Oilserv Limited V. L. A. Ibeanu & Company Nigeria Limited & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

RHODES- VIVOUR, J.C.A.

By a writ of summons issued, out of Port Harcourt High Court by the respondents as plaintiffs, they claimed against the appellant as defendant in their statement of claim as per paragraph 19 thereof as follows:-

(a) The payment of the sum of N600.000 only being the specific damages incurred and suffered by the first plaintiff to repair the equipment under reference which repairs include implement pump, glasses damaged and boom, all these were damaged by the defendant while pulling off the fire burning off the equipment.

(b) The sum of N600, 000 only being the cost of hospital bills, salary and drugs purchased and incurred by the second plaintiff.

(c) The sum of N 10,000,000.00 representing general damages suffered and incurred jointly and severally by the plaintiffs as a result of the fire incident involving their equipment and personal.

(d) The cost of this action.

Pleadings were filed in due course and exchanged. In the High

Court, T. K. Osu, J., presided. The plaintiffs called two witnesses, while the defendant called only one witness. Fourteen documents were tendered and admitted as exhibits. After a full trial, the learned trial Judge entered judgment on 30/6/06 in favour of the plaintiffs jointly and severally against the defendant, and the following orders were made:

(a) The payment of the sum of N600, 000 (six hundred thousand Naira only) by the defendant to the first plaintiff being the specific damages incurred and suffered by the first plaintiff to repair the equipment under reference which repairs include implement pump, glasses and boom damaged all these were damaged while putting off the fire which burnt off the equipment at the defendants premises.

(b) The payment of the sum of N600, 000 (six hundred thousand Naira) to the 2nd plaintiff being the cost of hospital bills, salary and drugs purchased and incurred by the second plaintiff.

(c) The payment of the sum of N2,000,000 (two million Naira) representing general damages suffered and incurred jointly and severally by the plaintiffs as a result of the fire incident involving their equipment and personal costs of N5,000 in favour of the plaintiffs.

The present appeal is from the judgment of the High Court.

On 26/7/06, the defendant who was dissatisfied with the judgment of the High Court delivered on 30/6/06 filed a notice of appeal containing three grounds of appeal.

In accordance with Order 6 rules 2 and 4(1) of the Court of Appeal Rules, the defendant, now as the appellant filed his brief on 19/9/06 while the respondents filed their brief on 6/10/06.

The appellant formulated two issues for determination:-

1. Whether the learned trial Judge was right in delivering judgment in favour of respondents without pleading and evidence of negligence and duty of care against the appellant.
2. Whether the learned trial Judge was right in awarding special and general damages in favour of the respondents without pleading and evidence of the said damages.

On the other side of the fence, the respondents presented three issues for determination. They are:

1. Whether the trial court was right in holding that the appellant did owe the respondents a duty of care in hiring their equipment to work at the appellant’s fire prone site.
2. Whether the trial court was right in awarding both special and general damages on the evidence led in favour of the respondents.

Did the respondents prove their claim at the trial court based on the preponderance of evidence led.

At the hearing of the appeal on 22/6/07, learned counsel for the appellant, Mr. F. A. Chukuka adopted his brief and urged us to allow the appeal and set aside the judgment of the trial court. Learned counsel for the respondents; Mr. E. N. Okpala adopted his brief and urged us to dismiss the appeal.

I have examined the issues formulated by both sides. Issues 1 and 2 formulated by both sides are substantially the same. I would in the circumstances adopt the appellant’s issues 1 and 2 and the respondents issues 3. The issues for determination would now read:

Issue No.1.

Whether the learned trial Judge was right in delivering judgment in favour of respondents without pleading and evidence of negligence and duty of care against the appellant.

Issue No.2.

Whether the learned trial Judge was right in awarding special and general damages in favour of the respondents without pleading and evidence of the said damages.

Issue No.3

Did the respondents prove their claim at the trial court based on the preponderance of evidence.

Before I proceed to consider the issues, I deem it very important to state briefly the facts of this case.

The 1st respondent is engaged in the business of the sale of equipment spare parts, leasing and hiring of equipment such as excavator machines and engines. The 2nd respondent is a staff of the 1st respondent. He is the operator/driver of the 1st respondent’s heavy equipment such as the excavator machine.

The appellant is engaged in the business of general contracts, leasing and oil services in the oil Industry.

On the 9th of October, 2001, the 1st respondent and the appellant signed a hiring agreement. The parties are in agreement that the excavator the appellant hired from the 1st respondent was to be used to excavate sand at the defendants project site at Gokana, Rivers State, that is to say, it was to be used for digging soil and or excavating sand. The 2nd respondent was in complete control of the excavator. According to him, he drove the excavator to the appellant’s site at Gokana and on arriving at the site, he was ordered by the appellant to use the excavator to excavate sand and bury/put out the fire that was raging at the site. It was while he was trying to put out the fire as ordered by the appellant that the fire engulfed the excavator and him. The excavator was damaged and he was hospitalized for burns.

The appellant told a different story. According to the appellant, the 2nd respondent negligently commenced work and a minor fire incident occurred which resulted in the 2nd respondent being hospitalized. The learned trial Judge believed the respondents’ version of events and entered judgment for them. I shall now address the issues seriatim.

Learned counsel for the appellant observed that the respondents did not plead duty of care and negligence in the statement of claim and no evidence was led by the respondents relating to duty of care and negligence. He argued that for a claim of negligence to succeed the respondents must prove that the appellants owed them a duty of care and was in breach of that duly. Relying on Justice K. O. Anyah v. Imo Concorde Hotels Ltd (2002) 18 NWLR (Pt. 799) p. 377

He urged us to resolve issue 1 in favour of the appellant since the learned trial Judge came to a wrong finding.

In his submissions, learned counsel for the respondents submitted that the respondents pleaded sufficient facts and acts of the appellant that resulted in the fire burning both the respondent’s equipment and its operator at the site of the appellant. Reference was made to paragraphs 7 to 12 of the statement of claim. Learned counsel argued that the duty of care on the appellant arose when they contracted in exhibit A and deployed the equipment to work at their site, contending that the duty of care on the appellant is to ensure that the operator and the equipment worked or performed the contract in a safe site as agreed but rather they breached this duty and deployed the equipment and the operator to scoop sand to put out a fire relying on Felicia Ojo v. Dr. Gharoro & 2 Ors. (2006) 138 LRCN p. 1652. (2006) 10 NWLR (Pt. 987) p. 173; Oyidiobu v. Okechukwu (1972) 5 SC p. 191.

He urged us to hold that the trial court was light in holding that the appellant did owe the respondents a duty of care in hiring their equipment to work at the appellant fire prone site.

The answer as to whether the appellant owed the 1st respondent a duty of care is very important. Indeed, this question is so profound that the answer to it determines the appeal. At this stage, it is mandatory. I review the of the agreement in some detail to see what the parties were agreed on (ad idem). The contract is exhibit A. It is titled “Plant Hire Agreement” the opening paragraphs introduces the parties to the agreement while paragraphs 1 describes the equipment, paragraphs 2 provides for the commencement date of the contract, paragraphs 3 and 4 are on the duration of rental and rate. I shall now reproduce all the other paragraphs in full.

“5. Full payment must be made before the equipment leaves the owners premises to hirer’s site.

6. The hirer shall pay for the transportation of the equipment going and coming back.
7. The hirer shall be responsible for fuel and lubricants on site, while the owner sees to repairs and maintenance.
8. Breakdown hours shall be compensated by owner, while idle hours shall be hirer’s liability, so long as the machine is ready to work.
9. Owner shall remove machine from hirer’s site if payment is not made in advance on expiration of the initial payment at the expense of the hirer.
10. It’s the responsibility of the hirer to draw out the machine in case it sinks.
11. Working period shall be from 7 a.m. to 4 p.m. with one hour break – 12 Noon to 1 p.m. daily.
12. Hirer shall be responsible … feeding (N2, 000.00 per day) and his accommodation at working place.
13. Hirer agrees that he inspected the equipment being hired and find the equipment is to be returned to the owner in the same good condition.
14. Any claims and/or liabilities or damages to equipment whatsoever arising from the hirers use and or transportation of the equipment from the time the equipment leaves owners yard until the equipment is returned to owners yard shall be solely the hirer’s liabilities.
15. I fully understand and accept the above contents without duress before selling my hands/impression thereto this 1st day of September, 2001.”

The appellant and the respondent signed exhibit A reproduced above, but before I comment on exhibit A, I must say a thing or two on contracts/agreements.

The law is well settled that where parties have made a contract for themselves, they are bound by the terms thereof, and in interpreting the contract, the court at all times should give a meaning that reflects the plain and obvious intention of the parties and should never import into the contract, ideas not patent on the face of the contract.

It is only when the words used are not clear that the court would try to find the intention behind the words. On no account should the court make agreement for the parties. See Amadi v. Thomas Aplin Co. Ltd. (1972) NSCC p. 266; Odure v. Nig. Airways Ltd. (1987) 2 NWLR (Pt. 55) p. 126; Chukumah v. Shell Petroleum (1993) 4 NWLR (Pt. 289) p. 512; African Reinsurance Corporation v. Fantaye (1986) 1 NWLR (Pt. 14) p. 113.Now, back to exhibit A. Nowhere in exhibit A can one find what the excavator was hired for. The well known view is that an agreement/contract to be valid requires an offer and a valid acceptance of that offer, but that is not always the case. Once the parties are agreed on all material points, i.e. to say ad idem on all material points then there is no need for offer and acceptance. It would no longer be necessary in an executed contract in commercial setting as in this case. As a High Court Judge, I said so in Jadesimi v. Egbe, suit No. LD/158/96 judgment delivered on 6/11/98 and affirmed by the Court of Appeal in jadesimi v. Egbe (2003) 10 NWLR (Pt. 827) p. 1.

It is for the parties to make their intentions clear, and the court would strive to find a contract valid where it has been executed. In paragraphs 4 and 5 of the statement of claim, the respondent averred that the excavator was hired to be used in digging soil and or excavating sand at Gokana.

In paragraph 3 of the statement of defence, the appellant admits paragraphs 4 and 5 of the statement of claim.

In evidence on oath, PW1 the respondents’ witness said:

“The defendant told me what I was going to do. They told me that I was going to excavate sand at Gokana (see page 26 of the record of appeal) DW 1, the appellant’s witness said on oath that:

“The hired excavator was to excavate sand at Gokana.”

See page 34 of the record of appeal.

It is so clear that after exhibit A, a written contract, there was an oral contract. The contents of the oral contract agreed by the parties are a matter for the Judge and the interpretation will be undertaken by applying the objective rule.

In this case, the parties were ad idem on all that is contained in exhibit A, and that the hired excavator would be used for digging soil, and or excavating sand at Gokana. On this, both sides are in full agreement.

It is undoubtedly trite that parties are bound by their pleadings, in that regard, it has been said in a plethora of cases that if pleadings are to be of any value at all parties must be held bound by them. See Cardoso v. Doherty (1938) 4 WACA p, 78, Adeoye. v. Adeoye (1961) ANLR p. 792.

A plaintiff’s bound by his pleadings and will not be allowed to set up a case different from his pleadings. Explaining how the excavator got burnt and how the 2nd respondent got burns that required hospital treatment, paragraphs 7, 8, 9, 10, 11, 12 of the respondents’ statement of claim are instructive. They read:

“7. That at Gokana site of the defendants’ project, the second plaintiff was ordered by the defendant to operate the equipment in issue and use same to excavate sand and bury the fire that was raging at the site in order to prevent its spread to other areas of the site.

8. The said excavator 215 operator (the second plaintiff) refused to comply with the order of the defendant: protesting that the equipment cannot be deployed or used to prevent fire that was already on nor put the fire out by burying the fire with sand. Since the equipment is not suitable for fire prevention and no protective clothing against fire.
9. The defendant insisted that the excavator was only hired and paid in order to be deployed to bury the fire that broke out at the site and failing which the defendant would terminate with contract and claim damages for breach of same.
10. The second plaintiff therefore reluctantly entered into the equipment and started burying the fire with sand as directed and ordered by the defendant.
11. The second plaintiff was engaged in this work which was most unsuitable for him and the equipment, the fire engulfed the second plaintiff and the equipment.
12. The equipment was damaged by fire, the second plaintiff sustained several degrees of bums and had hospitalized (sic) for nearly one month the pictures taken of the second plaintiff in the burnt condition and the fire damaged equipment are hereby pleaded and will be relied upon during the trial of this suit.”

