In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2004
SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
SILAS OSIGWE Appellant(s)
2. S. S. KILASO Respondent(s)
ADEKEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State Abeokuta Judicial Division delivered on the 25th of June, 1996. Before the trial court the plaintiff Silas Osigwe claimed against the defendants Unipetrol of Nig. Plc. and S.S. Kilaso jointly and severally going by paragraph 28 of the amended statement of claim which reads:-
(a) The sum of N10 million (ten million naira) being damages for injuries, agony and disability suffered by him at Ijaiye, Abeokuta on the 26th day of April, 1994, when the 1st defendant’s petrol station operated by the 2nd defendant exploded and caught fire whereby the plaintiff suffered severe burns.
The accident occurred as a result of the negligence of the defendants.
Particulars of damages
(a) Cost of medical treatment N248,406,120.00
(b) Initial loss of income N400,000.00
(c) Permanent disability at the rate
of N3,000 for 30 years N1.8 million
(d) General damages by way of pain
and agony N5 million
(e) Employment of driver for 30 years
at the rate of N12,000 per annum
(f) Deformity N2.21 million
Parties proceeded to trial on their amended pleadings. The facts of this case in brief are that on the 26th of April, 1994, during the period of nationwide acute fuel scarcity, Silas Osigwe was driven to the 2nd defendants’ petrol filling station by his friend in his car registered as OG 606 ES. The petrol filling station was filled to capacity – with two long queues in the arrangement to purchase fuel from the pump. The plaintiff came out of the car, while his friend was moving the car towards the direction of the tank. All of a sudden there was an explosion, during which the plaintiff found himself splashed with petrol and he was engulfed with fire. He made efforts with the assistance of sympathizers to remove his dress. He had to be rushed down to Sacred Heart Hospital, Abeokuta, for medical assistance. The plaintiff suffered serious injuries to his body as a result of the bums. The injuries extended from underneath his breast, through his stomach to his thighs and legs. There were scars from skin grafting of about six inches on the right hand and also on his left hand. He was hospitalized and received treatment from various hospitals in respect of the injuries. The 2nd defendant is the operator at the 1st defendant’s petrol station at Ijaiye, Abeokuta. The operational agreement is as embodied in exhibit 1 before the trial court.
The station was built by 1st defendant – while it was handed over to the 2nd defendant to run. The management of the petrol station is the business of the dealer- as he employs his staff. It is the duty of the 1st defendant to maintain the pumps and all equipments and to ensure that none of the equipments was faulty. The 2nd defendant described that the entire petrol station was filled to maximum capacity with people carrying jerry cans as well as motorists all struggling to get fuel. When the situation became uncontrollable the Manager had to invite soldiers from nearby barracks to maintain order. The plaintiff who has been a long term customer at the station approached the attendant with a jerry can, and begged for sale of fuel inside the jerry can. The plaintiff snatched the pump nozzle from him as he had just sold fuel into a car. Other members of the public joined in the struggle for the nozzle. As the plaintiff and the man who died in the incident struggled for the pump nozzle petrol splashed on the bodies of the people around. The nozzle hit the ground and there was an explosion in which fire engulfed every body around the pump including the plaintiff. The man who struggled with the plaintiff for the pump died on the spot and a lot of people were injured. Defence maintained that before the fire, the 2nd defendant issued warnings to those carrying jerry cans. In the considered judgment of the learned trial Judge delivered on the 27th of June, 1996, the court dismissed the claim of the appellant with costs of N1,000, but in an alternative judgment he awarded damages to the appellant only as against the 2nd respondent in the sum of N988,136.00 and costs of N2,500.00. The plaintiff now appellant being dissatisfied with the judgment filed a notice of appeal on the 27th of August, 1996. The notice contained four grounds of appeal. Pursuant to an order of court made on the 12th of May, 1999, the appellant filed two additional grounds of appeal.
