1st defendant came into collusion the subject matter of these proceedings.
The claim as endorsed on the writ of summons stated that-
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"1.
The Plaintiff claims for himself by virtue of the Western State of Nigeria Torts Law (Cap 122) in force in the Mid- Western State of Nigeria the sum of N100,000.00 (One Hundred Thousand Naira) against the Defendants jointly and severally for injuries, pain, sufferings, loss of earnings caused the Plaintiff on 23rd January, 1974 due to the fault and/or negligence of the 1st Defendant and/or 3rd Defendant who (1st Defendant) being the driver in charge of Peugeot Taxi Car bearing registration No. MWX 537, driving with¬in the scope of his employment negligently drove same along Oria/Abraka, within the jurisdiction of the Sapele Judicial Division and collided with Datsun Saloon Taxi Car No. MPX 233 owned and negligently driven by the 3rd Defendant and thereby caused Plaintiff a fee paying passenger in the said vehicle No. MWX 537 several injuries, pain and sufferings.”
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The learned trial Judge held both drivers equally liable in negligence to the plaintiff. He found that both drivers drove at a speed which was too fast and that each was unable to control his vehicle resulting in the collusion. He also accepted the suggestion of plaintiff's counsel that none of the drivers was willing to give up the centre of the road to the other and that -
“It was in this act of gross irresponsibility that the vehicles came face to face with each other and because of the high speed at which they were travelling when the accident occurred the impact caused by the high velocity was so great that it made both vehicles beyond any repair.”
The learned trial Judge was satisfied that each driver had the opportunity of avoiding the accident but for his own negligence. In entering judgment for the plaintiff he apportioned fifty percent liability to each set of de¬fendants.
