ALI ABDUL-RAHMAN v. PASTOR RAPHAEL A. KADIRI
(2012)LCN/5100(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of January, 2012
CA/J/205/2006
RATIO
LAW OF EVIDENCE: ON WHOM LIES THE ONUS TO PROVE AN ASSERTION
The position of the law is that he who asserts must prove and it is only after the party asserting has proved his claim that the onus shifts to the defendant. See Section 135 of the Evidence Act. For these reasons, I have no hesitation in answering the first issue for determination in the negative. This is, the plaintiff has not sufficiently pleaded negligence and established it in evidence. It follows that he is not entitled to the reliefs claimed in the amended statement of claim. On the whole, the claim is dismissed in its entirety.” PER. CLARA BATA OGUNBIYI, J.C.A.
THE POSITION OF THE LAW ON ESTABLISHING A CLAIM OF NEGLIGENCE
The law is trite that for the Appellant to succeed in a claim of this nature, he must set out in his pleadings the particulars of negligence upon which he is relying in order to hold the Respondent liable. It is the act of pleading that should give way to leading evidence establishing the facts pleaded.
In the case of Onoguruwa v. Jamb (supra), this Court of pages 755 – 756 per Galadima JCA (as he then was) had this to say on the question of compensatory damages for negligence: “I do not think the Appellant is entitled. He did not establish before the lower Court any claim based on negligence. I find that there was no proper pleading of the act of negligence on the part of the respondent. There were no specific particulars of the alleged negligence. A party alleging negligence must not only plead the act or acts of negligence, but should also give specific particulars: See Aku Nmecha T.S. (Nig.) Ltd. v. S. D. Afoloye (1993) 6 NWLR (pt. 298) 233 at 238.” The appeal was accordingly dismissed. The same principle was also applied and re-emphasized in the case of Chagaury v. Yakubu (2006) 3 NWLR (Pt. 966) page 138 at 160 wherein reliance was by this Court made on the Supreme Court decision of the case of Ibeanu v. Ogbeide (1998) SCNJ 77: (1998) 12 NWLR (Pt. 576) at 12. Also the case of United Bonk for Africa Ltd. V. Achoru (1990) 6 NWLR (Pt. 156) 254 wherein the apex Court held thus at page 275.
“1. The onus is on the person alleging negligence to lead evidence and give particulars of the negligence. In the instant case, the court below was right in its decision that since the Appellants did not give evidence in proof of the alleged negligence of the Respondent, a case of contributory negligence was not made out.
2. Negligence is the failure to take reasonable care where there is a duty, and it is attributable to a person whose failure to take reasonable care has resulted in damages to another.” PER. CLARA BATA OGUNBIYI, J.C.A.
THE ACCEPTED REQUIREMENT TO PROVE THE CASE OF NEGLIGENCE
In the case of Anya v. Imo Concord Hotels & Ors. (2002) 12 NSCQR 231 cited by the Appellant’s counsel, the Supreme Court at page 245 in laying down the accepted requirement to prove the case of negligence had this to say: “For the defendant to be liable for negligence, there must either be an admission by him or sufficient evidence adduced to support a finding of negligence on his part. Such evidence may be direct or inferential depending on the circumstance of each particular case. See Benson v. Otubor (1975) 3 SC 9. “The proof in the nature of the case at hand is therefore dependent on evidence which must substantiate the facts alleged. The question of balance of probability is therefore the principle applicable. In the case of Owie v. Ighini (2005) 21 NSCQR 207 cited by the Appellant’s counsel for instance, the apex Court at pages 231-232 said: “In determining either balance of probability or preponderance of evidence, the trial court is involved in some weighing by resorting to the irregular scale of justice, adumbrated in Mogaji v. Odofin (1978) 3 SC 91 … the trial judge need not search for an exact mathematical figure in the weighting machine because there is in fact no such machine and therefore no figure, talk less of mathematical exactness. On the contrary, the trial judge relies on his judicial and judicious mind.” The general principle of law is that the onus of proof lies on the party who asserts. Section 135 of the Evidence Act is clear cut and opt wherein it says: “135(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 137(1) of the same Act also states: “(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.” The apex Court as rightly submitted by the learned Appellant’s