RATIO
TORT: INGREDIENTS OF THE TORT OF NEGLIGENCE- DUTY OF CARE
The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail. [italics supplied].
See, also, Benson v. Otubor [1975] 3 SC 19; Okoli v. Nwagu [1960] SCNLR 48; [1960] 3 FSC 16; Nigeria Airways Ltd. v. Abe [1988] 4 NWLR (Pt. 90) 524; Strabag Construction (Nig) Ltd. v. Ogarekpe [1991] 1 NWLR (Pt. 170) 733. Per CHIMA CENTUS NWEZE, J.C.A.
WHETHER THE MAXIM, RES IPSA LOQUITUR, REPRESENTS A PRINCIPLE OF LAW
Now, in the Anglo-Nigerian Law of Tort, the maxim volenti non fit injuria [which must not be confused with the maxim scienti non fit injuria], also, called “assumption of risk,” or “voluntary assumption of risk,” operates as a defence to a tort, see, W. V. H. Rogers, Winfield and Jolowicz, Tort, (London: Sweet and Maxwell, 2006) [Seventeenth edition] paragraph 25-11, page 1071; paragraph 25.2, page 1058; D. Howarth “General Defences,” in A. Grubb (ed), Butterworths’ Common Law series, The Law of Tort (London: LexisNexis, 2002), paragraph 5. 52, page 170; Phiilip Obiora v. Paul Osele [1989] 1 NWLR (Pt. 97) 179, 299-300; Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1; Ariori and Ors v. Elemo and Ors [1983] 1 SC 13, 26; Koya v. UBA Ltd [1997] 1 NWLR (Pt. 481) 251, 268.
The eminent editors of the fourth edition of Clark and Lindsell on Torts at paragraph 107 opine that the maxim represents “the self evident axiom that one who consents to injury cannot be heard to complain of it thereafter.” Thus a person who makes an agreement with another either expressly, or by necessary implication, to run the risk of injury, caused by that other cannot recover damages caused to him by any risk he agreed to run. As a defence, it must be specifically pleaded, James v. Wellington City (1972) N. ZLR 879; Ashton v. Turner (1980) 3 All ER 870.
Due to its effectiveness in “obstructing the path of plaintiffs who had been injured at work,” D. Howarth “General Defences” (supra), Diplock LJ, once noted that the maxim “in the absence of express contract, has no application to negligence simpliciter where the duty of care is based solely on proximity or ‘neighbourship’ in the Atkinian sense,” Wooldridge v. Summer [1963] 2 QB 43, 69; [1962] 2 All ER 978, 990; see, however, Imperial Chemical Industries Ltd v. Shatwell [1965] AC 656; [1964] 2 All ER 999 [per Lord Pearce]; Nettleship v. Weston [1971] 2 QB 691; [1971] 3 All ER 581 [per Lord Denning] and, more recently, Reeves v. Metropolitan Ploce Comr [2000] 1 AC 360; [1999] 3 All ER 897 [per Lord Hobhouse].
On the other hand, there is unanimity of scholastic and judicial views that the maxim, res ipsa loquitur, does not represent a principle of law, D. Howarth “General Defences” (supra) paragraph 13-46, page 625; Ratcliffe v. Plymouth and Torbay Health Authority [1993] Lloyd’s Rep Med 162, 177. Indeed, Morris LJ, aptly, described the maxim as a “convenient formula” possessing no magical qualities, Roe v. Minister of Health [1954] 2 QB 66, 87. According to Hobhouse LJ in Ratcliffe v. Plymouth and Torbay Health Authority (supra):
Res ipsa loquitur is not a principle of law; it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case is being made out. When expert or factual evidence has been called on both sides at a trial its usefulness will normally have long been exhausted.
See, however, per contra, Maham v. Osborne (1973) 2 KB 14; (1939) 1 All ER 535 to the effect that “the doctrine…is premised on two rebuttable assumptions, namely, that the event happened as a result of breach of duty of care that somebody owes his neighbour and that somebody is the defendant.” Nigerian courts have, also, held the doctrine to be a rule of evidence, Management Enterprises Ltd and Anor v. Jonathan Otusanya (1987) LPELR-1834 (SC); Chanchangi and Sons Ltd v. N.R.C. Ltd [1996] 5 NWLR (Pt. 446) 46; UBN Ltd v. Umeh and Sons Ltd [1996] 1 NWLR (Pt. 426) 565.
The said Latin maxim, res ipsa loquitur, [the thing speaks for itself], whose essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant, W.V.H. Rogers, Winfield and Jolowicz, Tort, (supra), paragraph 5-81, page 261, only operates under certain conditions. They are:
(1) Proof of the happening of an unexplained occurrence;
(2) The occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
(3) The circumstances must point to the negligence in question being that of the defendant rather than that of any other person,
See, PSHS Management Board and Anor v. Goshwe (2012) LPELR-9830 (SC), citing Royal Ade Nig Ltd v. NOCM Co. Plc [2004] 8 NWLR (Pt. 874) 206. Per CHIMA CENTUS NWEZE, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANKWU Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
ETUKUDO EKEFERE NSIMA Appellant(s)
AND
NIGERIAN BOTTLING COMPANY Respondent(s)
CHIMA CENTUS NWEZE, J.C.A.:(Delivering the Leading Judgment): At the High Court of Akwa Ibom State, Eket Judicial Division, the appellant in this appeal [as Plaintiff] commenced an action by a Writ of Summons against the respondent herein [as defendant] He claimed the following reliefs:
(a) Declaration that the defendant was negligent in the manner of bottling its products, which negligence has caused injury to the plaintiff;
(b) Fifty Million Naira (N50,000,000.00) being general and exemplary damages for negligence.
Pleadings were, duly, settled, viz, the Statement of Claim; Statement of Defence and Reply to the Statement of Defence. Parties, also, amended their pleadings, thus: Amended Statement of Defence and Amended Reply to the Amended Statement of Defence. The matter went on trial. Three witnesses including the plaintiff himself [as PW1), testified in proof of the plaintiff’s case. PW2 and PW3 were the dealers who, allegedly, sold the defendant’s supposed product and the Medical Doctor who allegedly, treated the plaintiff, respectively.
The defendant, stoutly, resisted the plaintiff’s case through its two witnesses DW1, Quality Assurance Manager and DW2, a medical practitioner from the Abia State University Teaching Hospital, respectively. In its judgment, the court (hereinafter referred to as the lower court) dismissed the plaintiff’s case in its entirety. Dissatisfied with the outcome of his case at the lower court, the plaintiff appealed to this court. He formulated four issues for the determination of his appeal. They were framed thus:
(1) Whether the judgment of the trial court is supported by the weight of evidence adduced by the parties?
(2) Whether the doctrine of res ipsa loquitur applies to this case?
(3) Whether, having regard to the failure of the plaintiff/appellant to call other eye witnesses, the plaintiff/appellant had failed to prove negligence by withholding evidence?
(4) Whether the injury suffered by the plaintiff/appellant was related to his consumption of the contaminated product of the defendant/ respondent?
On its part, the respondent set out three issues for the resolution of this appeal. In addition, they cross appealed and put forward a lone issue for its resolution. We shall return to this later in this judgment. Its three issues for the determination of the main appeal were couched thus:
(1) Whether the learned trial Judge was not right in holding that the doctrine of Res Ipsa Loquitur did not apply to this case having regard to the state of the pleadings and evidence before him?
(2) Whether having regard to the pleadings and evidence before the court, the learned trial Judge was not right when he invoked and applied the provisions of Section 149(d) of the Evidence Act, 2004, to hold that the appellant’s failure to produce the evidence of the two eye witnesses who allegedly saw him consume exhibit “B” and discovered a decomposed cockroach therein, was fatal to the appellant’s case?
(3) Whether the plaintiff/appellant proved his allegation of negligence against the defendant/respondent and in particular that he suffered any injury or damage resulting from the alleged consumption of exhibit “B”?
We have, carefully, looked at the two sets of issues which the parties put forward. We take the view that the three issues of the respondent are more germane a propos the gravamen of the complaint in the Notice and Grounds of Appeal. Above all, issues one and four in the appellant’s brief could be, neatly, accommodated in the respondent’s third issue. For the avoidance of doubt, therefore, this appeal would be determined based on the following three issues:
(1) Whether the learned trial Judge was not right in holding that the doctrine of Res Ipsa Loquitur did not apply to this case having regard to the state of the pleadings and evidence before him?
(2) Whether having regard to the pleadings and evidence before the court, the learned trial Judge was not right when he invoked and applied the provisions of Section 149(d) of the Evidence Act, 2004, to hold that the appellant’s failure to produce the evidence of the two eye witnesses who allegedly saw him consume exhibit “B” and discovered a decomposed cockroach therein, was fatal to the appellant’s case?
