Mobil Producing Nigeria Unlimited & Anor. V. Chief Simeon Monokpo & Anor (2003)

LAWGLOBAL HUB Lead Judgment Report

C. PATS-ACHOLONU, J.S.C.

This is an appeal against the judgment of the Court of Appeal in respect of the claim by the respondent against the appellants for the injury he suffered as an employee in the course of his work and for which the trial court had refused or failed to find in the respondent’s favour. For this he appealed to the Court of Appeal, which gave him judgment.

The synopsis of the case is that the respondent while on duty which involved the servicing of the appellants’ crane sustained grievous injuries arising out of the 2nd appellants failure as switch operator to use due care as the respondent alleged in his working unit in that the switch operator caused the crane being serviced to be connected to the electricity from which it derives its power of mobility and functionality. Arising out of the negligent act of the appellants the crane became agitated and caused a drum of the crane to rollover violently over the respondent’s left foot and crushed that leg below the knee. For this he was under great pain and suffering for which he was hospitalized and this eventually led to the amputation of that leg. He issued a writ of summons claiming a considerable sum of money in the lower court. The appellants denied any liability insisting that what happened was an inevitable accident in that the crane energized itself. That court dismissed his claim whereupon he appealed to the Court of Appeal which found favour and merit in his appeal but appeared not to have considered it proved the claim in respect of pain and suffering even though it made an award for damages for negligence. The appellants appealed to this court and the respondent cross-appealed on the issue of damages.

The appellants in their appeal in this case are convinced that the respondent is not entitled to any award at all. They formulated four issues in their main brief for determination which are hereby set out down as follows:-

1. Whether the Court of Appeal was right in setting aside the findings of the trial court which held that the appellants were not negligent as the defence of inevitable accident succeeded.
2. Whether the Court of Appeal was not in error in holding that inevitable accident was neither pleaded nor facts established same at the trial court.
3. Whether the Court of Appeal was right when it held that res ipsa loquitur applied in the circumstances of this case.
4. Whether the Court of Appeal was right to have awarded N700,000.00 as general damages in view of the facts and circumstances of this case.

The respondent who also filed a cross-appeal in relation to the quantum of damages awarded to him framed just two issues. These are:

1. Whether the respondent established a case of negligence against the appellants.
2. Whether the award of N700,000.00 as general damages was justified.

The respondent in his cross appellant’s brief distilled only one issue (which to my mind is intended to elaborate and expatiate on the 2nd issue) in his respondent’s brief and it is thus:

“Whether the learned Justices of the Court of Appeal were right to dismiss the claim for damages resulting from pain and suffering on the ground that evidence was not led in support of that head of claim”.

The learned counsel for the appellants in his argument on issue 3 which I take first wondered how procedurally correct was the respondent’s pleadings by which he sought to combine the allegation of negligence and the principle of res ipsa loquitur without the respondent pleading the two in the alternative. The appellants tried to make a heavy weather of the claim on the question of res ipsa loquitur and cited some cases which I regard as elementary along this line. These include Sylvester Ifeanyi v. Sylvester Ike (1993) 7 SCNJ 50 at 59; Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179 at 191 and Ibeanu v. Ogbeide (1998) 12 NWLR (Pt.576) 1; (1998) 9 SCNJ 77 at P. 88.

It should be said straight-away that the kernel of the respondent’s case is built on negligence simpliciter and he in no way in his brief as well as in the evidence adduced, alluded even in the slightest manner that the accident was not the direct result of the explicable and therefore culpable act of the 2nd respondent who should have switched off the crane from the switch board. To my mind it will be idle to harp or dwell at length on the question of res ipsa loquitur when that does not form the fulcrum or the crux of the respondent’s case.

On issues 1 and 2 the appellants’ case is built on the premise that the crane energized itself even when it was no longer connected to the switchboard and for this they relied on their averments in the pleadings that the crane energized itself. The impression being given is that what the crane did was beyond human comprehension and flies against all scientific or technological analysis and explanation. With the greatest respect, this argument being canvassed sounds otiose, barren and I would equally add effete. It is even against the evidence of D.W.1. Let me recapitulate what he said in his testimony in court:

” … When I heard the coil of a contractor energize, and drum roled (sic) and we all fell from our various positions, myself, Ibrahim, Akpan and Samuel, I stood up and ran quickly to switch off the main panel”.

Later below he testified thus:

“As we were positioned, and no one was in control of the panel when it energized itself … If the main switch is off it will never energize … I was climbing out of the cabin to its top where Ibrahim was when I heard the coil of the contactor energizing itself.”

Now was there a continuous and therefore partial contact caused by bridging. The appellants who raised this point did not give evidence along that line. The 2nd appellant in his testimony said: