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Igbinovia Orhue V. National Electric Power Authority (1998) LLJR-SC

Igbinovia Orhue V. National Electric Power Authority (1998)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The appellant in this appeal was plaintiff at the Benin High Court. The construction of high-tension 330 KV overhead Benin – Onitsha transmission line in 1966 was the cause of the suit filed in Benin High Court against the National Electric Power Authority, N.E.P.A., which is the respondent in this appeal. The appellant complained that the transmission line was constructed directly over his house rendering his house and the adjoining parcel of land unsafe for human habitation. As a result of electrical shocks the plaintiff and the household suffered from whenever they came in contact with metallic objects in the house, the appellant and his entire household, upon expert advice, moved out of the premises to a rented accommodation where he has been staying since 1966.

The appellant therefore claimed N200,000.00 being compensation or damages for the unsafe condition he suffered from the energized wires of the respondent and the expenses of living in a rented accommodation for 12 months. The learned trial Judge directed pleadings to be filed and exchanged. At the conclusion of the trial and, in a well considered judgment. Akenzua, J., found that the appellant had failed to prove his claim. The action was consequently dismissed.

Aggrieved by this decision the appellant appealed to the Court of Appeal. The Lower court carefully considered all the issues raised for the determination of the appeal and in a well considered judgment Ejiwunmi, J.C.A., delivering the lead judgment; concurred in by Uche Omo, J.C.A. (as he then was) and Salami. J.C.A., dismissed the appeal. It is against the judgment of the Court of Appeal that the appellant has finally appealed to this court on two grounds of appeal. Learned counsel on both sides filed their respective briefs of argument. The following three issues were formulated by the learned counsel for the appellant from the points raised in [he two grounds of appeal:

“1. Whether the Court of Appeal Justices were right in holding that the plaintiff failed to discharge the onus of proof on him on the issue of negligence.

  1. Whether the Court of Appeal Justices were right in not awarding (or making appropriate directions in that regard) the plaintiff reasonable compensation in the light of the quantum of evidence in support of the claim and none adduced in rebuttal.
  2. Whether upon proper construction, the Court of Appeal Justices were right in holding that the provisions of the Electricity Supply Regulations, 1958 were applicable in this case.”

I however agree with the learned counsel for the respondent that only issues 1 and 3 are relevant to the legal arguments put forward in the two grounds of appeal filed for the prosecution of this appeal.

Issue 1 relates to the claim for damages for negligence in the installation of high-tension cable over the house of the appellant and energizing the over head wires. Learned counsel for the appellant, in his submission, referred to the opinion of the Court of Appeal in its judgment that the onus of proof for the tort of negligence was on the appellant and that if the appellant failed to establish that the respondent was in breach of its duty of care the Corporation cannot be held liable.

The lower court relied on the cases of the Rylands v. Fletcher (1868) L. R. 3 H. L. 330 and Anns v. Merton London Borough Council (1978) A.C. 728. The Court of Appeal in its opinion agreed with the decision of the High Court that although electricity is something dangerous in itself, the totality of the evidence adduced showed that appellant’s house was not adversely affected by the transmission lines passing over it.

Mr. Orhewere, learned counsel for the appellant, in the appellant’s brief, submitted that the Justices of the lower court misconceived the facts when they held that there was no evidence to show that the high tension wire was negligently fitted over the appellant’s house when the facts and issues canvassed before them were not that of negligence in the fitting of the wire over the appellant’s house, but the effect of the energized wires passing over the house. Learned counsel, while agreeing proof of injury is the basis of assessment of damages in a negligence claim, in this case the appellant’s complaint against the respondent is electric shock and if the opinion of the lower court is to be upheld the death of the appellant by electric shock would be the only concrete proof of injury. He supported his submission by reference to the case of Dominion Natural Gas Co. Ltd. v. Collins and Perkins (1909) A. C. 640 at 646 where Lord Dunedin held that electricity fell within the category of things dangerous in themselves and demands a peculiar duty to take precaution imposed on those who install them that other parties will come within their proximity.

