Universal Trust Bank Of Nigeria V. Fidelia Ozoemena (2007)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C

By a writ of summons issued out of Onitsha High Court by the respondent as plaintiff, she claimed against the appellant as defendant, the sum of N2,000,000.00 (two million naira) being special and general damages for nuisance and negligent destruction of her landed property and materials by the defendant.

Pleadings were ordered, filed and exchanged between the parties. Paragraph 14 of the respondent’s (plaintiff) statement of claim, which sets out the particulars of claim read:

“14. WHEREFORE the plaintiff has suffered damage and claims against the defendant the sum of N2,000,000,00 (two million naira) being special and a general damages for the nuisance and negligent destruction of her property and materials by the defendant.”

Particulars of special and general damages:-

“(a) Special damages:-

1. Cost of 15 bundles of corrugated iron sheets N75.000.00
2. Cost of 50 planks of timber N10,000.00
3. Cost of 50 sheets of asbestos and

ceiling boards N15,000.00

4. Cost of 10 door frames N10,000.00

Total N 110,000.00

(b) General damages:-

1. Estimated cost of rebuilding the house N1,700,000.00
2. Loss of earning in rent and other

inconveniences N190.000.00

Total N2,000,000,00”

The appellant (defendant) denied all the claims of the respondent and in paragraph 16 of its statement of defence averred as follows:

“16. The defendant vehemently denies paragraph 14 of the statement of claim and states that it is not liable to pay N2,000,000 (two million naira) to the plaintiff as categorized in the said paragraph 14 and will urge the court to dismiss the plaintiff’s action as it is frivolous and an abuse of court process.”

At the trial, the respondent gave evidence as PW1 in support of her case and called two witnesses. The appellant called two witnesses in defence.

At the end of the evidence of witnesses, the addresses of counsel were heard and judgment in the case was reserved. In a considered judgment delivered on 25th November, 1997, the learned trial Judge Ibeziako J, found in favour of the respondent and ordered the appellant to pay her:-

“1. the sum of N110,000.00 as special damages for the loss of her building materials destroyed by fire on 21/1/95;

2. the sum of N1,890,000,00 as general damages, and
3. N1,000 being cost of this action.”

The appellant was not happy with this judgment and it appealed against it to the Court of Appeal on 16th December, 1997. In the Court of Appeal, the appeal was allowed in part and the award of N1,890,000.00 as general damages was reduced to N1,000,000 and N2,000 costs were awarded to the appellant.

The appellant was still dissatisfied and it further appealed to this court and the respondent cross appealed against the reduction of the general damages awarded to her by the trial court. Written briefs were filed and exchanged by the parties as required by the rules of this court.

In the appellant’s brief, the following issues for the determination of the court were formulated:-

“1. Whether the learned Justices of the Court of Appeal were right in coming to the decision that negligence had been established against the defendant/appellant.

2. whether the learned Justices of the Court of Appeal were right in affirming the award made by the trial Court of the special damages claimed.”

The respondent also raised 2 issues which read:-

“1. Whether the court below was right in concurrently holding that appellant was liable in negligence and

nuisance and what is the attitude of this court to such a concurrent finding.

2. Whether the court below was right in concurrently awarding special damages to the respondent and what is the attitude of this court to such a concurrent finding.”

And the cross appeal, the respondent’s sole issue also reads:-

“whether the lower court was right in reducing the general damages awarded to the cross appellant by the trial court and failing to give effect to an uncontroverted evidence.”

The facts giving rise to this case are very simple and straightforward. The respondent, a widow was the owner of a 5 bedroom house at No. 29, Ezekwesili Street Amafor Nkpor, Anambra State. The appellant was her neighbour and owned a vacant plot of land behind its office at No. 39 New Market Road, Nkpor. The appellant’s plot of land was at all material time unoccupied but was fenced by a surrounding wall and secured by an iron gate. There was thick growth of bushes and grasses on the said plot and there was a fire outbreak which caught the grasses and the bush in the plot and burnt down the respondent’s house. The respondent filed this action in the trial High Court Onitsha, alleging that the appellant had committed a serious act of nuisance by allowing the grasses and bushes to grow on the plot and negligently allowed it to catch fire as a result of which her house was burnt. She alleged that the appellant was in breach of the duty of care to her as her close door neighbour separated only by a fenced wall, and she claimed N2,000,000 (two million naira) against the appellant. The details of the claim are as stated in paragraph 14 of the statement of claim set out earlier in this judgment.

