AGBOOLA & ORS v. A. S. B. INVESTMENT LTD
(2022)LCN/16105(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/A/898/2018
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. WOSILAT ADENIKE AGBOOLA 2. SUNDAY ADEBAYO 3. TAJUDEEN ISIKILU APPELANT(S)
And
A. S. B. INVESTMENT LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT DOCUMENTS ARE RELEVANT AND MUST BE PLEADED IN CIVIL PROCEEDINGS
The law is trite in civil proceedings that documents must be relevant, pleaded and must be admissible under the Evidence Act or other statutes governing the admission in evidence before such document can be rendered admissible in evidence. See;
1. OYEDIRAN V ALEBIOSU II (1992) 6 NWLR (PART 249) 550 AT 566;
2. OKONJI V NJOKANMA (1999) 14 NWLR (PART 638) 250.
3. E. FREDRICK V PRINCE F. C. IBEKWE (2019) 7 NWLR (PART 1702) 467 AT 480 G-H per EKO, JSC who said:
“At the risk of repetition, I will re-state that the trite principle of evidence law on admissibility of a piece of evidence is basically its relevance to the facts in issue. The three criteria that govern admissibility in evidence of a document in evidence, from a number of cases, are
i. whether the document is pleaded;
ii. whether the document is relevant to the issues being tried or in dispute between the parties, and whether it is admissible in law. That is, whether any rule of law or provision of statute renders it inadmissible in evidence.
See Okonkwo Okonji & Ors. v. George Njokanma & Ors. (1999) – 12 SC (Pt. 11) 150, (1999) 14 NWLR (Pt. 638) 250; Duniya v. Jimoh (1994) 3 NWLR (Pt. 334) 609 at 617.” PER IGE, J.C.A.
THE POSITION OF LAW WHERE A DOCUMENT SOUGHT TO BE TENDERED AND RELIED UPON BY A PARTY IS A PUBLIC DOCUMENT
Where the document sought to be tendered or relied upon by a party is a public document then it must meet the prescription of the Evidence Act 2011 Section 90(1)(c) thereof which provides:-
“90. (1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows-
(a) in paragraphs (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
(b) in paragraph (b), the written admission is admissible;
(c) in paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible;” Public documents have been classified in Section 102 of the Evidence Act as follows:-
“102. The following documents are public documents-
(a) documents forming the official acts or records of the official acts of (i) the sovereign authority, (ii) official bodies and tribunals, or (iii) public, officers, legislative, judicial and executive, whether of Nigeria or elsewhere: and
(b) public records kept in Nigeria of private documents.”
Thus, any document written or prepared in official capacity or obtained or received by public or government establishments including public formation or Department becomes a public document in the official records or record kept by such public or government organization or establishment. In this case Exhibit E which is an extract from the Police Diary from Mokwa Police Station is a public document. In the absence of its original, the only admissible secondary evidence of Exhibit E is a Certified True Copy of it and NOT a photocopy that was tendered in this case by PW2 even where it was made by him. He ought to have produced a Certified True Copy of it or better still tender the original of the extract from the Police Diary, Mokwa Police Station. See;
1. TABIK INVESTMENTS LTD & ANOR V GTB PLC (2011) 17 NWLR (PART 1276) 240 AT 261 H-262C per RHODES-VIVOUR, JSC who said:-
“‘By virtue of Section 318 (h) of the Constitution and Section 18 (1) of the Interpretation Act Cap. 192 LFN 1990 a Police Officer is a public officer, and so all documents from the custody of the police, especially documents to be used in Court are public documents. Before a public document can be tendered and accepted by the Court it must be certified. A Public document is certified if:
1. it was paid for;
2. there is an endorsement/certificate that it is a true copy of the document in question;
3. the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and official title.
Certified copies are by statute deemed to be originals. Where there is no certification the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left with no alternative but to accept the authenticity of its contents.” PER IGE, J.C.A.
THE POSITION OF LAW ON PUBLIC DOCUMENTS
Section 102 of the Evidence Act, 2011 makes the following documents public documents. It says:
“The following are public documents:
(a) documents forming the official acts or records of the official acts,
(i) of the sovereign authority;
(ii) of official bodies and tribunals;
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.”
By Section 103 of the Act, all documents other than public documents are classified as private documents. Exhibit W05, the subject of this issue was the original correspondence, between the 2nd respondent and Independent National Electoral Commission. The said letter was in the custody of the 25th respondent and remained so up to the point it was tendered. It is my view that there was no need to certify the original copy of the letter even though it was issued to him by a public officer. It is the public officer who keeps the original of a public document who certifies a copy of it which can be tendered where the original cannot be tendered. Put differently, the only categories of public documents that are admissible are either the original document itself or in the absence of such original certified copies and no other. See: Minister of Lands, Western Nigeria v. Azikiwe (1969) 1 All NLR 49; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Iteogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171) 614 at 634 paragraphs G-H, this Court per Onnoghen, JSC held as follows:
“While it is correct to say that the only secondary evidence of a public document admissible in evidence is a certified true copy, the document in question were duly certified while those not so certified were original correspondences addressed from the Ministries of Defence and Works to the petitioner in person and were tendered by the petitioner.” (Underlined mine). PER IGE, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Niger State High Court of Justice delivered on 3rd day of April, 2014 by HON. JUSTICE MUSA B. ABDUL.
The Appellants as Plaintiffs have approached the said Court vide a Writ of Summons issued out of the said Court on 14th August, 2012 claiming against the Defendant now Respondent the following reliefs:-
“a. A DECLARATION that the Defendant is vicariously liable for the accident which took place at Takuma Village along Mokwa-Bida Road, Niger State on the 17th January, 2012 at about 1330hrs involving a Mack Truck with Registration Number: XY 167 JJJ driven by the 2nd Plaintiff (belonging to the 1st Plaintiff) and a DAF Tanker with Registration Number: SPA 30 ERI driven by Ali Yahaya (belonging to the Defendant).
b. A DECLARATION that the Defendant together with his driver owes the Plaintiffs a duty of care as motorists plying the Mokwa-Bida Road, Niger State on the said 17th January, 2012 at about 1330hrs and have breached that duty.
c. AN ORDER compelling the Defendant to pay the 1st Plaintiff special damages of Nine Million and Sixty Thousand Naira (N9,060,000.00) only being the total cost for the Mack Truck Head (Reg. No: XY167 JJJ which was damaged beyond repair as a result of the accident caused by the negligence of defendant and its driver); the cost of hiring Truck/crane; hiring of Security Personnel at the scene of the accident for 10 days at Takuma Village along Mokwa-Bida Road, Niger State; demurrage for the periods the Mack Truck stayed at the accident scene and hospital/welfare bills for the 2nd and 3rd Plaintiffs; repairs on the Container of the Mack Truck; and the repair on the damaged flat bed.