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Mr. Orhewere pointed in the brief to what he alleged was uncontroverted evidence of electric shock and it’s effect on the appellant, other members of his family and the carpenter he employed to mend the roof of his house. The admission of the uncontroverted evidence, counsel added, is enough proof of shock which the appellant suffered from the acts of the respondent.

In answer to the above submission, learned counsel for the respondent, Mr. Omamadaga, referred to sections 126(1) and 127 of the Electricity (Supply) Regulations, Cap. 57, Laws of the Federation, 1958 which read:

“126(1). Where high-pressure electric lines cross over buildings they shall have a vertical clearance of not less than eight feet above the highest pan of the building, immediately under the lines, and a horizontal clearance of not less than four feet between the lines and any part of the building.”

Section 127:

“Where high or extra-high pressure electric lines cross over buildings with metal sides and metal roof, the roof shall be effectively bonded to the sides of the building, and such sides shall be effectively earthed to ensure the operation of the protective devices in the event of contact being made between the electric lines and any metal pan of the building.”

Mr. Omamadaga, quite correctly, submitted that there is no law prohibiting the passage of energized electric lines over a building. The effect of such lines depends on how they are fined or installed. Mr. Omamadaga submitted that since the appellant had given evidence that he was treated by a medical doctor for the degree of injuries he suffered his failure to produce medical evidence to prove such injuries is adverse to his claim. I quite agree. In paragraph 7(e) of amended statement of claim the appellant pleaded as follows:

“7e. The plaintiff further avers that himself and members of his family became emaciated after the over-head lines became energized and the house became unduly hot and inhabitable and that on noticing his adverse effect to his health the plaintiff and some members of his family consulted a medical doctor in the then General Hospital (now Central Hospital) who similarly advised the plaintiff to move out of the house after plaintiff had described the position of his house.”

The learned trial Judge, Akenzua J, considered the averments in paragraphs 7(a), 7(b), 7(c), 7(d), 7(e) and 7(1) of the amended statement of claim and pointed out that the burden lies on the appellant to prove what he asserted in those paragraphs. The learned trial Judge concluded that the only evidence which can help the appellant to establish that the installation of high tension cable over his house had made him and members of his family to become emaciated should come from the medical doctor who examined him. The appellant had failed to call such evidence. I agree that the averment in paragraph 7(e) of the statement of claim could only be proved if the doctor who examined the appellant and members of his family had been called to testify on what the appellant asserted.

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In considering the tort of negligence, liability could only be established if plaintiff proves that the defendant owed him a duty of care, and that he suffered damage in consequence of the defendant’s failure to take care. A person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure persons who are so closely and directly affected by his acts or omissions that he ought reasonably to have them in contemplation. See Agbonmagbe Bank Ltd. v. C. F. A. O. (1966) A. N. L. R. 140; Donoghue v. Stevenson (1932) A.C. 562 at 580 and Abusonmwan v. Mercantile Bank Ltd. No.2 (1987) 3 NWLR (Part 60) 196.

The lower court considered this essential requirement in a claim on negligence and held that the energized transmission line that passed over the house of the appellant is a potential source of danger, but whether the respondent failed to take necessary steps to protect those who would come within the proximity of those lines is the issue to be resolved. The learned Justice Ejiwunmi, JCA, quite correctly, referred to the evidence of both PWS and DW2 which gave answer to the question posed above. Both witnesses gave expert evidence on the effect of earthing a building to protect it from the now of electric current from a high tension cable above it. PW5, a witness called by the appellant, testified infer alia thus:

“I inspected the site, I went to the site with Avo Metre and Meggar … we could not make use of Avo Metre or Meggar. On physical examination of the building we noticed that the roof of the building was earthed by an earth wire connected from the roof to the earth … Earthing is provided for a building to remove any source of high voltage from any area that would be dangerous to human beings.

When a roof is earthed it is presumed that there is a voltage greater than zero voltage …. The earthing of the building was perfect and effective.”

When asked by the learned trial Judge what the witness meant by “perfect” he explained:

“By being perfect as to the earthing of the building, I mean that there is no more electrification of any part of the building and no such part will produce shock any more when touched by any person.”

