Ifesinachi Industries Nigeria Ltd & Anor V. Chudi Veridical Company Ltd (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal against the decision of High Court of Justice, Anambra State (“the lower court” for short) delivered on the 3rd of February 2006 (Coram Onochie, J) By the statement of claim which supersedes the Writ of summons, the Respondent as plaintiff at the lower Court, Instituted an action against the present appellants as defendants there at claiming against the defendants jointly and severally as follows:-
The sum of N13, 532, 464.00 (Thirteen Million, five hundred and thirty two thousand, four hundred and sixty four Naira) being special and general damages arising from the damage and loss occasioned to the plaintiff by the defendants.
(2) COST OF THE ACTION.
Briefly put, the facts of this case as could be gathered from the pleadings by parties and the reliefs sought are that the Plaintiff/Respondent claims that his new petrol station at Enugwu Agidi junction in Anambra State was disturbed in the early hours of the morning of 23rd May 2003. A Mercedes Benz Marcopolo Luxury bus No. XB 879 BDG belonging to the 1st defendant was attacked by armed robbers on its way from Jos to Onitsha. The bus driver, the 2nd defendant obviously in control of the said vehicle, drove it into the petrol station. In the resulting fire disaster, the plaintiff’s petrol station was substantially damaged.
The Plaintiff/Respondent demanded from the appellant a recompense of the damaged materials done to its service station on account of the negligent driving of the 2nd defendant. The appellants contended that the accident was occasioned by the armed robbery and not the negligence of the driver.
The learned trial Judge considered the whole case and found that the plaintiff who had pleaded negligence and the particulars of negligence had claimed in the alternative res ipsa loquitor and found for the plaintiff.
Dissatisfied with the judgment of the lower court dated 3rd February 2006, the defendants appealed to this court vide their Notice of Appeal dated 6th day of February 2006.
Both parties have in compliance with the rules of this Court filed their Brief of Argument in this appeal. The Appellants herein filed their joint brief of argument dated the 17th September 2007. The Respondent brief of Argument dated 5-6-08 was filed same date 5-6-08. In the appellants brief, three issues for determination were formulated. The Issues are:-
(1) Whether the trial judge was right when he held that the Plaintiff had claimed res ipsa loquitor as an alternative when the plaintiff did not vide paragraphs 5 and 6 of the Statement of Claim and even plaintiff Counsel’s address.
(2) Whether the learned trial Judge made a proper evaluation and drew correct inferences from the evidence called by parties before them.
(3) Whether the Plaintiff particularly pleaded and proved the award of special damages.
The Respondent In his brief of argument adopted the Issues for determination formulated by the appellants.
The Appellants took the Issues formulated in his brief of argument seriatim.
ISSUE NO.1
The Appellants submitted that the Respondent in paragraphs 5 and 6 of the Statement of claim pleaded negligence and the particular of negligence; it is obvious that the plaintiff did not rely on res ipsa loquitor or pleaded same in the alternative.
The Appellants submitted further that it will be wrong for the trial court to examine the doctrine of res ipsa loquitor simultaneously with specific particulars of negligence enumerated by the plaintiff and give judgment on both. Appellants further submitted that in the case on hand the Plaintiff/Respondent pleaded both the particulars of negligence and the doctrine of res ipsa loquitor conjunctively. The trial Judge was therefore wrong when he held the doctrine of res ipsa loquitor was properly in the alternative pleaded and applied the same. See: Orajekwe V. Mbieri (1962) 1 S.C. NCJ 30; A.M.T.S. V. Atoloye (1993) 6 NWLR (pt. 298) 233; Ibekendu V. Ike (1993) 6 NWLR (pt. 239) 287; Britaina Hygenic Laundary V. thornycroft (1926) 95 LJKB 227 at 230. The doctrine of res ipsa loquitor will apply if it is relied upon only as an alternative argument. See Onezim V. Oko (2004) 13 NWLR (pt. 890) 300.
Appellant further submitted that the doctrine of res ipsa loquitor can be pleaded either by specifically reciting the latin maxim or by averments that the plaintiff intends to rely on the very incident pleaded as evidence of negligence KUTI V. TABUGBO (1967) 1 NMLR 419.
Appellant furthered his submission that since the plaintiff did not plead Res ipsa loquitor in the alternative the trial Judge was wrong to have so found. He was not entitled to consider the plaintiffs case as if she had claimed in the alternative. This court is therefore urging to find that the trial judge was wrong and to resolve this Issue NO.1 in favour of the appellants.
On Issue No.2 the appellants counsel submitted that there was no evidence by anybody about any warnings by the Road Safety Commission. This was imported into the case by the learned trial Judge himself, since pleading is not evidence. See: – Nwanji V. Coastal Services Nig. Ltd (1999) 11 NWLR (pt. 628) 6 41. Appellants counsel submitted that the Plaintiffs pleading in his particulars of negligence about the Road Safety Commission seem to have been abandoned by the plaintiffs.
Appellants counsel further submitted that anyone, whoever used a luxurious bus anytime, day or night would find that the driver is locked up in his cabin. He sits alone and the responsibility of the security is not his own. He would not know where the security man is sitting. All he would know is that he has a security man policeman on board. The security man invariably does not wear a police uniform and decides to sit anywhere in the bus. That the driver does not know where the security man was sitting made the trial judge disbelieve every thing the witness said.
Appellants counsel further submitted if the learned trial Judge had appraised the real issues when it is on record and curiously unrebutted both in the affidavit and oral evidence i.e. the assertion made by the appellants especially in the affidavit filed in support of the motion on notice for enlargement of time to file a statement of Defence at page 10 of the records particularly paragraph 6 and 7 thereof, the unchallenged evidence of the deponent.
Appellants counsel further submitted that, of importance for the appraisal of the judge was the testimony of DW1, the driver of the Luxury Bus, that he was indeed shot by armed robbers and subsequently hospitalized. This was confirmed by PW1 the investigating police officer, in-charge of the incidence in his evidence.
Appellants counsel further submitted that the rule now is that a man is responsible for the natural and probable result’s of his wrongful act that is to say, those so likely to result from the act that a reasonable man in the circumstances of the wrongdoer and with his knowledge and means of knowledge would have foreseen them.
Appellants counsel submitted that the reason for the accidence given by the combined testimony of PW1 and DW1 form a major principle of exemption, under new, table accident this negates the doctrine of Res ipsa Loquitor as found wrongly in the alternative by the learned trial judge. See the description of Res ipsa Loquitor in Strabag Construction (Nig.) Ltd V. Ogarekpe (1991) 1 NWLR (pt. 170) 733.
Appellants counsel further submitted that the doctrine of Res ipsa Loquitor does not apply when the cause of the accident is known. See: – Royal Ade (Nig) Ltd V. N.O.G.M. Co. Plc (2004) 8 NWLR (pt. 874) 206.
Appellants counsel submitted that it can be surmised that what occurred was an inevitable accident which is a direct violent, sudden and irresistible act of nature which could not by any reasonable care, have been foreseen or resisted Nugent V. Smith I.C.P.D. 423.
Appellants counsel further submitted that the doctrine of Res ipsa Loquitor means that an accident may by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other cause, and that in such a case the mere fact of the accident is prima facie evidence of such negligence. The burden is on the defendant to explain and show that it occurred without fault on his part.
Appellants counsel submitted further that the test of liability for the consequences of a negligent act is the force ability of the damage which in fact happened. There is first the question whether there was a duty, and the test is the same. The chain of causation is broken when there is intervening action which could not reasonably be foreseen or expected. Could it be said that the driver of the bus, on the route he had plied for ten years would expect that on 23-5-2003 he would have armed robbers jump into his bus and shoot him several times.
Appellants counsel submitted that the rule in Roland V. Fletcher does not apply when the damage is due to the independent act of a third party, which could not reasonably have been foreseen and guarded against.
Appellants counsel further submitted that the defendant has fulfilled his duty of keeping the dangerous things harmless and that the cause of the damage was not his breach due to the conscious act of another violation.