Parties filed and exchanged briefs in accordance with the Rules of the Court of Appeal, 2002. When the appeal came up for hearing, the appellant adopted and relied on the brief filed on the 25th of November, 1999, wherein four issues were distilled for the determination of this court as follows:-
(1) Whether in view of the unchallenged and un-contradicted evidence of the plaintiff the damages awarded was adequate having regard to the principle of law governing the quantum of damages, and whether the judgment is against the weight of evidence.
(2) Whether the learned trial Judge was right, when he neither considered nor properly and reasonably evaluated exhibits J and K and other relevant evidence before the court.
(3) Whether the learned trial Judge was right, when he did not consider that the defendant led evidence which were contradictory and at variance with the pleadings on the cause of the accident and based his findings and judgment thereon.
(4) Whether by the operative words and terms of the agreement (exhibit 1) signed between the 1st and 2nd respondent the learned trial Judge was right to hold the 1st respondent vicariously liable for the negligence of the 2nd respondent.
The 1st respondent, in the brief filed on 21/5/01 settled four issues for determination as follows:-
(1) Whether the alternative damages awarded by the trial Judge was adequate having regard to the totality of evidence adduced on the issue.
(2) Whether the learned trial Judge made proper findings in the evaluation of exhibits J and K.
(3) Whether there were contradictions in the pleadings and evidence of the defendants on the cause of the fire incident.
(4) Whether the learned trial Judge was right in holding that the first defendant cannot be vicariously liable for the negligence of the second defendant.
I regard the contents of the brief of the appellant and respondent as similar though slightly reframed by the respondent.
In an application filed on the 24th of April, 2003, and argued on the 27th of October, 2003, the appellant sought leave of this court to withdraw this action against the 2nd respondent, S. S. Kilaso, who died on the 29th of April, 2000. The application was granted. This appeal shall however proceed against the 1st respondent – Unipetrol Plc.
Under issue one this court is to consider whether on the alternative judgment, damages awarded by the trial Judge was adequate having regard to the totality of evidence adduced on the issue – It is the contention of the appellant that the judgment is against the weight of evidence. The sum total of the submission of the appellant on this issue is that in view of the unchallenged and un-contradicted evidence of the appellant herein on damages the quantum of damages awarded by the trial court was inadequate in the face of principles of law governing same. In effect, the judgment is on the whole against the weight of evidence. The appellant pleaded facts relating to the negligence of the respondents which caused the fire, wherein he suffered injuries, vide pages 53 – 57 of the records.
The appellant sought to rely on the alternative judgment on the maxim – res ipsa loquitor – paragraph 11 page 54 of the records. The pleadings also covered facts on the medical treatment he received at various hospitals after the fire incident at the petrol station, the medical attention which he still needed, the total medical expenses incurred by the appellant, the extent of damage and deformity the fire accident caused him. While giving evidence as PW1 the appellant tendered receipts of the medical expenses from Royal Hospital, Enugu, Michael and Alice Hospital-Abeokuka, Victory Medical Centre Abeokuta, Sacred Heart Hospital Abeokuta, State Hospital Sokenu, Abeokuta – as exhibits A – A 15, B-B 1 C- C3 D-D26 and – E3 . They were neither unchallenged nor tested under cross examination. The evidence of PW4 the Medical Doctor who issued and tendered exhibit G1 was not discredited. The trial Judge preferred the evidence of the defence – which on exhibit J and K, the report of the fire accident – said that the cause of the fire was unknown in which case the maxim of res ipsa loquitor pleaded should have been applicable. The learned trial Judge was wrong in law to have held that the maxim did not apply in the circumstance of this case in which the negligence of the respondent has been proved. The learned trial Judge chose to believe that evidence of the 3rd DW and 4th DW that the cause of the fire accident was due to the negligence of the appellant, page 99 lines 18-28 of the record, at page 100 lines 1-5 the learned trial Judge held that the claim of the appellant failed for failure to prove negligence on the part of the defendant. The approach of the learned trial Judge on the award of damages was wrong. In the face of the evidence of damage, shame, embarrassment, continued pain and deformity – the fire accident had caused him, the trial Judge should have found in favour of the appellant in his substantive claim and damages awarded as a fair and adequate compensation for the damages he suffered due to the accident. Consequently it is the view of the appellant that the law in respect of judgment being against the weight of evidence has not changed. The appellant cited the cases of – Ikuomola v. Oniwaya (1990) 4 NWLR (Pt.146) 617, at 624; U.B.A. Ltd. v. Achoru (1990) 6 NWLR (Pt.156) 254 at 722; Strabag Construction (Nig.) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt.170) 733 at 747; Okeowo v. Sanyaolu (1986) 2 NWLR (Pt.23) 471; Ediagbonya v. Dumez (Nig.) Ltd. (1986) 3 NWLR (Pt.31) 753 at 762; Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267 at 281, in support of the submission. He urged the court to resolve issue one in favour of the appellant.
The respondent replied on issue of quantum of damages and submitted that admissibility of a piece of evidence is quite distinct from the weight to be attached to such evidence. The learned trial Judge evaluated the evidence of the plaintiff on the issue of damages against the back ground of the facts pleaded and the totality of the evidence adduced in the case. Contrary to the submission of the appellant that his evidence on damages was not challenged or controverted, there is evidence on record that the evidence of the plaintiff under cross-examination was challenged particularly on his income and disability. The learned trial Judge considered each head of the claim and evaluated the evidence before making a finding which remained unchallenged by the appellant. The learned trial Judge was right when he held that there was no proof of the treatment he received from the various hospitals mentioned to connect them with the receipts exhibits B – B1, D – D26 E – E2 vide page 100 lines 21-32, page 101 lines 1-20 of the records. Cost of medical treatment is a claim by way of special damages which requires strict proof – it is not sufficient for the plaintiff to tender receipts from hospital without proof that he was actually admitted and treated there, as done in the case of Sacred Heart Hospital and State Hospital, Abeokuta. He did not plead that he attended Victory Medical Centre Abeokuta. The learned trial Judge considered the relevant and necessary factors in the assessments of damages which ought to be awarded, if he had proved negligence against the defendants. In order to justify reversal of the trial Judges decision on the quantum of damages – the appellate court will have to be convinced that the trial court acted upon the wrong principle of law, or the amount awarded was extremely high or low, this court is urged not to disturb the findings of the trial court made after a full consideration of the facts and based on the correct principle of law.
The respondent cited the under-mentioned cases:-
Dr. Torti v. Chief Ukpabi & Ors. (1984) 1 SCNLR 214, (1984) 1 SC 370 at 412-413; Araba v. Elegba (1986) 1 NWLR (Pt.16) 333 at 342; Idahosa v. Oronsaye (1959) SCNLR 407, (1959) 4 FSL 166 at 173; Bala v. Bankole (1986) 3 NWLR (Pt.27) 141; NEPA v. Alli (1992) 8 NWLR (Pt.259) 279; Allied Bank v. Akubueze (1997) 6 NWLR (Pt.509) 374, (1997) 6 SCNJ 116 at 142.
Under issue No. two this court is urged to consider whether the learned trial Judge properly evaluated the evidence led by the defence – as he came to the wrong conclusion particularly in respect of exhibits J and K. The appellant submitted that it is trite that before a court makes a finding of fact, the evidence must be weighed in the con of the surrounding circumstances of the case. The 1st respondent pleaded in paragraph 23 of the further amended statement of defence all documents including the report of the fire submitted by fire-brigade service and police report. Though these documents were tendered the perception and logical evaluation of same was not properly done in law by the learned trial Judge. He should not have disbelieved and jettisoned the documents as being mere formalities and no more. The weight to be attached to the documents has nothing to do with credibility of witnesses. The decision of the learned trial Judge at pages 90-103 of the record has occasioned a miscarriage of justice to the appellant and should be set aside.
