Chudi Verdical Company Limited V. Ifesinachi Industries Nigeria Limited & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division, delivered on the 20th day of May 2009, allowing the appeal of the respondents from the decision of the High Court of Anambra State in suit No: A/25/2003 dated the 3rd day of February 2005. The brief facts relevant to the appeal are as hereinunder stated.

By paragraph 14 of its statement of claim, the plaintiff/appellant’s claims against the defendants/respondents jointly and severally is for:-

“(1) The sum of N13,532,464.00k (Thirteen million, five hundred and thirty two thousand, four hundred and sixty four naira) being special and general damages arising from the damage and loss occasioned to the Plaintiff by the defendants.

(2) Cost of the action.

The defendants/respondents denied liability in their statement of defence.

With pleadings filed and exchanged, the case proceeded to trial.

The plaintiff/appellant’s case is that the negligent act of the defendants caused damage to its petrol service station. The doctrine of Res Ipsa loquitur is also asserted in the alternative.

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The case of the defendants/respondents, on the other hand, is that armed robbers over powered the 2nd defendant/respondent at Amansea, took over control of and drove the Mercedes marcopolo bus to and after robbing the passengers set the vehicle ablaze at the appellants petrol service station.

At the end of trial, including addresses of counsel, the Court entered judgment in favour of the plaintiff/appellant.

The instant appeal is informed by the decision of the lower Court allowing the defendants/respondents appeal from the trial Court’s decision.

Having earlier filed and exchanged their briefs of argument, parties identified, adopted and relied on the briefs at the hearing of the appeal. At page 6 of the appellant’s brief settled by O.R. Ulasi SAN, the two issues distilled as having arisen for the determination of the appeal read:-

“(1) Whether the learned Justices of the Court of Appeal were right in their decision that the plea of res ipsa loquitur by the appellant and the reliance on same by the trial Court were both misconceived

(2) Whether the learned Justices of the Court

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of Appeal were right in dismissing the award of special damages by the trial Court”

The two similar issues formulated in the respondents’ brief settled by A.O. Mogboh Jnr for the determination of the appeal are:-

“(i) Whether the learned Justices of the Court of Appeal were right in holding that the trial Court misconceived the plea of res ipsa loquitor by the appellant and place reliance on same.

(ii) Whether the award of special damages as dismissed by the Court of Appeal was right.”

The appeal will be determined on the basis of the two issues distilled by the appellant.

On the 1st issue, learned appellant’s counsel refers to the trial Courts judgment at page 89 lines 3-8 of the record of appeal and submits that though the appellant had pleaded negligence and res ipsa loquitur in the alternative, having led no evidence on negligence, the trial Court is right to have deemed that aspect of appellant’s claims as abandoned. The finding of the lower Court at page 225 lines 17-18 of the record of appeal that the trial Court had treated negligence and the doctrine of res ipsa loquitur

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conjunctively, it is contended, is therefore erroneous. Relying on Ezemba V Ibeneme (2004) 14 NWLR (Pt 894) 649, Durosaro V Ayorinde (2005) 8 NWLR (Pt 927) 407 and Omoboriowo V Ajasin (1984) 1 SCNLR 108, learned counsel submits that a party is at liberty to plead in excess of its case and obtain judgment only on pleaded facts that are supported by evidence.

Further arguing the appeal, learned appellant’s counsel refers to page 90, lines 24-25, and page 91 lines 1 -7 of the record and submits that the trial Court’s evaluation of the evidence on appellant’s invocation of res ipsa loquitur is beyond reproach. The lower Court’s finding at page 230 lines 24-25 of the record that appellant’s plea of res ipsa loquitur has been rebutted by the respondents is not supported by the evidence on record. DW1, it is argued, gave the evidence the lower Court found to be the rebuttal of the plea. The trial Court’s finding at page 93 lines 25 to 26 and 94 lines 1-5 of the record, that the witness is not a witness of truth, it is further submitted, is unassailable. It is urged that the issue be resolved in appellant’s favour.

