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:

1. 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.
2. 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.
3. 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.
4. 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: