Tilbury Construction Co. Ltd. & Anor V. Sunday Ogunniyi (1988) LLJR-SC

Tilbury Construction Co. Ltd. & Anor V. Sunday Ogunniyi (1988)

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On 12th January, 1988, I dismissed this appeal with N300.00 costs to the respondent. I now give reasons for the judgment. The respondent, Sunday Ogunniyi who was plaintiff at the trial Court, was employed as crane operator by the appellant company, Tilbury Construction Company Limited. On 30th January 1980, the respondent who duly reported for duty was asked by Mr. Smith, a mechanical engineer with the company, to inflate a grader tyre. He did not want to do this assignment as it was not his duty, but Mr. Smith insisted.

He set about inflating the tyre whose pressure gauge he did not know but was assured by Mr. Smith that he would be told whenever the tyre was inflated the correct pressure. He kept on pumping in air, and at a stage, he called on Mr. Smith and suggested that the air was probably enough, but he was told to keep on pumping.

The plaintiff was not provided with a pressure gauge or protective goggle. Suddenly the tyre exploded with great force and threw up shrapnels which injured the plaintiff grievously. He had extensively bruised face, multiple particles from the exploded tyre embedded in his skin, the left eye had sand particles inside and the cornea was lacerated with the lens ruptured and cataractous.

This left eye later developed orbital cellutus and paniphal mitis was therefore sutured and eviscerated, leading to total loss of the eye. The right eye was not free either; it had multiple corneal abrasions and subconjuctival haemorrhages which even after treatment remains partially blind. His sight is now severely impaired that he cannot work again as a crane operator. He claimed N230,280.00 as special and general damages; the trial Court awarded N28,000.00 as follows:

(a) Losss of one eye N20,000.00

(b) Pain, suffering, shock, distress 1,000.00

(c) Loss of earnings 3,000.00

(d) Loss of amenities of life 3,000.00

(e) Cost of artificial eye 30.00

(f) Future expenses 950.00

The Court of Appeal in dismissing the appeal against the decision of the trial Court, upheld the award of damages. Thus this appeal is as follows in its Grounds of Appeal:

  1. “The learned justices of the Court of Appeal erred in law in upholding the finding of the trial court that the plaintiff/respondent discharged the legal onus of proof.

Particulars of Error

i. The plaintiff failed to prove the cause of the explosion

ii. The plaintiff failed to show how any failure on the part of the defendants to provide gauges, inspect or examine the tyres etc. as alleged in paragraph 15(b) & (d) caused explosion.

  1. The learned justices of the Appeal court erroneously held at page 8 of the judgment that –

“It is clear therefore that the trial judge found the defendants liable also because as employers they failed to provide necessary precautions, such as a tyre during the course of pumping, and this resulted in danger to the plaintiff which in fact occurred.

There has been no appeal on these conclusions. So that even if the trial judge erred by holding that the negligence was the result of the tyre being overblown leading to the explosion, there has been no miscarriage of justice since it was shown that the negligence was due to other causes as found by the trial judge and there has been no appeal on them.”

Particulars of Error

i. There is no evidence which relates any failure to provide precautions, to the explosion.

ii. No basis for conclusions that any such failure on the part of the defendants “resulted in danger to the plaintiff.”

iii. The appeal Court failed to appreciate that the cause of the explosion was necessary in order to consider negligence or that it was impossible to consider and ascertain negligence without first determining the cause of the explosion or that there was over-inflation and that it caused the explosion.

  1. The lower court wrongly held at Page 8 of the judgment that-

“On the second ground of appeal which alleges that the trial Court wrongly based his findings at page 51 lines 18-31 as with all the findings on record on the erroneous assumption that over-inflation caused the explosion when there was no such evidence, no argument was offered apart from what was said earlier.”

When there was the argument that over-inflation was not pleaded and no evidence was adduced in its support nor that any such over-inflation caused the explosion and also that the proof of the cause of the explosion was a sine qua non to liability.

  1. The learned justices of the Appeal Court wrongly upheld the trial court’s finding of negligence, when they have upheld the appellants submission that ‘overblowing’ of the tyre was neither pleaded or evidence adduced thereon and that the reliance on the authority of Brown v Rolls-Royce Ltd. (1960) 1 AER 757 by the trial court was misplaced.
  2. The award of damages is excessive and the assessment erroneous.”

The appellants abandoned Ground 5 and the brief of argument never adverted to it either. In an apparent departure from his brief of argument for the respondent, Professor Adesanya, of counsel, pointed out that the four grounds of appeal, even though couched in a manner indicating grounds of law are in fact not grounds of law. At the best they are grounds of mixed law and fact. That being so, no leave having been obtained to file the grounds, there is no competent appeal before this Court.

On the face of the grounds, it is apparent that they are mainly based on facts and not law. The essence of Ground 1 is that no sufficient evidence was led to prove what the trial Court found and upheld by the Court of Appeal. The particulars to the ground clearly show the purport of the ground.

There is no law there; it is even better to call this ground general ground. Ground 2 is too blatantly based on findings of fact as opposed to error in law and the quoted passages in the judgment of the Court of Appeal manifest this; and no more doubt as to the purport of this ground would be entertained if read along with the purported particulars of error which are based entirely on evaluation of evidence. Ground 3 has no pretence about it; clearly it is a ground of fact and evaluation of evidence on facts before the lower Courts. S.213(2) of the Constitution enumerates those decisions that could be appealed against from the Court of Appeal to Supreme Court as of right.