Appellants counsel finally submitted on Issue NO.2 that the case does not fall within the realm of res ipsa loquitor.
ON ISSUE NO.3
Learned counsel to Appellant submitted that special damages must be pleaded and proved strictly. Thus a plaintiff claiming special damages has an obligation to plead and particularized any item damage. Learned counsel further stated that the said obligation arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on precise calculations must give the defendant access to the fact which makes such calculation possible. See Nwaji V. Coastal services (Nig.) Ltd (2004) 11 NWLR (pt. 885) 552 Odulaja V. Haddad (1973) 11 SC 357. Health Care products (Nig.) Ltd V. Bazza (2004) 3 NWLR (pt. 861) 582. Neke B.B.B. MFG. Co. Ltd V .A.C.B. Ltd (2004 2 NWLR (Pt. 58) 521. Daniel Holdings Ltd V. U.B.A. Plc (2005) 13 NWLR (pt. 943) 533.
Learned counsel to the appellant further submitted that the Respondent did not plead the respective prices of each item that was damaged and regained. The use of the word “etc” in the statement of claim and the quotation are not sufficient pleadings to warrant the grant of special damages by the court.
Learned counsel to Appellant finally submitted that this court should set aside the award of special damages as same was clearly not in line with enuciated principles of Law.
The Respondents counsel in his brief of argument, argued their Issues 1 & 2 together in response to the arguments proffered by the Appellants counsel in their Issues 1 & 2 of their own brief of argument. Learned counsel to the Respondent submitted that the only grudge which the appellants bear against the Judgment on Issue 1 is that the respondent did not plead the doctrine of res ipsa loquitor IN THE ALTERNATIVE. The appellants took the literal view that the respondent ought to have stated it in black and white that the doctrine was being pleaded in the alternative. All the counsel cited by the Appellants is not helpful to their case.
Respondents counsel stated further that, by paragraph 5 (a) and (c) and paragraph 6 of the Statement of Claim the doctrine of Res Ipsa Loquitor was raised.
The Respondents counsel further argued that there are pleadings on the two concepts of negligence, and res ipsa loquitor. The learned trial Judge found that inspite of these maxims in the Statement of Claim only one was proved. To argue as the appellants did that the words “in the alternative” ought to appear on the pleadings is not tenable.
Respondents counsel submitted further that what the Court deprecates is that the two maxims are considered together or simultaneously and then the erring party found liable on both heads. When these two maxims of negligence and res ipsa loquitor are pleaded, it records with simple legal reasoning that they are pleaded in the alternative. But there is a caveat which is that the trial Judge will proceed with only one of them, that was what the learned trial Judge did in this case. Again the respondent did not formulate any Issue on negligence for consideration by the trial court, and the trial Judge found that Res ipsa loquitor was successfully invoked.
Respondent’s counsels finally submitted that the appellants were negligent, and urge this Court to resolve Issues 1 & 2 in favour of the Respondent.
On the part of this Court a careful examination of the issues formulated by the parties and all the arguments proffered there to. It is already settled that the court is entitled; not being under a regimental duty to take all the Issues canvassed by the parties in an appeal, to formulate or reformulate Issue or Issues formulated by a party or parties for determination of an appeal in Order to give it precision and clarity. See: Okoro V. The State, (1988) 12 SC 191, Latunde and Anor V. Bella Lajunfin (1989) 5 SC 59. In my view considering the judgment of the court appealed against and the Grounds of appeal contained in the Notice of Appeal, the following are the Issues I consider germane and crucial for the determination of the appeal, and to resolve the matter in controversy.
(1) Whether Negligence and the Doctrine of Res ipsa loquitor can be treated conjunctively, or in the alternative.
(2) Whether the plaintiff particularly pleaded and proved the award of special damages.
On Issue 1, from the summary of the facts in the instant case, negligence was determined as careless conduct and contributory negligence. Charles worth & Percy on Negligence at page 7 paragraph 1- 10 in considering the doctrine of careless conduct and contributory negligence stated:-
“Perhaps the best illustrations of the use of the word “negligence” I the sense of careless conduct is to be found in the phrase “contributory negligence” Here the word does not mean breach of a duty to take care, but simply means careless conduct on the part of the person usually the plaintiff, in failing to prevent or avoid the consequence of the other person’s breach of duty to take care. A person who in broad day light falls into an unfenced hole in the highway, as a result of not looking where he was going may be unable to succeed fully in an action because of the degree of his contributory negligence. This is not because of any duty which he owes to the person who dug the hole and left it unfenced, but because of his failure to take reasonable care for his own safety”.
In the case at hand the Appellants’ driver was said to have been attacked by armed robbers. The driver obviously in control of the said vehicle drove it into the petrol station belonging to the Respondent. In the resulting fire disaster, the Respondent’s petrol station was substantially damaged.
Again Charlesworth & Percy on Negligence at page 350 paragraph 5- 77 on proof of Res ipsa loquitor.
“It is a special application of the principle that there is evidence of negligence if the facts proved are more consistent with negligence on the part of the defendant than with other causes those cases in which formerly the maxim res ipsa loquitor was said to apply… The maxim is not a rule of law; it merely describes a state of the evidence from which it is possible to draw an inference of negligence. It is based on common sense. Its purpose being to enable justice to be done when the facts bearing on causation and the standard of care exercised are unknown to the claimant but ought to be within the knowledge of the defendant. It will not assist where there is no evidence to support an inference of negligence and possible non-negligent causes of the injury exist”.
What then is the approach of courts in applying the particulars of negligence and the doctrine of res ipsa loquitor, whether they are applied conjunctively or used as alternative argument? This court per Rowland JCA (of blessed memory) in the case of Omeziri V. Oko (2004) 13 NWLR (pt. 890) 300 held:-
“Since the Issue of res Ipsa Loquitor is an alternative argument the trial court could not have gone ahead to consider it in his judgment because of its finding the Exhibit 2 has established the exact cause of the accident and the appellant’s negligence. In the case of flash fixed Odds V. Akatugba (supra). It was held inter alia by this court while a party may rely “on the doctrine of res Ipsa loquitor in the alternative … a court of law is not competent to examine the doctrine together or simultaneously with the specific particulars of negligence enumerated by the plaintiff and give judgment on both. It seems to me therefore that a finding of negligence based on the doctrine of res Ipsa loquitor are therefore mutually exclusive” also See:- ORAJEKWE V. MBIERI (1962) 1 S.C. NCJ 30; A.M.T.S. V. ATOLOYE (1993) 6 NWLR (Pt. 298) 253 IBEKENDU V. IKE (1993) 6 NWLR (Pt. 239) 287; BRITAINA HYGENIC LAUNDARY V. THORNY CROFT (1926) 95 LJKB 237 at 238.
In the instant case, the main grouse of the Appellant is that the trial Judge examined the doctrine of res ipsa Loquitor simultaneously with specific particulars of negligence enumerated by the plaintiff now respondent and gave judgment on both. In other words in the case on hand the Plaintiff/Respondent pleaded both the particulars of negligence and the doctrine of res ipsa loquitor conjunctively.
The Respondent on the other hand submitted the appellant got the case of the Respondent wrong. He stated that what the courts deprecates is that the two maxims are considered together or simultaneously and then the erring party found liable on both heads. The Respondent further submitted when these two maxims of negligence and res ipsa loquitor are pleaded, it accords with simple legal reasoning that they are pleaded in the alternative. But there is a caveat which is that the trial Judge will precede with, only one of them. That was what the trial Judge did in this case. The Respondent said he did not formulate any Issue on negligence for the consideration by the trial court. Instead the Issue it submitted reads:-
(1) Whether the 1st and 2nd defendants have discharged the onus placed on them by plaintiffs plea of res ipsa loquitor (Record page 73). The Trial Judge found that Res ipsa loquitor was successfully invoked and entered Judgment for the Respondent.
