West African Chemical Company Limited V. Caroline Poultry Farm (Nigeria) Limited (1999)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The Respondent sued the appellant before the High Court, Port Harcourt claiming N300,000.00 special and general damages for negligence. Pleadings were exchanged and amended here and there. The respondent owned a poultry farm which developed a bad odour. It employed the services of the appellant to remove the odour.
On the 2nd of September, 1980 the appellant carried out these services by disinfecting the farm. In the statement of claim it was alleged that on the 5th of September, the respondent observed that birds in the farm were dying in large numbers. It made contact with the appellant which did nothing. Several letters were exchanged between the parties and eventually the respondent sued for negligence.
The respondent called three witnesses in proof of its claim. It was not disputed by both sides that there was an agreement between them for the appellant to control the bad odour in the poultry farm. The respondent gave evidence through its witness that as a result of the disinfectant used by the appellant to remove the odour the birds in the cages inhaled substances that led to their death in large numbers. It relied particularly on the evidence of PW2. Dr. Iyo a Veterinary Doctor with the Ministry of Agriculture, Port Harcourt. Dr Iyo tendered a post-mortem report conducted on the dead birds as Exhibit J. In his opinion chemicals which the appellant company officials sprayed in the poultry farm were responsible for the death of the birds. He sent samples of the dead birds to Vom Veterinary Research Institute which sent a report but the witness did not tender it. He merely said that the result of the test was in their office file. The result was however tendered by the appellant through DW1, Dr. Titus Osiyemi of the Veterinary Research Institute, Vom as Exhibit K. This exhibit is in total conflict to Exhibit J; that probably explains why the respondent refused to tender it as it would certainly have destroyed its case. The appellant testified through DW2, Isaac Emenogu that the respondent disinfected the poultry farm by mixing dettol and water and sprayed the litters in order to reduce the stench. He said that he had been doing this work for many years and he personally mixed the materials used and there was no negligence on their part.
The learned trial Judge at the conclusion of the case and addresses by the counsel on either side, gave judgment in favour of the respondent and awarded N72,500.00 as special damages and N7.500.00 as general damages with costs of N400.00.
Dissatisfied with that judgment, the appellant appealed to this court, and in accordance with the rules of this court filed its brief of argument and identified four issues for determination as follows:
“Whether the Trial Judge was right in holding that the doctrine of RES IPSA LOQUITUR applied when:
- The doctrine was no where pleaded directly or indirectly nor any indication given to the defendants that the plaintiff would rely on it in proof of their case.
- Where the doctrine applied, whether the onus of disproving negligence or absence of negligence is higher than on the balance of probabilities applicable in civil cases.
- Whether the learned trial Judge sufficiently addressed his mind to the admissions made by the plaintiff and his witness and evaluated them along with the evidence of the Defendants and their witnesses.
- Whether the learned trial Judge was right in awarding special damages to the plaintiff when he had already found as of fact and Law that there was no basis for the award.”
The respondent also filed its brief of argument and identified three issues for determination as follows:
“(1) Whether the doctrine of “res ipsa loquitur” was applicable in this case.
(ii) Whether the Plaintiff/Respondent prove his case and was entitled to judgment.
(iii) Whether the learned trial Judge was right in law in awarding the Plaintiff/Respondent special damages.
The three issues formulated by the respondent are neater and more compact.
I shall determine this appeal on the basis of these issues.
On the first issue, the learned counsel for the appellant submitted that the trial Judge was wrong in applying the doctrine of res ipsa loquitur to the case when in fact the respondent did not plead the doctrine either directly or indirectly or by inference but was relying on the Veterinary doctor’s report Exhibit j in proof of his case of negligence. He relied on the following cases:
(a) Kuforiji & Anor v. V.Y.B. (Nig.) Ltd. (1981) 6-7 SC 40 at 49; (b) Management Enterprises Ltd. v. Owsanya (1987) 2 NWLR 179 at 191 (Pt.55); (c) Bello v. A.G. of Oyo State (1986) 5 NWLR (Pt.45) page 828 at 879.
(d) Barkway v. South Wales Transport Co. Ltd. (1950) 1 All E.R. 392 at 399.
The learned counsel for the respondent submitted ‘that the trial Judge was right in holding that the doctrine of res ipsa loquitur applied. He said that it was quite clear from an examination of respondent’s pleading and evidence led that the respondent relied on the fact that its birds or chickens started dying in large numbers immediately after the spraying of his poultry farm by the appellant to establish negligence on the part of the appellant. He relied on the following cases: Linus Onwuka & Anor v. R.I. Omogui (1992) 3 NWLR (Pt.230) 393 at P. 415 SC; F. Eseigbe & Anor v. F. Agholor & Anor (1990) 7 NWLR (Pt.161) 234 at Pp. 244, 247; Strabag Construction (Nig.) Ltd. v. Okpan Ogarekpe (1991) 1 NWLR (Pt.170) 733 at page 749.
The doctrine of res ipsa loquitur simply means “the thing speaks for itself,” and it is applicable to actions for injury by negligence when no proof of such negligence is required beyond the accident itself which is such as necessarily involving negligence. Where the maxim applies it shifts the onus of proof from the plaintiff to the defendant. The doctrine will not apply where the facts proved are equally consistent with accident as with negligence and where there is evidence of how the accident happened and the difficulty arises merely from an inability to apportion blame. See the cases of Management Enterprises Ltd. v. Jonathan Orusonya (1987) 2 NWLR (Pt.55) 179 at page 191 and Bello v. A.G. Oyo State (1987) 5 NWLR (Pt.45) 828 at page 879.