The respondent submitted that exhibits J and K were tendered by DW1 which are Police and Fire Brigade reports on the fire incident. The court has to decide the probative value of the contents of exhibits J and K to the main issue joined by the parties in the case. The contents of exhibits J and K on the cause of fire incident are that “The cause of the fire is unknown”.
Paragraph 10 of the amended statement of claim apportioned the blame to the negligence of the 2nd respondent and his servants. Paragraph 11 relied in the alternative on the maxim res ipsa loquitor. Exhibits J and K are of no probative value to the case of the appellant – which held the respondent liable in negligence. It was the submission of the respondent that the learned trial Judge performed well his primary duty of ascription of probative value to all evidence – particularly exhs. J and K. The second issue is to be resolved in favour of the appellant.
In respect of the 3rd issue – the court is asked whether the learned trial Judge erred when he refused to consider the conflicting and contradictory evidence of the respondents on the cause of the accident – which was at variance with the pleadings. It was clearly stated by the Supreme Court that if a witness gives oral evidence which contradict the previous statement or the evidence of another witness such evidence should be treated as unreliable. It is not competent for the court to reject the testimony of one witness and accept the evidence of the other. It was the evidence going by Exhs. J and K that the cause of the fire was unknown. The 2nd DW in describing the incident said that there was a struggle for the pump nozzle, among the crowd of which the plaintiff was. In the process, the nozzle hit the ground and an explosion occurred- vide page 72 lines 20-23. He continued that the nozzle was to be put into the tank of a car which engine was running. The nozzle was snatched from Nurudeen by the plaintiff and one man died in the inferno page 73 lines 2-4 of the record. The evidence of DW3 and DW4 held the appellant responsible for the incident – the learned trial Judge did not find any contradictions in the evidence. These defences were not pleaded. It is well settled principle of law that any evidence adduced in support of facts not pleaded, or at variance with pleadings goes to no issue and should be disregarded. While on appeal any judgment not supported by evidence should be set aside. The learned trial Judge gave himself this warning at page 91 lines 1-6.The account of defence witnesses which the learned trial Judge accepted as the cause of the accident was not pleaded. The version pleaded at paragraphs 10, 11, 13, 14, 20 and 21 was that customers who came to buy fuel were struggling with the nozzle of the pump which caused the dispersing hose to remove spraying everyone with fuel and the fuel poured on the electric motor which was already hot – and it burst into flames. Contrary to the evidence it was pleaded that the appellant was trapped in the stampede which followed the explosion because he was so close to the pump. The court refused to be guided by the legal submissions of counsel on the issue of contradictions in the evidence – and was contended with the double defence of the respondents. The appellants counsel cited the cases of R.E.A.N. Ltd. v. Aswani ile Ind. (1991) 2 NWLR (Pt.176) 639 at 672; Akpan v. State (1991) 3 NWLR (Pt.182)646 at 657; Onubogu v. The State (1974) 1 All NLR (Pt.2) 5, (1974) NSCC 358 at 366; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (pt.7) 393; Adeoshun v. Adisa (1986) 5 NWLR (Pt.40) 225 at 238; Atunrase v. Federal Commissioner for Works and Housing (1975) 1 All NLR (pt.1) 331, (1975) NSCC Vol. 1 354 at 359; Owoade v. Omitola & Ors. (1988) 2 NWLR (Pt.77) 413, (1988) 1 NSCC Vol. 1 802 at 814-815.