In their briefs of argument, both parties raised 2 issues each for the determination of this court in the main appeal. I have examined the issues and find them to be substantially similar and the same in all respects and effects. I will therefore consider the issues formulated by the appellant.

The first issue is whether the Court of Appeal was right in coming to the decision that negligence had been established against the defendant/appellant at the trial. This, in my respectful view, is the most important issue in this appeal and once it is established or resolved, the case is settled, as all respondent’s claims must depend on it. It is essential therefore, at the very beginning to understand what “negligence” is, in the circumstances of any case, and what has to be proved in court in order to succeed.

Negligence has been defined in Oxford Advanced Learner’s Dictionary 5th edition as “lack of proper care and attention, careless behaviour”.

Negligence is a tort and it 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 or spoken in such a way as to break that duty of care;
3. The conduct of the defendant was careless.

See Clerk and Lindsel on Torts, 14th Edition, page 474. Agbonmagbe Bank Ltd. v. C.F.A.O. (1966) 1 All NLR 140; (1966) 1 SCNLR 367; Oyidiobu v. Okechukwu (1972) 5 SC 191; Orhue v. NEPA (1998) 7 NWLR (Pt.557) 187.The tort of negligence is traditionally described as damage which is not too remote and caused by a breach of duty of care owed by the defendant to the plaintiff. The established legal position is that the onus of proving negligence is on the plaintiff who alleges it and unless and until that is proved, it does not shift. In other words where a plaintiff pleads and relies on negligence by conduct or action of the defendant, he or she must prove by evidence the conduct or action and the circumstances of its occurrence, giving rise to the breach of the duty of care. It is only after this that the burden shifts to the defendant to adduce evidence to challenge negligence on his part.

And what amounts to negligence is a question of fact not law and each case must be decided in the light of its own facts and circumstances. See Kalla v. Jarmakani Transport Ltd. (1961) All NLR 747; Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt.636) 626.

For a plaintiff to succeed in an action for negligence, he or she must plead all the particulars in sufficient detail of the negligence alleged and the duty of care owed by the defendant and all these must be supported by credible evidence at the trial. See Koya v. U.S.A. (1997) 1 NWLR (Pt.481) 251.

The plaintiff in paragraphs 4, 5 and 6 of the Statement of Claim pleaded that:-

“4. The defendant occupied a fenced up parcel of land behind its office at No. 39 New Market Road, Nkpor and this fenced up parcel of land is surrounded by other buildings including the building owned by the plaintiff…

5. The defendant committed a terrible act of nuisance on the said fenced up parcel of land belonging to him by allowing a very thick dry bush to grow on the same and negligently left the said parcel of land all through the harmatan periods in spite of the incessant fire outbreaks during these periods in breach of his duty of care to the plaintiff whose landed Property at No. 29 Ezekwesili Street, Nkpor shares a common boundary with the fenced up parcel of land belonging to the defendant.
6. On or about 21/1/95 the said thick dry, bush negligently maintained by the defendant caught fire and totally burnt down the plaintiff’s building with appurtenances which was made up of four bedrooms with appurtenances and a fifth room which the plaintiff used as a store and in which said store the plaintiff kept 15 bundles of corrugated iron sheets, 50 (fifty) planks of timber, 50 (fifty) sheets of asbestos ceiling boards and 10 (ten) doors frames which she intended to use in the expansion of the building to accommodate her. All these materials were equally burnt and damaged and the plaintiff will at the trial tender and rely on all the cash sales invoices with which she purchased these materials.”

The appellant as defendant also pleaded in paragraphs 4, 6, 7, 8 and 9 of statement of defence that:-

“4. The defendant denies paragraph 4 of the statement of claim and puts the plaintiff to the strictest proof of the allegations contained therein.

6. In further answer to paragraph 4, the defendant owns an undeveloped fenced piece of land within the vicinity of its 39 New Market Road, Nkpor property.
7. The defendant denies paragraph 5, of the statement of claim and states that the said defendant’s pieces of land had always been under safe control by the defendant since its purchase in 1996 and had never constituted nuisance to adjoining neighbors.
8. Save that on 21/1/95 the defendant’s undeveloped plot was broken into by unknown persons and set ablaze, which said fire affected an adjoining property, the defendant denies all other allegations contained in paragraph 6 of the statement of claim.
9. In further answer to paragraph 6 of the statement of claim, the defendant states that the incident would have been avoided if not for the negligent act of the plaintiff who in building did not keep to the allowable air space as specified by the building regulations.”

