MOBIL OIL NIGERIA PLC v. BARBEDOS CARS LIMITED (2016)

MOBIL OIL NIGERIA PLC v. BARBEDOS CARS LIMITED

(2016)LCN/8520(CA)

In The Court of Appeal of Nigeria

On Monday, the 25th day of April, 2016

CA/K/333/2012

RATIO

TORT: THE GENERAL PRINCIPLE OF NEGLIGENCE
Negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and Statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm – Universal Trust Bank of Nigeria Plc Vs Ozoemena (2007) 3 NWLR (Pt 1022) 448, Okwejiminor Vs Gbakeji (2008) 5 NWLR Pt 1079) 172 and Diamond Bank Plc Vs Partnership Investment Co Ltd (2009) 18 NWLR (Pt 1172) 67.
Negligence is a tort and it is complete and actionable when three conditions are satisfied, these are (i) the defendant owed a duty of care to the claimant; (ii) the duty of care was breached; and (iii) the claimant suffered damages arising from the breach. A claimant must prove the three conditions by preponderance of evidence or on balance of probabilities to succeed in an action rooted in negligence and once these requirements are satisfied, the defendant in law will be held liable in negligence – Abubakar Vs Joseph (2008) 13 NWLR (Pt 1104) 307, Iyere Vs Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (Pt 1119) 300, GKF Investment Nigeria Ltd Vs Nigerian Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344 and Diamond Bank Plc Vs Partnership Investment Co Ltd supra.
The generally accepted principle of negligence is that a person owes a duty of care to his “neighbour” who would be directly affected by his act or omission. The word “care” means serious attention or heed. Under the law of negligence or of obligation, it means the conduct demanded of a person in a given situation. Typically, this involves a person’s giving attention both to possible dangers, mistakes and pitfalls and to ways of minimizing those risks Nigerian Ports Plc Vs Beecham Pharmaceutical PTE Ltd (2013) 3 NWLR (Pt 1333) 454, Yabo Air Ltd Vs Mohammed (2015) 5 NWLR (Pt 1451) 38. There is a legal duty owed to take reasonable care to avoid acts or omissions which can be reasonably foreseen to likely injure a neighbour. “Neighbours” in this regard are persons who are so closely and directly affected by one’s act that one ought reasonably to have them in contemplation as being so affected when one is directing his mind to the acts or omissions which are called in question. The question to ask on the “neighbour” and “duty of care” principle is whether between the wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may likely cause damage to the latter in which case a prima facie duty arises – Abusomwan Vs Mercantile Bank of Nigeria (1987) 3 NWLR (Pt 60) 196 andAnya Vs Imo Concorde Hotels Ltd (2002) 18 NWLR (Pt 799) 377. The uncontested fact between the parties in this matter was that the Respondent is the next door neighbour of the Appellant and that their premises shared a common boundary wall. The Respondent was thus within the net of those regard as “neighbours” to whom the Appellant owed a duty of care.
This takes us to the next condition of negligence – whether the Appellant breached the duty of care. Now, negligence is a question of fact and not law and so each case must be decided in the light of the facts pleaded and proved. So as a general rule, a claimant in an action in negligence is required to state or give particulars of negligence alleged and it is not sufficient for a claimant to make a blanket allegation of negligence against a defendant in a claim of negligence without giving full particulars of the items of negligence relied on – Universal Trust Bank of Nigeria Plc Vs Ozoemena supra, Dare Vs Fagbamila (2009) 14 NWLR (Pt 1160) 777, Diamond Bank Plc Vs Partnership Investment Co Ltd supra. However, the law recognizes that instances do occur where a claimant might not have knowledge of the actual acts of negligence of a defendant that set in motion the train of events leading to the incident and the incident in question is of a nature that will not occur, but for some negligence on the part of the defendant or of someone for whom the defendant is responsible. The law allows a claimant in such circumstances to rely on the doctrine of res ipsa loquitor and such a claimant will not be obliged to plead particulars of negligence and all he is required to show in his pleadings are the circumstances from which the negligence of the defendant can be inferred if there is no explanation from the defendant ? Nigeria Bottling Company Plc Vs Nwaneri (2000) 14 NWLR (Pt 686) 30. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
EVIDENCE: EVIDENCE OF WITNESS; EFFECT OF EVIDENCE OF WITNESS GIVEN AGAINST HIS PARTY
It is settled law that where a witness called by a defendant gives evidence which supports the claimant’s case and the defendant does not treat him as a hostile witness, the evidence of such witness must be treated as an admission upon which the claimant is entitled to rely as further reinforcement of his case – Okafor Vs Idigo (1984) 1 SCNLR 481, Adebambo Vs Olowosago (1985) 3 NWLR (Pt 17) 207, Elewuju Vs Onisaodu (2000) 3 NWLR (Pt 647) 95, Alikor Vs Ogwo (2010) 5 NWLR (Pt 1187) 281. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
DAMAGES: PRINCIPLES GUIDING ASSESSMENT OF DAMAGES
Now, while it is not in contest that a trial Court is empowered to grant less than the sum claimed as special damages, it is, however, essential that the lesser sum granted must have its foundation in the pleadings and in the evidence led by the parties and it cannot be predicated on conjecture or speculation. The law is that assessment of damages must be based on the pleadings and evidence adduced and where there is no evidence to support a claim for damages the claim should be dismissed – IMNL Vs Nwachukwu (2004) 13 NWLR (Pt 891) 543, Oke Vs Kaja (2014) 3 NWLR (Pt 1394) 374, First Bank of Nigeria Plc Vs Banjo (2015) 5 NWLR (Pt 1452) 253, Chevron (Nig) Ltd Vs Omoregha (2015) 1,6 NWLR (Pt 1485) 336. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
DAMAGES: MEANING AND NATURE OF GENERAL DAMAGES
General damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the Court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man – Akinfosile Vs Mobil Oil (Nig) Ltd (1969) NCLR 253, United Bank of Africa Plc Vs Ogundokun (2009) 6 NWLR (Pt 1138) 450. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MOBIL OIL NIGERIA PLC Appellant(s)