(3) Whether the plaintiff/appellant proved his allegation of negligence against the defendant/respondent and in particular that he suffered any injury or damage resulting from the alleged consumption of exhibit. “B”?
ARGUMENTS OF COUNSEL ON THE ISSUE
ISSUE ONE
Whether the learned trial Judge was not right in holding that the doctrine of Res Ipsa Loquitur did not apply to this case having regard to the state of the pleadings and evidence before him?
(Issue 2 in the appellant’s brief)
APPELLANT’S SUBMISSIONS
When this appeal came up for hearing on November 18, 2013, counsel for the appellant, F.E. Ekanem, adopted the appellant’s brief which was settled by Idongesit Jackson and deemed properly, filed on November 5, 2012. Ekanem, also, adopted the reply brief, equally, settled by Idongesit Jackson and deemed properly, settled on November 18, 2013.
In the said brief, counsel rested his arguments on the categorical submission that the doctrine of Res Ipsa Loquitur applied to the case of the appellant citing Ojo v. Gharoro (2006) All FWLR (Pt. 316) 197, 204-205. Somewhat curiously, he placed reliance on the lower court’s findings with respect to the availability of the defence of volenti non fit injuria on page 176 of the record.
Emboldened by his interpretation (or rather misinterpretation) of the lower court’s findings at page 176 of the record, counsel contended that the lower court was under a duty to presume negligence [page 3 of the brief]. Whereas the lower court’s finding on the said page was on the availability of the defence of volenti non fit injuria to the defendant/respondent “to negative the duty of care which the manufacturer owes to the consumer,” learned counsel for the appellant turned to the “effect of the plea of res ipsa loquitur, [which is to afford prima facie evidence of negligence and to shift the onus on the defendant/respondent to show either of the two conditions enunciated in case law,” citing Ifeagwu v. Tabansi Motors Ltd (1972) 2 ECSLR 790, 755; Ejisun v. Ajao (1975) NMLR 4, 6, [page 3 of the appellant’s brief].
He invited this court to note that neither DW1 nor DW2, specifically testified that it was the plaintiff/applicant (or any particular person for that matter) who tampered with the products of the defendant/respondent and inserted the foreign object, so as to make the claim frivolous. He observed that, throughout the trial, the defendant/respondent did not carry out any test or demonstration and did not offer any explanation as to why it failed to do so. He urged the court to apply Section 149 (d) of the Evidence Act in presuming that the defendant withheld the evidence knowing that, if produced, it would be unfavourable to its case. He cited Omotosho v. Ojo [2008] All FWLR (Pt. 408) 389, 392-393; Chemiron International Ltd v. Egbujuonuma [2007] All FWLR (Pt. 395) 444, 449.
Counsel noted that the plaintiff/appellant joined issues with the defendant/respondent on the alleged interference when he denied the alleged interference by paragraph 4 of the Amended Reply, page 62 of the record. In his view, if the entire content of the bottle [liquefied gas] solidified as suggested by DW1, there would be no space in the bottle for one to insert any foreign object. On the whole, he submitted that the defendant/respondent had failed to prove interference with its products, which it was under a duty to prove, Grant v. Australian Knitting Mills Ltd (1936) AC 85; Kodilinye, The Nigerian Law of Torts (London: Sweet and Maxwell, 1982) 54-56.
He submitted that the defendant/respondent had, equally, failed to prove that it used reasonable care in the production of the product. He maintained that the duty to supply evidence as to the standard of care in relation to the other aspects of the defendant/respondent’s production process was that of the defendant/respondent, as it constituted a fact especially within the knowledge of the defendant/respondent. By Section 142 of the Evidence Act, the respondent was under a duty to prove it.
He pointed out that the plaintiff/appellant had denied that the respondent washed or inspected its bottles as alleged. He noted that the DW1 testified that bottles with stubborn dirt were first subjected to manual wash [page 148 of the record]. In his view, this was an indication that machine wash of such bottles would ordinarily not remove the dirt. He observed that the DW1 testified that the duty of the bottle inspector was to remove any bottle seen to contain foreign objects from the conveyor. According to him, this implied that the ones which were not seen by the inspector passed on to the consumer.
He maintained that the evidence of the respondent at the trial was too porous, unreliable and manifestly insufficient to displace the presumption of negligence on its part or to discharge the onus that it used reasonable care in the production of its products, NBC Co. Plc v. Nwaneri (2000) 14 NWLR (Pt. 686) 30. In his view, to displace the doctrine of res ipsa loquitur or exclude its applicability, it must be proved that the facts of the accident or incident or injury were sufficiently known to the plaintiff/appellant or that the respondent had given an explanation as to how the accident or injury occurred. He submitted that the inference drawn and conclusion which the lower court reached on the above-quoted pieces of evidence are incorrect and were not borne out by the available evidence, Aliyu v. Aturu (1999) 7 NWLR (Pt. 612) 540. He maintained that the conclusion which the lower court arrived at is totally unsupported by the evidence adduced at the trial. In his view, this affords a special circumstance justifying this court’s interference with the findings of the fact which the lower court made. He submitted that the said doctrine applied to this case.
RESPONDENT’S SUBMISSIONS
Counsel for the respondent, C. C. Elele, on his part, adopted the respondent’s brief filed on filed on February 6, 2013. He, first, dealt with what he called a preliminary issue, namely, the appellant’s mix up or misrepresentation of the lower court’s decision on the doctrine of res ipsa loquitur.
He pointed out that the appellant quoted a portion of the judgment out of con in his brief. He explained that the lower court’s observation on pages 175-176 of the record was in relation to volenti non fit injuria. According to him, the lower court neither made any categorical statement or finding to the effect that the appellant proved his allegation of negligence nor the applicability of the doctrine of res ipsa loquitur.
He observed that the lower court, in considering the applicability of the said doctrine, referred to paragraph 11 of the appellant’s Statement of Claim; paragraph 16 and 17 of the Amended Statement of Defence wherein the parties pleaded the said doctrine, respectively, page 76 of the record. He noted that the lower court, rightly, observed that the expression res ipsa loquitur literally means “the thing speaks for itself.” According to counsel, whether, therefore, the doctrine will apply or not, is to be determined on the truly known facts averred in the pleadings and proved in evidence, Flash Fixed Odds Ltd v. Akatugba [2001] 9 NWLR (Pt. 717) 46, 61; Royal Ade Nig Ltd v. NOCM Co. Plc [2004] 8 NWLR (Pt. 874) 206, 233-244; NBC v. Vitus Nwaneri [2000] 14 NWLR (Pt. 686) 30, 40-41.
He submitted that, in the instant appeal, the appellant appreciated the point that the said doctrine of res ipsa does not apply in vacuo. He pointed out that the facts in support of the appellant’s reliance on the doctrine of res ipsa could be found in paragraphs 4; 5; 6; 11 and 12 of the statement of claim, pages 11 and 12 of the record and paragraphs 3(a) (b) (c) and (d) of the Amended Reply to the Amended Statement of Defence, pages 61-65. He pointed out that, in relation to the further onus of the appellant to plead and prove that the appellant sustained some injury or damage as a result of the alleged consumption of exhibit B, the lower court found against the appellant. The court held that he neither pleaded nor proved any injuries/damages as a result, and in particular, that any injury which he, allegedly, suffered, cannot be related to the consumption of exhibit B.
He further contended [this formed the basis of the cross appeal] that there was, equally, no proof that exhibits B; C; and D were products of the respondents. He maintained that the appellant’s attempt through the PW1 and exhibit M to link the respondent with the bottling of exhibits B-D was ineffective having regard to the appellant’s pleading in paragraphs 3 (a) and (b) of his Amended Reply to the Defendant’s Amended Statement of Defence vis-a-vis exhibit M. He pointed out that exhibit M showed beyond doubt that it was factually impossible for the plaintiff to have purchased exhibits B-D from PW2 on April 8, 2003 or drunk exhibit B on April 20, 2003, respectively, when by exhibit M, the PW2 had not started any business with the defendant and that his first purchase of the defendant’s product was on May 27, 2003 almost two months after the plaintiff had purchased and drunk exhibit B.
Counsel contended that the findings and decision of the lower court to the effect that the doctrine of res ipsa did not apply to this case are, eloquently, supported by the pleading and evidence before the court. He pointed out that, from the above pleading and evidence of the appellant, the alleged consumption of the content of exhibit B and the alleged discovery of the purported decomposed cockroach, took place (i) in the privacy of the appellant’s house on April 20, 2003; (b) at night, about 7:30pm and (iii) in the presence of his two friends or guests.
