REYNOLDS CONSTRUCTION COMPANY LIMITED v. HON. (BARR.) JERRY AKPAN
(2019)LCN/13606(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of July, 2019
CA/C/204/2017
RATIO
TORT: NUISANCE AND NEGLIGENCE: NATURE AND INGREDIENTS TO PROVE
Nuisance and negligence are torts that interfere with the enjoyment of rights over land and when a duty of care is breached resulting in damage. Ingredients required to be proved in a claim, in nuisance and negligence are basically the same have been settled in the case of UTB (NIG.) VS. OZOEMENA (supra). They are:
i. The existence of the duty of care;
ii. Breach of the duty of care by the Defendant; and
iii. Damages suffered by the Plaintiff as a result of the breach of the Defendants duty of care.PER YARGATA BYENCHIT NIMPAR, J.C.A.
TORT NEGLIGENCE: MUST RESULT IN DAMAGE TO GIVE RISE TO A CAUSE OF ACTION
It is also settled that negligence must result into damages to give rise to a cause of action. The two must exist, see MAKWE VS. NWUKOR (supra).PER YARGATA BYENCHIT NIMPAR, J.C.A.
TORT: NEGLIGENCE: BURDEN OF PROOF
Like all claims, the burden of proof is on the claimant and the standard of proof is on a preponderance of evidence. The burden is generally not static but shifts until it comes to rest on who would lose for failing to shift back the burden, see OKOYE & ORS VS. NWANKWO (2014) LPELR-23172 (SC) wherein Muhammad, JSC held thus:
“Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.” (See: H. C. Black’s Law Dictionary, 5th ed. P. 1234).”PER YARGATA BYENCHIT NIMPAR, J.C.A.
NEGLIGENCE: PLAINTIFF IS MEANT TO GIVE PARTICULARS OF NEGLIGENCE
The law is also settled in a number of decided cases by the apex Court that a Plaintiff, as a matter of law, is required, in an action on negligence, to state or give particulars of negligence alleged and to recover based on negligence as pleaded in those particulars. It is not sufficient for a Plaintiff to make a blanket allegation of negligence against a Defendant on a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the Defendant. See the cases of Aku Nmecha Transport Services (Nig.) Ltd. & Anor. vs. Atuloye (1993) 6.NWLR (pt.298) 233 @ 248 C.A; Koya vs. United Bank For Africa Ltd. (1997) 1 NWLR (pt.481) 251 @ 291; (1997) 1 SCNJ 41 @ 42 – per Iguh, ISC, citing the case of Umudje vs. Shell-BP Petroleum Development Co. of Nig. Ltd. (1975) 9-11 S.C. 155 @ 166-167 and Seismograph Services Nig. Ltd. vs. Mark (1993) 7 NWLR (Pt.304) 204 CA.PER YARGATA BYENCHIT NIMPAR, J.C.A.
REQUIRED PROOF OF NEGLIGENCE AND RES IPSA LOQUITOR
The law on the required proof of negligence and the applicability of the doctrine of res ipsa loquitor was stated in the case of OJO VS. GHARORO & ORS. (2006) LPELR-2383 where the Supreme Court, per Oguntade, JSC in a lengthy exposition put the issue in its correct perspective, he said:
“…the maxim res ipsa loquitur and its applicability as proof of negligence in civil cases. InManagement Enterprises Ltd. vs. Otusanya (1987) 2 NWLR (Pt. 55) 179, (1987) All NLR 375 at 388 this Court per Oputa, JSC discussed the nature of res ipsa loquitur thus: “This ground of appeal raises an initial question- What is ‘res ipsa’ and a secondary question- When does it apply res ipsa loquitur literally means ‘the thing speaks for itself’. This latin maxim is applicable to actions for injury by negligence where no proof of such negligence is required beyond the accident itself, which is such as necessary to involve negligence. Thus where a ship in motion collides with a ship at anchor the Court will hold that ordinarily such collision do not and will not occur without the negligence of the ship in motion; see Batavia (1845) 2 W. Rolf 407; The Valdis (1915)31 T.L.R. 111. PER YARGATA BYENCHIT NIMPAR, J.C.A.
RES IPSA LOQUITUR: NATURE
‘Res ipsa loquitur’ is no more than a rule of evidence affecting the onus of proof. The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shifts the onus on the defendant. If the facts are sufficiently known or where the defendant gave an explanation, the doctrine will no longer apply. Barkway vs. South Wales Transport (1950) 1 All E.R. 392. Reliance on the doctrine of ‘res ipsa’ is thus a confession by the Plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances amply establish such negligence. In relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the Court to infer there from negligence on the part of the defendant. The doctrine will not apply where: i. the facts proved are equally consistent with accident as with negligence; ii. There is evidence of how the accident happened and the difficulties (as in this case) arise merely from an inability to apportion blame between two negligent drivers. If these two drivers are servants of the same master the position may be different: Skinner vs. L.B. & S.C. Ry (1850) 5 Exch. 787. PER YARGATA BYENCHIT NIMPAR, J.C.A.
DAMAGES: GENERAL DAMAGES: MEANING
General damages as the name posits is at large and not tied to any specific head of claim, it was described fully by the apex Court in the case of YALAJU-AMAYE VS. ASSOCIATED REGISTERED ENGINEERING CONTARCTORS LTD. & ORS. (1990) LPELR-3511(SC) as follows:
“It is well settled law that general damages are the kind of damage which the law presumes to now flow from the wrong complained of. They are such as the Court will award in the circumstances of a case, in the absence of any yardstick with which to assess the award except by presuming the ordinary expectations of a reasonable man. See Lar vs. Stirling Astaldi Ltd. (1977) 11/12 S.C.53; Omonuwa vs. Wahabi (1976) 4 S.C. 3. General damages may be awarded to assuage such a loss which flows naturally from the defendant’s act. It need not be specifically pleaded. It arises from inference of law and need not be proved by evidence. It suffices if it is generally averred. See Incar vs. Benson (1975) 3 S.C.117. They are presumed by the law to be the direct and probable consequence of the act complained of. Unlike special damages, it is generally incapable of substantially exact calculation. See Odulaja vs. Haddad (1973) 11 S.C.357.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
SPECIAL DAMAGES: NATURE
Special damages on the other is based on specifics of pleading and proof are its hallmark, it was described in the case ofAJIGBOTOSHO VS. RCC (2018) LPELR-44774(SC) and it also stated the distinction between general and special damages as follows:
“To start with, special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly. For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the Defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. See DUMEZ (NIG.) LTD. VS. OGBOLI (1972) 1 All NLR 241 TABER VS BASMA 14 WACA 140. In GONZEE (NIG) VS. NERDC (2005) 13 NWLR (PT. 943) at 639. This Court held that: – “Strict proof in the con of special damages means that the person making a claim in special damages should establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the Court that he is indeed entitled to an award under that head. OSHINJINRIN VS. ELIAS (1970) 1 All NLR 153, DUMEZ (NIG) LTD. VS. OGBOLI (1972) 1 All NLR 241. PER YARGATA BYENCHIT NIMPAR, J.C.A.
DAMAGES: DIFFERENCE BETWEEN SPECIAL AND GENERAL DAMAGES
There is a distinction between special damages and general damages in terms of pleading and proof and model of assessment of each. Special damages is specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim. Where general damages is averred as having been suffered, the law will presume it to be the direct or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court. See: – IJEBU-ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (PT. 166) 136, ESEIGBE VS AGHOLOR (1993) 9 NWLR (pt.316) 128 BADMUS VS. ABEGUNDE (1999) 11 NWLR (pt. 627) 493.PER YARGATA BYENCHIT NIMPAR, J.C.A.
SPECIAL DAMAGES: HOW TO PLEAD AND PROVE
This Court however, in XTOUDOS SERVICES NIG. LTD. VS. TAISEI (W.A) LIMITED (2006) 15 NWLR (PT. 1003) at 537 on how to plead and prove special damages held as follows: – “Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularized any item of damage. PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: COURTS ARE BOUND BY RECORDS OF APPEAL
The Appellant is bound and cannot escape through this route. The evidence discloses otherwise and the Court below and this Court stand bound by the record of appeal, see AUDU VS. FRN (2013) LPELR-19897 (SC). The reason is because there is a presumption that the record of appeal is correct. The trial Court did not err in making a finding according to the evidence before it. That is what is expected and the duty duly discharged. I resolve this issue against the Appellant. PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICE
MOJEED ADEKUNLE OWOADE justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR justice of The Court of Appeal of Nigeria
Between
REYNOLDS CONSTRUCTION COMPANY LIMITEDAppellant(s)
AND
HON. (BARR.) JERRY AKPANRespondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of justice, Akwa Ibom State delivered on the 9th January, 2017 by Hon. justice F.J. Ibanga wherein the Court below entered judgment in part against the Appellant and partly in favour of the Respondent wherein he awarded general damages in the sum of N50million Naira for nuisance and negligence and also in terms of the declaratory reliefs in the statement of claim. Dissatisfied with the said decision the Appellant filed a Notice of Appeal on the 13th January, 2017 setting out 4 grounds of Appeal. The Respondent also filed a cross appeal. I shall get to it after the main appeal.
The facts leading to this appeal can be briefly outlined. The Respondent took out a writ of summons accompanied by a statement of claim which was amended with leave of Court wherein the Respondent sought the following reliefs:
i. A declaration that the continuing blockade by the Defendant of the claimants bungalow lying and situate along Eket / Ikot Abasi road in Ikot Obio Ndoho, Mkpat Enin LGA, Akwa Ibom sate with excavated soil as a
1
result of construction activities and the consequent denial of the claimants access to same is wrongful, tortious