AND

BARBEDOS CARS LTD Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/226/2009 delivered by Honorable Justice B. U. Sukola on the 17th of September 2012. The Respondent, as plaintiff, commenced the action in the lower Court against the Appellant, as defendant, and its prayers were for:
i. A declaration that the Defendant and/or its agents were negligent in the process of discharging fuel from the petrol tanker which led to the outbreak of fire that damaged the Plaintiff?s cars and canopies on the 25th of January, 2008.
ii. The sum of N96.1 Million being special damages for the market value of the fifteen numbered assorted cars and seven canopies damaged by reason of the Defendant’s negligence.
iii. The sum of N260 Million being initial general damages by the fire incident that damaged some of the assorted vehicles of the Plaintiff resulting to negative business prospect of the Plaintiff occasioned by the negligent conduct of the Defendant or its agents.

The parties filed their respective pleadings and other supporting

processes in respect of the claims and the matter proceeded to trial and in course of which the Respondent called three witnesses and tendered exhibits while the Appellant called two witnesses and also tendered exhibits. At the close of trial and after the final addresses of Counsel, the lower Court entered judgment wherein it found in favour of the Respondent and ordered as follows:
i. I declare that the Defendant and/or its agents were negligent in the process of discharging fuel from the petrol tanker which led to the outbreak of fire that damaged the Plaintiff’s cars and canopies on the 25th of November, 2008.
ii. I assess and award the sum of N30 Million only being special damages for the market value of the fifteen number assorted cars and seven canopies damaged by reason of the Defendant’s negligence to enable the Plaintiff restore/repair the said damaged vehicles and canopies to their status ante the 25th of November, 2008 i.e. before the fire incident which damaged the vehicles.
iii. I similarly assess and award the sum of N150,000.00 only being general damages resulting from the negative business prospect of the Plaintiff’s business

resulting from the negligence of the Defendant by the fire incident of 25th November, 2008.

The lower Court also awarded costs in the sum of N500,000.00. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal containing eight grounds of appeal and dated the 8th of October 2012 against it. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 21st of December 2012. The response of the Respondent was contained in the brief of arguments dated the 21st of March, 2013 and which brief of arguments was deemed properly filed and served by this Court on the 19th of March, 2014. Counsel to the Appellant filed a reply brief of arguments dated on the 19th of March, 2014. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs as their oral submissions in this appeal.
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Counsel to the Appellant formulated five issues for determination in this appeal. These were:
i. Having regard to the evidence so far adduced and Exhibit D1, whether the learned trial Judge was right in holding that the doctrine of

res ipsa loquitor applied in this case.
ii. Whether having regard to the totality of the evidence before the Court, whether the Appellant could be said to be negligent thereby resulting in damage of the Respondent’s cars and canopies.
iii. Whether the award of the sum of N30 Million as special damages against the Appellant has not occasioned a miscarriage of justice having regard to the fact that no basis or ground for such award exists, same not having been proved.
iv. Whether the available evidence can support the learned trial Judge’s award of the sum of N150,000.00 being general damages in favour of Respondent.
v. Whether the learned trial Judge was right when he held that the provisions of Petroleum Act Mineral Oils (Safety) Regulations) Cap P10, Laws of the Federation of Nigeria 2004 did not apply to this case.
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On the first issue for determination, Counsel stated that for the doctrine of res ipsa loquitor to apply, there must be the absence of an explanation from the plaintiff as to the cause of the incident which has occasioned the loss resulting in this suit and that where the defendant in his defence gives adequate

explanation, and the facts are sufficiently known, the question ceases to be one where the act speaks for themselves.
Counsel referred to the case of Ojo Vs Gharoro (2006) 10 NWLR (Pt 987) 173 where he stated that the Supreme Court restated the three conditions for the application of the doctrine of res ipsa loquitor as (i) when the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control; (ii) the occurrence is such that it would not have happened without negligence; and (iii) there must be no evidence as to why or how the occurrence took place.

Counsel stated that while it was conceded that the service station where the fire outbreak started belonged to the Appellant and the petrol tanker gutted by fire was there on its approval, and thus putting the petrol tanker and the service station under the management of the Appellant, the other two conditions for the application of the doctrine of res ipsa loquitor in this case were absent. Counsel referred to the testimonies of the first and third plaintiff witnesses and to the contents of the

letter tendered as Exhibit D1 wherein it was stated that “the possible cause of the fire was an accidental rush of vapour which quickly spread to the truck” and said that this fact was well known to the plaintiff and that this explanation rendered the doctrine of res ipsa loquitor inapplicable in this case.

