Aluminium Manufacturing Co. Of Nig. Ltd V. Volkswagen Of Nigeria Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Lagos State delivered on the 19th of November, 1999. The Plaintiff now the Respondent commenced an action against the Appellant in the High Court of Lagos State by Writ of Summons and Statement of Claim dated 29 November, 1993 filed on 1st December, 1993. The Statement of Claim was later amended and filed as Amended Statement of Claim on 13 December, 1994. The Plaintiff by leave of court further amended the Amended Statement of Claim and filed same on 18/11/98 wherein he claims against the Defendant as follows:

“WHEREFORE the Plaintiff claims against the Defendant special and general damages for loss suffered by the Plaintiff as a result of the Defendant’s negligence and/or breach of statutory duty which resulted in explosion and damage by fire to the Plaintiff’s premises at KM 17 Badagry Expressway, Lagos, together with interest as follows:

1. Special Damages:-

(a) DM448,183.00, alternatively its naira equivalent of N25,546,431.00 in 1996 (at N57 per DM), alternatively, at its value at the date of payment (presently N23,789,508.82 at current rate of N53.0799 for IDM), being total cost of materials procured abroad and foreign labour paid for in foreign currency for the installation and reconstruction of the damaged spray booth, and interest at the rate of 21% p.a from 8/2/92 to the date of payment.

(b) N4,478,276.00 being the current value of N1,119,569.00 paid for local charges on materials purchased abroad at the current rate of N86 per US$ with interest at the rate of 21% p.a. from 8/2/92 to the date of payment.

(c) N985,742.00 being the current value of N246,368.00 paid for local materials at the current rate of N86.00 per US$, and interest at the rate of 21% p.a. from 8/2/92 to the date of payment.

(d) N183,768.00 being the current value of N45,942 paid for local labour in 1992 at the current rate of N86 per US$, and interest at the rate of 21% p.a from 8/2/92 to the date of payment.

(e) N4,000,000.00 being legal consultancy and Counsel fees at the current value of the naira which is N86.00 per US $ as against N22 per US$ in 1992.

(2) General damages N10,433,080.00 being the current value of N2,608,270.00 that is, to say, N86.00 per US$ as against N22.00 per US$ in 1992, and interest at the rate of 21% p.a. from 8/2/92 to the date of payment”.

The Defendant filed a Statement of Defence which was further amended and filed 3/2/98 The Plaintiff called 3 witnesses and the Defence called one witness. The learned counsels for the respective parties addressed the court. The Learned Trial Judge in a considered Judgment on 19 November, 1999 held:

“The claim for general damages is refused and therefore struck out. I therefore enter Judgment in favour of the Plaintiff in the sum of N10,982,681.00 against the Defendant. This sum shall carry interest at 7% per annum from 8/2/92 until the entire Judgment debt is fully paid. I also award cost of N10,000.00 to the Plaintiff against the Defendants”.

The Defendant dissatisfied with the decision filed a Notice of Appeal on 2/12/99; containing 6 Grounds of Appeal. The learned counsel for the parties filed and exchanged Briefs of Argument in compliance with the provision of the Court of Appeal Rules. The learned counsel for the Appellant Mrs. E. O. Etomi during the hearing of the appeal on 10/11/09 adopted and relied on the Appellants Brief dated 12/12/07 signed by Elizabeth C. Nicol (Miss) and deemed filed on 22/2/07. Mrs. Etomi also adopted the Appellant’s reply brief filed on 27/3/09. The learned senior counsel Chief T A. Ezeobi (SAN) adopted the Respondent’s Brief dated 28th May 2008 and deemed filed on 25/2/09.

Briefly the facts leading to the suit filed in the lower court as presented in the further amended statement of claim are as follows: The Respondent carries on the business of assembly of light vehicles of the Volkswagen brands. The factory premises consist of factory halls, administrative block and spare parts warehouse and workshop. The factory premises is known as Hall No. 2 which is an assembly hall for vehicles and it incorporates two spraying booths, the bigger of which is known as the paint shop top coat spraying booth. The roof gutter running high above the spray booth had developed rust and to avoid leakage of rain water, the Respondent engaged the Appellant an independent contractor, who was the Respondents roof maintenance engineer familiar with Respondents factory to replace the roof and gutters as well as repair the leaking roofing sheets. At about 11-15 hrs on the 8/2/92 they heard a loud and sudden blast within the top coat spray booth, followed by an explosion and instant fire which they averred extensively damaged that section of the Plaintiffs factory building despite immediate endeavour by Plaintiffs’ stand-by fire fighters to control and put out the fire The Respondent’s case is that the Appellant whilst working on the roof gutter with welding equipment negligently allowed sparks to drop freely onto and around the top coat spray booth leading to the massive explosion and fire which instantly gutted the damaged section of the factory building.

The Appellant on the other hand concedes they were sparks whilst welding which lead to the explosion at that section of the factory but that it was caused by the negligence of the Plaintiff who should have removed the combustible gas from the spray booth and complied to the Factories Act.