The respondent replied that the contradiction specified by the appellant being the contents of exhibits J and K put in by the first respondent on one side and the evidence of DW2, DW3 and DW4 adduced by the second defendant on the other hand. The respondent emphasized that the admission of counsel can never be a substitute for pleadings and evidence in proving or disproving a case. There is no material contradiction between exhs. J and K and the evidence of DW2 – DW4 on the cause of the fire incident the 1st respondent had first hand information about the cause of the fire accident – relied on facts gathered from other people – hearsay evidence. The agents of the 1st respondent were not at the scene when the fire started – as pointed out. Exh J drew its conclusion from exh. K. There is nothing in the evidence of those who were at the scene to suggest that the fire brigade interviewed them before writing their report. The evidence from exhs. J and K could not have offered any evidence worth placing side by side with the evidence of PW1, PW2, DW1, DW2, DW3 and DW4 about the incident at the petrol station as they do not have the same probative value. Furthermore, the contradiction in the evidence called by the respondent must be material so as to vitiate the case of the respondent- which is not the position here and the learned trial Judge came to that conclusion. Where appraisal of facts is based on credibility of witnesses the learned trial Judge who has the advantage of watching the witnesses evaluate the evidence, it is not the business of the appellate court to substitute its views for that of the trial court, with a view to disturb the findings of fact made by the lower court. This court is urged not to disturb the findings of the trial court. The respondent referred to the cases of Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668, (2000) 12 WRN 112 at 127; Akpan v. The State (1991) 3 NWLR (Pt.182) 646 at 657; Akinloye v. Eyiyola (1968) NMLR 92.
As regard the fourth issue, the complaint of the appellant is that though the term of the agreement exh. 1 signed by the respondent regulating their relationship is clear and ambiguous-the learned trial Judge refused to hold the 1st respondent vicariously liable for the negligence of the 2nd respondent. The appellant submitted that the simple rule of construction of document is to give the operative words used by the parties their simple and ordinary meanings so as to be able to discover the intention of the makers of the document. Page 70 lines 15-19 of the records, page 71 lines 16-18 described the relationship between the 1st and 2nd respondent as customers in petrol business, the 1st respondent built the station while the 2nd respondent employs his staff, maintains the pumps and all equipments. The terms of the agreement used the words owner and operator – which is a kind of principal and agent relationship. One is vicariously liable when the agent commits an act in the usual cause of business and under the scope of the authority given to him by the principal commits acts of negligence resulting to damages to third parties. The law presumes that the acts are those of the owner and the owner is prima facie liable. The court on proper appraisal of the evidence should have made the 1st respondent vicariously liable for the act of the 2nd respondent. Issue No.4 is to be interpreted in favour of the appellant. The appellant referred to the cases of Salami v. Savannah Bank (1990) 2 NWLR (Pt.130) 106 at 128; Buraimoh v. Esa (1990) 2 NWLR (Pt.133) at 406; Bamgboye v. University of Ilorin (1991) 8 NWLR (Pt.207) 1 at 29; Manuel v. Ederu (1968) NSCC Vol. 5 300 at 303. Okeowo v. Sanyaolu (1986) 2 NWLR (Pt.23) at pg. 471.
The respondent replied that both respondents agreed on exh. 1 and the evidence before the court that although the filling station is owned by the first respondent, the operation and control were in the 2nd respondent. Exh. 1 the operational agreement amply specified the relationship – which is clearly not that of master and servant. From the pleadings of the parties, and the circumstances of the cause of action, considered along the line of decided cases the learned trial Judge was right when he held that the 1st respondent was not vicariously liable for the tort of the 2nd respondent. If the learned trial Judge did not find the 2nd respondent liable, the 1st respondent cannot be vicariously liable. The respondent referred to the cases of Kuti & Anor. v. Salawu Tugbobo (1967) 1 All NLR 311 at 313 – 314; Kuti & Anor. v.Jibowu & Anor. (1972) 1 All NLR (Pt.2) 190; Ormrod & Anor. v. Crosvile Motor Services Ltd. (1953) 2 All ER 753 at 754; Chukwu v. Solel Boneh (Nig.) Ltd. (1993) 3 NWLR (Pt.280) 246; Bamgboye v. University of Ilorin (1992) 8 NWLR (Pt.207) 1 at 29.
