THE SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD v. EFFIONG IKONTIA & ORS
(2010)LCN/3728(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of April, 2010
CA/C/21/2005
RATIO
TORT: NEGLIGENCE; INGREDIENTS OF ESTABLISHING NEGLIGENCE
It is trite law that in a claim predicted on negligence, the plaintiff must prove the following:-
(i) that the defendant owed a duty of care to the plaintiff,
(ii) that the duty of care was breached
(iii) that the plaintiff suffered damages arising from such breach. PER JAFARU MIKA’ILU, J.C.A.
TORT: DUTY OF A PLAINTIFF IN AN ACTION FOR NEGLIGENCE
Thus for a plaintiff to succeed in an action for negligence, he must adduce credible evidence to establish the duty of care owed by the defendant, the breach of that duty by the defendant and the damage suffered by the plaintiff as a result of the breach of that duty of care and the onus of proving the same is on the plaintiff. Refer to ANY VS. IMO CONCORDE HOTELS LTD (2002) 18 MWLR (PT 799) 377. It is also important in a case of negligence that damage to the plaintiff was reasonably foreseeable in the circumstance. Refer to CLERK & LINDSELL ON TORTS, 14th Edition, para 877; 502-505. PER JAFARU MIKA’ILU, J.C.A.
TORT: NEGLIGENCE; WHETHER THE QUESTION OF NEGLIGENCE IS A QUESTION OF FACT OR LAW
It is a correct statement of law that negligence is a question of fact not law and that each case must depend upon its particular facts and circumstances. The test of negligence is based on foreseability of the injury or damage caused. PER JAFARU MIKA’ILU, J.C.A.
EVIDENCE: CAN A COURT INFER FROM CIRCUMSTANTIAL EVIDENCE THE CAUSE OF DEATH WHERE THERE IS ABSENCE OF MEDICAL EVIDENCE
Thus in ADAMU VS. KANO N.A (1956) 1 FSC 25. It was held that from the circumstances of the case which left no doubt as to the cause of death, it was proper for the court to infer the cause of death even in the absence of medical evidence. PER JAFARU MIKA’ILU, J.C.A.
JUSTICES
JAFAARU MIKA’ILU Justice of The Court of Appeal of Nigeria
N. S. NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEV. COM. NIG. LTD Appellant(s)
AND
EFFIONG IKONTIA & ORS Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of P. S. Etim, J, sitting at the High Court of Akwa Ibom State, Holder, at Eket in Suit No HEK/MISC 6/94 – EFFIONG IKONT.A (suing by his attorney, Godwin Iko) vs. THE SHELL PETREOLEUM DEVELOPMENT COMPANY OF NIGERIA LTD, DELIVERED ON THE 13th of November, 2002.
In the amended statement of claim dated the 18th day of November, 1996 plaintiff therein claimed for the following:-
“The sum of five Million Naira (N5,000,000:00) special and general damages under the fatal Accidents Law as applicable in Akwa Ibom State, for the death of the said deceased caused by the negligence of the Defendant, its agents, servants, in that that the Defendant in the course of its business as oil producer and explorer dug a well within the vicinity of the plaintiff at Etebi Mbakuyo, Uquo Ibeno Local Government Area, Akwa Ibom State unattended to, unfenced and uncovered when the Defendant knew or ought to have known that it was unsafe to do so thereby causing the plaintiff’s son to fall into the said well and died.”
By the statement of defence dated and filed on the 27th of March, 1995, the defendant denied the plaintiff’s claim entirely.
The trial court heard the matter and entered its judgment in favour of the plaintiff for the total sum of N800,000:00 made up as follows:
(a) Loss of life expectancy based on the predominantly
happy life shortened by the accident. N500,000:00
(b) amount spent on the child for 7 years N200,000:00
(c) General damages N100,000:00
= = = = = = =
TOTAL – N800,000:00
= = = = = = =
The Defendant thereof was dissatisfied with the decision of the trial court therefore filed this appeal.
As per the brief of argument filed by the appellant the following issues have been formulated for determination:-
1. Whether the learned trial Judge was right to hold that the guilty of negligence by not protecting the well situate within the premises owned and used exclusively by the Defendant.