D. AN ORDER compelling the defendant to pay the Plaintiffs general damages of Fifty Million Naira (N50,000,000.00) for the loss of earning/use of the Mack Truck for over six (6) months, loss of manpower, physical injury to person, inconvenience and frustration caused to the Plaintiffs.
e. AN ORDER compelling the defendant to pay the 1st Plaintiff the sum of N400,000.00 (Four Hundred Thousand Naira) being legal fees paid by the 1st Plaintiff to her solicitors to institute this action.”
After exchange of pleadings and frontloaded processes, the matter proceeded to trial. The learned trial Judge gave a considered judgment on the action on 3rd April, 2014 as aforesaid dismissing the suit of the Appellants.
The lower Court found against the Appellants as follows:-
“The doctrine of res ipsa loquitor is applicable when, in the circumstance of a particular case, there are some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that occurrence took place without negligence.
In other words, the doctrine is applied when the facts stand unexplained and therefore the natural and reasonable not conjectured inference from the facts shows that what had happened is reasonably to be attributed to some act of negligence, on the part of somebody, that is, some want of reasonable care under the circumstances.
In the light of the evidence adduced by the plaintiffs and having regard to the above Supreme Court decision. I have come to the conclusion that the plaintiffs have not prove their case on the balance of probability against the defendant in accordance with Section 134 of the Evidence Act, 2011 as amended by proving that the defendant’s driver was negligent as at the time of the accident. I therefore hold that the doctrine of res ipsa loquitor is inapplicable to this case. In the final analysis, I hold that the plaintiffs are not entitled to any of the reliefs contained in paragraph 31 of the statement of claim. Accordingly, the plaintiffs’ suit is hereby dismissed.”
The Appellants were dissatisfied with the decision of the lower Court and have by their Amended Notice of Appeal dated and filed the 7th day of December, 2018 appealed to this Court on five (5) grounds which with their particulars read:-
“2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF
The whole judgment.
3. GROUNDS OF APPEAL
GROUND 1
The learned trial Judge erred when he held at page 145 of the Records thus:
…I also hold that Exhibit E was wrongly admitted in evidence in the course of trial … in view of the fact that exhibit E was not certified in accordance with Sections 104 and 105 of the Evidence Act, 2011, it is hereby expunged from the Records of the Court.
PARTICULARS OF ERROR
1. Exhibit E was made by PW2, a Public Officer who also came to Court in person to tender same.
2. In the case of UDUMA V. ARUNSI (2012) 7 NWLR (PT. 1298) AT 144 PARAGRAPH E-F, this Court held that a Public Document can be tendered without certification only by the maker.
a. The trial Judge had rightly admitted exhibit E in evidence during trial but wrongly turned to expunge same evidence while delivering judgment.
GROUND 2
The learned trial judge erred in law when he held at page 144 of the Records thus;
…from the evidence adduced by the Plaintiffs … I am of the view that a case of negligence have not been proved or made against the Defendant by the Plaintiffs in this case.
Also, at page 147 thus:
I therefore hold that the doctrine of Res ipsa Loquitor [sic] is inapplicable to this case. In the final analysis, I hold that the Plaintiffs are not entitled to any of the reliefs contained in… the statement of claim…
PARTICULARS OF ERROR
1. The evidence of PW1, PW2 and the admission in the evidence of DW1 sufficiently established a case of negligence against the Defendants.
2. The learned trial judge did not properly evaluate the evidence adduced by PW1, PW2 and Exhibits A1 – A6, B1 – B7, C, D and E tendered in evidence.
3. The facts and evidence in this case clearly reveals that the doctrine of Res Ipsa Loquitor is applicable to this case.
GROUND 3
The learned trial Judge erred in law when he held at page 145 of the Records thus:
I also hold that PW1 was never an eyewitness to the accident. PW1 arrived the scene of the accident after the accident. I therefore conclude that the evidence of PW1 amount to hearsay under Section 37 of the Evidence Act, 2011 and is inadmissible under Section 38 of the Evidence Act.
PARTICULARS OF ERROR
1. PW1 was not the only person who gave evidence to establish the case of the Plaintiffs.
2. The evidence of PW2 who is an expert corroborated the evidence of PW1 to establish the case of the Plaintiffs.
3. Exhibit E clearly revealed that two of the occupants of the vehicles involved in the accident died at the spot of the accident, while the other two sustained permanent injuries.
GROUND 4.
The learned trial Judge erred when he held at page 147 of the Records thus:
…In the final analysis, I hold that the Plaintiffs are not entitled to any of the reliefs contained in paragraph 31 of the statement of claim…
PARTICULARS OF ERROR
1. The case before the trial Court clearly revealed that the Plaintiffs (now Appellants) indeed suffered some losses and damages as result of the conduct of the Respondent’s agent.
2. The Court below ought to have awarded some damages in favor of the Appellants as compensation for the losses occasioned by the Respondent’s agent.
GROUND 5.
The judgment is against the weight of evidence.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
1. AN ORDER setting aside the judgment of Honorable Justice Musa B. Abdul of the High Court of Niger State, Bida Judicial Division delivered on 3rd day of April, 2014.
2. AN ORDER granting the claims of the Plaintiffs/Appellants as contained in the Statement of Claim before the lower Court.
3. ANY OTHER ORDER OR ORDERS which this Court deems fit to make in the circumstances of this appeal.”
The Appellants’ Brief of Argument was dated and filed 7th December, 2018 and deemed properly filed on 3rd November, 2021. The Respondent’s Brief of Argument was dated 1st of March, 2022 and filed 3rd March, 2022.
The Appellants’ learned Counsel JOHN AINETOR, ESQ., who settled the Appellants’ Brief of Argument distilled three (3) issues for determination as follows:-
“(1) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE EXPUNGED EXHIBIT E FROM EVIDENCE, HAVING REGARDS TO THE DECISION IN UDUMA V. ARUNSI (2012) 7 NWLR (PT. 1298) AT 144 PARAGRAPH E – F?
Distilled from Ground 1 of the Amended Notice of Appeal.
(2) WHETHER THE DOCTRINE OF RES IPSA LOQUITOR APPLIED TO THE APPELLANTS’ CASE?
Distilled from Grounds 2 and 3 of the Amended Notice of Appeal.
(3) WHETHER THE APPELLANTS WERE ENTITLED TO ANY FORM OF COMPENSATION IN DAMAGES, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THIS CASE?
Distilled from Grounds 4 and 5 of the Amended Notice of Appeal.”
The Respondent’s learned Counsel E. T. ADEYANJU, ESQ., also distilled three (3) issues for determination as follows:-
“3.0 ISSUES FOR DETERMINATION
3.1 The issues for determination in this appeal as identified in the appeal by the Respondent are as follows:
1. Whether the learned trial Judge was right to have expunged Exhibit E from the evidence.
2. Whether the doctrine of Res Ipsa Loquitor can be said to apply to the Appellants case considering the facts of this case.
3. Whether the Appellants have proved their case beyond reasonable doubt to entitle them to any damages whatsoever.”
The issues formulated by the Appellants’ learned Counsel will be utilized for the consideration of the appeal.
Under issue 1 as to whether the learned trial Judge was right to have expunged from evidence Exhibit “E” having regard to the case of UDUMA V ARUNSI (2012) 7 NWLR (PART 1298) AT 44F, the learned Counsel to the Appellants said it was wrong for the learned trial Judge to expunge from evidence document already admitted as Exhibit E. He drew attention to pages 114-115 where the said Exhibit E was admitted in evidence and that the trial Judge later on, on page 145 of the record of appeal made a U-turn and examined the document on the ground that it is a public document that required certification. He referred to the said document on page 64 of the record which he said was tendered by PW2, a Police Officer who made the document. He submitted that this Court is bound by its earlier decision. He urged the Court to resolve the issue in Appellants’ favour.
In response, the learned Counsel to the Respondent stated that the document marked Exhibit “E” was a photocopy of Police Extract from Accident Diary tendered by PW2 and that same was not signed by PW2 but by a CSP attached to Mokwa Divisional Police Headquarters. He submitted that since Exhibit “E” is a copy of Public Document, the only kind of its secondary evidence that is admissible is a Certified True Copy and no other kind of secondary evidence. He relied on the cases of OGBORU V UDUAGHAN (2011) 2 NWLR (PART 1232) 608 and OJIBAH V OJIBAH (1991) 5 NWLR (PART 91) AT 296. He urged the Court to hold that the lower Court was right in expunging the said Exhibit “E” from the record.
On issue 2 as to whether the doctrine of Res Ipsa Loquitor is applicable to the Appellants’ case the learned Counsel to the Appellants answered in the affirmative relying on the case of S.P.D.C.N. LTD V ANARO (2015) 12 NWLR (PART 1472) 122 AT 183 A-E to submit that a careful perusal of the Appellants’ case coupled with Exhibits B1-B7 the photographs of Appellants’ damaged vehicle and Exhibits C, D1-D9 and Exhibits E clearly confirmed that an accident occurred, resulting in total damage of Appellants’ vehicle due to the fault of Respondent’s vehicle driver who left his lane to collide with Appellants’ vehicle. That Exhibit E further confirmed the fault of Respondent’s driver. That the doctrine of Res Ipsa Loquitor is applicable to the Appellants’ case. That the contrary decision of the lower Court and its findings that PW1’s evidence was hearsay was wrong in that PW1 was not the only eye witness that testified for Appellants. He stated that PW1’s evidence was corroborated by the evidence of PW2 to the effect that 2nd and 3rd Appellants sustained permanent injuries and were hospitalized. He relied on the cases of AMODU V THE STATE (2010) 2 NWLR (PART 1177) 47 AT 48F and ODUTOLA V MABOGUNJE (2013) 7 NWLR (PART 1354) 522 AT 560 C-D.
He urged the Court to hold that Appellants proved their case.
In his own submission under issue 2, the learned Counsel to the Respondent explained what the doctrine of Res Ipsa Loquitor entails but that the Appellants did not lead any credible evidence to make the doctrine applicable in this case. That PW1 and PW2 were not at the scene of the accident and as such, the evidence given by them is inadmissible being hearsay evidence. He relied on the case of PLATEAU STATE HEALTH SERVICE MANAGEMENT BOARD VS INSPECTOR PHILIP FITOKA GOSHWE (2013) 2 NWLR (PART 1338) AT 383. That Appellants failed to call the two (2) witnesses who saw what happened at the scene of the accident and that photographs tendered at the lower Court cannot be used to establish negligence against the Respondent. He also submitted that the totality of evidence of PW1 and PW2 offends Section 126(a) – (d) of the Evidence Act.
On issue 3 as to whether Appellants are entitled to any form of damages having regard to the facts and circumstances of the case, the Appellants’ learned Counsel submitted that the Appellants are entitled to damages in that where there is a wrong there must be a remedy. He relied on the cases of UBN PLC V CHIMAEZE (2014) 9 NWLR (PART 1411) 166 AT 191 B and FIRST INLAND BANK VS JEKS (2014) 16 NWLR (PART 1434) 567 D-F. That in this case Exhibit “A” reveals that the 1st Appellant owned the Appellants’ vehicle and it was in good condition before the accident and that Exhibits B1-B6 and D1-D9 revealed that the Appellants’ vehicle was indeed damaged beyond repairs. That Exhibit C shows that Appellants incurred costs resulting from the incident while Exhibit E revealed that the 2nd and 3rd Appellants sustained permanent injuries as a result of the accident which was caused by the Respondent’s vehicle that veered off its lane into Appellants’ vehicle’s lane.
That Appellants led evidence in line with paragraphs 20, 22, 24, 25, 27, 28, 29, 30 and 31 of their pleadings and that Appellants, based on the abundance of evidence are entitled to remedies in form of damages. He urged the Court to allow the appeal and grant the reliefs sought by the Appellant.
Responding to the submissions of the Appellants, learned Counsel under issue 3 stated that there could be no action in negligence unless there is damage and tort of negligence is proved of the actual damage. That the Plaintiff must prove that the Defendant owed them duty of care which was breached and has led to suffering of actual damage. That the mere fact that the Plaintiff suffered actual damage does not ipso facto establish the Defendant’s negligence or that he caused the damage. He relied on the case of OGBIRI V NIGERIAN AGIP OIL COMPANY LIMITED (2010) 14 NWLR (PART 1213) 208. That the evidence of PW1 who is not a Plaintiff cannot be relied upon and that PW2 evidence was hearsay. He relied on the case of ABUBAKAR V JOSEPH (2008) 13 NWLR (PART 1104) AT 307. He urged this Court to resolve issues 1, 2 and 3 against the Appellants and dismiss the appeal.
The law is trite in civil proceedings that documents must be relevant, pleaded and must be admissible under the Evidence Act or other statutes governing the admission in evidence before such document can be rendered admissible in evidence. See;
1. OYEDIRAN V ALEBIOSU II (1992) 6 NWLR (PART 249) 550 AT 566;
2. OKONJI V NJOKANMA (1999) 14 NWLR (PART 638) 250.
3. E. FREDRICK V PRINCE F. C. IBEKWE (2019) 7 NWLR (PART 1702) 467 AT 480 G-H per EKO, JSC who said:
“At the risk of repetition, I will re-state that the trite principle of evidence law on admissibility of a piece of evidence is basically its relevance to the facts in issue. The three criteria that govern admissibility in evidence of a document in evidence, from a number of cases, are
i. whether the document is pleaded;
ii. whether the document is relevant to the issues being tried or in dispute between the parties, and whether it is admissible in law. That is, whether any rule of law or provision of statute renders it inadmissible in evidence.
See Okonkwo Okonji & Ors. v. George Njokanma & Ors. (1999) – 12 SC (Pt. 11) 150, (1999) 14 NWLR (Pt. 638) 250; Duniya v. Jimoh (1994) 3 NWLR (Pt. 334) 609 at 617.”
Where the document sought to be tendered or relied upon by a party is a public document then it must meet the prescription of the Evidence Act 2011 Section 90(1)(c) thereof which provides:-
“90. (1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows-
(a) in paragraphs (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
(b) in paragraph (b), the written admission is admissible;
(c) in paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible;” Public documents have been classified in Section 102 of the Evidence Act as follows:-
“102. The following documents are public documents-
(a) documents forming the official acts or records of the official acts of (i) the sovereign authority, (ii) official bodies and tribunals, or (iii) public, officers, legislative, judicial and executive, whether of Nigeria or elsewhere: and
(b) public records kept in Nigeria of private documents.”
Thus, any document written or prepared in official capacity or obtained or received by public or government establishments including public formation or Department becomes a public document in the official records or record kept by such public or government organization or establishment. In this case Exhibit E which is an extract from the Police Diary from Mokwa Police Station is a public document. In the absence of its original, the only admissible secondary evidence of Exhibit E is a Certified True Copy of it and NOT a photocopy that was tendered in this case by PW2 even where it was made by him. He ought to have produced a Certified True Copy of it or better still tender the original of the extract from the Police Diary, Mokwa Police Station. See;
1. TABIK INVESTMENTS LTD & ANOR V GTB PLC (2011) 17 NWLR (PART 1276) 240 AT 261 H-262C per RHODES-VIVOUR, JSC who said:-
“‘By virtue of Section 318 (h) of the Constitution and Section 18 (1) of the Interpretation Act Cap. 192 LFN 1990 a Police Officer is a public officer, and so all documents from the custody of the police, especially documents to be used in Court are public documents. Before a public document can be tendered and accepted by the Court it must be certified. A Public document is certified if:
1. it was paid for;
2. there is an endorsement/certificate that it is a true copy of the document in question;
3. the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and official title.
Certified copies are by statute deemed to be originals. Where there is no certification the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left with no alternative but to accept the authenticity of its contents.”
2.EZENWA ONUZ-URUIKE V DAMA-EDOZIEM & ORS (2016) 6 NWLR (PART 1508) 215 AT 231 A-E per ONNOGHEN, JSC later CJN (RTD) who said:-
“In the case of Tabik Investment Ltd. v. G.T.B. (2011) All FWLR (Pt. 602) 1592 at 1607; (2011) 17 NWLR (Pt. 1276) 240 at page 261-262 paras. H-A, this Court held that a private petition sent to the police, as in the instant case, formed part of the record of the police and consequently a public document within the provisions of Section 109 of the Evidence Act. The Court held as follows:
“By the provision of Section 318(h) of the Constitution of the Federal Republic of Nigeria 1999 and Section 18(1) of the Interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court are public documents.”
Finally, in the recent case of Aromolaran v. Agoro (2014) 18 NWLR (Pt. 1438) 153, this Court held that a letter written to the Governor of a State in his official capacity by a person who is not a government official; is public document because it is a public record kept in Nigeria of a private document which comes under the provisions of Section 109(b) of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 (now Section 102 of the Evidence Act, 2011).
In that case, exhibit P7 was adjudged a public document and that there ought to have been a certification that was a true copy of the original to make it admissible in evidence.”
The same is true in this case in that the position of the law is very stringent concerning admissibility of public document which Exhibit E is. The stringent condition of the Evidence Act already reproduced applies to it, and cannot be circumvented. See;
1. THE HON. JUSTICE E. O. ARAKA V HON. JUSTICE DON EGBUE (2003) 17 NWLR (PT. 848) 1 AT 17C 18A-H per NIKI TOBI, JSC of blessed memory;
2.PDP V INEC & ORS (2014) 17 NWLR (PART 1437) 525 AT 562 F-H TO 563 A-E per OKORO, JSC who said:-
“There is no doubt that exhibit W05 was written by Independent National Electoral Commission Commissioner and addressed to the 25th respondent who had custody of it up to the point of tendering same. Was this document of a character that ought to have been certified before tendering? Section 102 of the Evidence Act, 2011 makes the following documents public documents. It says:
“The following are public documents:
(a) documents forming the official acts or records of the official acts,
(i) of the sovereign authority;
(ii) of official bodies and tribunals;
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.”
By Section 103 of the Act, all documents other than public documents are classified as private documents. Exhibit W05, the subject of this issue was the original correspondence, between the 2nd respondent and Independent National Electoral Commission. The said letter was in the custody of the 25th respondent and remained so up to the point it was tendered. It is my view that there was no need to certify the original copy of the letter even though it was issued to him by a public officer. It is the public officer who keeps the original of a public document who certifies a copy of it which can be tendered where the original cannot be tendered. Put differently, the only categories of public documents that are admissible are either the original document itself or in the absence of such original certified copies and no other. See: Minister of Lands, Western Nigeria v. Azikiwe (1969) 1 All NLR 49; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Iteogu v. L.P.D.C. (2009) 17 NWLR (Pt. 1171) 614 at 634 paragraphs G-H, this Court per Onnoghen, JSC held as follows:
“While it is correct to say that the only secondary evidence of a public document admissible in evidence is a certified true copy, the document in question were duly certified while those not so certified were original correspondences addressed from the Ministries of Defence and Works to the petitioner in person and were tendered by the petitioner.” (Underlined mine)
The lower Court was entitled as it did to expunge from its record inadmissible evidence that was inadvertently admitted in evidence in breach or violation of the Evidence Act or a statute. See ANIEMEKA EMEGOKWUE V JAMES OKADIGBO (1973) 1 ALL NLR (PART 1) 314 AT 317-318 per FATAL-WILLIAMS, JSC later CJN of blessed memory who said:-
“In National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. & Ors. (1969) N.M.L.R. 99 at page 104, we again observed as follows:
“A plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the Judge did not reject it. It is, of course, the duty of counsel to object to inadmissible evidence and the duty of the trial Court any way to refuse to admit inadmissible evidence, but if notwithstanding this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”
Issue 1 is hereby resolved against the Appellants.
