Iliyasu Umar Vs Bayero University, Kano (1988)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

On the 4th day of May, 1988, I allowed this appeal and ordered retrial before another Judge other than the trial Judge in this case in the High Court of Kano State, reserving my reasons for so doing to today. I now give my reasons.

The appellant was the plaintiff at the trial Court and there he sued the respondent University for the “sum of N22,382.00 (twenty-two thousand three hundred and eighty-two naira), being the estimated cost of the damage done by the defendant or its servants or agents to two flats at No.322 Gwamaja Quarters, Kano City, belonging to the plaintiff and which the defendant rents from the plaintiff.

The defendant or its servants or agents by its negligence caused a fire to burn down the two flats.” The sum was claimed as special and general damages for the destruction caused by the fire outbreak on the two flats. After pleadings were filed and exchanged, both parties gave evidence in support thereof. It is pertinent at this stage to mention that there is no dispute that a fire engulfed two flats in a building of one storey containing two flats each on ground floor and first floor respectively. However, the parties dispute the cause of the fire outbreak.

The plaintiff maintained that fire started in one of the rooms occupied by a servant of the defendant and that it was caused by a kerosine stove that was used in that room for cooking. It was, according to the plaintiff during the cooking with the stove that fire first caught the curtains in the room which thereby spread to the whole flat in which the room was and to the flat above it. The defendant deny the fire was caused by the kerosine stove but by defective electrical wiring of the house as pleaded in paragraph 5 of amended Statement of Defence as follows:

“The Defendants further aver that the said fire was caused by the negligence of the Plaintiff or that of his agent or servant and that the Plaintiff is vicariously liable for the damages arising therefrom.

PARTICULARS OF NEGLIGENCE

(a) In wiring the building, the plaintiff or his agent or servant has been negligent as not to take reasonable care to prevent a possible outbreak of fire.

(b) As a result of the negligence in the electrical wiring, there was an electric spark which caused the conflagration and the consequent damages to both the building and the Defendants’ property on 22nd January, 1980. The Defendants will rely on both the Fire Officer’s Investigation Report and the Doctrine of Res Ipsa Loquitur at the trial.”

After the evidence by both parties, the learned trial Judge reviewed correctly the entire evidence before him. There is no denial that the fire started in the flat on the ground floor from which it spread to the flat immediately on top of it. The learned trial Judge in his findings never believed the defendant’s case as the true story as to the cause of the fire and appears to rely on the evidence of the plaintiff. But in doing so, he relied heavily on the photograph from negative Exhibit 1.

The photograph was taken after ten months of the fire incident. It was not in evidence to indicate that it was taken contemporaneously with the fire incident but to explain the evidence of neighbours, P.W.1 and P. W.4, who said they saw the fire when it started in the room of defendant’s servant from a kerosene stove. It shows the kerosene stove in the room. By the evidence of the defendant and in conformity with the statement of defence, it was contended that the witnesses – that is to say, P.W.1 and P.W.4 -could not from their kitchen or room have seen the stove in the room as they alleged.

Their pleading clearly intimated that visit to locus in quo would resolve the issue. The learned trial Judge believed the witnesses saw the fire when it started from the stove. He erroneously ignored one aspect, the possibility that the P.W.1 and P.W.4 could possibly have given wrong information to the Court if the vantage point they claimed afforded them clear view of the room where the fire started could be false. He gave judgment to the plaintiff and awarded damages. The defendant appealed.

The Court of Appeal set aside the judgment of the trial Court and in its stead dismissed the plaintiffs claim in its entirety. The Court of Appeal, in the lead judgment of Akpata, J .C.A., went on its own to review the whole evidence before the trial Court. The learned Justice then held as follows:

“The only thing that could be said with a degree of certainty is that in November, 1980 when the photographs were taken the stove in question was in the room. It is a travesty of justice to hold that the photographs taken in November, 1980 established that the stove was in the room on 22nd January, 1980.The probability that the stove was moved from the kitchen to the room long after the incident cannot be eliminated. Placing reliance on the photographs, Exhibit 1A in arriving at a decision was a direct invitation to a miscarriage of justice. The respondent had access to the flat and had every opportunity to do what he would with movable objects in the building.