I wish to state here that, earlier on in this judgment, in considering the doctrine of res ipsa loquitor as defined by Charlerworth and Percy on Negligence, the maxim is not a rule of law. It merely describes a state of the evidence from which it is possible to draw an inference of negligence. The Respondent in the instant case said he did not even plead negligence. Furthermore the doctrine of res ipsa loquitor is based on common sense. Its purpose being to enable justice to be done when the facts bearing on causation and the standard of care exercised are unknown to the claimant but ought to be within the knowledge of the defendant. In the instant case it is different as there were 3 aspects of defence which the trial Judge evaluated
(a) That armed robbers after robbing the passengers in the vehicle set it ablaze.
(b) That there was no contact between the bus and the component part of the Petrol Service Station.
(c) That the driver was shot at Amansea, dragged out of his seat and pushed out of the vehicle.
From the 3 aspect of defence stated above which the trial Judge evaluated, the doctrine of res ipsa loquitor becomes in appropriate as its intendment is merely to describe a state of evidence from which it is possible to draw an inference of negligence. In my view the state of defence put forward as evaluated by the trial Judge will require proof of particulars of negligence. In the instant case however the respondent did not plead the particulars of negligence as an Issue before the trial Judge; instead he pleaded Res ipsa loquitor which the trial Judge found in this favour. The doctrine of Res ipsa loquitor had been stated earlier in this Judgment not to be a rule of law. The finding of the trial Judge on the doctrine of Res ipsa loquitor against the Appellant therefore cannot stand. To drive this point decision of this court in Strabag Construction (Nig.) Ltd V. Ogarekpe (1991) 1 NWLR (pt. 170) 733 become apposite.
It was held that-
“As the circumstance of the particular case, some evidence which viewed not as a matter of conjecture but reasonable argument, make it more probable that there was some negligence upon the facts as shown and undisputed. The respondent speaks because the facts stand unexplained and therefore the natural and reasonable not conjectural, inference from the facts shown that what happened is reasonably to be attributed to some act of negligence, that is some want of reasonable care on the part of somebody under the circumstances”.
The Supreme Court in the case of Royal Ade (Nig) Ltd V. N.O.C.M Co Plc (2004) 8 NWLR (Pt.874) 206 at 211 ratio 6 on application of res ipsa loquitor:-
The doctrine of res ipsa loquitor will not apply where
(a) The facts proved are equally consistent with accident as with negligence
(b) There is evidence of how the accident happened and the difficulty arises merely from an inability to apportion blame between two negligent drivers. The two drivers are servants of the same master the position may be different.
If there is evidence of how the occurrence took place an appeal to res ipsa loquitor is misconceived and inappropriate. Again, the question of the defendant’s negligence must be determined on the available evidence. In other words, the doctrine of res ipsa loquitor is not meant to supplement inconclusive evidence of negligence on the part of the plaintiff. Rather, it is meant to apply where there is no other proof of negligence than the accident itself.
It is quite clear from all that is stated above, given the state of evidence before the trial court, relying on res ipsa loquitor by the Respondent, and the finding by the trial Judge in his favour based on the doctrine of res ipsa loquitor were both misconceived. Issue No. 1 is therefore resolved in favour of the appellants.
On Issue NO.2 that is whether the Plaintiff particularly pleaded and proved the award of special damages. Mcgregor on damages seventeenth Edition page 3 paragraphs 1-001 defines Damages: – “As in the Vast majority of cases, are the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in form of a lump sum awarded at one time, unconditionally and in sterling”. The key word in this definition is success. Since Issue NO.1 which is the fulcrum of this appeal has failed, the award of any special damages by the trial Judge, in favour of the Respondent, will not have any leg to stand on. It becomes merely academic, and unsustainable. The court has set aside the entire special damages awarded by the trial Judge in favour of the Respondent, against the appellants.
On the whole this appeal therefore succeeds. The Judgment of Onochie J. delivered on the 3rd of February, 2006, awarding the sum of N13, 532, 464.00 (Thirteen million, five hundred and thirty two thousand, four hundred sixty four Naira) as special and general damages in favour of the Respondent against the Appellants in this Suit is hereby set aside by this court.
There shall be N30, 000.00 (Thirty thousand Naira) cost in favour of the Appellants against the Respondent.
Other Citations: (2009)LCN/3260(CA)