In relation to the finding of the lower court that no damages/injury was pleaded or proved, nor could any alleged damage suffered by the appellant be related to the consumption of exhibit B, he referred to the pleadings and evidence of the appellant in paragraph 5 and 11 of the Statement of Claim and paragraph 3 (d) of the plaintiff’s Amended Reply to the Amended Statement of Defence, pages 11-12 and 61-62 of the record. He submitted that from the totality of the pleadings and evidence before the lower court, the appellant failed to plead and, particularly, prove the basic facts and ingredients required of him for the invocation or application of the doctrine of res ipsa to this case.
He contended that a necessary ground for the invocation of the said doctrine was the absence of any explanation on the part of the defence (against whom the doctrine was supposed to be invoked) on how the event or incident complained of (may have) occurred, Flash Fixed Odds Ltd v. Akatugbai [2001] 9 NWLR (Pt. 717) 46, 61; Royal Ade Nig Ltd v. NOCM Co. Ltd [2004] 8 NWLR (Pt. 874) 206, 223.
He pointed out that the appellant did not appeal, specifically, or at all against these findings and decision of the lower court that there was sufficient explanation from the respondent to negative the application of the said doctrine of res ipsa in the circumstances of this case, Orji v. Orji [2011] 17 NWLR (Pt. 1275) 113, 135; Nwaolisa v. Nwabufor [2011] All FWLR (Pt. 591) 1438, 1459. He cited Order 6 Rule 4 of the Court of Appeal Rules, 2011 for the proposition that the appellant cannot be heard to proffer any argument against or with regard to the said findings of the lower court which were appealed against.
He maintained that, from the totality of the pleadings; evidence and findings of the lower court, the lower court’s conclusion on the inapplicability of the doctrine of res ipsa was unanswerable. He urged the court to affirm the lower court’s position, Royal Ade Nig Ltd v. NOCM Co. Ltd (supra).
APPELLANT’S REPLY
In the reply brief filed deemed, properly, filed on November 18, 2013, the appellant maintained that the doctrine of res ipsa loquitur applied to his case. He responded to the points which the respondent canvassed on this issue in paragraphs 3.1-3.1.12, pages 2-8 of the said reply brief.
RESOLUTION OF THE ISSUE
In our humble view, in order to understand the con of the divergence in the submissions of counsel with regard to the lower court’s findings on pages 175-176 of the record, we think it would be meet and proper to set out the ipssissima verba of the reasoning of the said court on those pages. Thereafter, we shall, cursorily, attempt to map the juridical spheres or domains of the two dissimilar concepts of volenti non fit injuria and res ipsa loquitur in a bid to expose the fallacy that characterised the submissions of the appellant’s counsel.
In the first place, it is beyond doubt, even from the first sentence [under issue 1] at page 174 of the record, that the lower court was concerned with the question “whether in the circumstances of this case, the maxim of volenti non fit injuria would in relation to the plaintiff, avail the defendant.” Upon setting out the respective averments of the parties in relation to the maxim, the court set out its understanding of the maxim in the law of Tort. The court opined that:
When raised and proved, the maxim of volenti non fit injuria is to the effect that no act is actionable as a tort at the suit of any person who has expressly or impliedly assented to it. It follows that no man can enforce a right which has voluntarily waived or abandoned. Volenti non fit injuria affords a complete defence but a person can never be held to have been volens unless it is shown that he had full knowledge of the nature and extent of the risk.
[Page 174 of the record]
The court, percipiently, pointed out that, though the respondent pleaded the said maxim in paragraph 10 (v) of the Statement of Defence; paragraph 10 (xiv) of the Amended Statement of Claim, “[none of the two witnesses who testified for the defence] said anything about volenti non fit injuria.” At page 176, following the intimation of counsel for the respondent that they were at liberty to abandon any defence which may not be necessary at the trial, the court stated thus “with that stand by the defendant’s counsel that defence should be put to rest.”
Notwithstanding this, the court made general propositions of the law with regard to duty of care. It concluded that “in this case and having regard to all the surrounding circumstances, a defence of volenti non fit injuria if relied upon would not have availed the defendant.
It is, therefore, difficult to fathom the appellant’s attempt to obfuscate the clear findings of the lower court with regard to the said maxim, volenti non fit injuria. In the first place, the court’s unassailable position was that since the respondent’s counsel opted to abandon the said defence which they had pleaded by not calling evidence in proof thereof, “that defence should be put to rest.” What is more, having regard to all the surrounding circumstances of the case, the court was even of the view that “a defence of volenti non fit injuria, if relied upon, would not have availed the defendant.” Against this background, we, entirely, agree with the respondent’s counsel that the lower court’s observations on pages 175-176 of the record were in relation to volenti non fit injuria. They had nothing to do with the applicability of the doctrine of res ipsa loquitur.
Now, in the Anglo-Nigerian Law of Tort, the maxim volenti non fit injuria [which must not be confused with the maxim scienti non fit injuria], also, called “assumption of risk,” or “voluntary assumption of risk,” operates as a defence to a tort, see, W. V. H. Rogers, Winfield and Jolowicz, Tort, (London: Sweet and Maxwell, 2006) [Seventeenth edition] paragraph 25-11, page 1071; paragraph 25.2, page 1058; D. Howarth “General Defences,” in A. Grubb (ed), Butterworths’ Common Law series, The Law of Tort (London: LexisNexis, 2002), paragraph 5. 52, page 170; Phiilip Obiora v. Paul Osele [1989] 1 NWLR (Pt. 97) 179, 299-300; Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1; Ariori and Ors v. Elemo and Ors [1983] 1 SC 13, 26; Koya v. UBA Ltd [1997] 1 NWLR (Pt. 481) 251, 268.
The eminent editors of the fourth edition of Clark and Lindsell on Torts at paragraph 107 opine that the maxim represents “the self evident axiom that one who consents to injury cannot be heard to complain of it thereafter.” Thus a person who makes an agreement with another either expressly, or by necessary implication, to run the risk of injury, caused by that other cannot recover damages caused to him by any risk he agreed to run. As a defence, it must be specifically pleaded, James v. Wellington City (1972) N. ZLR 879; Ashton v. Turner (1980) 3 All ER 870.
Due to its effectiveness in “obstructing the path of plaintiffs who had been injured at work,” D. Howarth “General Defences” (supra), Diplock LJ, once noted that the maxim “in the absence of express contract, has no application to negligence simpliciter where the duty of care is based solely on proximity or ‘neighbourship’ in the Atkinian sense,” Wooldridge v. Summer [1963] 2 QB 43, 69; [1962] 2 All ER 978, 990; see, however, Imperial Chemical Industries Ltd v. Shatwell [1965] AC 656; [1964] 2 All ER 999 [per Lord Pearce]; Nettleship v. Weston [1971] 2 QB 691; [1971] 3 All ER 581 [per Lord Denning] and, more recently, Reeves v. Metropolitan Ploce Comr [2000] 1 AC 360; [1999] 3 All ER 897 [per Lord Hobhouse].
On the other hand, there is unanimity of scholastic and judicial views that the maxim, res ipsa loquitur, does not represent a principle of law, D. Howarth “General Defences” (supra) paragraph 13-46, page 625; Ratcliffe v. Plymouth and Torbay Health Authority [1993] Lloyd’s Rep Med 162, 177. Indeed, Morris LJ, aptly, described the maxim as a “convenient formula” possessing no magical qualities, Roe v. Minister of Health [1954] 2 QB 66, 87. According to Hobhouse LJ in Ratcliffe v. Plymouth and Torbay Health Authority (supra):
Res ipsa loquitur is not a principle of law; it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case is being made out. When expert or factual evidence has been called on both sides at a trial its usefulness will normally have long been exhausted.
See, however, per contra, Maham v. Osborne (1973) 2 KB 14; (1939) 1 All ER 535 to the effect that “the doctrine…is premised on two rebuttable assumptions, namely, that the event happened as a result of breach of duty of care that somebody owes his neighbour and that somebody is the defendant.” Nigerian courts have, also, held the doctrine to be a rule of evidence, Management Enterprises Ltd and Anor v. Jonathan Otusanya (1987) LPELR-1834 (SC); Chanchangi and Sons Ltd v. N.R.C. Ltd [1996] 5 NWLR (Pt. 446) 46; UBN Ltd v. Umeh and Sons Ltd [1996] 1 NWLR (Pt. 426) 565.