Counsel stated that another question begging for answer was whether the fire outbreak would not have occurred but for the negligence of the Appellant and that the evidence led in the matter particularly in the testimonies of the first and second defence witnesses and in the contents of the letter of the Kaduna State Fire Service, Exhibit D1 were uncontroverted attestation of the fact the fire outbreak was not due to any fault or negligence on the part of the Appellant and that the Appellant complied with all safety requirement standards in the service station. Counsel stated that where it has been shown and demonstrated by a defendant that an accident was not due to its negligence and evidence abound explaining how and why the occurrence took place, the burden of proof on negligence shifts back to the plaintiff who must strictly prove same as the facts no

longer spoke for themselves and he referred to the case of Julius Berger (Nig) Plc Vs Nwagwu (2006) 12 NWLR (Pt 995) 518. Counsel stated that parties were agreed as to the cause of the outbreak and evidence was led thereon by both sides and that res ipsa loquitor did not apply to establish facts within full knowledge and awareness of a plaintiff in a case of negligence. Counsel urged that the first issue for determination be resolved in favour of the Appellant.

On the second issue for determination, Counsel stated that the onus of proving negligence and the damages suffered by reason of the negligence rests squarely on a plaintiff and he referred to the case of UTB (Nig) Vs Ozoemena (2007) 3 NWLR (Pt 1022) 448 and stated that the Respondent thus had the onus of proving that the Appellant owed it a duty of care and which duty was willfully breached by the Appellant and that it suffered damages as a result of the breach of the duty of care and he relied on the case of Osigwe Vs Unipetrol (2005) 5 NWLR (Pt 918) 261.
Counsel conceded that the Appellant did owe the Respondent a duty of care but stated that to be held to have willfully breached that duty

of care, the Respondent must lead evidence that the Appellant acted carelessly, recklessly or willfully without observance of the standard required of it by law or by a reasonable man and that the evidence before the lower Court in the testimonies of the first and second defence witnesses and in Exhibit D1 was that the Appellant kept the service station in compliance with the standard fire and safety regulations and that the Respondent did not lead any evidence to show willful breach of the duty of care by the Appellant.
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Counsel stated that the cause of the fire, as can be gleaned from the evidence, was a sudden or accidental rush of vapour from the underground tank which quickly spread to the petrol tanker discharging fuel and which resulted to flames, but that there was no evidence linking the said accidental rush of vapour from the underground tank to the negligent conduct, act or omission of the Appellant and that the said rush of vapour was an unforeseen circumstance which was simply an act of God. Counsel stated that having put in place standardized safety measures and necessary precautions, it would be unreasonable to hold the Appellant liable for

an act of God and that the actions of the Appellant thus passed the reasonable man’s test to relieve him of all liabilities in negligence and that this accords with the principle established in Diamond Bank Ltd Vs PIC Ltd (2007) 18 NWLR (Pt 1172) 67.
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Counsel stated that the next question is whether the Respondent led evidence that it suffered damages by reason of the fire incident and if so the extent of the damages. Counsel stated that the Respondent claimed that fifteen of its assorted cars were damaged due to the radiation from the fire from the Appellant’s premises and in proof of which it tendered photographs, bill of lading, delivery notes, invoices and photographs of burnt canopies and that no evidence was led to connect the exhibits to each other. Counsel stated that the Respondent claimed for total loss of the vehicles and it led evidence that some of the vehicles got damaged in the process of evacuating them and the vehicles had not been sold and were being kept in another location, but it did not tender the vehicles as exhibits to enable the Court assess the extent of the damage, if any. Counsel stated that in the circumstances the Respondent

ought to have led evidence of capital value of the vehicles in their undamaged state as their capital value in their damaged state or of the cost of repairs of the vehicles or costs of their restoration to their undamaged state, and the Respondent did none of these and he referred to the AMC (Nig) Ltd Vs Volkswagen (Nig) Ltd (2011) All FWLR (Pt 588) 928. Counsel urged that this issue for determination be also resolved in favour of the Appellant.
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Counsel argued the third and fourth issue for determination together and he restated the long establish principle that though an appellate Court does not ordinarily interfere with the award of damages done by a trial Court, it will do so where the award of damages is unreasonable, illogical and baseless and he referred to the case of A.T.E. Co. Ltd Vs Gov., Ogun State (2009) 15 NWLR (Pt 1163) 26. Counsel reproduced the claims of the Respondent before the lower Court and stated that the second claim was for special damages in the sum of N96.1 Million being the market value for the fifteen assorted cars and seven canopies destroyed by reason of the negligence of the Appellant while the third claim was for the sum of

N260 Million as general damages for loss of business. Counsel stated that special damages by their nature were not granted as a matter of course and they must be specially pleaded and strictly proved by strong evidence and he referred to the case of ASESA Vs Ekwerem (2009) 13 NWLR (Pt 1158) 410.

Counsel stated that the lower Court found in the judgment that the Respondent did not lead credible evidence to prove that the Respondent suffered total loss on the cars and canopies and was thus not entitled to the amount claimed as special damages, but it went ahead to award the Respondent the sum of N30 Million as restoration and repairs costs of the items to return them to the state they were before the occurrence of the incident. Counsel stated that the Respondent neither pleaded nor led any iota of evidence on the extent of the damage to each of the cars and canopies and the restoration and/or repair costs to return each of them to the state they were before the incident and that there was no basis for the award made by the lower Court and that the award was against all known principles of award of special damages. Counsel urged this Court to interfere

with and set aside the award of damages.

On the award of N150,000.00 as general damages for loss of business resulting from the negligence of the Appellant, Counsel stated that there was nothing in the evidence in the trial Court to support the award and he thereafter traversed through the evidence of the first and third prosecution witnesses under cross-examination to show the paucity of the evidence. Counsel stated that though the award was described as general damages, a claim for damages for loss of business was similar to a claim for loss of profit and was in the nature of special damages and which must be strictly proved and that it was thus incumbent of the Respondent to establish the claim by cogent documentary evidence and he referred to the case of A.T.E. Co. Ltd Vs Gov., Ogun State supra. Counsel stated that there was no justification shown by the Respondent for the award and he urged this Court to intervene and set aside the award. Counsel urged that the third and fourth issues for determination should be resolved in favour of the Appellant.
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On the fifth issue for determination, Counsel stated that the Petroleum Act (Mineral Oils (Safety)

Regulations) Cap P10, Laws of the Federation of Nigeria 2004 was made by the Minister of Petroleum pursuant to its powers under Section 9 of the Petroleum Act for the purpose of ensuring that adequate standard safety measures are adopted in petroleum distribution, sales, exploration, prospecting, etc and that looking at the definitions of dangerous area and dangerous atmosphere in Section 2 of the Regulations, it was obvious that they covered the premises of the Appellant and that the provisions of the Regulations were applicable to the premises, contrary to the finding of the lower Court that they applied only to oil prospecting areas. Counsel stated that the evidence before the lower Court was that the Appellant had been at its premises for about thirty years and that the Respondent came to its premises only about two years ago and that Section 43 of the Regulations forbade the Respondent from placing any building within one hundred feet of the premises of the Appellant.

Counsel stated that the act of the Respondent in putting up a structure within the prohibited distance of the Appellant’s premises disabled the Respondent from claiming damages against

the Appellant because by the principle of volenti non fit injuria the Respondent, who voluntarily, freely and with full knowledge of the risk of running his business within the prohibited distance, will be taken to have agreed to incur the risk and cannot be heard to complain and he referred to the case of Dare Vs Fagbamila (2009) 14 NWLR (Pt 1160) 177. Counsel stated that knowledge and consent were present on the part of the Respondent as ignorance of the law is no excuse and that the deliberate and conscious act of the Respondent obviated the liability of the Appellant because he who seeks equity must do equity and he referred to the case of JAMB Vs Orji (2008) 2 NWLR (Pt 1072) 552. Counsel urged this Court to hold that the provisions of the Regulations applied to the premises of the Appellant and to also resolve this issue for determination in favour of the Appellant.

Counsel concluded his arguments by urging this Court to uphold the contentions of the Appellant in this appeal and to allow the appeal and set aside the judgment of the lower Court.
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On his part, Counsel to the Respondent distilled three issues for determination in the appeal. These

were:
i. Whether having regard to the totality of the evidence led, the trial Court was justified in applying the doctrine of res ipsa loquitor to find the Appellant negligent in relation to the fire incident of 25th of November, 2008 which resulted in damage to the Respondent’s fifteen assorted vehicles and seven canopies.
ii. Whether the awards of special and general damages in the sums of N30 Million and N150,000.00 respectively made by the trial Court against the Appellant were justified in the light of the evidence led before the trial Court.
iii. Whether the holding of the trial Court to the effect that the provision of Section 2 of the Petroleum Act Mineral Oils (Safety) Regulations) Cap P10, Laws of the Federation of Nigeria 2004 is inapplicable to the instant case was justified and proper.
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In arguing the first issue for determination, Counsel to the Respondent reiterated the established facts of the case and stated that the Respondent, both on its pleadings and in the testimonies of its witnesses, maintained before the lower Court that it was not in the know of the exact negligent conduct of the Appellant which resulted in the fire

incident that damaged its vehicles and canopies. Counsel stated that though the Respondent was aware of and indeed gave evidence of the fact that there was a fire outbreak in the premises of the Appellant and which spread to its premises and destroyed its cars and canopies, it was its case that it was not in a position to give affirmative evidence of the nature and particulars of the negligent conduct of the Appellant which led to the fire outbreak and that it was in this wise that the Respondent relied on the doctrine of res ipsa loquitur.

Counsel stated that the references made by Counsel to the Appellant to portions of the testimonies of the first and third plaintiff witnesses to support its arguments on the inapplicability of the doctrine of res ipsa loquitor were inapposite because the pieces of evidence were not evidence of the particulars or nature of the negligence committed by the Appellant, but evidence of the primary facts of the occurrence of the fire incident which resulted in the damage complained of. Counsel stated that a party relying on the doctrine of res ipsa loquitor was still obligated by law to lead evidence on the primary facts of

the occurrence of the incident and from which the application of the doctrine can be invoked and that this was what the plaintiff witnesses did in the instant case and he relied on the cases of Management Enterprises Ltd Vs Olusanya (1987) 2 NWLR (Pt 55) 179, Abi Vs CBN (2012) 3 NWLR (Pt 1286) 1, Okhai Vs C & C Construction Co Ltd (1998) 3 NWLR (Pt 543) 584 as well as a passage from the book, Clarke and Lindsell on Torts. Counsel stated that the doctrine of res ipsa loquitor only serves to shift the burden of proof and that where a party complains that he suffered damage or injury occasioned by the acts or omission of his neighbor but does not have affirmative evidence as to the particulars of the negligent act or omission, the doctrine shifts the burden of proof on the neighbor to establish by evidence that it is not negligent and he referred to the case of PSHMB Vs Goshiwe (2013) 2 NWLR (Pt 1338) 383.
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Counsel stated that the pertinent question in this matter is whether the Appellant discharged the onus of proof that passed unto it by the operation of the doctrine of res ipsa loquitor and that in response to this question, Counsel to the Appellant

placed reliance on Exhibit D1, the report of the Kaduna State Fire Service. Counsel stated that the Exhibit D1 was documentary hearsay evidence and not deserving of probative value because it was put forward as the opinion of an expert, but that it was not tendered by the maker and the Respondent was not afforded the opportunity to subject to cross-examination and that the document ought not to have been admitted in the first place and he relied on the case of Mark Vs Abubakar (2009) 2 NWLR (Pt 1124) 79. Counsel stated further that the witness who tendered Exhibit D1, the first defence witness, testified that the author of the document was not at the scene at the occurrence of the fire incident, and he only came thereafter, and the witness also gave evidence that he had reservations about the correctness of parts of the document and that these also showed that Exhibit D1 was undeserving of probative value. Counsel stated that none of the defence witnesses gave credible evidence to discharge the burden of proof on the Appellant and that all they sought to do was to exonerate the Appellant from the circumstances that gave rise to the fire incident and shift it

to a third party and that they devoted the bulk of their evidence on the efforts they made in trying to put out the fire after it started. Counsel stated that the lower Court was justified in the circumstances to apply the doctrine of res ipsa loquitor.

On the issue of proof of damage suffered, Counsel stated that the failure of the Respondent to tender the damaged vehicles and canopies in evidence did not translate to lack of proof of the damage to the vehicles and canopies and he referred to the testimony of the first plaintiff witness which he said gave eloquent testimony of the damage suffered by the Respondent from the fire incident, particularly the photographs of the damaged vehicles tendered as Exhibits 1, to 24 and of the damaged canopies tendered as Exhibits 5, 5A to 5C. Counsel stated that the first plaintiff witness gave a vivid description and identification of the affected fifteen vehicles from the photographs tendered and he thereafter reproduced the relevant portion of the evidence of the said witness and stated that the argument of Counsel to the Appellant that the Respondent did not give evidence of the damages it suffered arising from

the fire accident was incorrect. Counsel stated that the representation made by Counsel to the Appellant that all the vehicles were driven out of the premises by the Respondent is not supported by the evidence and that what the plaintiff witnesses stated was that the vehicles were evacuated from the premises and not that they were driven out.

Counsel stated that the resort made to act of God or inevitable accident by the Counsel to the Appellant in this appeal cannot avail it because that was not the case canvassed in the lower Court and that the case of the Appellant on the pleadings was that it was not involved in the process of discharge of petroleum products into its underground tank and therefore it cannot be responsible for whatever happened in the said process as same was undertaken by an independent contractor. Counsel reproduced the relevant paragraphs of the statement of defence and stated that the Appellant cannot be allowed to raise the defence of act of God or inevitable accident in the circumstances and particularly more so as the circumstances of the fire outbreak suggested that same could not have occurred without the negligence of

the Appellant or of its agents in the process of discharging the petroleum products into the underground tanks. Counsel stated that by reliance placed on the doctrine of res ipsa loquitor by the Respondent, the burden of proof shifted to the Appellant and which the Appellant failed to discharge and he referred to the cases of SPDC Ltd Vs Adamkue (2003) 11 NWLR (Pt 832) 533 andRoyal Ade Nig Ltd Vs NOCM Plc (2004) 8 NWLR (Pt 874) 206. Counsel urged that the first issue for determination be resolved in favour of the Respondent.

On the second issue for determination, Counsel referred to the relevant pleadings of the parties on the claim for special damages and stated that in response to the copious pleadings of the Respondent on the damaged fifteen cars and seven canopies, the Appellant merely made a general denial and put the Respondent to the strictest proof thereof and that these have been held not to amount to proper traverse or joining of issues and the effect is that the Appellant admitted those pleadings and he referred to the cases of Asafa Foods Factory Vs Alraine Nig Ltd, (2002) 12 NWLR (Pt 781) 379 and OMPADEK Vs Dalek Nig Ltd (2002) 12 NWLR (pt

781) 384 as well as Order 17 Rule 5(2) of the High Court of Kaduna (Civil Procedure) Rules 2007. Counsel stated that further to the admission, the Respondent led cogent evidence through its witnesses and documents tendered on the monetary value of the fifteen damaged vehicles and canopies and that particularly the first plaintiff witness connected the bills of lading, receipts and invoices to the each vehicle affected and that these amounted to credible evidence of the sum of the N96.1 Million claimed as special damages as the law is that production of receipts was sufficient to meet the requirement of strict proof of special damages and he referred to the case of UTB Nig Plc Vs Ozoemena (2001) 3 NWLR (Pt 1022) 448.
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Counsel stated that they were not unmindful of the findings of the lower Court on the failure of the Respondent to tender the damaged vehicles and canopies in Court to enable it form an opinion whether they were total losses, but stated that this finding did not stop the lower Court from awarding a lesser sum than claimed as special damages in the light of the evidence led and that this was award of the sum of N30 Million made to enable the

Respondent restore and repair the said damaged vehicles and canopies to their original position before the incident. Counsel referred to the case of A.M. Co Nig Ltd Vs Volkswagen Nig Ltd (2010) 7 NWLR (Pt 1192) 97 on the proof of special damages and stated that a trial Court had the power to grant a lesser relief than that claimed, but definitely not a higher relief and he referred to the cases of Obioma Vs Olomu (1978) NSCC 103 and Ekpeyong Vs Nyong (1975) NSCC 28. Counsel stated that the award of the sum of N30 Million as special damages by the lower Court was proper in the circumstances and that the Appellant has not presented any justification for this Court to interfere with the award.
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On the award of N150,000.00 as general damages, Counsel stated that there was abundant evidence on the record to justify the award and he referred to the relevant pleadings of the Respondent on the claim and the testimony of the first and third plaintiff witnesses and stated that the submission of the Counsel to the Appellant that they claim was not supported by evidence is misconceived. Counsel stated that the sum was award as general damages and this was an award

made at the discretion of the Court and he referred to the cases of Omeziri Vs Oko (2004) 13 NWLR (Pt 890) 287 and Unipetrol (Nig) Plc Vs Adireje (WA) Ltd (2005) 14 NWLR (Pt 946) 563. Counsel urged the Court to resolve this second issue for determination in favour of the Respondent.

In arguing the third issue for determination, Counsel stated that the provisions of the Petroleum Act Mineral Oils (Safety) Regulations) Cap P10, Laws of the Federation of Nigeria 2004 were for all intents and purposes targeted at sites of crude oil production and not petrol service station such as the Appellant’s situated on the main road in town with access to commuters to enter and fetch for their vehicles. Counsel referred to the definition of crude oil in Section 2 of the Petroleum Act and stated that the definition clearly excludes petroleum products such as fuel and that this was confirmed by the provision of Section 43 of the Regulations which referred to site for drilling for the production of oil and gas, and to petroleum products. Counsel stated further that the Appellant did not plead any fact in its pleadings that could anchor or justify the invocation of the

provisions of the Petroleum Act or of the Petroleum Act (Mineral Oils (Safety) Regulations) and that all arguments in respect thereof went to no issue irrespective of the fact that the lower Court pronounced thereon.

Counsel stated that the issue of whether or not the premises of the Respondent was located one hundred feet from the service station of the Appellant was a question of fact and that there was no pleading of such fact in the pleadings of the Appellant and also that for the principle of volenti non fit injuria to apply, there must be evidence led and the Appellant must obtain a finding of fact that the Respondent, with full knowledge of the risk, voluntarily and freely implied agreed to incur it and he referred to the case of Dare Vs Fagbamila supra. Counsel stated that no such evidence was led by the Appellant and no such finding of fact was made by the lower Court.
Counsel urged this Court to sustain the finding of the lower Court on this issue and to resolve this issue for determination in favour of the Respondent.
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Counsel concluded his arguments by urging this Court to uphold all the contentions of the Respondents and to dismiss the

appeal and affirm the judgment of the lower Court.

This case was contested on the pleadings before the lower Court. The Courts have stated over and over that in an action fought on pleading, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G. This principle was firmly restated by the Court of Appeal inAwuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F

when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be called to adjudicate between them.”
?
It was not in contest between the parties that the Respondent is an importer and marketer of different brands of cars which it displays for sale at its office along Ali Akilu Road Kaduna while the Appellant was engaged, amongst other things, in the distribution, marketing and retail sales of petroleum products through its service stations located all over the country and one of which is situate on, and shared boundary with the office of the Respondent, on Ali Akilu Road, Kaduna; in other words, both parties were neighbours. It was not in contest between the parties that in the normal course of its business, petrol tankers belonging to the Appellant or its agents or independent contractors brought fuel into the service station of the Appellant and which fuel was offloaded into the underground tanks of the Appellant and was

subsequently sold to consumers through the installed pumps at the service station.