From the pleadings of the parties, it is abundantly clear that the parcel of land from where the “nuisance” emanated was fenced and that it belongs to the defendant. The defendant/appellant denied occupying the plot at the material time and that the fire which caused the nuisance was set ablaze by unknown persons and not themselves or anyone authorized by them. Therefore, for the plaintiff/respondent to succeed in this action, she must prove that the defendant/appellant was negligent as defined earlier in this judgment.

At the trial, the plaintiff/respondent (hereinafter referred to as “respondent”) gave evidence for herself and called 3 other witnesses in support. She, as PW.1 testified (page 30 – 31 of the record) that:-

“The defendant also owns another piece of land which has a common boundary with my land at No.29 Ezekwesili Street, Nkpor. The defendant’s land is behind my land at No.29 Ezekwesili Street in Nkpor. The said defendant’s said land is walled round and it has an iron gate. It is sandcrete blocks used for the wall. The gate is locked with chains and padlock key. There is no building on that defendant’s land.” (Italics mine)

In cross-examination, PW.1 was asked whether she knew who set the bush in the defendant/appellant’s house on fire and she replied:-

“It was Universal Trust Bank Ltd.”

She explained on further questions that she was told by her tenants that it was the defendant who set the bush on fire.

PW2 was only a photographer who photographed the respondent’s house after the fire incident and tendered them in court. He said nothing about the cause of the fire.

PW3 was a tenant of the respondent at the time the fire broke out in the respondent’s house. He told the court that he was not present in the house when the fire broke out. He was told by a boy and he rushed to the house when the fire was still burning, removed his property from the house and went to the respondent and informed her of the incident. That was all he knew about the matter.

From the testimony of the respondent and all her witnesses, there is no evidence at all to support the allegation that it was the appellant who set the bush in their plot on fire which affected the respondent’s house. In fact, the respondent herself in her evidence conceded and admitted clearly that the appellant’s said plot which has a common boundary with her said house was fenced with sandcrete blocks and the gate chained with padlock and keys. There was no evidence to show or even suggest that the wall was broken in any part to allow entry therein and the appellant did nothing about it.

The appellant, as defendant, admitted owning the plot at No.29 Ezekwesili Street, Nkpor but that it was an empty plot not occupied by anybody and no building on it at the time material to this case.DW2 who was then the manager of its Onitsha Branch, testified that the plot was fenced round with sandcrete blocks with iron gates securely locked to stop trespassers from going in it. He said that at one time when it was broken into, he got an iron welder to work on the gates which were properly secured and he placed a sign board warning trespassers from interfering with it. He also reported this to the Police. This was not denied or even challenged by the respondent at the trial.

It is very clear from the evidence elicited above, that the appellant was not responsible directly or indirectly for setting ablaze the grass or bush in its parcel of land on the day in question. On the contrary, it was clearly and abundantly shown and proved, even with the admission of the respondent herself, that the plot in question was sandcrete-walled and its gate padlocked at the material time. There is no doubt however that the appellant’s and respondent’s land had a common boundary separa1ed by wall. Therefore because of this proximity, the law assumes that they are both neighbours in law and in contemplation of each other. Each owes a duty of care to the other so as not to do anything that can likely injure the neighbour or cause any damage thereto as a result of any act or omission.

The learned counsel for the appellant in his brief of argument on this issue, conceded that the appellant was neighbour in law to the respondent and owed her a duty of care not to do anything or cause anything that could injure or damage her property. Counsel however submitted that the appellant had done all what was reasonably necessary and expected of them to prevent the happening of anything on their plot which would adversely affect their neighbours. He submitted that the Court of Appeal was wrong when it said in its judgment on page 154 of the record that:-

‘The appellant kept unmaintained dry bush on its piece of land in such a condition that if it got ignited, fire would likely spread to its neighbours. It did so in the course of some non-natural use. The thick bush got ignited and fire spread to cause havoc on the respondent’s nearby building. The appellant was rightly held liable in negligence/nuisance.”

Learned counsel explained futher on page 5 of his brief the position of the appellant when he said:-

“But an unmaintained dry bush on one’s land is certainly not a thing likely to catch fire without a miscreant setting it on fire. And the appellant did all that was reasonably necessary to do as to prevent ingress by unauthorized persons into the said land.”

He went on to say:-

“Indeed the appellant had excelled in his duty of care to the respondent by carefully securing properly the compound against intrusion by unauthorized persons by, erecting sanderete blocks round the compound with the gate locked with chains and a pad lock key.”

Counsel finally submitted after citing a plethora of decided cases in support that the appellant is not liable for an escape of fire which is due to the negligent act of strangers to its property.

For the respondent, it was submitted by learned counsel in the brief, that the appellant knew and has reason to know that it is not safe to leave or grow the kind of bush or forest found on their fenced up parcel of land especially during harmatan season in the face of incessant fire outbreaks, and that the defence that the fire incident was caused by trespassers docs not hold any water. It was also contended for the respondent that the non-natural use of the land by the appellant constituted a nuisance in the built up area of Nkpor and the appellant breached its duty of care to the respondent resulting in the damages complained of. Counsel also cited some decided cases in support and finally submitted that the appellant was negligent on the evidence before the Court and that the trial court and the Court of Appeal are perfectly right in finding the appellant liable in this case.

In an action for negligence, a plaintiff can only succeed if in addition to pleading it and particular thereof, he or she must also show the duty of care owed to him or her by the defendant and the breach of that duty by the defendant. It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial.

In the case of Anyah v. Imo Concorde Hotels Ltd. & 2 Ors. (2002) 18 NWLR (Pt.799) at page 377, this court held:-

“For the defendant to be liable for negligence, there must be either an admission by him or sufficient evidence adduced to a finding of negligence on his part.”

And it went further to hold:-

“The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail. See Benson v. Otubor (1975) 3 SC 19; Okoli v. Nwagu (1960) SCNLR 48; (1960) 3 FSC 16; Nigeria Airways Ltd. v. Abe (1988) 4 NWLR (Pt.90) 524; Strabag Construction (Nig) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt.170) 733”.

From the evidence of witnesses and the pleadings of the parties examined earlier in this judgment, the appellant did not admit any item of negligence on its part in this case. In fact it denied everything thereon and put the respondent to the strictest proof thereof. But has the respondent proved negligence in evidence My answer to this question is in the negative. It was not proved by evidence that the appellant directly or indirectly caused the bush in its fenced plot to catch fire. It was not shown that it kept anything combustible in the fenced plot which could cause the fire without more. It was not proved that the appellant was careless in leaving his plot wide open for any trespasser to go into and put fire to the bush alleged to be inside the plot. Rather, it was clearly shown, and even confirmed by the respondent herself, that the plot at the material time was fenced with sandcrete blocks all round and had an iron gate which was secured with chains and pad lock key Therefore, it is my respectful view, that the appellant had done everything necessary that a reasonable person would do to prevent the reasonable possibility of entering the plot and setting fire to the grass or bush in the plot concerned.

If this happened, it cannot be within the reasonable contemplation of the appellant and the appellant cannot in my view, be held responsible for this and be found to have breached the duty of care to the defendant. Therefore based on the evidence given at the trial as stated above, the findings of the trial court that the appellant was liable in negligence, is in my view perverse and the confirmation of the findings by the Court of Appeal wrong in law. I accordingly so hold. I therefore resolve this issue in favour of the appellant.

The 2nd issue arising in this appeal raised by the appellant deals with the award of special damages as a result of fire incident. Having found that the appellant was not in breach of the duty of care to the respondent as it did all that was reasonable in the circumstances, I do not think it is necessary for me to consider issue 2 in this appeal. If there is no liability for the negligence, that is the end of the whole case and the question of any damages resulting therefrom does not arise.

The cross-appeal of the respondent also raised only one issue pertaining to the damages awarded to her in which the Court of Appeal reduced the amount. This does not also arise as a result of my finding that the appellant was not negligent in what gave rise to the whole claim. I accordingly so hold.

Therefore from all that I have said above, I find that this appeal is meritorious. I accordingly allow it set aside the decision of the Court of Appeal and dismiss the cross-appeal. In the circumstances of this appeal, I do not find it necessary to award any costs against the respondent. Each party is to bear its own costs.

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SC.129/2001