Bassey Hogan V. Dorcas Adebisi Ogunyemi (1971)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

In the Magistrate’s court, Lagos in suit no. 824/66 the plaintiff’s claim read:

“The plaintiff’s claim against the defendant is for 400Pounds damages for injury to the plaintiff’s property by the escape of water from the defendant’s tap at No.7 Egerton Road, Lagos, Nigeria on the 5th March, 1966.

Particulars of Claim

1. The plaintiff is and was at all material times possessed of a room and parlour of the ground floor of the premises known as No.7, Egerton Road, Lagos, and the federal capital of Nigeria. The defendant is and was at all material times possessed of the first floor of the premises.
2. On or about the 5th March, 1966 and since that date the defendant wrongfully caused or allowed water to come or escape from his tap into the plaintiff’s premises and apartment and damage her properties.
3. Owing to the negligence of the defendant the tap was at all material times in a defective and dangerous condition or left to run on unstopped.

Particulars of Negligence

The defendant was negligent in that he

(i) left the tap to run on without stopping it;

(ii) failed to inspect the said tap regularly or at all;

(iii) allowed the said tap to fall into the said defective and dangerous condition;

(iv) with the knowledge or means of knowledge that the said tap was in the said condition failed to repair the same properly or at all;

(v). allowed the water from his tap to escape to the plaintiff’s premises.

4. Further or alternatively the defendant wrongfully allowed the said tap to be in a defective and dangerous condition aforementioned.
5. By reasons of the said matters the plaintiff’s premises; her wardrobe and apartments were flooded with water. The said water damaged plaintiff’s clothing and other properties.

The plaintiff and her family have been and are being caused annoyance and discomfort. The plaintiff has thereby suffered loss and damage.

Particulars of Special Damages

A. Damage to clothing:

(a) Two sets of damask (Alagba) clothes. 47 10

(b) Three sets of aso oke (native clothes). . 39

(c) Ten sets of aso aran (plush) . . 85 10

(d) Twelve sets of lace clothes . . . . 98 15

(e) Nineteen sets of woolen/serge clothes. 51

(f) Six blouses . . . . . . 16 76

(g) Twenty-five assorted clothes mostly

head ties . . . . . . . 95 19

B. Damage for daughter’s box of H.S.C. books 35

C. Damage to 18 yards of Lino at 10/- a yard 9

D. Damage to bedding … 12

E. to Jewelleries: – Repairs to … 30

F. Rewiring of damaged wiring . . . . . . 2

G. Repairs and repolishing of wardrobe

estimated . . . . . . . . . . 15 16

502Pounds 8 6

6. The defendant still continues and unless restrained by injunction will continue to cause water to escape as aforesaid. And the plaintiff claims damages limited to 500Pounds”.

The claim was subsequently amended by leave of the court when in fact counsel was addressing the court at the conclusion of the case by allowing a further paragraph to be added which read:

“In the alternative the plaintiff claims 500Pounds general damages.”

The learned Chief Magistrate gave judgment for the plaintiff for 300Pounds general damages, finding that the negligence of the defendant was established in respect of a leak from a defective tap and after rejecting the claim for special damages as not having been proved the learned Chief Magistrate said:

“The defendant in evidence says that he came to know on the 25th February, 1966 that the water tap in his apartment was defective and that he informed the landlord of it and requested him to effect repair and that in spite of all his efforts to get the landlord to repair the water tap the landlord did nothing other than promise upon promise he made to send a plumber to carry out the said repair which was the responsibility of the landlord by virtue of the terms of exhibit T, the tenancy agreement between the defendant and the landlord. On consideration of the evidence one fact clearly emerges and it is that the water dripping from the defective tap in the defendant’s bathroom overflowed and seeped through the floor into the plaintiff’s apartment and damaged the plaintiff’s wearing apparel and other articles on the 5th day of March, 1966 and I find negligence on the part of the defendant established. This finding is buttressed by the fact that the defendant knew that his landlord was not a person to be depended upon in carrying out repairs notwithstanding his obligations to do so by virtue of the terms of the tenancy agreement exhibit T, which affords no defence in law to this action since, according to the evidence of the defendant, he, defendant, had on several occasions carried out repairs which the landlord failed to carry out and which the landlord failed to pay for. It would appear too that the defendant treated the incident with callous indifference and waited until after two or three similar incidents occurred before he thought it fit and that on the advice of assistant superintendent of police Mekwunye, to carry out the repairs which according to him cost him about 1Pound :13: 6d quite a paltry amount. … I am inclined to agree with the submission of the learned counsel for plaintiff that the proximate cause of the damage was the defective water tap.”

The defendant appealed against that decision to the High Court, Lagos and the main points argued on the appeal there pertained to the granting of leave to amend the claim. In the course of the judgment of the High Court it was stated as to negligence only:

“If the plaintiff succeeded in establishing that the defendant was negligently in breach of the duty to take care owed to her she would ipso facto be entitled to damages. Those damages could be aggravated by a claim or claims for special damages. The plaintiff having led evidence on the first point as to damages, to disallow her an amendment to add a claim for general damages to which she is automatically entitled would not be in accord with a judicious exercise of the court’s direction.”

The High Court then upheld the judgment of the Chief Magistrate and dismissed the appeal with 30 guineas costs.

Now on appeal to this court it seems to us that the vital point is that though paragraph 2 of the particulars of claim may be said to have couched the claim in nuisance this was never accepted by the learned Chief Magistrate who found only the claim for negligence proved. The plaintiff never filed any notice asking on appeal either in the High Court or before us for the decision to be affirmed on grounds of having established any nuisance. The action accordingly stands or falls on negligence.