I have considered very carefully the submission of the counsel as they relate to the issues settled for determination in this appeal. It will be convenient at this stage to consider the issue of the alternative judgment given by the trial court. The learned trial Judge gave his reason for this alternative judgment at pg. 100 of the record as follows:
1. “It is the practice in this type of case to give an alternative judgment for the use of the appellate courts in the event of this judgment being overturned or overruled.”
See Adeyemi & Ors. v. Alhaji S. Bamidele & Ors. (1968) 1 All NLR 31 at pages 38-39.
The purport of the foregoing judgment is for the appellate court to have the advantage of the views of the trial court on the issue of damages and the assessment so as to forestall a situation of the case being sent back to the lower court for the trial on the issue of damages. The trial court was not retracting its stand on the issue of the liability or culpability of the parties – particularly the 1st respondent, for the 2nd respondent in the matters of this fire incident.
I intend to start with issue four and determine the issue of the vicarious liability of the 1st respondent for the 2nd respondent. The pleadings of the evidence in court and more particularly exh.1 referred to as the operational agreement between the parties describe abundantly the relationship of the parties. In the amended statement of claim of the appellant the relevant paragraphs are (3) and (5).
Paragraph 3 states:-
“The defendant is a dealer in petroleum products and operates the 1st defendant service filling station at Sokenu road, Ijaiye, Abeokuta, Ogun State.”
Paragraph 5 states:
The plaintiff states that at the material, time the 2nd defendant and the servants were in control and operating the said filling station. The plaintiff queued with the vehicle registered as No.OG 606 ES. In the further amended statement of defence for the 1st defendant, it was pleaded as follows:
“The defendant avers that the 2nd defendant is one of its dealers spread all over the state of the federation.”
The 1st defendant avers that it will rely on the agreement between it and the 2nd defendant dated 1st July, 1988, as a proof that the relationship between it and the 2nd defendant is not that of master and servant. The said agreement will be tendered at the trial of this action.
The 1st defendant states that the relationship between it and the 2nd defendant is that of tenant and landlord, hence the 1st defendant has no control of the running of the petrol station, apart from ensuring that no contaminated fuel or lubricants are sold at the station.
The 1st respondent through the 1st DW gave evidence to confirm this evidence and exh. 1 was tendered. Exh. 1 – the operational agreement used the word owner and operator to describe the parties to the agreement. As opposed to the view of the appellant – that relationship created is that of principal and agent – the representative of 1st respondent held in the evidence before the court that the 1st and 2nd respondents are partners in petrol business. Exh. 1 confirm the evidence that the 1st respondent builds the station and gives it to a dealer. The respondent maintains the pumps and all equipments. The dealer – 2nd respondent, shall run the station by employing his own staff and maintain maximum safety precautions against fire in the premises.
The 1st respondent is to be allowed to enter at any time to inspect the station, the sales records and surrounding equipment. The learned trial Judge did not make any improper findings to refer to the relationship created by exhibit B as a business relationship and not that of master and servant or principal and agent. Paragraph 22 of the statement of defence aptly described same as that of landlord and tenant. This not withstanding the issue of interpretation of documents was aptly described by the appellant’s counsel in his brief. It is one of the rules of construction that the court deals with a document according to the clear intention of the parties appearing in the four corners of the document itself. The elementary rule of construction of documents that in construing exh. lone is bound to give the operative words used by the parties their simple and ordinary meaning so as to be able to discover the intention of the makers. The intention of the parties is always to be gathered from the document itself and the terms are to be determined by the parties and not the court. All that the court does is to construe the words used by the parties in the agreement. The learned trial Judge has rightly construed the operative words used in the agreement when he arrived at the conclusion that the relationship between the 1st and 2nd respondents is purely business relationship as opposed to master and servant, or principal and agent. Dantata v. Dantata (2000) 4 NWLR (Pt.756) 144; Olanlege v. Afro Continetal (Nig.) Ltd. (1996) 7 NWLR (Pt.458) 29; Salami v. Savannah Bank (1990) 2 NWLR (Pt.130) 106.
Relying on the document tendered as exh. 1 further at page 3 clause 2 paragraph 17 (111) it is clearly stipulated as follows:- clause 2 paragraph 17 (111) – The operator is:-
To insure the station and equipment with an insurance company approved by the owner against damage to property or death or bodily injury to any person arising from the use of the station or equipment and at the request of the owner to produce the policy and receipt for the last premium due thereon.
R (iv) -To indemnify the owner against all actions and liability for damages to property or death or bodily injury to any person arising from the use of the station or equipment thereon.
From the foregoing words of exh. 1 – the operational agreement between the 1st and 2nd respondent, it is crystal clear that if the fire incident and the injury caused by it on the appellant is found to have been caused by the negligence of the 2nd respondent – the 1st respondent is absorbed from any form of liability. The party to join in the suit is the insurance company which insured the station. The 1st respondent is not the appropriate party to be joined in this suit.
I shall now consider the issue of the culpability of the 1st respondent. I shall first and foremost consider the probative value of exhibits J and K before the trial court.
Exh. J is the police report in respect of the fire incident at the Unipetrol Filling Station Ijaiye, Abeokuta. The conclusion of the report say:-
“Going by the fire report from the fire brigade Abeokuta which put off the fire the cause of it all is unknown – please.”
In the circumstance of the case, the report could not have been otherwise. The police were not invited to the station when the situation was chaotic. The report of the fire was brought to their notice after the accident; any form of investigation conducted by the police will be relying on the account of eye-witnesses only which will not be of any probative value to this case.
The report Exh. K is the report of the fire incident as compiled by the Fire Brigade officers. Like the police they were not around when the fire started. They were only invited to put out the fire. Like the police any investigation on the cause of the fire would be purely hearsay. Both these institutions are correct in putting the cause of fire as unknown. The learned trial Judge is right in holding the opinion that they are mere formalities.
The court can only come to the conclusion and rightly in my view that the reports are mere formalities. The only satisfactory account about the fire incident can only come from the eye-witnesses – who are the appellant, the DW2, DW3 and DW4. In the final analysis of the evidence, the duty of appraisal and ascribing of probative value before make findings of fact belong to the learned trial Judge. He was in the position of seeing and hearing the witnesses and watching their demeanor. He had properly considered the quality of the evidence of the appellant as against that of the defence witnesses as regards the cause of the fire. I find his conclusion unimpeachable. I do not consider the catalogue of contradictions and discrepancies outlined by the appellants as fatal to the respondents’ case. One would surely expect a degree of contradiction in the account of eye-witnesses in the face of the confusion and catastrophy pervading the petrol station at the time of the incident. The degree of the bums sustained according to the description of the learned trial Judge at page 92 of the record confirmed his proximity to the fire and the eye-witness account that he grabbed the pump nozzle from the petrol attendant to have fuel in his jerry can. The gesture became a matter of struggle between him and members of the eager public for the nozzle. That was the belief of the learned trial Judge, and this receives my approval.
An appellate court should ordinarily be wary to set aside the findings of a trial Judge, who has the opportunity of seeing and hearing witnesses except where he had failed to draw the proper inferences upon the facts presented to it, which is not the position. This court cannot therefore have any justifiable reason to overturn the impeccable conclusion of the learned trial Judge. Shell B.P. Petroleum Dev. Co. (Nig.) Ltd. v. Cole (1978) 3 SC 183; Solel Boneh Overseas (Nig.) Ltd. Ayodele (1989) 1 NWLR (Pt.99) 549; Royal Ade (Nig.) Ltd. v. N.O.C.M. Plc. (2004) 8 NWLR (Pt.874) 206; Sanni v. Ademiluyi (2003) 3 NWLR (Pt.807) 381.