Replying, learned respondents’ counsel refers to page 230

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from line 24 and page 231 lines 5-8 of the record of appeal and submits that the lower Court’s findings thereat draw from the evidence of DW1 as corroborated by the testimony of PW1. Citing S.P.D.C (Nig)Ltd V Ekwens (2009) 4 NWLR (Pt1131) at 235 and Ezeonwu V Onyechi (1996) 3 NWLR (Pt 438) 499 in support, learned respondents’ counsel argues that appellant is bound by its pleading and, not having pleaded res ipsa loquitur in the alternative, is not entitled to the judgment the trial Court wrongly entered in its favour. The lower Court, it is argued, rightly interfered and set-aside the judgment.

Further relying on Ibekendu V Ike (1993) 6 NWLR (Pt 239) 287, A.N.T.S. V Atoloye (1993) 6 NWLR (Pt 298) 233 and Omeziri V Oko (2004) 13 NWLR (Pt 890) 300, learned respondents’ counsel submits that granting without conceding that the appellant has pleaded the principle, res ipsa loquitur must not only be specifically pleaded but also especially proved. The trial Court, it is argued, lacks the competence of deciding whether the appellant has made out the principle by considering the specific particulars of the negligence enumerated in the statement of claim. No

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lawful finding of liability can arise from an invocation of res ipsa loquitur on the basis of the facts specifically pleaded by the appellant in support of his separate claim from the respondents’ negligence.

Concluding, learned counsel refers to the decisions in Ezomo v. AG Bendel (1986) 4 NWLR (Pt 36) 488, Afolabi v. Adekunle (1983) 8 SC 98 at 119 and Imam V Sheriff (2005) 4 NWLR (Pt.914) 80 at 220 and submits that the lower Court’s decision which pegs the appellant to the case it made and disallows it from shifting therefrom be sustained.

My lords, the narrow issue this appeal raises is whether the plaintiff/appellant’s reliance on the doctrine of res ipsa loquitur to recover damages arising from the injury inflicted on it by the defendants/respondents that cannot be otherwise established is lawful.

In paragraphs 5 and 6 of his statement of claim the appellant as plaintiff avers as follows:-

“5. In the early hours of 23rd May, 2003 the 2nd defendant who was driving bus No. XB 879 BDG in the course of his employment in the direction towards Onitsha drove the said bus in such circumstances of negligence that it left the unobstructed highway and

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crashed into the plaintiffs petrol station where it got completely burnt and, in the process, caused extensive damage to the station.

PARTICULARS OF NEGLIGENCE

(a) Allowing the said bus to career out of a straight, level and unobstructed highway to crash into the Petrol station.

(b) Driving at night with disadvantages of vision, weather and accidents including exposure to armed robbery attacks which is Prevalent and in disregard of warnings by the Federal Road Safety Commission against night travel by luxury bus drivers.

(c) Failing to take any or any adequate or effective measures whether by putting a brake on the said bus or securing same or otherwise to prevent the said bus from leaving the highway and crashing into the petrol station.

(d) Carrying drums of inflammable gas in the luggage trunk of the bus which aided the fire outbreak upon impact.

6. The plaintiff will contend at the trial that the circumstances of the accident were such as to entitle it to invoke the maxim of res ipsa loquitor and the plea is hereby invoked. (Underlining supplied for emphasis).

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Paragraph 5(c) wherein the defendants/respondents particularly joined issue with the appellant reads:-

5 The defendants deny paragraph 5 of the statement of claim that the 2nd defendant drove the luxury bus and crashed the same into the service station but avers that the cause of the crash and subsequent burning of the filling station was caused by armed robbers who not only drove the bus into the station but poured petrol on its tyres and set it ablaze men of Nigerian police head quarters investigated the inferno……….. the police reports on it shall be relied upon at the trial of this suit.

(c) The vehicle was forced and driven into the petrol service station by armed robbers and there was nothing like crash as there was no physical contact between the bus and the component part of the petrol service station. The armed robber after robbing the passengers poured petrol at the tyre before setting it ablaze.