The Statement of Claim of the respondent, paragraphs 4, 5, 11 and 12 read as follows:
“(4) On 2nd September, 1980 the Defendant performed the services for the control of odour in the said farm.
(5) On 5th September, 1980, the plaintiff observed that birds in the farm were dying in large numbers, that is, three days after the spraying.
(11) The Defendant Company held itself out as being competent to carry out the spraying operations in order to control the odour in the Poultry Farm, and owes a duty to the Plaintiff to do the operation properly but had been negligent in the performance of this duty.
(12) As a result of this negligence the Plaintiff suffered a loss of 10,535 laying birds. The letter of 17th September, 1980, from the plaintiff to the Permanent Secretary, Ministry of Agriculture, Port Harcourt, sets out “over N8,750 laying birds lost by that date.”
From these paragraphs, it is clear that the respondent was attributing the death of its birds in large numbers to the spraying of the farm by the appellant. This means that the cause of the loss of the birds was known by the respondent. The respondent also relied heavily on Exhibit J which was the report of the Veterinary Dr. Iyo that the spraying by the appellant was responsible for the mass death of the chickens. It follows therefore that the trial Judge was wrong in applying the principle of res ipsa loquitur since the respondent knew the cause of the incident and the respondent has a duty to prove that the known cause was actually responsible for the death of the birds.
On the second issue the learned counsel for the appellant submitted that on the evidence and pleadings the respondent did not prove its case of negligence which it was duty bound to do.
In reply to this the learned counsel for the respondent submitted that the respondent proved its case on the balance of probability and was fully entitled to judgment. He said that cases are decided on the pleadings and the credible evidence led at the trial. He relied on the case of Alaide v. Awo (1975) 4 SC 215.
It is a cardinal principle of our civil litigation that whoever asserts must prove to succeed in his claim and parties are bound by their pleadings. See the case of Sommer & Ors. v. F.H.A. (1992) 1 NWLR (Pt.218) page 548.
In paragraph 11 of the respondent’s statement of claim which is already quoted in this judgment, it merely alleged that the appellant had been negligent in the performance of its duty without stating the particulars of the negligence. It then went on in paragraph 12 to say that as a result of this negligence, the respondents suffered a loss of some birds. With the greatest respect to the respondent it had a faulty statement of claim ab initio and could not have succeeded if the trial court had seriously averted its mind to the state of the pleadings.
More seriously, according to the pleadings the act of negligence was committed on the 2nd of September, 1980 when the appellant sprayed the farm and the birds began to die en mass as from the 5th of September, 1980, but in his evidence P.W.1, Godwin Kalio, the Managing Director of the respondent said the spraying was done on the 2nd and 3rd of September, 1980 and it was on the following day which must be the 4th of September, 1980 that birds began to die. This evidence is at variance with the pleadings that the birds started dying on the 5th September and that the spraying was done on the 2nd of September, 1980. It is a well known principle of law that evidence that is at variance with pleadings goes to no issue. See Aweni v. Olorunkosebi (1991) 7 NWLR (Pt.203) 336. In addition to this, Exhibit K which was initiated by the respondent through P.W.2, the result of the test sent from Vom Veterinary Research Institute contradicts the evidence of P.W.2 and P.W.3 that the spraying of the poultry was responsible for the death of the chickens. The respondent carefully avoided tendering that document and the presumption in law is that evidence which could be, and is not produced would, if produced, be un favourable to the person who withholds it. See Section 149(d) of the Evidence Act. It should be noted that Dr. Oruwari, a veterinary doctor with the Ministry of Agriculture, Port Harcourt who testified as P.W.3 and was senior to P.W.2 who wrote Exhibit J stated in his evidence thus:
“When local findings sent to Vom are confirmed or rejected, the Vom opinion becomes final.”
The implication of this evidence is that the result from Vom is more authentic than local results. From all I have said under this issue, it is clear that the respondent did not prove negligence before the trial court.
On the third issue in the respondent’s brief and the 4th issue in the appellant’s brief on the propriety of the award of special damages, it is the contention of the learned counsel for the appellant that there was no basis for the award of special damages by the trial Judge especially as he found that special damages were not proved.
In reply thereto, the respondent submitted that special damages were proved.
It is trite law that special damages must be alleged and strictly proved. See Silodipo v. Daily Times (1977) 1 ANLR 406 at page 411.
The trial Judge in his judgment at page 162 of the record held as follows: “As for damages the defence rightly submitted the plaintiffs did not prove special damages.”
The same Judge at page 163 contradicted himself by holding as follows:
“On the basis of that uncontradicted and unchallenged evidence I have no choice but to hold that the plaintiffs have proved the items of special damages”
How could a Judge in one breath say special damages are not proved, and in another breath say special damages are proved. This finding is contradictory and inconsistent. For all I have said in this judgment the appeal succeeds and it is allowed. The judgment of the trial court is set aside in its entirety and the respondent’s claim in the court below is hereby dismissed. The appellant is entitled to costs of N3,000.00 against the respondent.
Other Citations: (1999)LCN/0494(CA)