counsel had interpreted the said Section 135 of the Evidence Act in the case of Archibong v. Ita (2004) 17 NSCQR 295 at 314-315 wherein their Lordships held amongst others that the burden of proof under sub-section 137 (1) of though general remains with the Plaintiff, it could also fluctuate with the state of pleadings. The determination of the issue at hand is therefore heavily dependent on the evidence by the witnesses of both parties, with particular reference having been made to the documents Exhibits 10 and 11. In the case of Osadebay v. Ikejiofor (2001) 8 NWLR (pt. 714) page 164 of 170 for instance, this court per Ba’aba JCA said: “… negligence is a question of fact not law, and it is a duty on he who asserts it to prove it, and unless the plaintiff is able to produce satisfactory evidence that the fire incident was cause by the defendant’s negligence, it is the duty of the trial court to dismiss the action and enter judgement for the defendant. Mere occurrence of an accident such as the fire incident in the instant case is not proof of negligence. see Ngilari v. Mother Cat Ltd. (1999) 13 NWLP (Pt. 636) 626.” A Plaintiff seeking relief in negligence therefore must plead such acts of negligence and prove same by adducing cogent and reliable evidence in support of the particulars of the negligent act alleged. See the authorities in the case of: UTB (Nig) Ltd. v. Ozoemera (2001) 7 NWLR (pt. 713) 718 at 733-734, Seismograph Services Ltd. V. Mark (1993) 7 NWLR (Pt. 314) 203 at 218 and Onogwuwah v. Jamb (2001) 10 NWLR (Pt.722) 742 at 755 -756. PER. CLARA BATA OGUNBIYI, J.C.A.
THE DEFINITION OF THE WORD “NEGLIGENCE”
The definition of the word “negligence” in general terms is taken as on omission to do something which a reasonable man guided by those considerations which ordinarily regulate human affairs could do or to do something which a reasonable and prudent man would not do. It is in other words a conduct, which falls short or below the standard as established by law for the protection of others against unreasonable risk or harm. PER. CLARA BATA OGUNBIYI, J.C.A.
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
ALI ABDUL-RAHMAN – Appellant(s)
AND
PASTOR RAPHAEL A. KADIRI – Respondent(s)
CLARA BATA OGUNBIYI, J.C.A.(Delivering the Leading Judgment): The Appellant herein, who was the Plaintiff of the trial court is the owner of a property situate in Jos and known as No. 18 Abattoir Rood, Jos. It was his case from his pleading of the trial Court that the property comprised of five bedrooms, a garage and a store. He let out the property to the Respondent then Defendant, Pastor Kadiri Raphael Ayodele who occupied same for about fourteen years. During this period, the Respondent denied the Appellant’s request to inspect the premises. The Appellant between the years 2000 and 2004 sought to recover the premises, and on the 25th of February, 2004, the Senior District Court Abattoir granted the Appellant’s prayer to inspect the premises. That the Respondent therefore only agreed the Appellant’s access to the premises on the 1st of March, 2005.
On the 26th of February, 2005, the Respondent who had moved out of the premises six months earlier returned to clear the over grown grasses. He was also on the premises on the 27th February, 2004 between 10.30a.m and 11.00a.m. The premises caught fire and burnt down completely. The police and Fire service did not buttress the Respondent’s claim that he lost properties in the incident neither did he lodge a report to that effect with the police. The Appellant however reported the incident to the police and the parties were advised to resolve the matter amicably. The Appellant rejected the Respondent’s offer of N150,000.00 on the premise that it was meager. The Appellant also alleged that he refused to accede to the Respondent’s request that the property be sold to him and as a result, the Respondent told him he would not give up possession peacefully. The Appellant in the circumstance relieved the fire started inside a room which only the Respondent had access since he had locked the room and the gates with his lock. Based on the foregoing the Appellant as Plaintiff therefore sought for the following reliefs from the Respondent as Defendant:
(a) A declaration that the fire incident that burnt the plaintiff’s property at No. 18 Abattoir Road Jos was an act of the defendant or occurred as result of the negligent act of the defendant by his failure to take proper care of the premises. Having vacated same for over six months retains possession forcefully.