6. The defendants deny paragraph 6 to the extent that the maxim of res ipsa loquitor applied and at the trial shall contend that the plaintiff should prove negligence strictly.” (Underling supplied for emphasis).

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In proof of its pleadings the appellant relied on three witnesses. PW1, the police officer who investigated the fire incident at the petrol service station, under cross-examination inter-alia told the trial Court, at page 23 of the record of appeal, as follows:-

The cause of the inferno was the swerving of the Ifesinachi Luxurious bus off the express road into the filling station in an attempt to escape the armed robbers’ bullet. The impact of the vehicle on the dispensing pumps and canopies ignited the fire that destroyed the bus and part of the filling station The [passengers] I met at Toronto hospital had gunshot wounds and bruises while scattering out of the vehicle in the stampede that ensued

PWII is the photographer who snapped the photographs through whom exhibits C to C3 on the extent of the damage at petrol service station were tendered.

PWIII, the alter ego of the appellant, through whom evidence on the extent of the damage at the service station is proffered, at page 29 of the record of appeal, stated under cross-examination:-

“I did not witness the incident. When the incident happened my station was not opened to the public.

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I woke up on 23/5/03 to see my station as represented in exhibits C to C3.”

Under cross-examination, he reiterated thus:-

“I had no personal knowledge of what led to the inferno.”

The lone witness the defendants/respondents led in defence, see pages 36-37 of the record of appeal, inter-alia stated as follows:-

“….. I am a driver. I drive a luxurious bus. On 28/5/03 I was returning from Jos to Onitsha…..at Agu Awka some people came into my bus, overpowered me and caused control of the vehicle…… They shot me on my right hand on the face and at the back of my neck. I became unconscious. They dragged me out of my seat and I fell on the ground. I regained my consciousness and recovered that I was in the hospital receiving treatment…….. I later heard that my vehicle was burnt.”

Under cross-examination, DW1 stated that the police escort in the vehicle, on the fateful day as is the practice, had searched passengers who boarded the vehicle before they took off from Jos and in the course of their journey.

In finding for the plaintiff/appellant the trial Court started

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its judgment at page 89-90 of the record of appeal, as follows:-

“…… the main issue for determination in this case is that whether damage to the plaintiff’s petrol service station was as a result of negligence on the part of the defendants. I had earlier indicated in this judgment that the plaintiff pleaded particulars of negligence and Res Ipsa Loquitur in the alternative. It would however appear from the evidence led at the trial that the plaintiff is now relying solely on the doctrine of Res Ipsa Loquitur……….from the surrounding circumstances this is a proper case where the plaintiff can invoke the maxim Res Ipsa Loquitur the onus therefore shifted on the defendant to explain how the accident happened.” (Underlining supplied for emphasis).

The Court enthused further at page 93 of the record of appeal thus:-

It is my view that the presumption raised by the doctrine of Res Ipsa Loquitur, which has been successfully raised by the Plaintiff cannot be rebutted by the defendants by merely offering evidence that armed robbers boarded the vehicle in question at Jos. The defendants must go further to lead evidence that the presence of the armed

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robbers inside the said vehicle was not due to negligence on their part.

The presence of the said robbers could easily have been detected if the defendants had conducted a thorough and proper search and there is no evidence that the arms used for the said robbery were concealed in such a manner that it could not have been detected through a thorough search on the passengers. I therefore hold that the defendants have failed to rebut the presumption of Res Ipsa Loquitur.”

Defendants/respondents’ notice of appeal to the lower court against the trial court’s foregoing decision is at pages 98- 99 of the record of appeal wherefrom their three grounds of appeal are hereinunder reproduced for ease of reference:-

“2 GROUND OF APPEAL

1. ERROR IN LAW:

The learned trial judge erred in law in finding for the plaintiff on the basis of proof under the maxim Res ipsa loquitur when the plaintiff has not proved that the defendant were the people who brought the vehicle into the service station.

PARTICULARS OF ERROR

(a) Under the principle of Res ipsa loquitur the plaintiff must establish that the defendants brought

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in or was in control of the vehicle that caused the havoc at the time of accident or injury in question.

(b) That Court cannot on a mere finding that the motor vehicle which was burnt belonged to the first Defendant concluded (sic) that the Defendants were jointly and severally liable to this Plaitniff for the inferno.

(c) The Court cannot measure liability on the absence of the Proof as negligence notwithstanding the principle of Res Ipsa Loquitur is not a strict liability wrong but is applicable only where there is prima facie case.

2. ERROR IN LAW

The learned Trial judge erred in law when he entered judgment for the Plaintiff in respect of the special damages without adequate proof.

PARTICULARS OF ERROR.

(a) Under the claim for special damages must be strictly particularized and proved before the Plaintiff is entitled to be awarded any sum at all.

(b) That learned Counsel for the Plaintiff in his pleading made all her claim special damages. The evidence lead by the Plaintiff was not sufficient for the Plaintiff to be entitled to any claim as she did not prove the cost of building the station before the inferno but only brought receipt for destroyed parts.

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(c) The entire claim of the Plaintiff was not strictly proved nor particularised to be entitled to the award.

3. The judgment is altogether unwarranted and is against the weight of evidence. (underlining supplied for emphasis).

The two issues formulated by the lower Court and on the basis of which it resolved the appeal before it, see page 225 of the record, read:-

(i) Whether negligence and the Doctrine of Res Ipsa Loquitur can be treated conjunctively or in the alternative.

(ii) Whether the plaintiff particularly pleaded and proved the award of special damages.

In resolving the first issue, the Court at page 229 of the record opined thus:-

“….. In my view the state of defence put foreward as (sic) evaluated by the trial judge will require proof of particulars of negligence. In the instant case however the respondent did not plead the particulars of negligence as an issue before the trial judge, instead he pleaded Res Ipsa Loquitur which the trial judge found in his favour. The doctrine of Res Ipsa Loquitur had been stated earlier in this judgment not to be a rule of law. The finding of the trial judge on the

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doctrine of res Ipsa loquitur against the Appellant, therefore cannot stand.

The lower Court, in allowing defendants/respondents’ appeal from the trial Courts judgment, proceeded at pages 230-231, of the record of appeal, thus:-

“If there is evidence of how the occurrence took place an appeal to res ipsa loquitur is misconceived and inappropriate In other words, the doctrine of res ipsa loquitur is not meant to implement inconclusive evidence of negligence on the part of the plaintiff. Rather it is meant to apply where there is no other proof of negligence than the accident itself. (Underlining supplied for emphasis).

The Court concluded its resolution of the 1st issue thus:-

It is quite clear from all that is stated above given the state of evidence before the trial Court, relying on res ipsa loquitur by the respondent, and finding by the trial judge in his favour based on the doctrine of res ipsa loquitur were both misconceived.”

It is evident from the record of this appeal that none of the parties to the dispute from which the appeal has arisen appealed against the trial Court’s abandonment of

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paragraph 5 of the plaintiff/appellant’s statement of claim either at the lower Court or even here.

The law is settled that any point of law and/or facts not appealed against is deemed to have been conceded by the party against whom it was decided and the said point remains binding on the parties. See Vaswani Trading Co. V Savalakh & Co (1972) 12 SC, Chief Ogunyade V. Oshunkeye & anor (2007) 12 NWLR (Pt 1057) 218 at 257 and AG Lagos State V AG Federation & Ors (2014) LPELR-22701 (SC).

It then follows that the overriding issue agitated by parties at and which the lower Court decided pertains the plaintiff/appellants invocation of the doctrine of res ipsa loquitur as pleaded in paragraph 6 of its statement of claim. The agitation which also persists in this appeal is whether on the basis of the principle as pleaded the plaintiff/appellant has proved the damage done to its petrol service station to be in consequence of the breach of the legal duty of care the defendants/respondents owed it. See Benson V Otubor (1975) 3 SC 9, Orhue V. Nepa (1998) 7 NWLR (Pt 557) 187 and U.T.B. V Ozoemena (2007) LPELR-3414 (SC).