Issue 2 deals with applicability of the doctrine of Res Ipsa Loquitor the situation or circumstances leading to the ghastly accident involving the Respondent’s vehicle and the vehicle the Appellants were travelling in.
Res Ipsa Loquitor means the facts or things that occurred speak for themselves. Where it is employed as a form of evidence in cases of negligence or tort of negligence, the Plaintiff is only saying that from the factual situation of what happened which was caused by the Defendant and which in turn has caused some damage or injuries to the Plaintiff, the Defendant is liable for the damage or injuries suffered by the Plaintiff. Adjunct to this is that the Defendant owes a duty of care to the Plaintiff.
The doctrine “Res Ipsa Loquitor” and its ingredients has been examined and pronounced upon in numerous cases by the apex Court suffice to refer to the following cases.
1. CHUDI VERDICAL COMPANY LTD V IFESINACHI INDUSTRIES NIGERIA LTD & ANOR (2018) LPELR-44701 SC 1 AT 17-20 per MUSA DATTIJO MUHAMMAD, JSC who said:-
“As earlier demonstrated in this judgment, the trial Court has not only adjudged plaintiff/appellant’s invocation of the doctrine of res ipsa loquitur proper but that its claim has been made out through the preferred procedure. The lower Court, on the other hand, holds otherwise. The two Courts purport to rely on decisions of this Court in arriving at their divergent decisions. Certainly, the Courts cannot both be right at the same time. What is then the correct definition of the doctrine, when and how has this Court, in its very many decisions, held it could successfully be invoked? Res ipsa loquitur is a rule of evidence that affects the onus of proof. The principle is invoked on the basis of an event which, in the ordinary course of things, would not have occurred except same was caused by negligence for which there is no explanation. The doctrine merely shifts the onus on the defendant and does not avail a claimant who sufficiently knows the fact that caused the event and ceases to apply where the defendant gave an explanation. The doctrine is only invoked where the circumstances of the particular case allow, given the unexplained facts around the event, the inference that it could only have been caused by some act of negligence on the part of the defendant. The event on the basis of which the plaintiff invokes the doctrine must speak eloquently for itself that the negligence of the defendant had brought it about and the state of things complained of have remained unexplained. See Ojo v. Gharoro & Ors (2006) 10 NWLR (Pt. 987) 173; (2005) LPELR-2383 (SC). In Odebunmi & Ors v Abdullahi (1997) 2 NWLR (Part 489) 526 at 535 this Court has held per Belgore, JSC thus:-
“Where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process and that accident is such as does occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the afore-mentioned management as to how the accident happened, the accident is presumed in such cases for in such cases negligence is inferred to have resulted from want of care by the persons in the management of their agents or servants. The maxim Res Ipsa Loquitur means things speak for themselves.
The true state of the law, therefore, is that the doctrine does not apply if facts as to the cause of the injury are sufficiently known or where the defendant gave an explanation in relation to the cause of the injury. Reliance on the doctrine, be it stressed, is a confession on the part of the plaintiff that he has no direct and affirmative evidence of the negligence he complains against the defendant and that reliance is placed only on the surrounding circumstances which simply establishes the negligence. See Management Enterprise Ltd v Otusanya (1987) 2 NWLR (Pt.55) 179, Strabag Construction (Nig.) Ltd v Ogarekpe (1991) 1 NWLR (Pt. 170) 733 at 750 and Sylvester Ifeanyi Ibekendu v. Sylvester Ike (1993) LPELR-1390 (SC) and Royal Ade (Nig) Ltd v. N.O.C.M. Co Plc (2004) 8 NWLR (Pt. 874) 2006. In applying the principle enunciated in the foregoing authorities, the lower Court at page 230 of the record of appeal rightly held that since there “is evidence of how the accident” the plaintiff/appellant appears to know how the injury the defendants/respondents inflicted on him occurred, “res ipsa loquitur is misconceived and inappropriate” and that rather “it is meant to apply where there is no other proof of negligence than the accident itself.” I cannot agree more.”
2. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V CHIEF JOEL ANARO & ORS (2015) 12 NWLR (PART 1472) 122 AT 174-175 per AKAAH’S, JSC at page 183 A-E OGUNBIYI, JSC had this to say:-
“The maxim res ipsa loquitor applies whenever it is so probable that such an accident would not have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused.The question that must exist before the principle could be applied was stated by Sir William Erle C. J. in Scott v. London and St Katherine Docks Co. (1865) 3 H.L. & C. 596 at 601 as follows:-
“There must be reasonable evidence of negligence but where the thing is shown to be under the management of the defendant or servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant, that the accident arose from want of care.” See also Boe v. Minister of Health (1954) 2 Q.B. 66 at 78. The effect of the application of the maxim is that the onus of proof of negligence, normally placed on the plaintiff, shifts. The defendant is therefore required to establish that there was in fact no negligence on his part. The maxim per se need not necessarily be pleaded in the exact language. In other words, it is sufficient if the particulars of negligence given show that the plaintiff is relying on the doctrine. See the case of Kuti v. Tugbobo (1967) NMLR 419 and Okeke v. Obidife (1965) 1 All NLR 50.
I am of the firm view that the learned trial Judge erred in law when he held that the doctrine of Res Ipsa Loquitor was inapplicable. It is applicable to the facts of this case having regard to the pleadings as contained in the Appellants’ Statement of Claim paragraphs 10-19 wherein the Appellants pleaded as follows:-
“10. That the Mack Container Truck belonging to the 1st Plaintiff was traveling from Lagos State to Abuja whilst driver of the DAF Tanker belonging to the Defendant was traveling from Abuja to Lagos State empty.
11. That the 2nd and 3rd Plaintiffs were travelling from Lagos at a moderate speed to deliver the said sanitary wares to the owner.
12. That at a point in Takuma village along Mokwa-Bida Road, Niger State while the Mack Truck belonging to the 1st Plaintiff was travelling on its rightful lane, the DAF Truck belonging to the Defendant and driven by one Ali Yahaya lost control and veered off its own lane and collided with the 1st Plaintiff’s Mack Container Truck.
