Royal Ade Nigeria Ltd. & Anor. V. National Oil And Chemical Marketing Company Plc (2004)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This matter which has now culminated in this court was commenced by the plaintiffs at the High Court of Lagos State, Ikeja Division where by suit No. ID/657/89, they claimed for the replacement of their Mercedes Benz Petrol Tanker Registration No. LA2219SJ, which was completely burnt down on the 6th day of February, 1998 through the alleged negligence and/or breach of duty of care of the defendants, their servants or agents. This incident, it was further alleged occurred when the plaintiffs’ petrol tanker was discharging the fuel with which it was loaded into the second fuel tank located in the defendants’ petrol station at lpokia, ldiroko in the Egbado Local Government Area of Ogun State. Before that event, the defendants had discharged fuel brought by the plaintiffs’ petrol tanker into the first of the fuel tanks at the petrol station.

It is the case for the plaintiffs that upon the arrival of their petrol tanker at the petrol station of the defendants situated and lying at lpokia ldiroko in the Egbado Local Government Area of Ogun State on the 6th February, 1988, the driver of the petrol tanker as has always been the practice, positioned the vehicle at the delivery point, and then handed it over into the possession of the defendants through the petrol attendants on duty. The driver of the petrol tanker then withdrew to one side of the petrol station for the unloading of the fuel brought to the station by the petrol tanker. As I have already mentioned, the petrol tanker then caught fire as it was being off loaded into the fuel tanker of the defendants. But for the intervention of the driver of the petrol tanker, who jumped into the burning tanker and drove it away from the station the petrol station and its environs would have been totally consumed by the fire. Despite the rescue effort of the driver of the tanker, the tanker was completely burnt.

The facts as stated above were not disputed by the defendants. However, what was in dispute and still the main point in this appeal is, what caused the fire, and who was liable for the fire incident. I will later in this judgment consider the contending arguments of the parties in respect of these questions. However, for the moment it must be noted that the claims of the plaintiffs found favour with the trial court which therefore upheld their claims. As the defendants were dissatisfied with that judgment, they appealed to the Court of Appeal (Lagos Division). That court upheld the appeal in favour of the defendants. As the plaintiffs were not happy with that result they have appealed to this court.

Pursuant thereto grounds of appeal were filed. And in accordance with the Rules of this court, briefs of argument were filed and exchanged.

For the plaintiffs, now the appellants, the following are the issues identified in their brief for the determination of the appeal. They read:-

“3.01 Whether the Court of Appeal having held (page 413) that the doctrine of the res ipsa loquitur applied was right in holding that the respondent had discharged the burden shifted on it.

3.02 Whether the Court of Appeal was right in holding that the appellant did not plead the position of the vent pipe and if the answer is no, whether a miscarriage of justice was occasioned by that holding.

3.03 Having rightly held that a party could rely either on the main or alternative claim. Ibekendu v. Ike (1993) 6 NWLR (Pt. 299) Pp. 287 & 297 (Omo, JSC) at page (sic) 410 to 411 of the record,(sic) and held “The damages were pleaded and proved” page 416, whether it is erroneous of the Court of Appeal to at the same hold” In … allow it.

4.04 Whether the Court of Appeal rightly held that the learned trial Judge failed to properly evaluate or adequate (sic) evaluate the evidence led before him.”

For the defendants now respondents, three issues were set down in the respondent’s brief for the determination of the appeal. They read thus:-

“(i) Whether the Court of Appeal was correct in holding on the evidence adduced by the respondent, that the respondent, discharged the burden of proof placed on it by the doctrine of Res ipsa Loquitur (see appellant’s issue 3.01)

(ii) Whether the Court of Appeal was right in holding that the appellants did not plead the position of the vent pipe and if the answer is no, whether a miscarriage of justice was occasioned by that holding

(iii) Whether the Court of Appeal rightly held that the learned trial Judge failed to properly evaluate or adequately evaluate the evidence led before him.”