The said Latin maxim, res ipsa loquitur, [the thing speaks for itself], whose essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant, W.V.H. Rogers, Winfield and Jolowicz, Tort, (supra), paragraph 5-81, page 261, only operates under certain conditions. They are:
(1) Proof of the happening of an unexplained occurrence;
(2) The occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
(3) The circumstances must point to the negligence in question being that of the defendant rather than that of any other person,
See, PSHS Management Board and Anor v. Goshwe (2012) LPELR-9830 (SC), citing Royal Ade Nig Ltd v. NOCM Co. Plc [2004] 8 NWLR (Pt. 874) 206.
Surely, these were not the conditions which the lower court attended to on the above pages. As such, we find no justification for the appellant’s impeachment of the findings of the lower court: findings which revolved around the defence of volenti non fit injuria as opposed to the maxim of res ipsa loquitur.
Having disposed of this preliminary issue, we now turn to the main contention of the parties. In other words, we shall resolve the contention of the parties on issue one, that is, the appellant’s second issue. The issue, as shown above is:
Whether the learned trial Judge was not right in holding that the doctrine of Res Ipsa Loquitur did not apply to this case having regard to the state of the pleadings and evidence before him?
As shown above, the parties joined issues on the doctrine of res ipsa loquitur, see paragraphs 4; 5; 6; 11 and 12 of the Statement of claim, pages 11 and 12 of the record and paragraphs 3 (a) (b) (c) and (d) of the Amended Reply to the Amended Statement of Defence, pages 61-65. On the other hand, in paragraph 16 of the Statement of Defence, the respondent, inter alia, pleaded that the doctrine of res ipsa loquitur did not apply in this case.
In its resolution of the question, the lower court set out the testimony of the plaintiff on page 178 of the record. The court noted thus “In this case, the plaintiff testifying as PW1 … had said”:
…After gulfing (sic, gulping) almost 1 1/2 the bottle of the coke, I discovered a foreign object in the bottle. I closely examined the foreign object and discovered that it was a decomposed cockroach. I was shocked and confused and started vomiting…
The plaintiff continued with his evidence-in-chief on 1/3/2004 when he said:
…It is not true that the defendant’s process of production does not admit the existence of any foreign object in their products because there are several complaints against the defendant in that regard…
He also testified on 2/3/2004 that:
…It is not true that the defendant’s bottles for its products undergo various stages of washing otherwise the impurities or foreign objects will not (sic) contain in the defendant’s product…
See, page 178 of the record.
The court proceeded thus, at pages 178-179:
What the plaintiff must be understood as saying in those pieces of evidence is that the foreign objects allegedly found in the defendant’s products came about as a result of the defendant’s process of production which admit the foreign objects into the defendant’s product resulting in many complaints in that respect. He should also be understood as saying that the defendant’s bottles do not undergo various stages of washing which is why foreign objects contain (sic) in the defendant’s products. By these pieces of evidence, the plaintiff has known and shown how the foreign object to be in the defendant’s products which he drank.
Unarguably, an essential qualification to the application of res ipsa, is “the absence of explanation by the defendants,” Scott v. London and St. Katherine Docks Co (1865) 3 H and C 596, 601, cited in V. Harpwood, “Negligence: Breach of Duty,” in A. Grubb (ed), Butterworths Common Law Series, The Law Of Tort (supra), paragraph 13. 47, page 625; also, W.V.H. Rogers, Winfield and Jolowicz, Tort, (supra), page 263; Royal Ade Nig Ltd v. NOCM Co. Ltd [2004] 8 NWLR (Pt 874) 206, 223; Flash Fixed Odds Ltd v. Akatugbai [2001] 9 NWLR (Pt. 717) 46, 61. On this qualification, the lower court found as follows:
I have already reproduced the evidence of the parties in relation to the doctrine. In those pieces of evidence, an explanation was given not only by the defendant to show that the doctrine does not apply in this case but by the plaintiff too as earlier highlighted. I will, therefore, answer issue two [whether the maxim of res ipsa loquitur which the plaintiff/appellant relied upon could avail him] in the negative. The failure of a plea of res ipsa loquitur is not the end of the matter because the burden of proving negligence in the usual way still remains with the plaintiff.
[See, page 180 of the record, italics supplied].
Surprisingly, the appellant would appear to have underrated the pungency of this crucial finding that “an explanation was given […] by the defendant to show that the doctrine does not apply in this case.” In short, he treated that finding with disdain. Perhaps, it did not dawn on him that, without an appeal against such a finding of fact, it will be deemed to have been accepted, per Onnoghen, J.S.C. in Ime Umanah v. Victor Attah (2006) 9 KLR (Pt. 226) 3393, 3417. Thus, in our view, it is too late in the day for the appellant to insist that the said maxim of res ipsa loquitur applied to his case contrary to the subsisting finding that the respondent marshaled sufficient explanation to negative its application, Orji v. Orji [2011] 17 NWLR (Pt. 1275) 113, 135; Nwaolisa v. Nwabufor [2011] All FWLR (Pt. 591) 1438, 1459.
At this point we shall pray in aid the very instructive and compelling reasoning of Oputa, J.S.C. in Management Enterprises Ltd and Anor v. Jonathan Otusanya (1987) LPELR-1834 (SC). At pages 25-26 C-B, the cerebral and celebrated jurist explained that:
This Latin maxim is applicable to actions for injury by negligence where no proof of such negligence is required beyond the accident itself, which is such as necessarily to involve negligence…see, Batavia (1845) 2 W. Rolf 407; The Valdis (1915) 31 T.L.R. 111. ‘Res ipsa loquitur’ is no more than a rule of evidence affecting the onus of proof. The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shifts the onus on the defendant. If the facts are sufficiently known or where the defendant gave an explanation, the doctrine will no longer apply: Barkwa v. South Wales Transport (1950) 1 All E.R. 392. Reliance on the doctrine of ‘res ipsa’ is thus a confession by the plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances amply establish such negligence.
See, also, per Belgore, JSC (as he then was) in Odebunmi and Ors v. Abdullahi [1997] 2 NWLR (Pt 489) 526, 535; PSHM Board v. Goshwe (supra); per Muhammad, J.S.C. in Iyere v. Bendel Feed and Flour Mills Ltd (2008) LPELR-1578 (SC) at 40 B-D; [2008] 7-12 SC 151.
In the circumstance, we endorse the finding of the lower court that the said maxim of res ipsa loquitur did not apply to the plaintiff/appellant’s case. We find no substance in the complaint in this issue.
ISSUE TWO
Whether having regard to the pleadings and evidence before the court, the learned trial Judge was not right when he invoked and applied the provisions of Section 149(d) of the Evidence Act, 2004, to hold that the appellant’s failure to produce the evidence of the two eye witnesses who allegedly saw him consume exhibit “B” and discovered a decomposed cockroach therein, was fatal to the appellant’s case?
[APPELLANT’S ISSUE THREE]
APPELLANT’S ARGUMENTS
On this issue, counsel contended that the appellant had proved negligence to the standard required by law. He adopted his arguments in respect of issue two as they relate to the proof of negligence on the part of the respondent. He observed that a defendant who sets up the defence of volenti non fit injuria is, in effect, admitting his negligence and suggesting that the plaintiff consented to that admitted negligence. In his view, the respondent was under a duty to show that the appellant consented to exclude his right of action against the respondent for negligence, Ndubuisi v. Olowoake [1997] 1 NWLR (Pt. 479) 65.
Counsel explained that the respondent offered evidence to the effect that its bottles and content thereof are transparent and that any foreign object in them could be seen at a cursory look. Thus, the appellant was a volunteer because, having seen the foreign object in the product upon intermediate examination, he went ahead to ingest same.
He contended that the presumption under Section 149 (d) of the Evidence Act relates to failure to call evidence on a particular point or facts and not failure to call a particular witness, Yusuf v. Obasanjo [2006] AFWLR (Pt. 294) 387, 392. He noted that, in this case, the evidence bordered on the existence of a decomposed cockroach in exhibit “B” which is something that could be seen or felt, if ingested, Agbi v. Ogbe [2006] AFWLR (Pt. 329) 941, 953.
He pointed out that the confirmation of what the PW1 said he saw and felt by other persons not called as witnesses, which the learned trial Judge suggested, is what is referred to as corroboration, Section 179 of the Evidence Act. He submitted that the evidence of PW1 on his consumption of the content of exhibit “B” was not challenged or contradicted. It was equally not denied by any of the witnesses of the respondent.