(b) The sum of N500,000,00 (Five Hundred Thousand Naira) only being general damages for his deliberate and unlawful act of burning plaintiffs and the inconvinences caused the act.
(c) The sum of N1.1m (One Million and Hundred Thousand Naira) only being estimated by value Rebuilding plaintiffs property burnt down in the inferno.
(d) The sum of N100,000,00 (One Hundred Thousand Naira) only yearly from the months of March 2004 judgment being the yearly tenancy rate been earned by plaintiff as at time premises was burnt.
(e) The total utility bills in respect of water and electricity bills which is due and unpaid in the premises.
(f) The Sum of N250,000.00 being the solicitors fee paid to the firm of ALLEH OKPEH & for handling this matter and which represents approximately 10% of the total claim.
(g) 25% interest per annum on the judgement sum from the month of March 2005 till judgment and thereafter 10% per annum till full liquidation of the entire judgment debt.
(h) The cost of action.
The Respondent as Defendant in his statement of defence admitted renting the premises from the Appellant which he used for Church counselling in the morning hours. The Church encountered some financial difficulties and was unable to pay the rent. He pleaded with the Appellant for time to pay the rent but that he refused and rather commenced the Process of evicting him. The Respondent found it difficult to vacate because he had not found an alternative accommodation. He did not reside in the building and so did not use electricity for cooking. That the Appellant came to the premises and disconnected the electricity deliberately to set the premises ablaze or to allow for leakage of electric current resulting in the inferno. The Respondent denied being in the premises when it got burnt on the 27th of February, 2004.
Hearing commenced on the 1st of June, 2004 wherein the Appellant testified as PW1. He called six other witnesses who testified as PW2, PW3, PW4, PW5, PW6 and PW7. A total of eleven exhibits were tendered through these witnesses. The Respondent on his part called two witnesses, DW1 and DW2. He also testified on his behalf as DW3.
At page 122 of the record of appeal, the learned trial judge at the end of the evaluation and determination concluded and said: “after careful analysis, finding reveal that due to severity of the burning, it is not possible to detect or lay hand on material evidence that might have led to the cause of the fire.
Exhibits 10 and 11 clearly confirmed the fire incident at No. 1 Abattoir Road, Jos and no more. The exhibits could not identify the cause of the fire or the culprit. Similarly, neither the plaintiff nor his witnesses established these facts with any degree of certainty.
The position of the law is that he who asserts must prove and it is only after the party asserting has proved his claim that the onus shifts to the defendant. See Section 135 of the Evidence Act. For these reasons, I have no hesitation in answering the first issue for determination in the negative. This is, the plaintiff has not sufficiently pleaded negligence and established it in evidence. It follows that he is not entitled to the reliefs claimed in the amended statement of claim. On the whole, the claim is dismissed in its entirety.”
Against the foregoing deductions, the Appellant was dissatisfied and hence the filing of the notice of appeal on the 2nd June, 2006 and dated the same day. The notice which is at pages 123 – 126 of the record of appeal contains five grounds of appeal, which reproduction without the particulars are as follows:
Ground One:
The learned trial judge erred in law when he held that “I must say the particulars of negligence do not state precisely the breach of duty of care (sic) by the Defendant which led to the fire incidence.”?
Particulars of error supplied.
Ground Two
The learned trial judge erred in law when he held that “The plaintiff has not proved negligence to any degree of certainty.
Particulars of error supplied.
Ground Three
The learned trial judge misdirected himself on the evidence before him, to wit, exhibits 10 which is the police report and exhibit 11 which is the fire service reports when he held that exhibits 10 and 11 do not incriminate the defendant.
Particulars of misdirection supplied.
Ground Five
The learned trial judge erred in law when he in refusing to apply the principle in Anya v. Imo Concord Hotels (2002) 12 SCQP 232 as well as the holding in UTB (Nig) Ltd. v. Ozoemena (2001) 7 NWLP (Pt. 713) 716 at 793 – 734, held that the plaintiff must Prove the cause of fire to prove negligence against the Defendant.
