Igbinovia Orhue V. National Electric Power Authority (1998)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The appellant in this appeal was plaintiff at the Benin High Court. The construction of high-tension 330 KV overhead Benin – Onitsha transmission line in 1966 was the cause of the suit filed in Benin High Court against the National Electric Power Authority, N.E.P.A., which is the respondent in this appeal. The appellant complained that the transmission line was constructed directly over his house rendering his house and the adjoining parcel of land unsafe for human habitation. As a result of electrical shocks the plaintiff and the household suffered from whenever they came in contact with metallic objects in the house, the appellant and his entire household, upon expert advice, moved out of the premises to a rented accommodation where he has been staying since 1966.

The appellant therefore claimed N200,000.00 being compensation or damages for the unsafe condition he suffered from the energized wires of the respondent and the expenses of living in a rented accommodation for 12 months. The learned trial Judge directed pleadings to be filed and exchanged. At the conclusion of the trial and, in a well considered judgment. Akenzua, J., found that the appellant had failed to prove his claim. The action was consequently dismissed.

Aggrieved by this decision the appellant appealed to the Court of Appeal. The Lower court carefully considered all the issues raised for the determination of the appeal and in a well considered judgment Ejiwunmi, J.C.A., delivering the lead judgment; concurred in by Uche Omo, J.C.A. (as he then was) and Salami. J.C.A., dismissed the appeal. It is against the judgment of the Court of Appeal that the appellant has finally appealed to this court on two grounds of appeal. Learned counsel on both sides filed their respective briefs of argument. The following three issues were formulated by the learned counsel for the appellant from the points raised in [he two grounds of appeal:

“1. Whether the Court of Appeal Justices were right in holding that the plaintiff failed to discharge the onus of proof on him on the issue of negligence.

2. Whether the Court of Appeal Justices were right in not awarding (or making appropriate directions in that regard) the plaintiff reasonable compensation in the light of the quantum of evidence in support of the claim and none adduced in rebuttal.
3. Whether upon proper construction, the Court of Appeal Justices were right in holding that the provisions of the Electricity Supply Regulations, 1958 were applicable in this case.”

I however agree with the learned counsel for the respondent that only issues 1 and 3 are relevant to the legal arguments put forward in the two grounds of appeal filed for the prosecution of this appeal.

Issue 1 relates to the claim for damages for negligence in the installation of high-tension cable over the house of the appellant and energizing the over head wires. Learned counsel for the appellant, in his submission, referred to the opinion of the Court of Appeal in its judgment that the onus of proof for the tort of negligence was on the appellant and that if the appellant failed to establish that the respondent was in breach of its duty of care the Corporation cannot be held liable.

The lower court relied on the cases of the Rylands v. Fletcher (1868) L. R. 3 H. L. 330 and Anns v. Merton London Borough Council (1978) A.C. 728. The Court of Appeal in its opinion agreed with the decision of the High Court that although electricity is something dangerous in itself, the totality of the evidence adduced showed that appellant’s house was not adversely affected by the transmission lines passing over it.

Mr. Orhewere, learned counsel for the appellant, in the appellant’s brief, submitted that the Justices of the lower court misconceived the facts when they held that there was no evidence to show that the high tension wire was negligently fitted over the appellant’s house when the facts and issues canvassed before them were not that of negligence in the fitting of the wire over the appellant’s house, but the effect of the energized wires passing over the house. Learned counsel, while agreeing proof of injury is the basis of assessment of damages in a negligence claim, in this case the appellant’s complaint against the respondent is electric shock and if the opinion of the lower court is to be upheld the death of the appellant by electric shock would be the only concrete proof of injury. He supported his submission by reference to the case of Dominion Natural Gas Co. Ltd. v. Collins and Perkins (1909) A. C. 640 at 646 where Lord Dunedin held that electricity fell within the category of things dangerous in themselves and demands a peculiar duty to take precaution imposed on those who install them that other parties will come within their proximity.

Mr. Orhewere pointed in the brief to what he alleged was uncontroverted evidence of electric shock and it’s effect on the appellant, other members of his family and the carpenter he employed to mend the roof of his house. The admission of the uncontroverted evidence, counsel added, is enough proof of shock which the appellant suffered from the acts of the respondent.

In answer to the above submission, learned counsel for the respondent, Mr. Omamadaga, referred to sections 126(1) and 127 of the Electricity (Supply) Regulations, Cap. 57, Laws of the Federation, 1958 which read:

“126(1). Where high-pressure electric lines cross over buildings they shall have a vertical clearance of not less than eight feet above the highest pan of the building, immediately under the lines, and a horizontal clearance of not less than four feet between the lines and any part of the building.”

Section 127:

“Where high or extra-high pressure electric lines cross over buildings with metal sides and metal roof, the roof shall be effectively bonded to the sides of the building, and such sides shall be effectively earthed to ensure the operation of the protective devices in the event of contact being made between the electric lines and any metal pan of the building.”