In his view, the only danger in the practice of indiscriminate pleading of all known defences is that, in the case of volenti non fit injuria, for example, when raised are coupled with adverse legal implications which the party raising them might wish to resile from. According to counsel, all the pieces of evidence, together with the abandonment of the denial of PW1’s ingestion of the content of the said exhibit, should have weighed in the mind of the lower court. This should have led to the conclusion that the ingestion of the content of the said exhibit and the discovery of the decomposed cockroach by PW1 had been proved and did not require corroborative evidence, Ado Ibrahim and Co. Ltd v. Eldestein (Nigeria) Ltd [2002] 1 NWLR (Pt. 747) 57; Ekpemupolo v. Edremoda (2009) All FWLR (Pt. 473) 1220, 1228; FMW v. Comet Shipping Agencies (2009) All FWLR (Pt. 483) 1260, 1266.
He opined that to achieve a balance on the scale of probabilities, the respondent ought to have elicited a categorical denial from any of its witnesses of the PW1’s alleged consumption of the content of exhibit B, his falling sick and securing medical attention, Okwejiminor v. Gbakeji [2008] All FWLR (Pt. 409) 406, 413; Citizens International Bank Ltd v. SCOA Motors (Nig) Ltd [2006] All FWLR (Pt. 322) 1680, 1686.
He maintained that the lower court erred in law. In his view that error occasioned a miscarriage of justice because the court failed or omitted to consider the admission of negligence which the respondent made in exhibit F. He submitted that the quoted paragraphs of exhibit F and the general purport thereof constitute an admission of the appellant’s claim. In his view, express admission could not be more concise than that. He explained that issues were joined on this point and evidence offered by both parties when the PW1 testified [page 127 of the record] that in furtherance of exhibit F, the DW1 visited the office of PW1’s Solicitor and scheduled an appointment, a fact which DW1 denied at page 153 of the record, Fed College of Education, Okene v. Anyanwu [1997] 4 NWLR (Pt. 501) 533; Egbunike v. S.C. Ltd [1995] 2 NWLR (Pt. 375) 34. He insisted that the respondent, having thus admitted its negligence expressly, the appellant was relieved of the burden of proving same.
RESPONDENT’S SUBMISSION
On this issue, counsel pointed out that, in considering the provision of section 149 (d) of the Evidence Act [now, section 167 (d)] it must be borne in mind that the section forms part of the law on the burden of proof. He opined that in civil cases, the section must be read together with sections 134; 135; 136 and 139 of the Evidence Act [now, sections 131; 132; 133 and 136 of the 2011 Act], Okonzua v. Amosu [1992] 6 NWLR (Pt. 248) 416, 435; Bello v Kassim (1969) NMLR 148, 152.
Against the above background, he invited attention to the pleadings of the appellant; the evidence before the court in proof of the said facts and findings and decision of the lower court thereon. He noted that the foundation of the appellant’s case was woven around the claim that he consumed the content of exhibit B and found a decomposed cockroach. He cited section 121 (a) and (c) of the Evidence Act, 2011. He noted that, by the pleading and evidence in chief and cross examination of the appellant, his case was that he drank the contents of the said exhibit B in the privacy of his residence and at night [about 7:30pm].
Counsel contended that, by the pleadings in paragraph 3 (c) of the Amended Reply (supra) and by the provisions of Sections 134; 135; 136 and 139, 2004 Evidence Act, the burden of producing the relevant material and convincing evidence in proof of the pleaded facts in paragraph 3 (c) of the said Reply to the effect that he [appellant] drank exhibit B and saw decomposed cockroach therein rested, squarely on him.
He conceded that Section 149 (d) (supra) applies to withholding relevant evidence and not to withholding a particular witness from testifying. He cited several cases to show instances where Section 149 (d) had been invoked, NAS Ltd and Anor v UBA Plc [2005] 14 NWLR (Pt. 945) 421, 423; Uzoegbu v. Progress Bank (Nig) Ltd [1988] 4 NWLR (Pt. 87) 236, 247-248; Consolidated Breweries Plc v. Aisowieren [2002] FWLR (Pt. 116) 959); Uzoho v. Task Force on Hospital Management Board [2003] FWLR (Pt. 166) 606, 616-617; Alibe v. Yaro [2002] FWLR (Pt. 115) 793, 814-815.
He pointed out that, in invoking Section 149(d), the learned trial Judge should take into consideration the common course of natural events and human conduct in relation to the facts, Elias v. Omobare (1982) All NLR 75, 77. He submitted that the appellant’s attempt at pages 13; 14 and 17 of the brief to take refuge under the pleading of the respondent in relation to the defence of volenti non fit injuria by submitting that the said defence was an admission of the appellant’s case which, thereby, relieved him of the duty and obviated the need for his discharging the onus of proof was misconceived. He was emphatic that the respondent made no such admission. He canvassed the view that, by the above submission, the appellant sought, wrongly and unsuccessfully, to shift the onus of proof of the facts of this case particularly within his knowledge [as pleaded in paragraph 3(c) of this Amended Reply (supra) to the respondent.
APPELLANT’S REPLY
The appellant replied to the issues arising from the respondent’s arguments on this issue on pages 8-15 of the reply brief. He, equally, cited several cases in support of the arguments therein.
RESOLUTION OF THE ISSUE
The first contention of the appellant under this issue was that the respondent was under a duty to show that the appellant consented to exclude his right of action. With respect, this submission would appear to overlook a basic rule of pleadings. It is now firmly settled that pleadings do not constitute or are not tantamount to evidence. Also, that where there is no evidence in support of any pleading, that pleading or averment is deemed to have been abandoned, Raimi Olarewaju v. Amos Bamigboye and Ors [1987] 3 NWLR (Pt. 60) 353, 359-362; Alhaji Bata and Ors v. Bankole [1986] 3 NWLR (Pt. 27) 141; Magnusson v. Koiki and Ors (1993) 12 SCNJ 114, 124; [1993] 9 NWLR (Pt. 317) 287.
Indeed, as shown above, although the respondent pleaded the said maxim in paragraph 10 (v) of the Statement of Defence, “[none of the two witnesses who testified for the defence] said anything about volenti non fit injuria.” At page 176, following the intimation of counsel for the respondent that they were at liberty to abandon any defence which may not be necessary at the trial, the court stated thus “with that stand by the defendant’s counsel that defence should be put to rest.” Thus, having been put to rest, we cannot now rouse that issue from its well-deserved rest! The effect of the absence of any supporting evidence is that those averments in paragraph 10 (v) (supra) were, correctly, deemed abandoned, Raimi Olarewaju v. Amos Bamigboye and Ors (supra); Alhaji Bala and Ors v. Bankole (supra); Magnusson v Koiki and Ors (supra).
The appellant’s counsel, further, contended that the presumption under Section 149 (d) of the Evidence Act [then applicable to the proceedings] related to failure to call evidence on a particular point or facts and not failure to call a particular witness. He cited Yusuf v. Obasanjo [2006] AFWLR (Pt. 294) 387, 392. He noted that, in this case, the evidence bordered on the existence of a decomposed cockroach in exhibit “B” which is something that could be seen or felt, if ingested. He placed reliance on Agbi v. Ogbe [2006] AFWLR (Pt. 329) 941, 953.
Now, in paragraph 3(c) of the Amended Reply filed on January 30, 2004, the appellant [as plaintiff] averred inter alia:
…the plaintiff consumed the particular bottle of Coca Cola containing the decomposing cockroach on the 20th of April, 2003, at the verandah of his residence, while receiving his guests, Mr. Lawrence Ukpong and Miss Uduak Eduok, both of whom the plaintiff gave a bottle each of the defendant’s products…
[See, page, 61 of the record, italics supplied]. He confirmed this averment in his oral evidence in court, page 188 of the record:
On 20/4/2003 the visitors I had in my house were Lawrence Ukpong and Miss Uduak Eduok. This was about 7:30p.m. I received the visitors at my verendah. I served each of the visitors with a bottle of soft drink from the bottles I put in the fridge. I also serve (sic) with one bottle from there. I personally took coke brand. After gulfing (sic) almost 1/2 the bottle of the coke, I discovered a foreign object in the bottle. I closely examined the foreign object and discovered that it was a decomposed cockroach. I was shocked and confused and started vomiting. I later developed fever. The fever persisted till the following day, then I decided to consult a doctor. That was on 21/4/2003…
The lower court was unimpressed that, notwithstanding the alleged presence of “the two persons who visited the plaintiff on that date…and who were physically present when the plaintiff allegedly opened, drank and saw the decomposed cockroach in exhibit B [they] were not called as witnesses being the only eye witnesses,” [page 190 of the record]. This was what prompted its invocation of the presumption under Section 149 (d) (supra). Listen to the court:
Luckily for the plaintiff, two persons, Miss Uduak Eduok and Mr. Lawrence Ukpong… were present when the decomposed cockroach was found…In the face of the stiff denial by the defendant in its pleadings even before the commencement of the hearing, one or both friends of the plaintiff should have been called in court to testify as to what they saw. This is not a matter of a particular witness but a matter of calling a person who actually saw what happened. I am surprised that none of the two persons was called to confirm what he or she saw on that date…In the circumstances of this case and having regard to the failure to call Miss Eduok or Mr. Ukpong to testify in court I hereby make the presumption in Section 149 of Evidence Act…
[See, page 191 of the record, italics supplied].
Learned counsel for the appellant, strenuously, sought to show that the lower court was wrong in its invocation of the said presumption, pages 15 et seq. and pages 8 et seq of the main brief and reply brief, respectively.
True, indeed, what is required before the application of the said presumption under Section 149 (d) (supra) [now, Section 167 (d) of the Evidence Act, 2011 is the failure to call evidence on pleaded facts and not failure to call a particular witness, Onwujuba and Ors v. Obienu and Ors [1991] 4 NWLR (Pt. 183) 16; Nigerian Airforce v. Obiosa [2003] 4 NWLR (Pt. 810) 233; Babuga v. State [1996] 7 NWLR (Pt. 460) 279; Mandelas and Karaberis Ltd v. I. G. P 1958 SCNLR 335; A.G., Adamawa v Ware [2006] 4 NWLR (Pt. 970) 399; Oguonzee v. State [1998] 5 NWLR (Pt. 551) 521.
However, given the pleadings of the parties [as shown above], we find no merit in the appellant’s complaint against the lower court’s application of the said presumption. As the lower court, rightly, observed: “This is not a matter of a particular witness but a matter of calling a person who actually saw what happened. I am surprised that none of the two persons was called to confirm what he or she saw on that date…”
We endorse the approach of the lower court. Miss Uduak and Mr. Lawrence Ukpong, according to the pleading and testimony of the appellant, were at his [appellant’s] veranda at 7:30p.m. They saw what, allegedly, transpired. In our view, they would have given a better, more objective and unprejudiced account of what, actually, transpired at the appellant’s place, if any. From the facts which the appellant pleaded, coupled with his oral evidence on this point, it beats our imagination how these two vital eye witnesses could have been dropped from the appellant’s case. Employing the words of Muhammad, JSC in State v. Azeez [2008] 14 NWLR (Pt. 1108) 439, 475, “their evidence would have been more independent and objective.” After all, they saw it all, according to the appellant. In the circumstance, we agree with the lower court that the appellant did not call Miss Uduak and Mr. Lawrence Ukpong because they could have given evidence against his case, see, per Tobi, J.S.C. in State v. Azeez (supra) 492, B-D; also, CBN v. Beckiti Construction Ltd (2011) 5 NWLR (Pt. 1240) 203. Accordingly, we hold that there is no merit in the appellant’s complaint against the lower court’s application of Section 149 (d) (supra), having regard to the pleadings and evidence. We resolve this issue against him.
ISSUE THREE
Whether the plaintiff/appellant proved his allegation of negligence against the defendant/respondent and in particular that he suffered any injury or damage resulting from the alleged consumption of exhibit “B”?
[APPELLANT’S ISSUES ONE AND FOUR]
APPELLANT’S ARGUMENTS
On this issue, he submitted that the sickness and injury which the appellant suffered were related to and arose from his consumption of the contaminated content of exhibit B. He observed that the lower court did not consider the damage which the appellant suffered although he proved it, Mobil Producing Nig Ltd v. Umenweke [2002] 9 NWLR (Pt. 773) 547, 548. He explained that the PW3 tendered his medical report on PW1 as exhibit N and testified at page 140 of the record that he examined PW1; found his body temperature to be above normal and made a diagnosis of reactionary stomach upset. Counsel noted that it was in evidence that PW1’s reaction to the ingestion of the content of exhibit B was immediate and persistent. According to him, it was also in evidence that up to the time PW1 consulted PW3 he had not ingested anything apart from the content of exhibit B.
In his view, to fail to draw the reasonable inference that it was the ingestion of the content of exhibit B that caused PW1’s sickness would amount to requiring the appellant to lead evidence to exclude every other possible cause of the sickness, Ibiyeye v. Fojule [2006] All FWLR (Pt. 302) 156, 158; B.P.E. Nig Ltd v. Roli Hotels Ltd [2006] All FWLR (Pt. 314) 238, 244. He explained that DW2 appeared to question PW3’s professional knowledge and judgment in the treatment of PW. He submitted that the appellant could not be made to suffer for the exercise of PW3’s professional discretion in his examination and treatment, Daniyan v. Iyagin [2002] 7 NWLR (Pt. 766) 360; Dulieu v. White and Sons (1901) 2 KB 669. He maintained that the liability of the respondent covered the entire injury which the appellant suffered.
As noted earlier, the respondent’s third issue, neatly, accommodates the appellant’s issues one and four. With regard to the appellant’s issue one, Counsel inveighed against the judgment of the lower court as being against the weight of evidence adduced at the trial, Lucas pharmaceutical Chemist Ltd. v. Roche Nig. Ltd [1995] 1 NWLR (Pt. 369) 28; Mogaji v. Odofin [1978] 4 SC 91; Anyaoke v. Adi [1986] 3 NWLR (Pt. 310] 73; Abisi v. Ekwealor [1993] 6 NWLR (Pt. 302) 643.
He adopted and relied on the earlier submission on issues 1; 2; 3 [supra] [appellant’s issues 2; 3 and 4] on the evaluation of evidence and apportionment of probative value thereon. He asserted that DW1 and DW2 were not witnesses of truth yet the lower court preferred their testimonies to those of the PW1 and PW3 who, in his view, proved themselves to be credible witnesses. He maintained that this is a proper case where this court could interfere with the findings of the lower court, UAC (Nig) Plc v. Sobodu [2006] All FWLR (Pt. 329) 877, 880.
RESPONDENT’S SUBMISSIONS
Counsel adopted his earlier submissions in answer to the first arm of the question whether the appellant proved his allegation of negligence against the respondent. With regard to the second arm, that is, whether the appellant proved that he suffered any injury arising from the alleged consumption of the content of exhibit B which injury entitled him to damages as claimed, counsel invited attention to the appellant’s pleadings in paragraph 5 and 12 of the Statement of Claim, pages 7-8 of the record. He observed that in proof of the allegations on this point, the plaintiff as PW1 and called PW2 (alleged to be a medical doctor). On its part, the respondent marshaled the medical evidence of DW2 – a Consultant Physician, Dr. Ebere Benedict Uba. Counsel pointed out that, after a review of the evidence on this point, the lower court made some findings on pages 192-193 of the record, Makwe v. Nwukor [2001] 10 SCM 63.
He noted the long settled principle that a ground of appeal must flow from, accentuate and isolate the basis of the reason of the decision challenged for attack, Ishola v. Ajiboye [1998] 1 NWLR (Pt. 532) 71, 79; Orji v. Orji [2011] 17 NWLR (Pt. 1275) 113, 135; Nwaolisa v. Nwabufo [2011] All FWLR (Pt. 591) 1438, 1459. He submitted that the lower court was justified in its conclusion that the appellant did not plead or prove his allegation of negligence as required by law, citing the appellant’s pleadings in relation to the issue of the alleged injury/damage which the appellant, purportedly, suffered. He pointed out that, in further rebuttal of the evidence of PW1 and PW3, the respondent called DW2, a Scientist/Consultant physician in internal medicine, as a witness. He noted that, as the lower court, rightly found, there can be no action in negligence unless there is damage as negligence is only actionable if actual damage is proved, Thomas Chukwuma Makwe v. Nwukor and Anor. [2010] 10 SCM 63, 71; Chukwu and Anor v. Unegbu (1963) 1 All NLR 642, 644. He urged the court the decision of the lower court.
APPELLANT’S REPLY
The appellant, further, joined issues with the respondent on this question on page 17 of the reply brief.
RESOLUTION OF THE ISSUE
We acknowledge the fact that the Atkinian conception of negligence “where the duty of care is based solely on proximity or ‘neighbourship,’ “see, Wooldridge v. Summer [1963] 2 QB 43, 69; [1962] 2 All ER 978, 990, has prompted reservations from scholars, see, for example, the position of the eminent jurist and accomplished scholar, B.B. Kanyip, “The Production Process, Negligence and Enterprise Liability” in (1996-1998) 4 and 5 Nigerian Current Legal Problems, 497; B.B. Kanyip, “Consumer Protection and Product Liability in Nigeria,” in (2002) 1 ABUJCL 145, 169-179; B. B. Kanyip, consumer protection in Nigerian: Law, Theory and Policy (Abuja: Rekon Books Ltd, 2005) 280 et seq.