Particulars of error supplied.
Ground Five
The learned trial judge erred in fact when he held the allegation that Defendant/Respondent burnt the premises is a mere conjecture.
Particulars of error supplied.
In accordance with the rules of Court, briefs were exchanged between the parties. The Appellant’s brief was dated 4th September and filed 5th September, 2006. That of the Respondent was undated but filed on the 25th October, 2006.
On the 20th October, 2011 when the appeal came up for hearing, the counsel Messrs Wilberforce Otuogouna and Bankole Falade appearing with Goselle Vining Nimnam for the Appellant and Respondent adopted and relied on their respective briefs of arguments. While the learned Appellant’s counsel urged that the appeal be allowed, a dismissal was sought on behalf of the Respondent.
From the five grounds of appeal filed both Appellant and Respondent each formulated four related issues which are very similar. The reproduction of those by the Appellant will therefore suffice and are as follows:
1. Whether the learned trial judge was right in holding that the appellant has failed to state the exact breach of duty owed him and have therefore failed to prove his case of negligence against the Respondent.
2. Whether the learned trial judge was right when he held that plaintiff has not proved negligence to any degree of certainty because the culprit and the cause of fire were not proved and whether this onus of proof has not shifted to the Respondent.
3. Whether Exhibits 10 and 11 heavily relied upon by the learned trial judge as well as the case of UTB v. Ozoemea (2001) NWLR (Pt.713) 718 at 733-4 to hold that Respondent was not negligent was correct.
4. Whether the learned trial judge was right in holding that the plaintiff’s claim that the Defendant burnt the Premises was a mere conjecture.
It is pertinent to restate on the onset that the totality of the Appellant/Plaintiff’s case as can be gleaned from his claim on the pleadings is a complaint predicated on an allegation of negligence levied against the Respondent. For the determination of this appeal therefore, I shall adopt the following two issues as sufficient and all inclusive.
(1) Whether the learned trial judge erred in holding that the Appellant had failed to sufficiently plead the allegation of negligence as borne out on his pleadings.
(2) Whether from all deductions the learned trial judge erred in holding that the appellant/plaintiff had failed to prove the allegation of negligence to any degree of certainty because the culprit and the cause of fire were not proved and whether this onus of proof had shifted to the Respondent.
The said second issue will encompass the 3rd and 4th issues by the parties on the effect of Exhibits 10 and 11 upon which the learned trial judge relied and therefore dismissed the Appellant’s/Plaintiff’s claim as mere conjecture.
Pages 122 of the deductions arrived at by the learned trial judge in his judgment had been reproduced earlier in the course of this judgment. In other words the trial Court held amongst others that: “the plaintiff has not sufficiently pleaded negligence and established it in evidence.”?
On behalf of the Appellant, his learned counsel extensively dwelt on the aspect establishing the allegation of negligence which he emphatically submitted that same had been proved. Reliance was made on the evidence adduced by their witnesses as well as the plethora of authorities cited in support of their position. I would at this point also hasten to add that on a careful scrutiny of the findings by the learned trial judge as reproduced earlier, it is crystal clear that the competence of the Appellant’s pleadings was thrown into question wherein the court said:
“the plaintiff has not sufficiently pleaded negligence…”?
There is in other words no submission by the Appellant on this point requiring a clear and specific setting out particulars of negligence which was to form the basis of reliance for proving such an allegation. The Appellant had totally neglected this aspect as insignificant. The law is trite and well settled that evidence led on facts not pleaded go to no issue. The existence of a body is very essential for the head to function and visa versa. In the same way therefore no evidence will be meaningful in the absence of pleaded facts upon which to exist. The learned Appellant’s counsel had in the circumstance put the cart before the horse. The evidence would only survive on pleadings without which it would be built on nothing. This is despite the fact that the two are interwoven and ought to have been taken together. The learned Appellant’s counsel, I hold had totally misunderstood the significance of the essentiality of having to plead the particulars of negligence and hence the failure to address thereon.