It was the case of the Respondent that in the late evening of the 25th of November, 2008 while fuel was being discharged from a petrol tanker into the underground tank in the service station of the Appellant a fire incident occurred through the negligent conduct of the Appellant and its agents and the fire consumed the petrol tanker and the resultant radiation therefrom destroyed fifteen of its new cars and seven canopies in its compound. It was its case that the Appellant owed it a duty of care as a neighbor to exercise utmost precaution to prevent an outbreak of fire in the course of discharging fuel into its underground tanks and that the petrol tanker, the underground tanks into which the fuel was being discharged as well as the service station were under the management and control of the Appellant and its agents at the time of the incident and that the Appellant breached the duty of care to it by not taking adequate precautions and that the fire would not have happened without negligence on the part of the Appellant and its agents in the course of the discharge of the

fuel. The Respondent pleaded the particulars of the cars and canopies and their replacement costs and that he would be relying on the doctrine of res ipsa loquitor in proving the negligent conduct of the Appellant or of its agents.

It was the case of the Respondent that it brought the damage caused to its cars and canopies by the radiation of the fire outbreak to the notice of the staff of the Appellant and that representatives of the Appellant from Kaduna, Kano, Abuja and Lagos came to its premises to assess the damage and that the damage to the cars were so extensive that it was obliged to replace them. It pleaded the photographs of the damaged vehicles and canopies, the invoices, police reports, demand letters from its Counsel to the Appellant and it was its case that its business suffered a downturn because its customers were no longer assured of the quality of the cars they would get from its shops by reason of the damage caused to the cars by the radiation from the fire incident.
?
The Appellant denied the case of the Respondent on negligence and it averred that it does not own petrol tankers and neither does its agents or servants own petrol

tankers and that petroleum products are supplied to its filling stations by contractors who are independent contractors and owners of the petrol tankers that convey the petroleum products and one of whom was Alhaji Ali Mohammed. It was its case that the petrol tanker that supplied and discharged petrol into its underground tank on the 25th of November, 2008 did not belong to it but to Alhaji Ali Mohammed, an independent petrol tanker owner and transporter, who is neither its staff, agent or privy, and who was engaged solely to transport petrol from its terminal in Lagos and to discharge same into the underground tanks in its service stations, including the one on Ali Akilu Road, Kaduna. It was its case that it was the sole responsibility of the independent contractor or its agents to transport, supply and eventually discharge fuel into the underground tanks at its filling station and that it is only after the fuel has been fully discharged into its underground tank that the duty of the independent contractor is concluded and it is at that point it takes control of the product and sells to its customers.
?
It was the case of the Appellant that the petrol tanker

that was discharging fuel into the underground tank at the time the fire incident occurred was not at all material times under its management and control or that of its agents or servants, but under the management and control of the independent contractor and that it is after the fuel has been fully discharged into its underground tank that it takes over management of the product and sells same and that it was not involved in the process of discharge of petrol into the underground tank and neither was its agents and servants. It was its case that it had at all material times kept and complied fully with the standard fire safety regulation and neither it nor its agents and servants was negligent in the fire outbreak and that the fire incidence was investigated by the Kaduna State Fire Service and that the outcome of the investigation completely exonerated it and its agents and servants from negligence and commended it for maintaining the required standard safety regulations. It was its case that the service station had been in existence at the site for over thirty years while the Respondent sited his car shop only about two years before the incident.<br< p=””

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Reading through these pleadings, the judgment of the lower Court and the arguments of Counsel to the parties in this appeal, it is the view of this Court that three issues arise for determination in this appeal. These are:
i. Whether the lower Court was correct when it found that the Respondent made out a case of negligence against the Appellant.
ii. Whether the lower Court followed the establish principles on damages in awarding the Respondent the sum of N30 Million and N150,000.00 as special damages and general damages respectively against the Appellant.
iii. Whether the provisions of the Petroleum Act Mineral Oils (Safety) Regulations) Cap P10, Laws of the Federation of Nigeria 2004 were applicable in the circumstances of this case to exonerate the Appellant from any or all liability to the Respondent.

This appeal will be resolved on these three issues for determination and all the arguments of Counsel to the parties will be considered there under. The issues will be resolved seriatim.
?
Issue One
It is obvious from the pleadings that the cause of action of the Respondent against the Appellant was rooted in negligence.

Negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and Statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm – Universal Trust Bank of Nigeria Plc Vs Ozoemena (2007) 3 NWLR (Pt 1022) 448, Okwejiminor Vs Gbakeji (2008) 5 NWLR Pt 1079) 172 and Diamond Bank Plc Vs Partnership Investment Co Ltd (2009) 18 NWLR (Pt 1172) 67.

Negligence is a tort and it is complete and actionable when three conditions are satisfied, these are (i) the defendant owed a duty of care to the claimant; (ii) the duty of care was breached; and (iii) the claimant suffered damages arising from the

breach. A claimant must prove the three conditions by preponderance of evidence or on balance of probabilities to succeed in an action rooted in negligence and once these requirements are satisfied, the defendant in law will be held liable in negligence – Abubakar Vs Joseph (2008) 13 NWLR (Pt 1104) 307, Iyere Vs Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (Pt 1119) 300, GKF Investment Nigeria Ltd Vs Nigerian Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344 and Diamond Bank Plc Vs Partnership Investment Co Ltd supra.

