MRS IRIS MENDS-COKER                              -  PLAINTIFF

SHERIFF JAWARA                                           -  1st DEFENDANT

FESTUS OWANFOR                                         -  2nd DEFENDANT

ADVOCATES

J.B. JENKINS-JOHNSTON FOR PLAINTIFF R.A. CAESAR FOR DEFENDANT

JUDGEMENT DELIVERED ON  DAY OF  2006

The Plaintiff claim against the Defendants jointly and severally is damages for Trespass to Goods, Damages in negligence, Special Damages and Costs.

There was entered a Memorandum and Notice of Appearance dated 3/11/2003 on behalf of the 2nd Defendant. Judgement was given in default of defence which Judgement was later on set aside and A Defence dated 26/4/04 was filed therein.

The evidence led is briefly this - P.W1 Mrs. Mary Ann Erayomi who is the daughter of Mrs. Iris Mends Coker the Plaintiff herein who is 94 years of age stated that the house No. 69 Main Road, Congo Town is owned by the Plaintiff who is not in Court as she is unable to walk. She is here as her representative. On 12/7/03 she was at home when an accident took place. She was seated in the seating room with her sister Olivia Mends-Coker, her daughter Evelyn Erayomi and her sisters' two grand children. She heard people from the market shouting. She got up and saw that a lorry had crashed into their house by the veranda leading to her room. She saw the youths pulling a man from the front driving seat. The man they removed is the 2nd Defendant Festus Owanfor. He was taken to the back of the house. When asked he replied that the brakes failed him. As a result of the accident the veranda pillar was broken the rail was broken and roof lifted. The windowpanes were also broken. A report was then made at the Police after which the said vehicle removed three days later. An estimate or repairs was prepared and also a report by Mr. Samuels which she tendered as exhibits "B" the amended estimate. She has not repaired the house after the incident, as she has no money. The 1st Defendant has never approached her about the mater nor in relation to the damage.

In Cross-examination she said she was in the house on the day seated with some people in the seating room. She saw the vehicle which crashed into her house, with No.AAA 270 about 40 feet long with the name Ried Store marked on the side. She cannot remember whether the engine was on or not. She saw boards in the lorry. The youths removed the gentleman from the lorry and took him to the back of the compound. She never spoke to him. She called in the Police. She made a statement to the Police. The lorry was removed by the 2nd Defendant and cannot tell its where about now. It was the 2nd not the 1st Defendant that removed the vehicle. It was 2nd Defendant who drove the vehicle. It was 2nd Defendant whilst making his statement that named the 1st Defendant as the

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owner. Her mother made a statement to the Police but she was not present when she made it. The vehicle contained boars owned by end Defendant who removed the boards from the vehicle. She does not know whether there was a driver who drove the vehicle on that day. It was 2nd Defendant that the youths removed from inside the vehicle on that day from the driving side. The 1st Defendant was registered owner of the vehicle. She cannot tell whether there was a driver of the vehicle who drove the vehicle on that day. She was told that the 1st Defendant resides at Mayengineh Road, Calaba Tow. She never told the Police that 1st Defendant is the owner of the vehicle.

At this stage P.W2 Olivia Mends-Coker was interposed and stated she knows the Plaintiff who is her mother aged 94 years and is unfit to attend Court. P.W1 is the eldest Sister. On 12/7/03 she was at home watching movies. She was there with her mother Ola Glenna Marian and Ayo together with P.W1, which was the whole family. Whilst there she heard shouts from Congo Market area. Some were shouting in Krio "look am dae cam oh" After that she heard a crash sound like broken glasses. She ran out with the other including her mother. When she came out she saw a lorry, which had crashed into their veranda and the room wall of P.W1. The lorry was in the veranda having broken the wall fence and was inside the building, she saw the driver who was a Nigerian that was fair in complexion and tall. She got to know the name as Festus who was inside the vehicle but was later dragged out of the vehicle by one of the tenants and some boys. He later apologised and was inside the place of a boy called "Roman" who is no longer there. He came later with his mother in law his wife and sister called Abeoseh. He came with a contractor promising to repair the place. He went and spoke to his wife who promised that her husband will see her later. She never saw her. The 2nd Defendant has business dealings in boards.

PW1 was recalled for further cross-examination and stated that she spoke to a Policeman but does not know his name. After the incident she went out to see the place whilst the aged mother was inside the house when the incident occurred. She knows the name of 1st Defendant through the 2nd Defendant and she gave the name of 1st Defendant to her Lawyer. She gave the address and described him as owner. She did not see 2nd Defendant driving the vehicle. Her mother was in the house when the incident happened. She never saw the vehicle when it was being driven but he saw 2nd Defendant being taken out of the vehicle from the driving side. She has photographs of the vehicle when it crashed into the house. It was 2nd Defendant that was pulled out of the vehicle.

