⦿ CASE SUMMARY OF:
Universal Trust Bank of Nigeria v. Fidelia Ozoemena (2007) – SC
by PipAr-RAshid
⦿ LITE HOLDING
To prove negligence, a duty has to be established, then a breach of that duty with the resulting damage.
⦿AREA OF LAW
Law of Torts
⦿ TAG(S)
– Negligence.
– Nuisance.
– Damages.
⦿ PARTIES
APPELLANT
Universal Trust Bank of Nigeria
v.
RESPONDENT
Fidelia Ozoemena
⦿ CITATION
[2007] NGSC 154
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Umaru Atu Kalgo, J.S.C.
⦿ APPEARANCES
* FOR THE APPELLANT
– A.O. Amene, Esq.
* FOR THE RESPONDENT
– T.U. Oguji, Esq.
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⦿ FACT (as relating to the issues)
The facts giving rise to this case are very simple and straightforward. The respondent, a widow, was the owner of a 5 bedroom house at No 29, Ezekwesili Street Amafor Nkpor, Anambra State.
The appellant was her neighbour and owned a vacant plot of land behind its office at No.39 New Market Road, Nkpor. The appellant’s plot of land was at all material time unoccupied but was fenced by a surrounding wall and secured by an iron gate. There was thick growth of bushes and grasses on the said plot and there was a fire outbreak which caught the grasses and the bush in the plot and burnt down the respondent’s house.
By a writ of summons issued out of Onitsha High Court by the respondent as plaintiff, she claimed against the appellant as defendant, the sum of N2,000,000.00 (Two million Naira) being special and general damages for nuisance and negligent destruction of her landed property and materials by the defendant.
The Trial Court gave judgement in favour of the plaintiff. The damages awarded were reduced upon appeal by the respondent.
The Appellant is further appealing.
⦿ ISSUE(S)
1. Whether the Court of Appeal was right in coming to the decision that negligence had been established against the defendant/appellant at the trial?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED]
1. ISSUE 1 WAS RESOLVED AGAINST THE RESPONDENT BUT IN FAVOUR OF THE APPELLANT.
RULING:
i. From the evidence of witnesses and the pleadings of the parties examined earlier in this judgment, the appellant did not admit any item of negligence on its part in this case. In fact it denied everything thereon and put the respondent to the strictest proof thereof. But has the respondent proved negligence in evidence? My answer to this question is in the negative. It was not proved by evidence that the appellant directly or indirectly caused the bush in its fenced plot to catch fire. It was not shown that it kept any thing combustible in the fenced plot which could cause the fire without more. It was not proved that the appellant was careless in leaving his plot wide open for any trespasser to go into and put fire to the bush alleged to be inside the plot. Rather, it was clearly shown, and even confirmed by the respondent herself, that the plot at the material time was fenced with sandcrete blocks all round and had an iron gate which was secured with chains and pad lock key. Therefore, it is my respectful view that the appellant had done everything necessary that a reasonable person would do to prevent the reasonable possibility of entering the plot and setting fire to the grass or bush in the plot concerned.
ii. If this happened, it cannot be within the reasonable contemplation of the appellant and the appellant cannot in my view, be held responsible for this and be found to have breached the duty of care to the defendant. Therefore, based on the evidence given at the trial as stated above, the findings of the trial court that the appellant was liable in negligence, is in my view perverse and the confirmation of the findings by the Court of Appeal wrong in law. I accordingly so hold. I therefore resolve this issue in favour of the appellant.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Kalgo JSC
The 2nd issue arising in this appeal raised by the appellant deals with the award of special damages as a result of the fire incident. Having found that the appellant was not in breach of the duty of care to the respondent as it did all that was reasonable in the circumstances, I do not think it is necessary for me to consider issue 2 in this appeal. If there is no liability for the negligence, that is the end of the whole case and the question of any damages resulting there from does not arise. The cross-appeal of the respondent also raised only one issue pertaining to the general damages awarded to her in which the Court of Appeal reduced the amount. This does not also arise as a result of my finding that the appellant was not negligent in what gave rise to the whole claim. I accordingly so hold.
⦿ REFERENCED
⦿ SOME PROVISION(S)
The Torts Law of Anambra State 1986 Cap. 135 would appear to have encapsulated the common law principles of torts and nuisance. Sections 217, 218 and 251 of the aforesaid Torts Law provide: “Section 217 of the said Torts Law provides on negligence as follows: 217. Negligence as civil wrong shall consist of breach of a legal duty to take care which results in damage, which may not have been desired or even contemplated by the person committing the breach, to the person to whom the duty is owing. 218. Subject to this Law, every person shall have a duty to take reasonable care to avoid any act or omission which he is reasonably expected to foresee as 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 as being so affected when he is directing his mind to any such act or commission. On nuisance, Section 251 of the Torts Law, (supra) provides: 251. A person who does an act or makes an omission or otherwise creates a condition which unreasonably interferes with another person’s use or enjoyment of land, or of a right over or interest in land shall subject to this part of this Law, be liable to such other person for a civil wrong known as nuisance.