13. That the Mack Truck was completely destroyed beyond repairs and cannot be used for any meaningful transport business. The Mack Truck cannot be used for any meaningful transport business. The Mack Truck is a complete write off. The pictures showing the accident scene are hereby pleaded and shall be relied upon at trial.
14. That the 2nd and 3rd Plaintiffs were severely injured and were rushed to the General Hospital Mokwa by good Nigerians.
15. That the Defendant is vicariously liable for the accident caused by his driver, Ali Yahaya. That the driver, Ali Yahaya was driving the DAF Tanker belonging to the Defendant in the line of his duty and in an official hour.
16. The Plaintiffs aver that the Police in Mokwa, Niger State and the Federal Road Safety Corps, where the accident occurred, issued a report of the accident from the accident diary and same was signed by one Sgt. Salifu Bamaiyi. The said report is hereby pleaded and shall be relied upon at trial.
17. The Plaintiffs aver that they do not know the cause of the derailing of the DAF Tanker into the rightful lane of the 2nd and 3rd Plaintiffs but that the accident was one that would not have happened in the first place had the defendant applied proper care and due diligence.
18. The Plaintiffs aver that their claim is principally on the res ipsa loquitor.
19. The Plaintiffs aver that the driver of the DAF Tanker owned by the Defendant was negligent in the driving.”
The Defendant did not plead any credible facts to dislodge the facts contained in the Statement of Claim. See paragraphs 2-9 of Statement of Defence wherein the Defendant pleaded thus:-
“2. The Defendant admits paragraphs 5, 6, 7 and 21 of the Statement of Claim.
3. The Defendant denies paragraphs 12, 13 and 19 of the Statement of Claim.
4. The Defendant specifically deny paragraph 28 of the Statement of Claim and put the Plaintiffs to the strictest proof thereof.
5. The Plaintiffs have refused and neglected to plead any Vehicle Inspection Officer (VIO) report so as to ascertain the cause of the accident which could have happened as a result of mechanical fault.
6. The Defendant avers that the 2nd Plaintiff must have been travelling at a very high speed considering the impact of the accident.
7. In response to paragraph 29 of the Statement of Claim, the Defendant avers that the Mack Truck Head was purchased in the year 2010 and has consistently been put to use (sic) the Plaintiffs before the accident.
8. The Defendant avers that Truck Head belonging to the 1st Plaintiff cannot be assessed at its original value because the theory of use, wear and tear must be put into consideration.
9. The Defendant avers that the Police Report did not contain any report of damaged goods being conveyed by the Plaintiff Truck.”
The pieces of evidence given by the two witnesses PW1 & PW2 on pages 105-116 of the record were not destroyed under cross-examination. The Plaintiff’s 2nd Witness Statement on Oath which was adopted by the PW2 as his oral evidence was not discredited under cross-examination. He was the Policeman that went to the scene of the accident from Mokwa Police Station and he testified that the driver of Respondent left his lane when it lost control of the vehicle and collided with the Mack Truck of the Plaintiffs which was on its rightful lane. The photographs Exhibits B1 – 87 and Exhibits D5 – D9 supported the testimonies of PW2 Police Officer who went to the scene of the accident.
From the narration of the Respondent and contention in this appeal, all the Respondent contended is that the Appellant did not plead any Vehicle Inspection Officers Report and that 2nd Appellant must have been travelling at a high speed. There is no serious challenge to the claim of the Appellants as can be seen from DW1’s evidence on pages 121-122 of the record.
Issue is hereby resolved against the Respondent.
On issue 3 as to whether the Appellants are not entitled to compensation in form of damages having regard to the facts and circumstances of this case.
I agree with the learned Counsel to the Appellants that the Appellants are entitled to compensation in form of damages having proved that the driver of the Respondent was negligent and caused the accident leading to damage of the head of the Appellants’ truck and that the truck damaged by the Respondent belonged to the Appellants. Exhibits A, B series and D series along with Exhibit “C” established ownership and damages suffered due to the accident. The DW1 admitted under cross-examination that the head of the Appellants’ truck was damaged and that they wanted to settle but Appellants asked for N3.5 Million while Respondent offered N1 Million.
The Appellants claimed N9,060,000 only as total costs for the Mack Truck with Registration Number XY 167 JJJ as having been damaged beyond repairs. The Appellants are not entitled to compensation in form of special damages. See VITAL INVESTMENT LTD V CHEMICAL AND ALLIED PRODUCTS PLC (2022) 4 NWLR (PART 1820) 205 AT 247 B – H to 248 A-C per ABOKI, JSC who said:-
“The above dictum of the Court below notwithstanding, learned counsel for the respondent was on terra firma when he submitted that even if the sum paid did not include the profit that appellant was to make, the loss contemplated, if at all, ought not to have been awarded as it was neither specifically pleaded nor strictly proved at the trial in accordance to the specifications laid down in numerous authorities, and I shall make reference to a few of them.
In Akinkugbe v. Ewulum Holdings (Nig.) Ltd & Anor. (2008) LPELR 346 (SC), (2008) 11 NWLR (Pt. 1098) 375 this Court held that:
“The rule with regard to the award of special damages is that the burden of proof is on anyone claiming it to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should plead its particulars and lead credible and admissible evidence of such character as would establish that he is indeed entitled to an award under that head. The evidence of particulars of the losses must be known exactly and accurately measured before the trial Court.” Similarly, in Ajigbotosho v. RCC (2018) LPELR 44774 (SC), (2019) 3 NWLR (Pt. 1659) 287 this Court held that:
“…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. Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage. The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible…”
See also ONYIORAH V. ONYIORAH & ANOR (2019) LPELR 49096 (SC); (2019) 15 NWLR (PT. 1695) 227.
“The summary of all I have been saying is that the loss of profit being an item of special damages ought to have been particularized in the pleading and specifically proved at the trial. The pleading and evidence tendered on behalf of the appellant fell far short of the stipulated requirements.”
At page 257 C-H my Lord OGUNWUMIJU, JSC had this to say
“Special damages must be properly pleaded and strictly proved to the satisfaction of the Court. See G.K.F Investment Nigeria Limited v. Nigeria Telecommunications Plc [2009] 7 S.C.N.J. Pg. 92; (2009) 15 NWLR (Pt. 1164) 344.
In the award of damages, there is need for the Court to take into consideration all minute aspects of the case, the custom of the trade, the law applicable to do the contract, the vagaries of life, e.t.c. Courts are not just to accept evidence placed before it in proof of the award in toto. See Alhaji Jimoh Ajagbe v. Layiwola Idowu [2011] 6 S.C.N.J. Pg. 506; (2011) 17 NWLR (Pt. 1276) 422.
My Lords, the 1st and 2nd heads of claim are one for special damages. It is for penalty incurred on borrowed funds. A claim for special damages are particular damages which results from the particular circumstances of the case. They are usually not inferred from the nature of the act and they do not follow in the ordinary course, therefore, they must be claimed specially and proved. See British Airways v. Mr. P. D. Atoyebi [2014] 6 S.C.N.J. Pg. 634; (2014) 13 NWLR (Pt. 1424) 253.”
The Appellants have not proved vide Exhibits B1-B6 and D1-D9 how the sum of N9,060,000 was arrived at as special damages for the truck they claimed was damaged beyond repairs. The claim for special damages cannot be sustained.
On claim for general damages of N50 Million Naira, the law is that claim for general damages is always at large but at the discretion of the trial Court. It must be proved by the Claimant to have been a direct flow or consequence of the wrongful act of the Defendant. The claim for general damages needs not be specifically pleaded. See;
1. UNION BANK OF NIGERIA PLC V ALHAJI ADAMS AJABULE & ANOR (2011) 18 NWLR (PART 1278) 152 AT 178 C-D per MAHMUD MOHAMMED, JSC later CJN, RTD who said:-
“It is settled law that general damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, from the act or conduct of the defendant. It does not depend upon calculation made and figure arrived at from specific items. See Odulaja v. Haddad (1973) 11 S.C. 257; Lar v. Stirling Astaldi Limited (1977) 11-12 S.C. 53 and Osuji v. Isiocha (1989) 3 N.W.L.R. (Pt. 111) 623.”
2. ABUBAKAR OMOLAJA THOMPSON & ANOR V BARR. GBENGA AKINGBEHIN (2021) 16 NWLR (PART 1802) 283 AT 310 H – 311 A – G per KEKERE-EKUN, JSC who said:-
“Learned counsel for the respondent, replicando, relied on Elf Petroleum (Nig) Ltd. v. Umah & Ors. (2018) 10 NWLR (Pt. 1628) 428 at 448 in contending that it is settled law that general damages are always sought as a claim at large and that the quantum need not be pleaded and proved, as the measure of damages is awarded to assuage a loss which flows naturally from the defendant’s act. He also referred to S.P.D.C. Nig v. Okonedo (2008) 9 NWLR (Pt. 1091) 85 at 124-125 A-H. He submitted that an award of damages is within the discretionary powers of the Court and that it is settled law that an appellate Court would not ordinarily interfere with the exercise of discretion by a lower Court simply because, if faced with the same situation, it might have acted differently. He submitted that the only circumstance that would warrant interference by an appellate Court is where it is satisfied that the lower Court was manifestly wrong, arbitrary, reckless and/or injudicious. He referred to: Braithwaite v. Dalhatu (2016) 13 NWLR (Pt. 1528) 32 at 55; University of Lagos v. Aigoro (supra). He argued that those conditions do not apply to this case. He submitted further that the primary object of an award of damages is to compensate the plaintiff for the harm done to him by the defendant, while a secondary objective is to punish the defendant for his/her conduct in inflicting the harm complained of. He urged the Court to hold that the award of N300,000.00 as general damages is not excessive, having regard to the appellants’ conduct and the purchasing power of the Naira between the time the action was filed and the date of judgment. The main object of an award of general damages is, as submitted by learned counsel for both parties, to compensate the claimant for the damages, loss or injury he has suffered as a result of the act of the defendant. The guiding principle is “restitutio in integrum”, that is, to restore the party to the position he or she was in prior to the injury. See: British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; S.P.D.C. (Nig.) Ltd. v. High Chief Tiebo VII & Ors. (1996) 4 NWLR (Pt.445) 657 at 680 D-E; Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47. General damages are such as the law will presume to be the natural or probable consequence of the defendant’s act. It need not be specifically pleaded, as it arises by inference of law and need not be proved by evidence. This is in contradistinction to special damages, which must be specifically pleaded and strictly proved. See; Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) LPELR-1512 (SC) at 4-5 G-C; (1975) 3 SC (Reprint) 81; Narindex Trust Ltd. & Anor. v. NICMB Ltd. (2001) LPELR-1939 (SC) at 24 D-E; (2001) 10 NWLR (Pt.721) 321.”
On page 317D of the said Report PETER, JSC had this to say:-
“That it is settled law that general damages are always made as a claim at large as the quantum need not be pleaded or proved. He cited Elf Petroleum (Nig.) Ltd. v. Umah & Ors. (2018) 10 NWLR (Pt. 1628) 428 at 448; S.P.D.C (Nig.) v. Nelson Okonedo (2008) 9 NWLR (Pt. 1091) 85 at 124-125.”
The Appellants have pleaded that they paid for cost of hiring Truck Crane, security personnel at the scene of the accident for 10 days at Takuma Village along Mokwa – Bida Road, Niger State. That they paid demurrage for hospital/welfare bills for 2nd and 3rd Plaintiffs. They also pleaded that there were repairs on container of Mack Truck and the repair of the damaged flat bed. The Appellants are claiming that sum of N50 Million as general damages for loss of use of their Mack Truck for over 5 months and loss of manpower and inconvenience caused to the Plaintiffs.
I have examined the evidence led by the Appellants PW1 and PW2 and Exhibits A, B1-B6 and D- D9 along with Exhibit “C” tendered by the Appellant. I am of the solemn view that the Appellants ought to be awarded the sum of N5 Million as general damages to compensate the Appellants for loss the accident caused to the Truck of the Appellants and injuries and damages caused to the 2nd and 3rd Appellants by the Respondent’s Truck Driver which was extensively damaged by the negligence of the Respondent’s Driver.
Issue 3 is resolved in Appellants’ favour and the Appellants’ appeal is hereby adjudged as meritorious and it is allowed in part having resolved issues 2 and 3 in Appellants’ favour. The decision of the lower Court delivered by HON. JUSTICE MUSA B. ABDUL on 3rd April, 2014 IS HEREBY SET ASIDE.
In its stead, the Appellants ARE HEREBY AWARDED the sum of N5 Million as general damages for the damage and injuries caused to the Appellants (all and singular) by the negligence of Respondent’s Truck Driver.
The claim (s) of the Appellants for the sum of N400,000 as legal fees IS HEREBY DISMISSED.
For avoidance of doubt the Appellants ARE HEREBY AWARDED the sum of N5 Million Naira for damages and injuries caused to the Appellants as a result of the ghastly motor accident caused by the negligence of the Defendant and its Driver.
