➥ CASE SUMMARY OF:
P.W. (Nig.) Ltd v Mansel Motors Ltd & Ors. (2017) – CA
by “PipAr” B.C. Chima
Court of Appeal – CA/J/240/2016
➥ JUDGEMENT DELIVERED ON:
Wednesday, 15th March, 2017
➥ AREA(S) OF LAW
Negligence arising from road accident;
Damages in negligence.
➥ NOTABLE DICTA
⦿ PLAINTIFF MUST PLEAD THE PARTICULARS OF NEGLIGENCE TO SUCCEED
To succeed in an action for negligence, the law is settled as to the standard of pleading and proof required. As a matter of law therefore; a plaintiff who intends to be victorious in negligence action must plead the particulars of negligence alleged and give cogent and credible evidence at the trial in line with the detailed pleadings. lt is not sufficient pleading for a plaintiff to make a blanket allegation of negligence against the defendant without giving detailed particulars of the items of negligence relied on as well as the duty of care the defendant owes him. See: DIAMOND BANK LTD. V. PARTNERSHIP INVESTMENT CO. LTD. & ANOR (2009) 18 NWLR (PT. 1172) 67; UNIVERSAL TRUST BANK OF NIGERIA V. FIDELIA OZOEMENA (2007) 3 NWLR (PT. 1022) 448; 1-2 SC (PT. 11) 211 KOYA V. UNITED BANK FOR AFRICA LTD (1997) LPELR 1711; (1997) 1 NWLR (PT. 481) 251; MTN NIGERIA COMMUNICATIONS LTD V. MR. GANIYU SADIKU (2013) LPELR 27705 CA. — U. Onyemenam, JCA.
⦿ NEGLIGENCE IS A MATTER OF FACT, NOT LAW
This position of the law is inevitable because what amounts to negligence is not law but a question of fact which must be decided according to the facts and circumstances of a particular case. See: KALLZA v. JAMAKANI TRANSPORT LTD. (1961) ALL NLR 747; NGILARI V. MOTHERCAT LIMITED (1999) LPELR SC; (1999) 13 NWLR (PT. 636) 626. — U. Onyemenam, JCA.
⦿ PRACTICE AND DUTY IS DIFFERENT
The learned trial Judge from the above quoted finding, viewed “practice of construction companies” as the same with “duty of care of construction companies”. Practice and duty in ordinary English language do not stand for the same thing. The trial Court inferred duty of care from practice of construction companies. Inferring the circumstances upon which duty of care arises is miles away from specifically pleading duty of care as required by the law. — U. Onyemenam, JCA.
⦿ IN NEGLIGENCE ON ROAD, IT IS CRUCIAL TO LEAD EVIDENCE AS TO HOW THE ACCIDENT OCCURED
Accordingly, in the case of NGILARI v. MOTHERCAT LIMITED (1999) 13 NWLR (PT. 636) 626; failure of the Appellant in his pleading and evidence to establish that the accident was inevitable due to the diversion created by the construction company; and to explain or expatiate on how the accident occurred were viewed by the Apex Court as evidence that the claimant therein did not exercise due care and attention or with reasonable consideration of other road users or with himself. In effect, in an action for negligence in accident matters, it is crucial to the success of the claim to lead evidence as to how the accident occurred. The plaintiff must also plead and give evidence of how he drove, that is, that he drove carefully, at a reasonable speed, looking out properly on the road; and in such a manner that his action would not have contributed to the accident. — U. Onyemenam, JCA.
⦿ ONUS OF PROVING NEGLIGENCE IS ON THE CLAIMANT
The onus of proving negligence is on the claimant who alleges it and unless and until that is proved, the onus of proof does not shift. In other words, where a claimant pleads and relies on negligence by conduct or action of a defendant, the claimant must prove by evidence the conduct or action and the circumstance of its occurrence which gave rise to the breach of the duty of care owed the claimant. It is only after this that the burden shifts to the defendant to adduce evidence to challenge the negligence on his part Universal Trust Bank of Nigeria Plc Vs Ozoemena supra. — H.A.O. Abiru, JCA.
⦿ SECTION 131 EVIDENCE ACT, HE WHO ASSERT MUST PROVE
Section 131 of the Evidence Act states that any person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts shall assert and prove that those facts exist U. I. C. Ltd Vs T. A. Hammond Nigeria Ltd (1998) NWLR (Pt 565) 340, Okoye Vs Nwankwo (2003) FWLR (Pt 156) 992, Chevron (Nig) Ltd Vs Omoregha (2015) 16 NWLR (Pt 1485) 336. — H.A.O. Abiru, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Uchechukwu Onyemenam, J.C.A.
⦿ FOR THE APPELLANT
Mr. T. Kekemeke.
⦿ FOR THE RESPONDENT
Mr. Josiah Bahago.
➥ CASE HISTORY
It was the case of the Respondents at the trial Court that both the PW2 and PW4 left for Jos from Abuja on 17th July, 2013 to deliver a Lexus ES 350 car with Registration No. ABC346 AE to one Mr. Zhatdul Zhattau, a customer. That while Pw4 drove the car pw2 sat at the passenger seat in front with the driver. On their way to the residence of Mr. Zhattau around and Base, before the bridge opposite Jos Steel Rolling Mill Quarters, they ran into solid concrete moulds placed on the road by the Appellant. It was their case that the Appellant who was carrying on road construction on the exact route where the auto crash occurred did not position caution road signs to warn road users of impending danger. That consequent upon the crash, the Lexus car got damaged beyond repairs as the two driver’s side doors, windscreen, bonnet, fender, bumper, parts of the engine and other internal fittings were damaged beyond repairs; as well the two occupants of the car sustained various degrees of injuries and were rushed to the hospital.
The herein decision is on the appeal against the judgment of the High Court of Plateau State sitting in Jos delivered on 14th April, 2016 in Suit No: PLD/J445/2013. In his judgment the learned trial Judge having found that negligence was established against the Appellant awarded the sum of N2,500,000.00 (Two million, five hundred thousand naira only); being general damages against it.
➥ ISSUE(S) & RESOLUTION
I. Whether considering the pleadings as well as the totality of the evidence adduced, the trial Court was right in holding that the Respondents proved a case of negligence against the Appellant & Whether the learned trial Judge was right in awarding the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira only) as general damages?
RULING: IN APPELLANT’S FAVOUR.
A. “At paragraph 13 of the Respondents’ joint statement of claim, the Respondents averred as follows: ‘13. It is further averred that it is the practice of construction companies carrying on construction on roads to put in place indicators of caution to road users but the Defendant negligently failed to do so which in turn resulted in the 2nd Plaintiff’s auto crash.’;
The holding of the learned trial Judge on the said paragraph 13 is as follows: ‘Again referring to paragraph 13 of the Plaintiffs’ pleadings which the Defendant relies on, the Court views the content differently. For the avoidance of doubt it is hereby reproduced thus “lt is further averred that it is the principle of construction companies carrying on construction on roads to put in place indicators of caution to road users but the Defendant negligently failed to do so which in turn resulted in the 2nd Plaintiff’s auto crash’.
From the referred decisions of the Apex Court and this Court, it is glaring that a plaintiff must explicitly plead the duty of care and facts of the duty of care owed him by the defendant before he can succeed in an action for negligence. The details of the pleading as required can neither be presumed nor inferred. Paragraph 13 in my opinion does not attain the standard of pleading of duty of care as the same lacks specific details.”
B. “It has been stated consistently in judicial pronouncements by both this Court and the Apex Court that in an action for negligence, the plaintiff will not succeed by merely making allegations of negligence against the defendant. The plaintiff must as of necessity plead and give full particulars of the items of the negligence relied on in evidence. So the plaintiff has the duty to itemize the particulars of negligence and bring out the facts which exposes the fault or liability of the Defendant. DIAMOND BANK LTD. V. PARTNERSHIP INVESTMENT CO. LTD. & ANOR. (supra); UNIVERSAL TRUST BANK OF NIGERIA V. FIDELLA OZOEMENA (supra); KOYA v. UNITED BANK F O R A F R I C A L T D ( S U P R A ) ; M T N N I G E R I A COMMUNICATIONS LTD V. MR. GANIYU SADIKU (supra). The pleading of the Respondents at the trial Court was that the Appellant negligently failed to place road cautions on the road which resulted to the accident and nothing more. The Respondents did not plead details that would have shown that but for the absence of the caution signs the accident would not have occurred. The Respondents for instance ought to have pleaded; the nature of the road which made the accident inevitable without prior road caution signs. It was also necessary for the Respondents to plead that the absence of the diversion signs made the road very dangerous. The Respondents importantly, ought to have stated the speed at which the pW4 drove to show that on his part he exercised great caution so much so that the accident would not have occurred but for the absence of the road caution signs to warn him of an impending danger. All that the Respondents pleaded is that both PW2 and PW4 were not conversant with the road and there were no caution signs and so suddenly, the PW4 ran into the boulders the Appellant placed on the road. The Respondents could only succeed in establishing negligence against the Appellant, when they have pleaded details and particulars of negligence showing the obvious fault and liability of the Appellant which made the accident inevitable. There is no gainsaying that a road construction firm owes road users the duty to place diversion signs, but road users equally owe other road users and themselves duty to drive carefully, maintain reasonable speed, have a proper look out on the road while driving, etc. to avoid accident. Accordingly, the fact that the Respondents proved, there was an accident is not conclusive of the fact that the Appellant was liable for negligence because he did not put diversion cautions. The law places a duty on the Respondents to plead the circumstances, nature and extent of the accident and prove same before they can succeed. This requirement enables the Court to determine whether the accident was solely as a result of the absence of the diversion cautions in which case the Appellant herein will be liable for negligence or whether the PW4 was reckless in his driving or was not looking out on the road which caused him to run into the boulders.”