2. Whether the trial Judge was right when she admitted and relied on the certificate of cause of death (Exhibit 6) as proof of the cause of death of the deceased Victor Effiong Ikontia, when the alleged maker of the certificate was not called to testify before the court.
3. Whether the learned trial Judge was right when she held that the plaintiff had made out a case under the fatal accidents Law, Cap 44 of the Laws of Cross River State as applicable in Akwa Ibom State, when the plaintiff failed to state the named person or persons for whose benefit the suit was instituted and the pecuniary loss suffered by him or them.
4. Whether the learned trial Judge was right when she relied on evidence which was not adduced before her as to mental state and condition of health of the deceased, prior to his death, and proceeded to award special damages which had not been specifically and strictly proved as required by law.
Thus the plaintiff’s (Respondent’s) case in the court below as per amended Statement of Claim dated 18th November 1996 is that the plaintiff is the father of one Victor Effiong Ikontia, now deceased and that the suit was brought for his benefit under the Fatal Accidents Law, Cap 44 of Cross River State as applicable to Akwa Ibom State.
The deceased Victor Effiong Ikontia was the only son of the plaintiff. The defendant (Appellant) is the owner of the premises situate at Etebi Mbakuyo village in Uquo Ibeno Local Government area of Akwa Ibom State, in which it dug an oil well in an area within the vicinity of the plaintiff’s house.
The defendant’s well is situate at a location which is alluring to the members of the community, both old and young and that it is accessible to the public, since the well is left abandoned, uncovered and unattended to without any form of protective cover to ward off the inhabitants of the community or were them of the risk of entering the land when the Defendant knew or ought to have known that it was unsafe and injurious so to do.
The Defendant had been warned by the community to keep the well protected, even by a newspaper publication dated 16th May, 1994 but the defendant did not heed the warnings.
As a result of the Defendant’s negligence, several persons had either lost their lives or sustained serious injuries at the Defendant’s well. On or about the 9th of January, 1992 the plaintiff’s son, Victor Effiong Ikontia (the deceased) then aged seven (7) years, without the knowledge, content or approval of the plaintiff or his guardian or other members of the plaintiffs family, went to the defendant’s oil well aforesaid, fell into the well and drowned.
When the plaintiff received the news of the event, he and other people rushed to the scene, and by their joint efforts, pulled the deceased out of the well in unconscious state with water oozing out of his mouth and nostrils.
The deceased was rushed to the Emmanuel General Hospital at Eket where the deceased was certified dead by drowning.
The plaintiff claimed to have suffered damages itemized as follows:-
(i) Shortened life of the deceased who was bubbling good health.
(ii) The loss of domestic service of the deceased who was living with and serving his grandfather.
(iii) Burial expenses of the deceased assessed at N2,450:00.
(iv) Loss of life of the deceased at the sum of N1,680,000:00
(v) Amount spent for the deceased for 7 years N500,000:00
(vi) General damages N2,817,550:00 all amounting to the sum of N5,000,000:00.
In a reserved judgment delivered on the 13th of November, 2002 the trial judge found for the plaintiff and awarded total damages of N800,000 :00 (Eight Hundred Thousand Naira) in favour of the plaintiff with cost assessed at N1,000:00.
The defendant, dissatisfied, filed this appeal before this court. Before this court briefs have been filed and exchanged. In the appellant’s brief of argument the issues formulated for determination of this appeal read as follows:-
1. Whether the learned trial Judge was right to hold that the defendant, now appellant was guilty of negligence by not protecting the well situate within the premises owned, and used exclusively by the defendant.
2. Whether the learned trial Judge was right when she admitted and relied on the certificate of cause of death (Exhibit 6) as proof of the cause of death of the deceased Victor Effiong Ikontia, when the alleged maker of the certificate was not called to testify before the court.
3. Whether the learned trial judge was right when she held that the plaintiff had made out a case under the Fatal Accidents Law, Cap. 44 of the Laws of Cross River State as applicable in Akwa Ibom State when the plaintiff failed to state the named person or persons for whose benefit the suit was instituted and the pecuniary loss suffered by him or them.
4. Whether the learned trial Judge was right when she relied on evidence which was not adduced before her as to the mental state and condition of health of the deceased, prior to his death, and proceeded to award special damages which had not been specifically and strictly proved as required by law.
On the other hand in the Respondent’s brief of argument the following issues have been raised for determination.
1. Whether the learned trial Judge was right in his findings, that the Defendant (herein appellant) was liable in negligence.
2. Whether the court below was right in admitting exhibit 6 as the cause of death when the maker was not called to testify.
3. Whether the court below was right in holding that the Respondent had proved his case as required under the Fatal Accidents Law (Cap 44 of the Laws of Cross River State, as applicable in Akwa Ibom State.)
4. Whether there was evidence before the trial Judge in awarding damages to the Respondent for mental state and condition of health of the deceased under the Fatal Accidents Laws, F.A.L (supra).
I think in determining this appeal it would be sufficient to consider the issues as formulated in the appellant’s brief of argument.
The first issue is whether the trial Judge was right to hold that the Defendant now appellant, was guilty of negligence by not protecting the well situate within the premises owned and used exclusively by the Defendant/appellant.
It is trite law that in a claim predicted on negligence, the plaintiff must prove the following:-
(i) that the defendant owed a duty of care to the plaintiff,
(ii) that the duty of care was breached
(iii) that the plaintiff suffered damages arising from such breach.
For the above reliance can be made on UNIVERSAL TRUST BANK OF NIGERIA PLC VS. OZOEMENA (2007) 3 NWLR (pt 1022) 448, 464-465, and IMO CONCORD HOTELS LTD & ORS VS. JUSTICE KALU O. ANYA (1992) 4 NWLR (pt 234) 210, 220. The appellant counsel has also averred that it is also the law that negligence is a question of fact, not law, and each case must be decided on its own peculiar facts and circumstances, relying on UNIVERSAL TRUST BANK OF NIGERIA PLC VS. OZOEMENA (2007) 3 NWLR (pt 1022) 448; 464-465. Thus for a plaintiff to succeed in an action for negligence, he must adduce credible evidence to establish the duty of care owed by the defendant, the breach of that duty by the defendant and the damage suffered by the plaintiff as a result of the breach of that duty of care and the onus of proving the same is on the plaintiff. Refer to ANY VS. IMO CONCORDE HOTELS LTD (2002) 18 MWLR (PT 799) 377. It is also important in a case of negligence that damage to the plaintiff was reasonably foreseeable in the circumstance. Refer to CLERK & LINDSELL ON TORTS, 14th Edition, para 877; 502-505.
In this case it is clear that the plaintiff/Respondent had pleaded facts and circumstances showing that the Defendant/appellant had dug a cellar well an land situate within the plaintiff’s community, which posed a danger to both human beings and animals, without fencing it keeping it guarded or secured against intrusion. It is a common ground between the parties that the celler or a well was opened by the appellant in the vicinity of the Respondent’s village aquired by the appellant. It is also common ground that the said celler (well) was abandoned or suspended by the appellant and that it was left uncovered and unfenced with no protective measures whatsoever against dangers posed to the public.
It is a correct statement of law that negligence is a question of fact not law and that each case must depend upon its particular facts and circumstances. The test of negligence is based on foreseability of the injury or damage caused.
The onus of proof lies on the Respondent who must adduce credible evidence to show that the appellant owed him a duty, of care, that the duty of care was breached by the appellant and in consequence, he has suffered damages, although the damages suffered must not be too remote in character Refer to OKEJIMINOR VS. GBAKEJI (2008) 5 NWLR (pt 1079) 172- 177. In this case this onus of proof has been discharged by the Respondent it is to be noted that the question of negligence has been settled against the appellant as admitted by DW1 in evidence.
It is the case of the respondent that the appellant knew or ought to have known that it should have provided safety measures to ward off the dangers posed to the members of the public by its acts or omissions regarding the celler which was left open despite complaints. The appellant paid deaf ears to the complaints of the community. In the instant case the components and the test of the tort of negligence have been sufficiently proved. In this case the nature of danger or injury to the community, which eventually occurred, was reasonably foreseeable. Therefore the Court below was right in its findings that the appellant was liable to the Respondent in negligence. Thus this issue is determined against the appellant in favour of the respondent. It is to be noted that the fact of negligence has been admitted in the evidence of DW 1. It should be noted that it is the case of the Respondent that the appellant knew or ought to have known that it should have provided safety measures to ward off the dangers posed to members of the public by its acts or omissions regarding the celler which was left open despite complaints and news-paper publication. That the appellant paid deaf ears to the complaints of the community. So tort of negligence has been sufficiently proved. In this case the nature of danger or injury to the community, which eventually occurred was reasonably foreseeable. The lower court was therefore right in its findings that the appellant was liable in negligence to the Respondent. This issue is therefore determined in favour of the Respondent.
The next issue is whether the court below was right in admitting Exhibit 6, a medical report of the cause of death obtained from Emmanuel Hospital, Eket, when the maker was not called to give evidence in court so as to be crossexamined. It is the argument of the respondent’s counsel, and I agree, that section 42 (1) of the Evidence Act Cap 112 of the Laws of the Federation 1990 allows the tendering and admission in evidence of medical report, as in the instant case, without calling the maker to come to court and give evidence. The Respondent’ counsel has also counterargued that the court, under the proviso to the said section, has the power on application of a party to the proceedings or on its own motion to direct that any such officer shall be summoned to give evidence before it. The learned counsel has opined that the medical report is therefore admissible in evidence relying on ADAMU VS. KANO NIA (1956) 1 FSC 25; OGBERE VS. THE STATE (1985) 3 NWLR (pt 11) 120; 121 and the KATE VS. AJJIE (2000) FWLR (pt 16) 2831; 2833. The learned counsel has included that medical certificate when tendered in evidence is regarded as sufficient evidence of the facts stated therein. Thus in ADAMU VS. KANO N.A (1956) 1 FSC 25. It was held that from the circumstances of the case which left no doubt as to the cause of death, it was proper for the court to infer the cause of death even in the absence of medical evidence. That where, as in the instant case, the deceased died in circumstances which leave no doubt as to the cause of death, medical evidence can be dispensed with and the cause of the death inferred by the court. Thus Exhibit 6 is a medical report on the cause of death obtained from proper custody. That it is a public document and comes under the definition of sections 109 (b) and 111 (1) and (2) of the Evidence Act. That by provision of sections 112 of the Evidence Act, certified copies of public documents may be produced in proof of the contents of which they purport to be copies. The PW 1 laid the foundation that the original got lost.
The learned counsel for the Respondent has submitted that the medical report, exhibit 6, was clearly admissible in evidence in the circumstances of this case and was not hearsay evidence. That Exhibit 6 has passed the acid test of admissibility and was properly admitted by the learned trial Judge.
In short having gone over the proceedings of the learned counsel for the appellant and the learned counsel for the respondent I agree that this appeal lacks merit for the following reasons:-
1. The learned trial Judge was right in admitting exhibit 6 in evidence without calling the maker to testify in the circumstances of this case.
2. The court below was right in holding that the Respondent had proved his case as required under the Fatal accident Law (Cap 44, Laws of Cross River State as applicable in Akwa Ibom State).
3. The trial Judge was right in holding that there was sufficient evidence before her in awarding damages to the Respondent under the Fatal Accident Law (supra).
4. A review of the award of damages by the court below under the powers, in a deserving case, to allow a respondent to argue a point that should have been raised by Respondent’s Notice but was not and also under the provision of section 16 of its enabling Act.
In the final conclusion it is clear that there is no merit in this appeal and it is therefore dismissed. The decision of the trial court is hereby affirmed.
Costs in the sum of N30,000:00 is hereby award against the appellant in favour of the respondent.
NWALI SYLVESTER NGWUTA, J.C.A.: I have read before now the lead Judgment of my Learned Brother Mika’ilu JCA and I agree with the conclusion.
I also dismiss the appeal and abide by the order for costs.
PROCLAMATION OF JUDGMENT OF HON. JUSTICE JEAN OMOKRI, J.C.A.: Hon. Justice Jean Omokri, JCA (of blessed memory) participated in this appeal and agreed in conference that the appeal should be allowed. Pursuant to the proviso to section 294 (2) of the Constitution I hereby pronounce his opinion dismissing the appeal.
Appearances
J. T. Kpakol, Esq.For Appellant
AND
Dr. Aquaowo EssienFor Respondent