In paragraph 4 of the statement of defence, the appellant denies all of the above. The appellant’s version is that the respondent was never engaged to excavate and bury fire rather the respondent was engaged to excavate soil to enable the appellant’s staff clamp a leaking oil pipe buried about 4 feet deep According to the appellant, the 2nd respondent negligently commenced work and minor fire incident occurred which resulted in 2nd plaintiff being hospitalized for about 10 days at SPDC clinic…

The minor fire accident was caused solely by the negligence of the respondent. The learned trial Judge believed the respondents’ version. His lordship said on page 67 of the record of appeal:

…The court from the circumstances of the case does not accept the evidence of the defendant (now appellant) because a fire incident that kept somebody hospitalized for ten days cannot be described by a party as being minor. Rather, the court believes the evidence of the 2nd plaintiff that the fire was raging when he got there and he was asked by the defendant to bury it with the use of the excavator.

The learned trial Judge apparently relied on the sworn testimony of PW1, i.e. the 2nd respondent and the only eye-witness of the events leading to his claim. He said on oath:

“… The defendant (now appellant) told me what I was going to do. They told me that I was going to excavate sand at Gokana. I went to Gokana with the defendant. As we got there, the job they told me that I was going to do in the office was different from that they showed to me. The defendant told me at Gokana to quench burning fire. I was to use the excavator 215 express to quench the fire. I had to quench the fire with the excavator. The excavator laws not meant for fire quenching.”

I agree with his lordship that the 2nd respondent’s excavator got built and he was also injured because he used the excavator to scoop sand to put out the fire. The narrow issue for determination is whether the appellant owed the respondents a duty of care.

The burden of proof is on the party who will fail if no evidence is led by either side. See section 135 of the Evidence Act. In this case, it is the respondents. That is to say they assert that the appellant owes them a duty of care. They must prove. Therefore, until the respondents discharge the onus placed on them by law and in fact the burden does not shift to the appellant/defendant. See Seismograph Services (Nig.) Ltd. & 2 Ors. v. Mark (1993) 7 NWLR (Pt. 304) p. 203.

Negligence is complete when three conditions are satisfied.

These are:

1. The defendant owes a duty of care to the plaintiff.
2. The defendant has acted in such a way as to break that duty of care.
3. The conduct of the defendant was careless. See Oyidiobu v. Okechukwu (1972) 5 SC p. 191; Orhue v. NEPA (1998) 5 SC p. 121; (1998) 17NWLR (Pt. 557) 187.

Duty of care means taking reasonable care to avoid acts/omissions which one can reasonably foresee would be likely to injure his neighbour.

The question to ask is whether as between the wrongdoer (the appellant) and the party who suffered damage (the 2nd respondent) there is sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the former carelessness on his part may have caused damage to the latter. If that is the scenario, then a duty of care arises.

If the above is answered affirmatively, it is the duty of the Judge to consider whether there are any other considerations which ought to negate or reduce the scope of the duty of care. See Marcus Enyika v. Shell BP Petroleum Dev. Co. of (Nig.) Ltd. & Ors. (1997) 10 NWLR (Pt. 526) p. 638; Abusomwan v. Mercantile Bank of (Nig.) Ltd. (No.2) (1987) 3 NWLR (Pt. 60) p. 196.The contract between the parties is as pleaded by the respondents/plaintiffs and admitted by the appellant/defendant.

Paragraph 4 of the statement of claim reads:

“4 The plaintiffs jointly say that the defendant negotiated and agreed with first plaintiff to hire its equipment called 215 Express for the purpose of excavation of sand at the defendant’s project site at Gokana, Rivers State.”

The parties are in agreement that the excavator was to be used in digging soil and or excavating sand at Gokana, Rivers State. Then what went wrong.

The 2nd respondent (the plaintiff) said on oath.

“The defendant told me what I was going to do. They told me that I was going to excavate sand at Gokana. I went to Gokana with the defendant. As we got there the job they told me that I was going to do in the office was different from that they showed to me. The defendant told me at Gokana to quench burning fire. I was to use the excavator 215 express to quench the fire. I had to quench the fire with the excavator.”

According to PW 1, he was forced to use the excavator to quench the fire. The defendant who he claims forced him is a limited liability company, a legal person. It is only a natural person that can force someone to do an act. A legal person can’t since it is not a living person.

To be forced to do an act is in the realm of duress. Duress involves coercion. It requires actual or threatened violence to the person. In this case, the 1st respondent did not say who forced him to use the excavator to quench the fire. He also has not said how he was forced.

What would a reasonable man do if told to quench fire with an excavator, when the excavator was not hired to quench fire but to excavate sand?

