Mrs. Christiana Chisa Tafri & Anor V. Executive Governor Of Rivers State & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE OYEBANJI AWOTOYE, J. C. A. (Delivering the leading judgment)

This is the judgment in respect of an appeal filed against the judgment of High Court of Rivers State sitting at Port Harcourt in suit No PHC/38/2008. Between Mrs. Tafri & others v. Executive Governor of Rivers State and Another.

The claim against the Defendant/Respondents is, as follows –

1. The claimants claim against the defendants the sum of N150, 000.00 (one hundred and fifty million Naira) only for the bereavement and benefits to the deceased’s estate arising from the negligence and recklessness of the defendants, their agents and servants on the 17th day of October, 2007 which resulted in the death of Mr. Michael Ogheneovo Tafri (deceased) on the 24th day of October, 2007.
2. Claimants also claim the sum of N3, 300, 000.00 (Three million, three hundred thousand Naira) only being the cost or burial/funeral expenses; and traditional burial rites of passage for the said deceased whose corpse is till lying at the Braithwaite Memorial Hospital, Port Harcourt where it was deposited by the defendants, their agents and servants.

Parties exchanged pleadings after which the court heard their respective witnesses.

The claimant called one witness and the defendants called 2 witnesses.

After close of defendant’s case both parties through their respective counsel addressed the court.

The trial court in its judgment found that the claimant did not prove that the accident was as a result of the’ negligence of the defendants and dismissed the claim.

The claimant being dissatisfied with the said judgment on 2.1.2009 filed Notice of Appeal containing 8 grounds of appeal. The appeal was heard on Appellant’s brief alone by leave of court granted on 12.4.2010.

In their brief of argument, the Appellants formulated 5 issues for determination from their 8 grounds of appeal. The issues are:-

l. Did the learned trial Judge property consider or evaluate the evidence as presented by the parties, if not, what is the position or the law? [Grounds 1 and B].

2. Was that learned trial Judge right to place on the Appellants a more onerous burden of proof than that required by law having regard to the circumstances. This of case? [Grounds 2, 3 and 4]
3. Did the legal principle of res ipsa loquitor apply in the circumstances of this case? [Ground 5].

4 Did the Defendants admit liability in this case having regard to all the available evidence and can the conclusion reached by the learned Judge that they did not be correct? [Ground 6].

5. Was the Appellants case based on ibi jus ibi remedium or on sentiments? [Ground 7].

On issue one the learned counsel for the Appellants contended that the conclusions reached by the learned trial Judge on the crucial issues could not be valid having regard to the overwhelming evidence in the case, which were not evaluated. He submitted that although a claimant must depend on the strength of his case and not the weakness of the Defendant’s case he could in order to succeed rely on Defendant’s case. He cited ONISADU v. ELEWUJU (2006) 13 NWLR [pt.998] 517 at 529; AJO & ORS v. OKORO & ORS (1991) 7 NWLR [pt.203] 206 at 282 – 283.

He added further that the trial court did not weigh the evidence of the parties on an imaginary scale as prescribed in MOGAJI v. ODOFIN & ORS (1978) 4 SC 91 at 94. He submitted that the lower court adopted a wrong procedure or method for the evaluation of the evidence adduced hence the findings of facts should be set aside. He cited OLADEHIN v. CONTINENTAL ILE MILLS LTD (1978) 2 SC 23; OKWARA v. OKWARA (1997) 11 NWLR [pt.527] 160 at 169 170; ONYEKWELU v. ELF PETROLEUM NIGERIA LTD (2009) 2 – 3 sc 1 at 15. He finally urged the court to resolve issue 1 in Appellants, favour.

On issue 2 – learned Appellants’ counsel referred sections 135 – 137 of the Evidence Act and submitted the onus of proof was not static and that the onus shifted frrom one part to the other. He cited OSAWARU v. EZEIRUKA 19ZB) 517 SC 135.