I cannot also find any ingredient of negligence established against the 2nd respondent in this case and his subordinates in the circumstance of this case and as I have revealed earlier on exh. 1 has indemnified the 1st respondent from all liabilities in respect of any incident resulting in death or bodily injury at the station. I have to point out that negligence is a question of fact, not law. Thus, each case must be decided in the light of its own facts. Kalla v. Jarmakani Trans. Ltd. (1961) All NLR 747; Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt.636) 626. Before liability to pay damages for the tort of negligence can be established, three things have to be proved by the plaintiff:-
(a) That the defendant failed to exercise due care;
(b) That the defendant owed the plaintiff a duty to exercise due care; and
(c) That the defendant failure was the cause of the injury in the proper sense of that term.
Umudje v. Shell B.P. Petroleum Co. (Nig.) Ltd. (1975) 11 SC 155; Koya v. UBA Ltd. (1997) 1 NWLR (Pt.481) 251; Umar v. Ahungwa (1997) 1 NWLR (Pt.483) 601.
The maxim of res ipsa loquitor means the thing speaks for itself. The doctrine will come into operation:-
(a) On proof of the happening of an unexplained occurrence.
(b) When the occurrence is one which could not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff.
(c) The circumstances point to the negligence in question being that of the defendant rather than that of any other person.
This is not the position here, as the appellant’s act was described to have triggered off the entire unfortunate episode. Onwuka v. Omogui (1992) 3 NWLR (Pt.230) 393; Okogbo v. Umeh (2004) 6 NWLR (Pt.810) 610; Royal Ade (Nig.) Ltd. v. N.O.C.M. Co. Plc. (2004) 8 NWLR (Pt.874) 204.
I do not need to delve into the alternative judgment on the issue of damages – since there is no proof that the appellant suffered loss or injury to his person through the negligence of the 2nd respondent – or that the 1st respondent can be held liable in any form. I shall finally consider the issue of weight of evidence. When an appellant complains that judgment is against the weight of evidence all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the court. Mogaji v. Odofin (1974) 4 SC 91; Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643. Five factors which are considered when it comes to determining the weight of evidence are:-
(d) Conclusiveness; and
(e) Probability of the evidence by which the weight of evidence of both parties is determined. Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182; Mogaji v. Odofin (1978) 4 SC 91.
I am convinced that the learned trial Judge used the foregoing yardstick in determining the weight to be attached to the evidence of the parties before him.
In this appeal, I have considered whether the learned trial Judge used the imaginary scale of justice to weigh the evidence before him and I have come to the conclusion that his ultimate decision is faultless. The present position in this appeal is that the 1st respondent is absolved from any form of liability under the term of exh. 1 the operational agreement, while the 2nd respondent, the dealer at the petrol station died in the year 2000. This action being a personal action cannot survive him. This appeal lacks merit and it is accordingly dismissed. No order as to costs.
IBIYEYE, J.C.A.: I have read before today, albeit in draft, the lead judgment of my learned brother, Adekeye, JCA. I completely agree with the reasoning and conclusion that the appeal lacks merit. I also dismiss it. I make no order as to costs.
OMAGE, J.C.A.: In the court below, the plaintiff claimed against two defendants, the Unipetrol and S.S. Kilaso, for damages for injuries, agony and disability suffered by him at Ijaiye Abeokuta on 26th April, 1994, when the petrol station of the 1st defendant exploded and caught fire, which allegedly caused the plaintiff to suffer severe bums.
Pleadings were exchanged in the court below, and the claim went to trial. At the end of the trial at the court below, the plaintiffs claim against the 1st defendant was dismissed; and the second defendant was found liable to the plaintiff in the alternative in the sum of N988,136, with costs. The plaintiff was dissatisfied and appealed to this court. The appellant formulated four issues, which were considered by my learned brother, O. O. Adekeye in the lead judgment.
I agree with the conclusion in the lead judgment that the appeal lacks merit; and that it should be dismissed. I abide by the consequential order that no costs should be awarded.
Chief Fadayiro (with him, B. Kalejaiye [Miss))For Appellant
Respondent’s counsel absentFor Respondent
SILAS OSIGWE v. UNIPETROL & ANOR