On behalf of the Respondent however, his learned counsel on the totality submitted that in the absence of pleading particulars of negligence, the said allegation could not have been proved against his client. Counsel to buttress his submission cited the case of Onoguruwa v. Jamb (2001) 10 NWLR (Pt.722) Page 742 at 755 to 756. In his further argument he also related to Paragraph 24(a) to (f) of the Appellant’s pleadings as “Purported pleaded particulars of negligence”. The learned trial judge, counsel submitted was therefore right in dismissing the suit.
The law is trite that for the Appellant to succeed in a claim of this nature, he must set out in his pleadings the particulars of negligence upon which he is relying in order to hold the Respondent liable. It is the act of pleading that should give way to leading evidence establishing the facts pleaded.
In the case of Onoguruwa v. Jamb (supra), this Court of pages 755 – 756 per Galadima JCA (as he then was) had this to say on the question of compensatory damages for negligence:
“I do not think the Appellant is entitled. He did not establish before the lower Court any claim based on negligence. I find that there was no proper pleading of the act of negligence on the part of the respondent.
There were no specific particulars of the alleged negligence. A party alleging negligence must not only plead the act or acts of negligence, but should also give specific particulars: See Aku Nmecha T.S. (Nig.) Ltd. v. S. D. Afoloye (1993) 6 NWLR (pt. 298) 233 at 238.” The appeal was accordingly dismissed.
The same principle was also applied and re-emphasized in the case of Chagaury v. Yakubu (2006) 3 NWLR (Pt. 966) page 138 at 160 wherein reliance was by this Court made on the Supreme Court decision of the case of Ibeanu v. Ogbeide (1998) SCNJ 77: (1998) 12 NWLR (Pt. 576) at 12. Also the case of United Bonk for Africa Ltd. V. Achoru (1990) 6 NWLR (Pt. 156) 254 wherein the apex Court held thus at page 275.
“1. The onus is on the person alleging negligence to lead evidence and give particulars of the negligence. In the instant case, the court below was right in its decision that since the Appellants did not give evidence in proof of the alleged negligence of the Respondent, a case of contributory negligence was not made out.
2. Negligence is the failure to take reasonable care where there is a duty, and it is attributable to a person whose failure to take reasonable care has resulted in damages to another.”
At paragraphs 24(b) to (f) of the Appellant’s/Plaintiff’s pleadings at page 28 of the record of appeal, the Appellant pleaded thus:
PARTICULAR5 OF NEGLIGENCE
“(a) For four years plaintiff have been making efforts including legal and informal means to recover premises from Defendant all of which were frustrated by Defendant.
(b) Defendant deprived plaintiff any access to the premises throughout the period steps were being taken to recover.
(c) Defendant’s tenancy expired on the 31st day of December, 2003 yet he refused to surrender possession even when he was not caring for the premises nor was he living on the premises.
(d) Defendant packed out of the premises long before the expiring date of Tenancy as well as the incident yet he refused to give up possession of the premises.
(e) A court directive that Defendant open the premises for plaintiff to inspect was refused by Defendant on the 25th February, 2004 and premises got burnt on the 27th day of February, 2004.
(f) Defendant sent same persons to the premises to clear the grass on the 26th day of February, 2004 while the premises got burnt on 27th day of February, 2004.”?
As rightly submitted by the learned Respondent’s counsel, the said particulars pleaded therein merely narrated the relationship of landlord and tenant as well as the efforts made by the Appellant to recover the premises from the Respondent before it was burnt on 27th February, 2004. There is also nowhere in the pleadings where the Appellant alleged that the Respondent either by himself, his agent, acts of omission or commission was responsible for the burning down of the premises. The particulars pleaded did not also show the cause of the fire. Rather and at best they merely speculated on the acrimony of the soured relationship that existed between the Appellant and Respondent prior to the fire incident that burnt down the premises. It is trite law that the mere occurrence of an incident per se does not in any way attach negligence to the Respondent. In the absence of the Appellant failing to plead any fact of negligence on the part of the Respondent, the learned trial judge was on course in arriving at o defect detected on the pleadings. It is trite and as pronounced in plethora of decided authorities that parties are bound by their pleadings. The implication also holds true that any evidence given on facts not pleaded goes to nothing and should be disregarded. A party cannot do without pleadings as it serves a binding sphere of confinement.