C. “In the instant appeal apart from the pleading and evidence that the Appellant negligently failed to put diversion cautions but went ahead to place boulders on the road which the PW4 suddenly ran into, there is no pleading nor legal evidence as to how careful the pW4 was in his driving on a road he was not familiar with, how properly he looked out on the road nor any attempt to negate the inference that the accident did not just occur simply because the Appellant did not exercise its duty of care by placing diversion caution signs. The evidence extracted under cross examination that the pw4 was going on a reasonable speed and had a proper look out on the road cannot help the Respondents’ case because such evidence which was not pleaded goes to no issue. See: NWAFOR NWAWUBA & ORS. V. JEREOME ENEMUO & ORS. (1988) NWLR (PT. 78) 581; ANIEMEKA EMEGOKWUE V. JAMES OKADIGBO (1973) 4 SC 113.”
D. “The educible facts from the above in the absence of any explanation by the pleading and evidence of the Respondents as to how the accident occurred is that it is either, the PW4 who was neither aware that there was construction work going on nor conversant with the road was on a high speed to have suddenly ran into the boulders at the point of seeing it, which also can explain why the car he drove was damaged beyond repairs or the PW4 had visibility problem since he was driving at night; or he did not have a proper look out on the road as he was driving. The Respondents have left the Court in doubt and to speculate or try to explain off or fill in the gaps as to why he suddenly ran into the boulders placed on the road by the Appellants with such great impact that the Lexus car was damaged beyond repairs; on the same road he said other drivers were on without running into the boulders; as a result of insufficient pleading of the particulars or details of the negligence he alleged the Appellant was liable. Since the Court cannot embark on the voyage of speculation or trying to fill in the gaps for the Respondents who their pleading lacks the necessary particulars, the inferences that can be drawn from all I have said above will lead to my following findings that: the Respondents’ pleading lacked the necessary details and particulars to establish negligence against the Appellant; as there can be no evidence without pleading where such evidence can stem, it also follows that there is no evidence before the Court to find the Appellant liable for negligence; the Respondents did not plead nor place evidence before the Court to negate any inference of negligence on their own part.”
“Accordingly, I hold that by preponderance of evidence the Respondents failed to establish the tort of negligence against the Appellant; and as such the learned trial Court was wrong to have found the Appellant liable for negligence based on the insufficient pleading and evidence of the Respondents. Consequently, the general damages in the sum of N2, 500,000.00 awarded as a result of the trial Court’s finding that the Appellant was liable in negligence was wrongly awarded.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ NEGLIGENCE ARISE WHEN A LEGAL DUTY OWED BY TO THE PLAINTIFF IS BREACHED
LUFTHANSA GERMAN AIRLINES v. BALLANYE, 2013 1 NWLR (PT. 1336) 527, The Supreme Court Per Kalgo J.S.C. had this to say: “The general principle is that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and to succeed in an action for negligence the plaintiff must proof by the preponderance of evidence or the balance of probabilities that: “(a) the defendant owed him a duty of care; (b) the duty of care was breached; (c) the defendant suffered damages arising from the breach.” NIGERIAN AIRWAYS LTD. v. ABE (1988) 4 NWLR (PT. 90) 524; ANYAH V. IMO CONCORDE HOTELS LTD. (2002) 18 NWLR (PT. 799) 377; AGBONMAGBE BANK LTD. V. C.F.A.O. (1966) 1 ALL NLR 140 AT 145; UNIVERSAL TRUST BANK OF NIGERIA V. FIDELIA OZOEMENA (2007) 3 NWLR (PT. 1022) 448; (2007) 1-2 SC (PT. 11) 211.
⦿ RIDING IN THE DARK REQUIRES MORE CARE – NEGLIGENCE
In BAKER V. LONGHURST & SONS LTD. (1933) 2KB 461 AT 468; LORD SCRUTTON L.J observed thus: “If a person rides in the dark he must ride at such pace that he can pull up within the limit of his vision and if, in those circumstances, he strikes something, either he is going too fast or he has not been keeping a proper look out”. See: NGILARI V. MOTHERCAT LIMITED (supra).
➥ REFERENCED (OTHERS)