The appeal to this Court as of right covers instances of question of law alone; the interpretation or application of the Constitution; whether there has been a violation of fundamental rights or threatened violation of fundamental rights as provided under Chapter IV of the Constitution where the Court of Appeal has affirmed death sentence passed by trial Court; question of whether a person has been elected to any office under the Constitution (before Suspension and Modifications were made) or membership of any legislative house etc. has become vacant and such other mailers as may be prescribed by any law in force in the State.

Appeal on any other ground apart from these must be by way of leave. In the instant case no leave was obtained before the grounds of appeal were filed. As for Ground 4 which we gratuitously allowed to stand as a ground of law, learned counsel for the appellants unfortunately never made much of it in this brief and oral argument. The emphasis was placed on arguing not the reception of evidence but on the evidence available. Therefore this ground in the end fails.

Before I go into the main consequence of the failure to obtain leave, it is pertinent to mention that the grounds of appeal as they are, make effort to persuade this Court to set aside concurrent findings of the High Court and Court of Appeal on facts. Assuming leave was sought, would this Court in the circumstance of this case grant such leave It is only in exceptional circumstances that this Court will grant leave to appeal against concurrent findings of fact of the two lower Courts. The fact that S.213(3) of the Constitution provides that leave shall be sought for appealing against findings of fact or findings of mixed law and fact is not carte blanc; exceptional circumstances could be wide and could include misapplication of the facts in evidence, if the evidence available in Court is at variance with the findings or if the findings are patently perverse. (Enang v. Adu (1981) 11-12 S.C. 25, 42; Okagbue v. Romaine (1982) 5 S.C. 133,170; Onobruchere v Ezegike (1986) N.W.L.R. 797, 804; Lokoyi v. Olojo (1983) 8 S.C. 61, 68 Order 2 Rule 32 Supreme Court Rules 1985).

It must be emphasised that a ground does not translate into a ground of law because it boldly says so. There must be clearly and unambiguously shown reasons why the alleged error of law was made. The ground as well as the particulars must point unequivocally at the error in law. If there are grounds purportedly on error In law and In actual fact are based on facts, this Court will not have jurisdiction to entertain them if filed without leave, as it will be against S.213(3) of the Constitution to entertain such grounds. It is a fundamental issue of jurisdiction and this Court has no discretion to invest itself with jurisdiction denied it by S.213(3) of the Constitution. Akwiwu and Anor. v. Songonuga (1984) 5 S.C. 184, 186; Ojeme v. Momodu III (1983) 3 S.C. 173; Erisi v. Idika (1987) 4 N.W.L.R. 503, 511. What we have as grounds of appeal are questions pertaining to facts and not law, no leave was obtained before they were filed in the Registry of this Court and the journey of this matter to this Court is a fruitless voyage.

As this appeal was argued only on ground 4, there is no strong argument in the appellant’s brief or in the oral argument before this Court to justify interference with the stand taken by the lower Court. The over-inflation of the tyre was clearly pleaded by the respondent at the trial Court and to submit that it was unpleaded, to say the least, is uncharitable. This ground had no merit and it fails. On the whole, the appeal was dismissed for the above reasons with N500.00 cost to the respondent.A. NNAMANI, J.S.C.: On 12th January, 1988, this appeal came before this Court. After hearing the argument of both learned counsel, I dismissed the appeal. I indicated that I would give my reasons for that judgment today. I now give my reasons.

In the appeal in this Court, grounds 1, 2 and 3 of the grounds of appeal were struck out as being incompetent. There were grounds of mixed law and fact and the appellants did not obtain leave of the Court of Appeal or this Court to Appeal. The appeal was argued by Mr. Sofola on ground 4. In this ground, he in effect complained that the respondent did not plead and prove the fact that it was the over-inflation of the tyre that caused the explosion. As Professor Adesanya pointed out paragraphs 8, 9, 10 and 13 of the Respondent’s Statement of Claim are a complete answer to this complaint. There the respondent pleaded that –

“8. The Plaintiff protested to the 1st defendant that as a Crane Operator, his duties did not include the inflation of grader tyres but the 1st defendant insisted that the Plaintiff should inflate the tyre.

  1. The Plaintiff further informed the 1st defendant that he did not know the measure of air which should be adequate for the tyre but the 1st defendant (told) plaintiff he would stop him when there was enough air in the tyre.
  2. At a stage, the Plaintiff stopped further inflation of the tyre informing the 1st defendant that the air in the tyre was enough but the 1st defendant insisted that the Plaintiff should continue with the inflation as the air was not yet enough
  3. While the Plaintiff pumped air into the grader tyre in obedience to the instruction of the 1st defendant, the tyre burst, throwing shrapnels in every direction injuring the Plaintiff and three others,”

There was pleading too that the Plaintiff was not provided with a tyre gauge. There was abundant evidence, accepted by the two lower courts, in support of these averments. In fact, there was evidence of the defendants/appellants witness that he touched the tyre and thought it had enough air too. As he was going for a tyre gauge, the tyre burst.

My learned brother Belgore, J.S.C. has examined all these issues in greater details in his reasons for judgment, a draft of which I saw before now. I agree with those reasons and adopt them as my own.

It was for these reasons that I also dismissed this appeal. I can only add that it was a tragedy that the Respondent was not advised to claim for higher damages in view of the extensive injuries he suffered, and the manner in which the course of his life has been so tragically altered.


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