The Respondent shall pay costs assessed at N300,000 (Three Hundred Thousand Naira) to the Appellants.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My noble lord, Peter Olabisi Ige, JCA, had availed me in advance a draft copy of the leading judgment just delivered and I am in complete agreement with both the reasoning and the resolution of all the issues as well as the ultimate decision that the appeal succeeds in part.
My lords, the facts of this case are quite pathetic! It underscores the dangers posed to innocent road users by dangerous drivers who drive with scant or no regards at all to the lives, limbs and safety of other road users. The lower Court, despite the overwhelming evidence of the negligence of the driver of the Respondent’s DAF Tanker, simply but so regrettably, shut its eyes to the plight of the Appellants, and without any legal basis dismissed their claim contrary to the grain and flow of the evidence led as in the Record of Appeal, which clearly proved the claim of the Appellants to at least general damages for negligence.
Now, in claim founded principally on damages for negligence, the law is that the Claimant must plead and prove the three main ingredients of the tort of negligence, namely;
1. The Defendant owed the Claimant a duty to exercise due care;
2. That the Defendant failed to exercise due care or had breached the duty of care;
3. The Defendant’s failure was the cause of the injury suffered by the Claimant. See Tom Total Nig Ltd V. Skye Bank Plc (2017) LPELR-41953(CA) per Sir Biobele Abraham Georgewill, JCA. See also MTN Ltd. V. Mundra Ventures Nig Ltd (2016) LPELR-40343(CA) per Sir Biobele Abraham Georgewill, JCA; ISC Services Limited V. International Starchem Industries Limited (2019) LPELR-48842(CA) per Sir Biobele Abraham Georgewill, JCA.
The term negligence has been variously defined but the central key that runs through all such definitions is that it is an omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do or doing something which a reasonable and prudent man would not do. Thus, negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances or the doing of some act which a person of ordinary prudence would not have done under similar circumstances.
In order to establish negligence against a Defendant, one pertinent question arises for consideration and that is whether as between the alleged wrong doer and the person who has suffered damage, there is sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter? It is firmly established that a party who alleges negligence must plead the act or acts of negligence in sufficient details and which must be supported by credible evidence at the trial. See A.G Leventis Nig Plc V. Chief Christian Akpu (2007) 6 SC (Pt. 1) 239 or (2007) 17 NWLR (Pt. 1063) 416. See also Aku Nmecha Transport Services Nig. Ltd & Anor V. Atoloye (1993) 6 NWLR (Pt. 298) 233 at p. 248.
What then is negligence in law? Simply put negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulates the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do, once proved attracts redress in form of damages. See Hamza V. Kure (2010) 10 NWLR (Pt. 1203) 630 at p. 646.
The law on the tort of negligence appears to be fairly well settled. Generally, once a Claimant pleads and leads evidence which creditably and cogently, establishes a duty of care owed him by a Defendant, and the breach of that duty by the Defendant as well as the resultant damages, he is entitled to his claim for damages for negligence. See B. J. Ngilari V. Mothercat Ltd (1999) 13 NWLR (Pt. 636) 626. See also Oyidiobu V. Okechukwu (1972) 5 SC 191; Orhue V. NEPA (1998) 7 NWLR (Pt. 557) 187.
A Claimant in an action for damages for negligence may plead and rely on the particulars of negligence if they are known to him or he may rely on the plea of “res ipsa loquitor” meaning the facts speak for itself. The Appellants relied on the plea of res ipsa loquitor which the lower Court, with due deference, without proper interrogation held not to be applicable. Now, for the doctrine of res ipsa loquitur to apply, the following must be shown to co-exist namely:
1. Proof of the happening of an unexplained circumstance;
2. That the occurrence is one which could not have happened in the ordinary course of things without negligence on the part of somebody other than the Claimant, and
3. The circumstances point to the negligence in question being that of the Defendant rather than that of any other person. See Yebumot Hotel Ltd. V Chief Vitus Okafor (2005) All FWLR (Pt. 255) 1089 at p. 1106. See also Osigwe V. Unipetrol (2005) 5 NWLR (Pt. 918) 261; Ibekendu V. Ike (1993) 2 NWLR (Pt. 299) 287.
The doctrine of res ipso loquitur is simply a rule of evidence affecting the onus of proof. It is a rule of common sense which enables justice to be done when facts bearing on causation and the care exercised by the Defendant are at the outset unknown to the Claimant and are or ought to be within the knowledge of the Defendant. It is generally applicable to actions for injury by negligence when no proof of such negligence is required beyond the accident itself which is such as necessarily involves negligence. The maxim applies to shift the onus of proof from the Claimant to the Defendant. See Chudi Verdical Co. Ltd. V. I. I. (Nig.) Ltd. (2018) 16 NWLR (Pt. 1646) 520 at p. 540, where the Supreme Court per Nweze, JSC had opined inter alia thus:
“The Latin maxim, res ipsa loquitor, the thing speaks for itself, means that the mere fact that of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant.”
See also Yebumot Hotel Ltd. V Chief Vitus Okafor (2005) All FWLR (Pt. 255) 1089 at p. 1102; Ibekendu V. Ike (1993) 2 NWLR (Pt. 299) 287; Okeke V. Obidife (1965) All N.L.R 50.
In the leading judgment, the applicability or otherwise of the doctrine of res ipsa loquitor to the facts and circumstances of this case has been admirably and brilliantly considered and resolved in favor of the Appellants. This is more particularly so going by the established fact that at the point of impact, in the accident, the driver of the DAF Tanker of the Respondent had veered off his lane into the lane of the Appellants’ Mack Truck. I think the facts of this accident truly and really speaks for itself and the doctrine of res ipsa loquitor was applicable to shift the onus of proof from the Appellant unto to the Respondent how the accident had or could have happened without any negligence on the part of the Respondent. A burden had remained undischarged. The Appellants ought therefore, to have succeeded even before the lower Court.
It is for the above comments of mine but for the fuller details and reasoning as adroitly marshalled out in the leading judgment that I too hold that this appeal has merit and should be allowed in part. I too hereby allow the appeal in part and shall abide by all the consequential orders made in the leading judgment.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Peter Olabisi Ige, JCA. I agree with the lucid reasonings and the conclusion of my lord on this appeal. I adopt those reasonings as mine; by which I too find merit in this appeal and in consequence set aside the decision of the lower Court. I abide also by the award of damages and cost in favour of the Appellants in the sums ordered in the lead judgment.
Appearances:
JOHN AINETOR, ESQ. For Appellant(s)
E. T. ADEYEMI, ESQ. For Respondent(s)