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As earlier demonstrated in this judgment, the trial Court has not only adjudged plaintiff/appellant’s invocation of the doctrine of res ipsa loquitur proper but that its claim has been made out through the preferred procedure. The lower Court, on the other hand, holds otherwise. The two Courts purport to rely on decisions of this Court in arriving at their divergent decisions. Certainly, the Courts cannot both be right at the same time. What is then the correct definition of the doctrine, when and how has this Court, in its very many decisions, held it could successfully be invoked

Res ipsa loquitur is a rule of evidence that affects the onus of proof. The principle is invoked on the basis of an event which, in the ordinary course of things, would not have occurred except same was caused by negligence for which there is no explanation. The doctrine merely shifts the onus on the defendant and does not avail a claimant who sufficiently knows the fact that caused the event and ceases to apply where the defendant gave an explanation. The doctrine is only invoked where the circumstances of the particular case allow, given the unexplained facts

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around the event, the inference that it could only have been caused by some act of negligence on the part of the defendant. The event on the basis of which the plaintiff invokes the doctrine must speak eloquently for itself that the negligence of the defendant had brought it about and the state of things complained of have remained unexplained. SeeOjo V Gharoro & ors (2006) 10 NWLR (Pt 987) 173; (2005) LPELR-2383 (SC). In Odebunmi & Ors V Abdullahi (1997) 2 NWLR (part 489) 526 at 535 this Court has held per Belgore JSC thus:-

“Where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process and that accident is such as does occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the afore-mentioned management as to how the accident happened, the accident is presumed in such cases for in such cases negligence is inferred to have resulted from want of care by the persons in the management of their agents or servants. The maxim Res Ipsa Loquitur means things speak for themselves.

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The true state of the law, therefore, is that the doctrine does not apply if facts as to the cause of the injury are sufficiently known or where the defendant gave an explanation in relation to the cause of the injury. Reliance on the doctrine, be it stressed, is a confession on the part of the plaintiff that he has no direct and affirmative evidence of the negligence he complains against the defendant and that reliance is placed only on the surrounding circumstances which simply establishes the negligence. See Management Enterpries Ltd V Otusanya (1987) 2 NWLR (Pt 55) 179, Strabag Construction (Nig) Ltd V Ogarekpe (1991) 1 NWLR (Pt 170) 733 at 750 and Sylvester Ifeanyi Ibekendu V. Sylvester Ike (1993) LPELR-1390 (SC) and Royal Ade (Nig) Ltd v. N.O.O.M. Co Plc (2004) 8 NWLR (Pt 874) 2006.

In applying the principle enunciated in the foregoing authorities, the lower Court at page 230 of the record of appeal rightly held that since there “is evidence of how the accident” the plaintiff/appellant appears to know how the injury the defendants/respondents inflicted on him occurred, “res ipsa loquitur is misconceived and inappropriate” and that rather “it is meant to apply

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where there is no other proof of negligence than the accident itself.” I cannot agree more.

It is glaring from the record of appeal, as alluded to earlier in this judgment, that the trial Court’s finding in favour of the plaintiff/appellant, given its resort to the principle of res ipsa loquitur, is based on the evidence of both sides in proof of their respective pleadings for and against plaintiff/appellant’s claim. The evidence of PW1 and DW1 show very clearly how the event leading to the fire in the plaintiff/appellant’s service station occurred. Both sides appear one that armed robbers overpowered DW1, took control of the vehicle and veered into the service station. Whereas the plaintiff/appellant’s case is that but for the negligence of the defendants/respondents, the event, the fire at the service station, would not have occurred, the defendants/respondents case is that it has not been negligent.

In the event, therefore, the lower Court’s decision is, on the authorities unassailable. The Plaintiff/appellant cannot invoke the principle of res ipsa loquitur against the defendants/respondents on the basis of available evidence

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of how the petrol service station got burnt. I so hold and resolve the 1st issue against the plaintiff/appellant.

The issue of considering and resolving the 2nd issue in the appeal has, in the circumstance, become academic. It shall not be embarked upon.

Resultantly, the appeal has failed and is hereby dismissed.

Parties to bear their respective costs.

SC.246/2009