The plaintiff’s case was that the defendant deliberately allowed the tap water to leak and flow from the defendant’s premises to the plaintiff’s premises below, but this was not accepted by the learned Chief Magistrate. He appears to have accepted that the plaintiff, as soon as the tap leaked, informed his landlord who did nothing notwithstanding the tenancy agreement (exhibit T) with the defendant which contained a provision putting the responsibility for carrying out repairs on the premises on the landlord. The learned Chief Magistrate appears further to have found that, as the defendant had previously complained to the landlord about the necessity for repairs and as when the landlord then had done nothing the defendant had effected repairs himself, this made the defendant liable on this occasion for the damage caused by the water from the defective tap when the landlord did nothing after being told about it.

Now it is correct that as a general principle the occupier is liable for the control of domestic water supply. See Charles worth on Negligence 4th edition page 283 where in paragraph 589 it is said:

“When the damage is due to negligence, the person having the control of the domestic water supply, usually the occupier of the house will be liable. His duty is to take the precautions taken by prudent householder to see that his water supply does not give rise to an escape of water.”

The passage however presupposes that it is the liability of the occupier to repair a defective water supply which caused damage, but in the present case it was proved that it was not the responsibility of the defendant occupier to do the repairs but that of his landlord. It seems to us therefore that once it was established, as it was, that as soon as he discovered the defective water tap he informed his landlord and requested the landlord to effect immediately the necessary repairs, he cannot be held liable because the landlord negligently, in this particular incident, took some weeks before he came to the premises to see about the matter. The defendant’s duty in the circumstances towards his neighbour was to inform the person responsible for effecting repairs with all speed, and this he had done. The defendant was therefore entitled to rely upon the landlord to affect the necessary repairs as that was the landlord’s duty.

We have not been referred to any identical case, but it is to be noted that in Blake v. Woolf (1898) 2 Q.B. 426 it was held that where a landlord was informed of a leaking cistern and sent a plumber who incompetently performed the repairs as the landlord acted reasonably he could not be liable. Wright J. at page 428 said:

“The general rule as laid down in Rylands v. Fletcher (1898) L.R. 3 H.L. 330 is that prima facie a person occupying land has an absolute right not to have his premises invaded by injurious matter, such as large quantities of water which his neighbour keeps upon his land.

That general rule is, however, qualified by some exceptions, one of which is that, where a person is using his land in the ordinary way and damage happens to the adjoining property without any default or negligence on his part, no liability attaches to him. The bringing of water on to such premises as these and the maintaining a cistern in the usual way seems to me to be an ordinary and reasonable user of such premises as these were; and, therefore, if the water escape without any negligence or default on the part of the person bringing the water in and owning the cistern, I do not think that he is liable for any damage that may ensue. Another qualification of the general rule enunciated in Ryland v. Fletcher (1898) L.R. 3 H.L.330 is that if the person claiming to be compensated has consented to the dangerous matter being brought on to the defendant’s land he cannot recover. In this case the plaintiff, by taking these premises with water laid on to them and accepting his supply of water from the defendant’s cistern, must be taken to have assented to water being kept on the premises by the defendant. Instances of this kind are to be found in Ross v. Fedden (1872) L.R. 7 Q.B. 601, Anderson v. Oppenheimer (1880) 5 Q.B.D. 602, Carstairs v. Taylor (1871) L.R. 6 Ex. 217 and Gill v. Edouin (1894) 71 L.T. (N.S.) 762. The defendant therefore is not liable unless the damage was caused by his willful default or neglect. Now, is there enough here to show such negligence on the part of the defendant It is not suggested that he was personally negligent. It is admitted that personally he did all that he could do. If he had endeavoured to repair the leakage himself he would, as has been pointed out, has been guilty of the worst kind of negligence.”

We think therefore that just as in Blake v. Woolf (supra) the landlord escaped liability once it had been shown he was not personally negligent and had endeavoured to get proper assistance to effect the repairs which were his responsibility so in the present case the defendant did all that could, in the circumstances, be expected of him by informing immediately the person responsible for doing the repairs, the landlord. Indeed there was evidence that both the plaintiff and defendant were tenants of the same landlord though there was no evidence on the record of the terms of the plaintiff’s tenancy or that the landlord was responsible for repairs of the premises occupied by her as he was in respect of the defendant’s premises. There was also evidence that the defendant informed the plaintiff that she should complain to the landlord but the plaintiff seems to have throughout taken the view, though it was not accepted by the learned Chief Magistrate, that the defendant was deliberately allowing water to flow down from his premises to the plaintiff’s premises. It follows that in our view, negligence ought not to have been found here to have been proved against the defendant and on that basis we must allow this appeal.

The appeal is accordingly allowed and the judgment of the Chief Magistrate allowing the plaintiff’s claim with 300Pounds general damages and 40 guineas costs together with the judgment of the Lagos High Court in LD/52A/68 dismissing the appeal with 30 guineas costs to the plaintiff are both set aside and the plaintiff’s claim is hereby ordered to be and is dismissed. The defendant is entitled to costs in the Chief Magistrate’s Court assessed at 20 guineas, to costs in the High Court assessed at 70 guineas and to costs in this court assessed at 79 guineas.

Appeal allowed. Judgment of Chief Magistrate and that of the High Court set aside.

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SC.173/1969