However, as has been, unanswerably, observed “duty” is the core ingredient of the tort of negligence, see, W.V.H. Rogers, Winfield and Jolowicz Tort, (supra) 143. This is, truly, the position in Nigerian law for, as the Supreme Court held in Anya v. Imo Concorde Hotel Ltd [2002] 18 NWLR (Pt. 799) 377:
The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail. [italics supplied].
See, also, Benson v. Otubor [1975] 3 SC 19; Okoli v. Nwagu [1960] SCNLR 48; [1960] 3 FSC 16; Nigeria Airways Ltd. v. Abe [1988] 4 NWLR (Pt. 90) 524; Strabag Construction (Nig) Ltd. v. Ogarekpe [1991] 1 NWLR (Pt. 170) 733.
Thus, the question in every case, in the apt characterization of an illustrious jurist, is “did this defendant owe a duty of care to this claimant?
For the courts do not decide academic issues but [concrete] disputes between parties,” W.V.H. Rogers, Winfield and Jolowicz Tort, (supra) 135.
Against this background, in every forensic contest founded on negligence as in the instant case, the courts must always be guided by the Trinitarian signposts for the determination of liability. In the trenchant words of the urbane and debonair Umaru Atu Kalgo, JSC in UTBN v. Fidelia Ozoemena (2007) LPELR-3414 (SC) 13, E-G: “[n]egligence is a tort and it is complete when three conditions are satisfied. These are: (1) The defendant owes a duty of care to the plaintiff; (2) The defendant has acted or spoken in such a way as to break that duty of care; (3) The conduct of the defendant was careless,” citing Clerk and Lindsel on Torts, (14th Edition), 474; Agbonmagbe Bank Ltd. v. C.F.A.O. [1966] 1 All NLR 140; [1966] 1 SCNLR 367; Oyidiobu v. Okechukwu [1972] 5 SC 191; Orhue v. NEPA [1998] 7 NWLR (Pt. 557) 187.
As shown above, the appellant attempted to impugn the conclusion of the lower court to the effect that he [the appellant] failed to prove his case as required by law. In doing so, however, he seemed to have glossed over a fundamental legal principle. It comes to this: for a plaintiff to succeed in an action for negligence, he or she must plead all the particulars of the negligence alleged in sufficient detail and the duty of care owed by the defendant. Above all, they must be supported by credible evidence at the trial; Koya v. U.B.A. [1997] 1 NWLR (Pt. 481) 251; UTBN v. Fidelia Ozoemena (supra).
The lower court appreciated this point. In its well-considered judgment, it, first, observed thus:
In this case, the plaintiff alleged in paragraphs 11 and 12 of his Statement of Claim that the defendant was negligent in the manner of bottling its products and that the negligence caused him serious psychological injury and shock and endangered his health as well as that of the public, generally…
He repeated those averments in paragraph 8 of his Amended Reply to the Amended Statement of Defence. In his pleasing, the plaintiff did not give particulars of negligence…
Page 187 of the record.
At page 192 of the record, the court proceeded to articulate the consequences of the plaintiff’s dereliction of the duty which he was supposed to discharge both in his pleading and oral evidence. For their bearing on this issue, we shall quote the court in extenso. Hear this:
I have already said that the plaintiff did not give particulars of negligence in his pleading. The law had since been settled that particulars of negligence must be pleaded and proved. A plaintiff claiming in negligence must plead and establish the duty of care owed him by the defendant, must plead and establish facts upon which the duty is founded and breach of that duty…
A plaintiff, as a matter of law is required in an action on negligence to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant on a claim on negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant. It is only when negligence has been duly pleaded with particulars and proved in evidence that the issue of damages suffered, if any, will arise for consideration. There can be no action in negligence unless there is damage. Negligence is only actionable if actual damage is proved. Negligence alone does not give a cause of action and damage alone does not give a cause of action. Negligence and damage must co-exist. On the totality of the totality of the plaintiff’s pleadings, no particulars of negligence were given and no negligence was proved on the balance of probability…
Pages 192-193 of the record [italics supplied].
Simply put, the position of the lower court was that, from the outset, the plaintiff’s case was bound to fail. The reason is simple. He, positively, imputed negligent conduct to the defendant yet he could not scale the two hurdles erected in Section 137 (1) of the Evidence Act [then applicable to the proceedings].
This court [per Nweze, JCA] in Olateru v. Sanni (2011) 31 WRN 83, had elucidated on the two kinds of burden of proof in Section 137 (1) (supra). The court, first, noted that:
As is well known, in civil cases, there is the general burden of proof on the plaintiff to prove his claim or relief before a court by virtue of section 137 (1) of the Evidence Act, Frempong II v. Brempong II (1952) 14 WACA 13;
Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372; Fashanu v. Adekoya (1974) 6 SC 83; Commissioner of Police v. Oguntayo (1993) 6 NWLR (Pt. 299); Kokoro-Owo v. Ogunbabi (1993) 6 NWLR (Pt. 313) 627.
The court, then, proceeded to chart the typologies envisaged in Section 137 (1) of the Evidence Act, (supra). It pointed out [per Nweze, J.C.A.] that:
What is, perhaps, not well-known is that there is yet another kind of burden which is dictated by the nature of the pleadings. This is known as the burden of proof on the pleadings. Unlike the general burden referred to earlier, the burden of proof on the pleadings rests on any party [whether the plaintiff or the defendant] who substantially asserts the affirmative of the issue. This category of burden is fixed at the beginning of the trial by the state of the pleadings; it is settled as a question of law, remaining unchanged throughout the trial, exactly where the pleadings place it, citing Imana v. Robinson (1974) 6 SC 83.
See, Olateru v. Sanni (supra).
Next, the court [per Nweze, J.C.A.] traced the jurisprudential ancestry of the concept of the burden of proof on the pleadings in Anglo-Nigerian law. Listen to this:
The concept of burden of proof on the pleadings has an ancient ancestry, Pickup v. Thames Ins. Co. 3 Q.B.D. 594, 600; and Wakelin v. L & S.W. R v 12 App Cas. 41, 45. Its contemporary affirmation can be found in such popular cases like Joseph Constantine Steamship Line Ltd. v. Imperial Smelting corporation [1942] AC 154, 174; Seldon v. Davidson (1968) 1 WLR 1083. Leading authorities on the English Law of Evidence have endorsed this usage, see, for example, Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings.”
See, Olateru v. Sanni (supra); also, Elemo and Ors v. Omolade and Ors (1968) NMLR 359, 361; Atane v. Amu (1974) 10 SC 237; Fashanu v. Adekoya (1974) 6 SC 83; Kate Enterprises Ltd v. Daewoo Nig. Ltd (1985) 2 NWLR (Pt. 5) 116; Onyenge & Ors v. Ebere 18 NSCQR (Pt. II) 789 at 802; Vulcan Gases Ltd. v GESELLSCHAFT FUR Ind. (2001) 9 NWLR (Pt. 719) 610 at 667.
In all, we entertain no doubt that the appellant, totally, misconstrued the fundamental basis of the lower court’s reasoning. We find no justification for disturbing its categorization of the two kinds of burden in an action founded on negligence and the appellant’s failure in that respect. Indeed, that court was in the cherished company of the apex court when it held that the appellant [as plaintiff] “must plead and establish facts upon which the duty is founded and breach of that duty…” According to Umaru Atu Kalgo, J.S.C. in UTBN v. Fidelia Ozoemena (supra) as page 14:
In an action for negligence, a plaintiff can only succeed if in addition to pleading it and particular thereof, he or she must also show the duty of care owed to him or her by the defendant and the breach of that duty by the defendant. It is not enough to allege all these in pleadings without establishing them by credible and reliable evidence at the trial.
[Italics supplied]
On the question of proof that the appellant suffered any injury arising from the alleged consumption of the content of exhibit B, the appellant’s counsel drew attention to the medical evidence of PW3. At page 22 of the brief, he conceded that there was a conflict between the expert medical opinion of PW3 [of the appellant] and that of DW2, another medical expert, whom the respondent called to testify at the lower court. Counsel argued that, in resolving the said conflict between the testimonies of the two medical experts, the court ought to have preferred the opinion of PW3 to that of DW2.
With due respect, we find no merit in this agitation. The true position, as established in binding authorities, is that where there are conflicts in expert testimony, the court is not duty-bound to give reason for being more impressed with the evidence of one expert than it is with that of another expert, Ozigbo v. COP [1976] 2 SC 67, per Alexander CJN; SPDC v. Farah [1995] 3 NWLR (Pt. 382) 148.
What is more, the reasoning of the court on this issue cannot be divorced from its reasoning on the typologies of burden and the plaintiff’s failure to discharge his burden there-under. At page 193, the lower court reasoned that:
Even if the plaintiff has established the damage suffered by him, the damage cannot be related to the drinking of exhibit B which allegedly contained the decomposed cockroach. This is because he did not plead the particulars of negligence which were therefore not established. For a plaintiff to succeed in an action on negligence he must prove not only negligence on the part of the defendant but also the damage he has suffered there-from. If he proves one and not the other, his claim must fail. Since the plaintiff did not give the particulars of negligence…, he has not established negligence the defendant.
[Italics supplied]
We do not see how we can intefere with this reasoning in the face of the plaintiff/appellant’s failure to give, as the lower court found, the full particulars of the items of negligence relied on as well as the duty of care which the defendant/respondent owed him, Diamond Bank Ltd v. PIC Co. Ltd [2010] 13 WRN 35; Iyere v. Bendel Feed and Flour Mills Ltd (supra); M.O. Kanu and Sons Co. Ltd v. FBN Plc 2006 26 NSCQR (Pt. II) 999; British Airways v. Atoyebi (2010) 14 NWLR (Pt. 1214) 561. The net effect is that, having resolved all the issues against the appellant, we have come to the conclusion that this appeal is bound to fail. We, therefore, enter an order dismissing it. Appeal dismissed. Parties are to bear their costs. That shall be the judgment of this court.
CROSS APPEAL
In the respondent’s brief filed, as shown above, on February 6, 2013, the respondent, as cross appellant, canvassed arguments in respect of the cross appeal on pages 24-28 of the said brief. As shown above, he adopted the arguments therein as his position with respect to the cross appeal. On page 24 thereof, he adopted the introduction and statement of facts in the main appeal for purposes of the cross appeal. Only one issue was proposed for the determination of the cross appeal. The appellant, as cross respondent adopted the said issue. It was couched thus:
Whether having regard to the pleadings and evidence before the court, the learned trial Judge was right to hold that there was a link or business relationship between the plaintiff and defendant as at 8/3/2003 when the plaintiff allegedly purchased exhibits B; C and D from PW2 which link established sufficient relationship or proximity between plaintiff and defendant in proof that exhibits B; C and D were the products of the defendant and that the defendant owed the plaintiff a duty of care in the circumstances?
This lone issue was tied to Grounds 1; 2 and 3 of the cross Appeal.
ARGUMENTS OF COUNSEL
In the main, the arguments of the cross appellant were woven around the premise that the findings and decision of the lower court in relation to the evidence of the PW2 and exhibit M were not supported by the pleadings and evidence before the court. Counsel drew attention to paragraphs 4; 5 and 6 of the statement of claim, page 7 of the record; paragraphs 3 (a) and (b) of the plaintiff’s Amended Reply to the Amended Statement of Defence, page 61-65. He referred to paragraphs 6 (i)-(iii) and 7(i) -(ii) of the Amended Statement of Defence, pages 49-54 of the record. The evidence of the PW1, at page 118 of the record, was, equally, reproduced so, also, was the evidence in chief of the PW2 at page 138 of the record.
He reproduced the testimony of the DW1 at pages 152 and 154. He set out the lower court’s findings on pages 185 -186 of the record, see, page 25 of the brief. He made elaborate submissions as regards these pleadings and oral evidence, pages 24-27 of the brief. However, the main crux of his argument was that if exhibit M is weighed against the background of the above pleadings and evidence, it would be beyond dispute that, as at the date of April 8, 2003, when the plaintiff, allegedly, bought exhibits B; C and D from PW2 and April 20, 2003, when the plaintiff, allegedly, consumed the content of exhibit B and found, as he claimed, a decomposed cockroach, the PW2, from which he allegedly bought the products had not started doing any business with the defendant.
He submitted that, in the circumstance, exhibit M and PW2 did not establish any link between the plaintiff and the defendant with regard to exhibits B; C and D. He cited several authorities to buttress his effervescent arguments, see, pages 26-27.
RESPONDENT’S ARGUMENTS
As noted earlier, the appellant’s reply brief was deemed, properly, filed on November 18, 2013. He adopted the arguments therein in answer to the cross appellant’s submissions. In the said brief, he adopted the arguments in issues 1-3 (supra) [that is, the appellant’s issues 1-4]. He urged the court to dismiss the cross appeal and allow the main appeal.
RESOLUTION OF THE ISSUE
We are, entirely, in agreement with the cross appellant that, having regard to the appellant’s averments in paragraphs 3 (a) and (b) of his the Amended Reply to the Amended Statement of Defence, the appellant [cross respondent] could not prove that exhibits B; C and D were the products of the respondent/cross appellant.
While the plaintiff/cross respondent’s case was that he drunk exhibit B on April 20, 2003, he, actually, purchased exhibits B-D on April 8, 2003. However, by exhibit M, which the dealer [PW2] tendered, the first purchase of the cross appellant’s product was on May 27, 2003. Arithmetically, that was almost two months after the plaintiff/cross respondent had purchased and drunk exhibit B. Interestingly, the so-called link between the plaintiff/cross respondent was exhibit M which the PW2 tendered. However, in the said exhibit M the opening entry was shown as May 27, 2003.
It was against this background that the cross appellant impeached the evidence of the cross respondent [as plaintiff]. At page 26 of the brief, he wondered why neither the plaintiff nor PW2 made efforts to explain why the date in exhibit M [May 27, 2003] was later in time than April 8, 2003 [the alleged date of the supply of the drink in question].
In any event, it was the cross respondent who pleaded exhibit M. Incidentally, PW2 was unequivocal that, on each occasion he made purchases or was supplied with the cross appellant’s products, the transaction was recorded, entered and signed for, on behalf of the cross appellant on what was described as a “Purchase (Route) Card.” Exhibit M is a sample. DW1 confirmed this business practice of the cross appellant with its customers.
Part of the testimony of PW2 was he had documents, for example, cards, marked daily when products were supplied to him to show that he had a business relationship with the cross appellant [as defendant]. In proof of that assertion, he tendered exhibit M [with an opening entry of May 27, 2003], see, 138 of the record. The respondent/cross appellant was unremitting in its effort to discredit the PW1 and PW2. He testified that exhibit B had no complete date code of the company. Worse still, it had no batch number.
With regard to exhibit C, he deposed that exhibit C did not have the date code of the company at all. According to him, it did not show the “best before date” when the product must be consumed. It, equally, did not, inter alia, the batch number etc. Having highlighted all their defects, he deposed that “exhibits B; C and D are not our products having regard to the defects I have highlighted.” He was emphatic that “exhibit B is not the way we crown our products.”
Notwithstanding all the defects which the DW1 identified, the lower court still found that “the link between the plaintiff and the defendant as being PW2 has been established…” With profound respect to that court, we have perused the pleadings over and over. We have studiously examined the above documents. We, entirely, endorse the contention of the counsel for the cross appellant that the findings contained on pages 185 – 186 of the record were not borne out by the pleadings and evidence before it, see, for example, paragraphs 3 (a) and (b) of the Amended Reply.
We, equally, endorse the contention that, in the absence of other documentary exhibits [such as exhibit M], the PW2 did not succeed in establishing that any business relationship between him and the cross respondent any time before May 27, 2003. We agree with counsel that the lower court erred when it held that exhibit M established a link between the cross respondent and cross appellant to the effect that PW2 had been in such a relationship with the cross appellant for over ten years. In all, we find in favour of the cross appellant. We, therefore, allow this cross appeal.
For the avoidance of doubt, the judgment of this court is that the main appeal is unmeritorious and is, hereby, dismissed. We find considerable merit in the cross appeal which we, accordingly, allow. We hereby enter dismissing the main appeal and allowing the cross appeal. Parties shall bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Chima Centus Nweze, J.C.A., had availed me of the draft of the lead judgment written by him in this appeal, before now. As usual, his lordship has comprehensively and admirably, considered the germane issues in the appeal and the lone issue raised in the cross appeal. The views on the issues set out in the lead judgment represent the extant positions of the law, as demonstrated therein, and so are the same with mine.
I am one with the reasoning for the conclusions reached on all the issues and consequently, join in dismissing the appeal for want of merit, and allowing the cross-appeal, for being meritorious.
Parties shall bear their respective costs of prosecuting the appeals.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Chima Centus Nweze, JCA. I agree with his reasoning and conclusions in the main appeal. I have nothing more to add in dismissing this appeal. I also hold that the cross appeal has merit and it is allowed. I abide by the orders as to costs contained in the lead judgment.
Appearances
F. E. Ekanem for the Appellant/cross RespondentFor Appellant
AND
C. C. Elele for the Respondent/cross AppellantFor Respondent