P.W.2 was then recalled for cross-examination and stated that herself and her family were at home when the incident occurred. They were about 14 in the house. She heard the noise and the crash and so came out to see what happened. Her mother came out by the side veranda. The incident took place in the front veranda. She cannot remember whether the engine was still on or not when she came out. She does not know 1st Defendant not the owner of the vehicle. She did visit the house of 2nd Defendant's wife called "A.C." She knows the wife but never knew 2nd Defendant was her husband. The wife did promise to talk to 2nd Defendant and get back to her. She never got back to her. The 2nd Defendant came to her house after the incident; Mrs. Margaret Kamara came to

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her and said the repairs had been handed over to her husband. The 2nd Defendant did agree to repair the building with one Mr. Samuels. She was present at the meeting were it. was decided to repair the building and a sum was fixed. The arrangement was made with her mum and her eldest sister. Police came in only on the day of the incident. The boards were removed from vehicle. The 2nd Defendant was the driver because he was dragged out of the driving seat. This is the Case fro the Plaintiff,

According to the Defendant Festus Owanfor (DW. 1) states that he is a timber dealer and knows Mrs. Iris Mends-Coker. He knows Sheriff Jawara and recalls 12/7/03 when at about 11:25 a.m. He was on board a vehicle that was transporting boards, which ran into a house of Mrs. Iris Mends-Coker. When the vehicle crashed into the house he was seated in front of the vehicle with the driver whilst four apprentices were at the back. He hired the vehicle from a driver called Mohamed Kamara alias "K.K." the time the vehicle crashed Mohamed Kamara was driving. After the crash he looked for the driver but he did not see him. Police later came to the scene and asked what had happened. Which he later narrated to her. He chartered the vehicle to bring the boards from Kenema to Freetown. The Police told him the driver was being beaten but he told them he was not the driver but sell board fifty meters away from the crash site. He removed the timbers on the same day but cannot tell what happened to the vehicle. He got a letter from a Lawyer which he read and saw one Sheriff Jawara 1st Defendant and himself as 2nd Defendant. After the incident he never went to the house of Mrs. Iris Mends-Coker. He denied telling them he would repair the building. Police did investigate the matter at Congo Cross Police Station. He knew his relatives visited the Plaintiff and named his mother-in-law his wife's sister called Abeoseh and asked whether they were beating him since he was his son-in-law. He spoke to the owner when he came to collect his money. He denied that he did say he would repair the house.

In cross-examination he said he is a Christian and did hire the truck to load his boards from Kenema to Freetown. The accident did take place but he saw no damage. He denied causing substantial damage to the house. He denied that he was the driver of the vehicle and denied promising to repair the house. This ended the Defendants Case.

The Defendant in his defence did admit paragraphs 1, 2 and 3 of the particulars of claim and where this is the case it is immaterial whether he also pleads other facts nor proved or other contentions in law not proved. (See Gilbert's Construction V. Bangura 1957-60 ALRS.L. 81.

The Plaintiff pleaded "res ipsa loquitur" relying on negligence and the Defendants has not explained the reasons for the crash in order to avoid liability. The 2nd Defendant it is accepted in evidence was the person pulled from the driving seat and this was never controverted.

Counsel for the Defendant in his address played on the fact that the Plaintiff who is 94 years did not testify nor was any report provided as to her inability to be in Court relying

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on the principle that he who assists must prove as the evidence led are from witnesses who are not parties to the action. The 2nd Defendant Admits that he hired the vehicle from 1st Defendant as the owner and that he is not the driver of the vehicle. Evidence was led that after the accident the 2nd Defendant was taken out of the driving seat. In my humble view therefore the 2nd Defendant is the driver of the said vehicle having hired the vehicle form the 1st def. as owner.

Having held that the 2nd Defendant was the driver who has not explained the cause of the accident nor even furnished the court as to who the driver he referred to as Mohamed Kamara alias 'K.K.' nor has he given any explanation as to the cause of the accident the doctrine 'res ipsa loquitur' therefore applies. The issue of vicarious liability does not apply and therefore the 1st def. cannot be held liable. On the question of special damages, Exhibit "B" which was tendered in evidence is quite clear. I would therefore award the sum of Le. 4,041,000.00 for special damages.

On damages for negligence I do assess it as at Le. 2,500,000.00 and for damages for trespass goods I assessed as Le. 3,000,000.00 Cost to the Plaintiff to be taxed.

JUSTICE P.O. HAMILTON J.A.