DW2, Mr. Francis Echefu, an electrical engineer working for over 25 years with the NEP A told the trial court that he visited the house of the appellant following the appellant’s complaint to NEPA. He then earthed the house in order to alleviate the fears of the appellant and not because the house was capable of transmitting any current. He went further in his evidence and explained as follows:

“DW2: Even if a human touches the object that was earthed which has now come in contact with electric fold, as long as the human stands on earth, he will not be shocked. At the time I visited the building, the roof has been earthed. Assuming that the house was in contact with the overhead poor transmission, I would not have received shock because of the earthing.”

Both the High Court and the Court of Appeal analysed the evidence adduced by the appellant and the testimony of DW2 on the complaint of the appellant that he received electric shock whenever he touched metals in his house. The trial High Court disbelieved the appellant because there was no evidence direct or indirect led to establish such assertion. The Court of Appeal agreed with this finding. It is evidently clear, looking at the testimony of PW5 and DW2 that the house had been made safe when DW2 earthed it. The claim of the appellant that he suffered from shock and sundry health hazard when the respondent energized the over-head wires has therefore failed. I therefore affirm the decisions of the two lower courts that the appellant has failed to discharge the burden of proof of negligence against the respondent in installing the high tension cable over his house. The appellant has therefore failed to convince me to resolve the question raised in issue 1 in his favour.

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The submission of the learned counsel for the appellant on issue 3 is that the provisions of the Electricity (Supply) Regulations, Cap. 57, Laws of the Federation, 1958 arc not applicable to this case. His argument is that the Regulation is dealing with wires carrying not more than 6,600 volts or (6.6 kilovolts). The minimum clearance specified in the Regulations are inapplicable to the Benin-Onitsha line which passed over the house of appellant carrying 330,000 volts (330 kilovolts).

Counsel went further and argued that the minimum clearance that will render a house safe in respect of an overhead line carrying 330,000 volts should be several times higher than that required in respect of a line carrying 6.600 volts of electricity. Learned counsel submitted that the respondent’s failure to comply with minimum requirements of the 1958 Regulations in respect of minimum clearance amounted to negligence.

Mr. Omamadaga, in reply to the above, referred to the provisions of section 126(1) and 127 of the Electricity (Supply) Regulations, Cap. 57. Laws of the Federation, 1958 reproduced above, in this judgment. The clearance required in installing high pressure and extra high pressure electric lines has been specified in those provisions of the Regulations. Mr. Omamadaga referred also to section 2 of the Regulations which defines high pressure and extra high pressure as follows:

“Pressure high’ means any pressure (between conductors or phases) over 650 volts but not in excess of 6,600 volts.”

“Pressure extra-high’ means any pressure (between conductors or phases) in excess of 6,600 volts.”

Learned counsel submitted that both sections 126(1) and 127 of the Regulations clearly show that causing extra high pressure electric lines to pass over a building is not prohibited. All that is required by the law is for the respondent to ensure that the minimum clearances between the conductors and the highest part of the building are maintained and the building effectively earthed. Learned counsel emphasised that as soon as the requirement is compiled with, such building becomes safe for human habitation and the respondent cannot be guilty of breach of its duty of care to the occupier or owner of such building.

I agree with the submission of learned counsel for the respondent that the provisions of the Electricity (Supply) Regulations, Cap. 57, Laws of the Federation 1958 which was then the law concerned with the installation of high tension cable or extra high pressure electric lines apply to the case in hand. The argument of learned counsel for the appellant that the Regulation of 1958 concerns only lines carrying not marc than 6,600 volts is clearly wrong. The provisions of sections 2, 126(1) and 127 of the Regulation are crystal clear that high tension cables carrying electric current above 6,600 volts had been provided for by the Regulation. The safety measures directed under the Regulations to be taken where high or extra-high tension cables are installed over a building with metal roof, like the house of the appellant, had been taken care of when the respondent earthed the house of the appellant.

In sum, both issues canvassed by the appellant for the prosecution of this appeal are resolved in favour of the respondent. The appeal has therefore failed and it is dismissed. The judgment of the Court of Appeal affirming the decision of the trial High Court is hereby affirmed. I assess N10,000.00 costs in favour of the respondent.


SC.264/91

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