For all intent and purpose therefore I hold the view that the 1st issue raised is resolved against the Appellant. In other words, with the Appellant having failed to state the exact breach of duty owed him by the Respondent, the trial court was right in holding that the Appellant had failed to sufficiently plead the allegation of negligence on his pleadings. Having resolved thus for, the issue as it were would have been sufficient to dispose of the entire appeal. However and that notwithstanding, the intermediary nature of this court would require that I proceed with the second issue wherein the case was taken on the merit and which relates to proof of negligence.
A careful perusal of the entire gamut of the Appellant’s brief, reveals that it is centred on the overwhelming evidence on the alleged negligence levied against the Respondent. The summary of submission by the learned Appellant’s counsel in totality is for instance very instructive wherein he urged that this Court should take into account the Landlord and Tenant established relationship which has satisfied the neighbour principle of duty of care between parties. In other words that the Respondent owes the Appellant that duty of care over the destroyed property which he woefully and negligently abdicated the responsibility in the discharge of same. The learned counsel proceeded to outline his reasons for such conclusive deduction against the Respondent when he:
(a) vacated the premises without placing same under the care of anybody for a period of six months and thus resulting in the destruction of the property without any explanation.
(b) Allowed the premises to be over grown by grasses which was cleared only hours before the incident which burning of the debris the plaintiff/appellant asserted was the cause of the destruction of his property.
(c) From antecedents of his action he deliberately refused to conduct himself diligently and which could have averted the incident.
(d) Duly admitted and without controverting any of the assertions of the appellant, that the admissions which are sufficient for the trial court to have held in favour of the appellant even without further proof.
The learned counsel further submitted that Exhibits 10 and 11 which were heavily relied upon by the trial court to hold in favour of the Respondent, had rather heavily implicated and indicted him (Respondent).
Counsel on the totality re-iterated that from the antecedents of and conduct of the Respondent all point to an irresistible conclusion that he and only he must have burnt down the property to spite the Appellant as a result of a long standing enmity that have developed between them over the years.
The learned counsel submitted further and in the alternative urged that the Court should make an order sending the matter back for retrial before another judge of the Plateau State High Court.
On behalf of the Respondent, his counsel submitted on the totality that contrary to the contention by the Appellants counsel, no evidence was led to prove the negligence levied against his client the (Respondent) as a consequence, therefore, that the learned trial judge was right in dismissing the suit. The counsel also applauded the learned trial judge in holding as a mere conjecture the allegation that the Respondent burnt down the Appellant’s house. The trial judge, counsel submitted carefully reviewed the evidence before her and found that none of the witnesses who testified confirmed the negligence against the Respondent that he was responsible for causing the fire. The counsel on the totality urged in favour of dismissing the appeal as lacking in merit.
While the Appellant submitted and argued their having proved the Respondent’s liability and that he owed him the duty of care over the destroyed property as he was negligent, the Respondent however submitted the contrary.
In the case of Anya v. Imo Concord Hotels & Ors. (2002) 12 NSCQR 231 cited by the Appellant’s counsel, the Supreme Court at page 245 in laying down the accepted requirement to prove the case of negligence had this to say:
“For the defendant to be liable for negligence, there must either be an admission by him or sufficient evidence adduced to support a finding of negligence on his part. Such evidence may be direct or inferential depending on the circumstance of each particular case. See Benson v. Otubor (1975) 3 SC 9.”
The proof in the nature of the case at hand is therefore dependent on evidence which must substantiate the facts alleged. The question of balance of probability is therefore the principle applicable. In the case of Owie v. Ighini (2005) 21 NSCQR 207 cited by the Appellant’s counsel for instance, the apex Court at pages 231-232 said:
“In determining either balance of probability or preponderance of evidence, the trial court is involved in some weighing by resorting to the irregular scale of justice, adumbrated in Mogaji v. Odofin (1978) 3 SC 91 … the trial judge need not search for an exact mathematical figure in the weighting machine because there is in fact no such machine and therefore no figure, talk less of mathematical exactness. On the contrary, the trial judge relies on his judicial and judicious mind.”
The general principle of law is that the onus of proof lies on the party who asserts. Section 135 of the Evidence Act is clear cut and opt wherein it says:
“135(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
Section 137(1) of the same Act also states:
“(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
The apex Court as rightly submitted by the learned Appellant’s counsel had interpreted the said Section 135 of the Evidence Act in the case of Archibong v. Ita (2004) 17 NSCQR 295 at 314-315 wherein their Lordships held amongst others that the burden of proof under sub-section 137 (1) of though general remains with the Plaintiff, it could also fluctuate with the state of pleadings.
The determination of the issue at hand is therefore heavily dependent on the evidence by the witnesses of both parties, with particular reference having been made to the documents Exhibits 10 and 11.
In the case of Osadebay v. Ikejiofor (2001) 8 NWLR (pt. 714) page 164 of 170 for instance, this court per Ba’aba JCA said:
“… negligence is a question of fact not law, and it is a duty on he who asserts it to prove it, and unless the plaintiff is able to produce satisfactory evidence that the fire incident was cause by the defendant’s negligence, it is the duty of the trial court to dismiss the action and enter judgement for the defendant. Mere occurrence of an accident such as the fire incident in the instant case is not proof of negligence. see Ngilari v. Mother Cat Ltd. (1999) 13 NWLP (Pt. 636) 626.”
A Plaintiff seeking relief in negligence therefore must plead such acts of negligence and prove same by adducing cogent and reliable evidence in support of the particulars of the negligent act alleged. See the authorities in the case of: UTB (Nig) Ltd. v. Ozoemera (2001) 7 NWLR (pt. 713) 718 at 733-734, Seismograph Services Ltd. V. Mark (1993) 7 NWLR (Pt. 314) 203 at 218 and Onogwuwah v. Jamb (2001) 10 NWLR (Pt.722) 742 at 755 -756.
The definition of the word “negligence” in general terms is taken as on omission to do something which a reasonable man guided by those considerations which ordinarily regulate human affairs could do or to do something which a reasonable and prudent man would not do. It is in other words a conduct, which falls short or below the standard as established by law for the protection of others against unreasonable risk or harm.
From the pleadings of both parties especially with reference to paragraphs 23, 24 and 25 of the Appellant/Plaintiff’s amended statement of claim and paragraphs 16 and 17 of the Respondent/Defendants’ statement of defence, it is on admitted fact that the premises was gutted by fire on the 27th February, 2004. The evidence adduced by the Plaintiff’s witnesses was also in proof of the fact. For the Plaintiff to succeed on his claim on the reliefs sought, the expectation or burden placed on him is beyond establishing the fact of fire incident. In other words, he must have established that the fire incident resulted from the specific act of the Defendant/Respondent. The evidence of sour and frosty relationship between the parties was not enough a reason and proof against the Respondent as alleged. It must for instance be shown categorically that the Respondent did or failed to do something and by that reason, the Premises was gutted by fire. Relevant in support are the cases of Alhaji Otaru & Sons Ltd. V. Idris (1999) 6 NWLR (Pt. 606) page 330 at 342; Oluigbo v. Umeh (2004) 6 NWLR (Pt. 780) 621 at 645 and UBA Ltd. V. Achoru (1990) 6 NWLR (Pt. 156) page 245 at 275 where a duty lies on him who asserts negligence to prove same. The Appellant who by his evidence testified that his property got burnt on the 27/2/2006. he did not however like his other witnesses, know how the property was burnt.
The learned Appellant’s counsel in his further submission did also heavily rely on Exhibits 10 and 11 which were tendered with a view of proving negligence on the part of the Respondent. The two documents are the reports of the police investigation and that of the Plateau State Fire Service Directorate respectively. Certain extracts from the said two reports will gives clear deduction and extent of reliance thereon. In other words with reference to Exhibit 10, it concluded thus:
“From the facts highlighted, no prima facie case by way of circumstantial evidence has been established against the suspect Pastor Raphael Ayodele Kadiri…”
Exhibit 11 also had thus and said:
“However, after careful analysis, findings revealed that due to severity of the burning, it is not possible to defect or lay hand on material evidence that might have led to the cause of the fire.”