A reasonable man is a fair-minded man, rational in thought and orientation. He is a man endowed with reason. It includes the ordinary person seen on our streets, whose means of transport is the popular Okada or mammy wagon. It also includes the affluent, highly literate or otherwise. See UBN Ltd. v. Oredein (1992) 6 NWLR (Pt. 247) p. 355.

On oath, PW1 said:

“… Before I leave the 1st plaintiff to work somewhere else there must be an agreement in writing and there was an agreement in this case. The agreement is between the 1st plaintiff and the defendant” (See page 25 of the record of appeal).

And on page 30 of the record of appeal, PW 1 said:

“The excavator was hired to excavate sand. The excavator cannot be used to quench fire. I have a license to operate excavator.”

It is clear that the 2nd respondent, (PW 1) the person who operated the excavator is a reasonable man. He has a license to operate the excavator and he knew that the excavator cannot be used to quench fire.

What then should a reasonable man do when told to use the excavator to quench fire? A reasonable man would say wait a minute; I want to get in touch with my boss (the 1st respondent) to inform him of the new developments.

In this case, the 2nd respondent did not do that. By using the excavator to quench fire, he has gone outside the terms of the contract. He has abandoned the contract and got involved in what was never in contemplation of the parties when they agreed to the hiring of the excavator.

The harsh reality is that the learned trial Judge failed to avert his mind to the fact that the excavator driver (the 2nd respondent) who was aware of the terms of the contract went outside the terms for no just cause.

The facts of this case simply do not support the reasoning and conclusion of the trial Judge.

I am firmly of the view that once, as is the case, the 2nd respondent goes outside the terms of the contract and fails woefully to explain why he went outside the said terms, there would then no longer be any relationship of proximity or neighborhood between the parties. Going outside the contract is a private voyage by the 2nd respondent that negates the scope of the duty of care expected had the fire incident occurred when the 2nd respondent was acting within the terms of the contract, the appellant (defendant) would have been liable in damages because by law and in fact he owed the 2nd respondent a duty of care. That is not the case when the 2nd respondent goes outside the terms of the contract as has been shown to have done in this case. The appellant (as the defendant) did not owe the respondents a duty of care. I shall take issues 2 and 3 together.

In I.M.N. Ltd. v. Nwachukwu (2004) 6-7 SC P 88; (2004) 13 NWLR (Pt. 891) p. 543 at 566 para B. Musdapher, JSC said that:

“it is the law that before a court begins a meaningful assessment of damages, it must be sure of the nature of the claim, that is to say, whether the claim is in contract or in tort.”

This is important because the principles guiding the award of damages in tort are different from those guiding the award of damages in contract. See, James v. Mid Motors (Nig.) Co. Ltd. (1978) 11 -12 SC p. 31.In this case, the claim in tort is negligence, I read the submissions of counsel in both briefs on this issue, but the submission of the respondents, counsel fades into insignificance simply because to be entitled to compensation or damages in tort, the defendant must be responsible for the act giving rise to the loss or damage. In this case, the respondents failed to prove that the appellant was responsible for the damage caused to the excavator and the burns on the 2nd respondent. There thus can be no liability.

In criminal cases, the standard of proof required is proof beyond reasonable doubt.

It means proof within the bounds of evidence adduced and so obvious to the court. It must have the clarity of proof that is consistent with the guilt of the person. See State v. Onyeukwu (2004) 14 NWLR (Pt. 893) p. 340.

On the other hand and what is in issue is whether the respondents proved their claim at the trial court based on the preponderance of evidence led.

Preponderance means that the evidence of the party on whom lies the onus of proof is more likely to be true than that of the adverse party. It is used interchangeably with balance of probabilities. See Odofin v. Mogaji (1978) 4 SC p. 91: Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt. 73) p. 746.

It simply means one side’s position outweighs the other when all admissible evidence before the court is placed on an imaginary scale.

In the instant case, if the trial Judge had averted his mind to the fact that the damage/injury to the excavator and 2nd respondent occurred when the 2nd respondent used the excavator to quench fire, an act clearly outside the terms of the contract, he would have come to a different conclusion and it would be clear that the respondents did not prove their case based on the preponderance of evidence led.

In the end, there is merit in this appeal. The judgment or the trial court and the order that costs of N5.000.00 be paid to the respondents/plaintiffs are set aside. The said sum should be returned to the appellant if already paid.

Appeal succeeds. Parties shall bear their own cost.

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Other Citations: (2007)LCN/2480(CA)