Under Section 254 of the torts Law, ‘In order to constitute a nuisance, there must be – (a) a wrongful act or omission. (b) Damage actual or presumed; 2. Whether an act or omission constitutes a nuisance depends on the circumstances of the particular case including the time of the act complained of, the place and manner of its commission, and whether it is transitory, permanent, occasional or continuous. 3. A malicious motive may sometimes make an act unreasonable and therefore actionable as a nuisance.”
⦿ RELEVANT CASE(S)
In the case of Anyah v. Imo Concorde Hotels Ltd & 2 Ors. (2002) 18 NWLR (pt. 799) at page 377, this court held – “For the defendant to be liable for negligence there must be either an admission by him or sufficient evidence adduced to support a finding of negligence on his part.” And it went further to hold – “The most fundamental ingredient of the tort of negligence is the breach of the duty of care which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail.”
In the case of Attorney-General of the Federation v. ANPP & Ors. (2003) 8 NWLR (Pt.351) 82: Tobi, JSC, in re-acting to Chief Afe Babalola (SAN’s) submission, stated as follows at page 207, as follows: “… With respect, he cannot carry me along in that submission. Preliminary objection, by its very nature, deals strictly with law and there is no need for a supporting affidavit. In a preliminary objection, the applicant deals with law and the ground is that the court process has not complied with the enabling law or rules of court and therefore should be struck out. It could be an abuse of court process. If the preliminary objection is successful, the court will not hear the merits of the matter as it will be struck out. However, if a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to justify the objection by adducing facts in an affidavit. The applicant, in that circumstance, stands the risk of his objection being thrown out or rejected, if he fails to satisfy the court of the facts he has relied upon”.
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
This is because, I know of no law which says that an Appellant requires the leave of court before filing an appeal against the concurrent findings of two lower courts. Sometimes, this Court does not interfere and in some other appropriate cases, it interferes in concurrent findings of facts by the two lower courts. – Ogbuagu, JSC. UTB v. Ozoemena (2007)
* SUBSTANTIVE
Negligence is a tort and it is complete when three conditions are satisfied. These are: 1. The defendant owes a duty of care to the plaintiff; 2. The defendant has acted or spoken in such a way as to break that duty of care; 3. The conduct of the defendant was careless. – Kalgo, JSC. UTB v. Ozoemena (2007)
The tort of negligence is traditionally described as damage which is not too remote and caused by a breach of duty of care owed by the defendant to the plaintiff. The established legal position is that the onus of proving negligence is on the plaintiff who alleges it and unless and until that is proved, it does not shift. In other words where a plaintiff pleads and relies on negligence by conduct or action of the defendant, he or she must prove by evidence the conduct or action and the circumstances of its occurrence, giving rise to the breach of the duty of care. It is only after this that the burden shifts to the defendant to adduce evidence to challenge negligence on his part. And what amounts to negligence is a question of fact not law and each case must be decided in the light of its own facts and circumstances. – Kalgo, JSC. UTB v. Ozoemena (2007)
It ought generally to be borne in mind however that negligence is a question of fact not law, and each case must be decided in the light of its own facts. – Oguntade, JSC. UTB v. Ozoemena (2007)
Now, on the facts pleaded and the evidence led in this case, was the defendant in breach of the common law and statutory duty of case owed to the plaintiff? I think not. The evidence is that the defendant owned and had under its control a parcel of land upon which grass or shrubs had grown. It was undisputed that the land was fenced. It was also not disputed that a fire which was caused by the activities of persons who were neither servants nor agents of the defendant spread from the said land to damage plaintiffs adjoining property. It seems to me that a reasonable person could not have foreseen the possibility that an unknown outsider hunting for rabbits would cause a fire outbreak on the defendant’s property. – Oguntade, JSC. UTB v. Ozoemena (2007)
In the same way, a person who is not responsible for causing the act which is the foundation for an action in nuisance could not be liable to a third party. The defendant in this case was shown to be a banker not a rabbit hunter. The use of small fires to catch rabbits does not fall within its daily routine. It seems to me that it could not therefore be held liable for a nuisance caused by strangers. – Oguntade, JSC. UTB v. Ozoemena (2007)
A court is not entitled to assume or speculate anything. It is dangerous and unfair to do so. Often times, it leads to a miscarriage of justice as appears in the instant case. – Ogbuagu, JSC. UTB v. Ozoemena (2007)