At page 40 of the record of appeal, the Plaintiff /Appellant as PW1 had this to say in his evidence under cross-examination:
“I can only assume that the Respondent set the house on fire because he went to the fire service to report almost immediately the fire started.”
As rightly submitted by the learned Respondent’s counsel, prove of negligence is never a matter of an assumption but is on issue of proof on preponderance of evidence. See Nigerian Bottling Co. Plc v. Borgundu (1999) 2 NWLR (Pt. 591) page 408 at 427. From the documents Exhibits 10 and 11 also, no evidence of “kinsman relationship” was established between the Respondent and the makers of the documents for purpose of operating bias in favour of the Respondent.
Even at the risk of repeating myself, I would again for purpose of recapitulation and explanation reproduce the findings by the learned trial judge at page 122 of the record of appeal wherein he held and said:
“The exhibits could not identify the cause of the fire or the culprit. Similarly, neither the plaintiff nor his witnesses established these facts with any degree of certainty.”
The said findings and conclusions I hold is in the right direction and unassailable having regard to the evidence both oral and documentary before the Court. With the conclusion arrived that there is no evidence of negligence proved against the Respondent, thereat the only and reasonable deduction is as rightly concluded by the learned trial judge in holding that the allegation as postulated by the plaintiff was nothing but a mere conjecture.
On whether or not the learned trial judge appropriately applied the principle in the cases of Anyan v. Imo Concord Hotels NSCQR 252 and UTB (Nig) Ltd. V. Ozoemena (supra) and thus dismissed this suit. It is expedient to state that the principle underlying the said cases is to the effect that for a Defendant to be held liable in negligence, the facts must be established of his having behaved or did something which a prudent and or reasonable person would not have done in the circumstance. That the conduct of such Defendant must have also fallen below the standard established by law as generally defined earlier in the course of this judgment. As rightly submitted by the learned Respondent’s counsel, the trial Court in applying the above principles did not find that the Respondent behaved in an unreasonable manner in the matter of the fire incident that gutted the Appellant’s property. In other words, I hold that the Respondent as revealed by evidence took every reasonable steps in keeping the premises tidy by clearing all weeds and the environment prior to the incidence. He therefore took all reasonable precautions in the circumstances and as such he was rightly found not liable of negligence in respect of the incident. The finding by the learned trial judge in dismissing the claim against the Respondent was a step in the right direction. The submission by the learned Appellant’s counsel that the Respondent purposefully burnt down the property to avoid the claim before the District Court and also spite the Appellant cannot be substantiated but a sheer misconception. In other words the submission has not been substantiated by evidence given on oath. See the case of Moghalu v. Wobo (2004) 17 NWLR (pt. 903) page 647.
The trial Court I hold properly arrived at the findings that the submission is a mere conjecture not buttressed by evidence adduced before him and therefore rightly proceeded and dismissed same as mere opinion or idea. See also the case of Adeye v. Adesanya (2001) 6 NWLR (pt. 708) page 1 at 10; Agidigbi v. Agidigbi (1992) 2 NWLR (Pt. 221) 98 at 115 and Lawan v. Yama (2004) 9 NWLR (Pt. 877) 117 at 140. The said issue is also resolved against the Appellant.
On the totality of this appeal and with both issues resolved against the Appellant, the appeal I hold is devoid of any merit. Same is therefore dismissed while the judgment of the trial Federal High Court held in Jos and delivered on the 13th March, 2006 and dismissing the entire claim, is hereby of firmed and upheld. Each party is to bear the costs of the appeal. Appeal is hereby dismissed with no order made as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, CLARA BATA OGUNBIYI, JCA.
I concur with the reasoning and conclusion reached therein. I too hold that this appeal is devoid of merit and ought to be dismissed.
The judgment of the trial Federal High court held in Jos and delivered on the 13th day of March, 2006 dismissing the entire claim is also hereby affirmed. I abide by my Lord’s order as to cost.
Appearances
WILBERORCE OTUIA GOWLA Esq. For Appellant
AND
BANKOLE FALADE Esq. with GOSELLE VINING NIMNAN Esq. For Respondent