The generally accepted principle of negligence is that a person owes a duty of care to his “neighbour” who would be directly affected by his act or omission. The word “care” means serious attention or heed. Under the law of negligence or of obligation, it means the conduct demanded of a person in a given situation. Typically, this involves a person’s giving attention both to possible dangers, mistakes and pitfalls and to ways of minimizing those risks Nigerian Ports Plc Vs Beecham Pharmaceutical PTE Ltd (2013) 3 NWLR (Pt 1333) 454, Yabo Air Ltd Vs Mohammed (2015) 5 NWLR (Pt 1451) 38. There is a legal duty owed to take reasonable care

to avoid acts or omissions which can be reasonably foreseen to likely injure a neighbour. “Neighbours” in this regard are persons who are so closely and directly affected by one’s act that one ought reasonably to have them in contemplation as being so affected when one is directing his mind to the acts or omissions which are called in question. The question to ask on the “neighbour” and “duty of care” principle is whether between the wrongdoer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may likely cause damage to the latter in which case a prima facie duty arises – Abusomwan Vs Mercantile Bank of Nigeria (1987) 3 NWLR (Pt 60) 196 andAnya Vs Imo Concorde Hotels Ltd (2002) 18 NWLR (Pt 799) 377. The uncontested fact between the parties in this matter was that the Respondent is the next door neighbour of the Appellant and that their premises shared a common boundary wall. The Respondent was thus within the net of those regard as “neighbours” to whom the Appellant owed a duty of care.
?
This takes us to the next condition

of negligence – whether the Appellant breached the duty of care. Now, negligence is a question of fact and not law and so each case must be decided in the light of the facts pleaded and proved. So as a general rule, a claimant in an action in negligence is required to state or give particulars of negligence alleged and it is not sufficient for a claimant to make a blanket allegation of negligence against a defendant in a claim of negligence without giving full particulars of the items of negligence relied on – Universal Trust Bank of Nigeria Plc Vs Ozoemena supra, Dare Vs Fagbamila (2009) 14 NWLR (Pt 1160) 777, Diamond Bank Plc Vs Partnership Investment Co Ltd supra. However, the law recognizes that instances do occur where a claimant might not have knowledge of the actual acts of negligence of a defendant that set in motion the train of events leading to the incident and the incident in question is of a nature that will not occur, but for some negligence on the part of the defendant or of someone for whom the defendant is responsible. The law allows a claimant in such circumstances to rely on the doctrine of res ipsa loquitor and such a claimant will not be

obliged to plead particulars of negligence and all he is required to show in his pleadings are the circumstances from which the negligence of the defendant can be inferred if there is no explanation from the defendant ? Nigeria Bottling Company Plc Vs Nwaneri (2000) 14 NWLR (Pt 686) 30.

The Respondent in the instance case pleaded res ipsa loquitor and the circumstances of the occurrence of the fire outbreak, and not the particulars of negligence. Counsel to the Appellant contended that the principle of res ipsa loquitor was not open to the Respondent on the facts of this case. The maxim of res ipsa loquitor literally means “the thing speaks for itself” and it is applicable to actions for damages caused by negligence where no proof of such negligence is required beyond the accident itself.
The doctrine provides that in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a pima facie case. The phrase is a symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a

claimant’s case and present a question of fact for a defendant to meet with an explanation.
Res ipsa loquitor arises where in an accident a thing is shown to be under the management of the defendant or his servant and the accident is such as in the ordinary course of things does not happen if the person who has the management of the thing used proper care and where it affords a reasonable evidence in the absence of explanation by the defendant that the accident arose from want of care – Orajekwe Vs Mbieri (1962) 1 SCNLR 30, Shell Petroleum Development Co Ltd Vs Adamkue (2003) 11 NWLR (Pt 832) 533, Shell Petroleum Development Co Ltd Vs Anaro (2015) 12 NWLR (pt 1472) 122. It is based on common sense and its purpose being to enable justice to be done when the facts bearing on causation and the standard of care exercised are unknown to the claimant but ought to be within the knowledge of the defendant.
Whether res ipsa loquitor will apply or not is to be determined on the truly known facts adduced in evidence or purely on the pleadings. The question of res ipsa loquitor has to be tested on an assessment of evidence i.e. whether on proof of the happening

of a particular event, it can be said that the thing speaks for itself -Strabag Construction (Nig) Ltd Vs Ogarekpe (1991) 1 NWLR (Pt 170) 733. It was an uncontested fact in this matter that the fire outbreak in issue occurred while a petrol tanker was discharging fuel into the underground tank belonging to the Appellant within the service station of the Appellant. Now, it is common knowledge that fuel or fuel vapor does not ordinarily conflagrate if it is not exposed to contact with a flame or spark and the presence of a flame or spark in the vicinity of where fuel is being discharged, without more, shows lack of proper care. Thus, from agreed facts, the fire outbreak occurred in a place which was under the management of the Appellant and the fire outbreak was such that would not ordinarily occur with the use of proper care and the manner of its occurrence affords a reasonable evidence, in the absence of explanation by the Appellant, that it arose from want of care. The maxim of res ipsa loqauitor was thus available for the Appellant to rely on in the circumstances of this case ? Shell Petroleum Development Co Ltd Vs Anaro supra.
It is trite law

that the maxim of res ipsa loquitor is no more than a rule of evidence which affects the onus of proof and once a claimant relying on the maxim gives evidence on the circumstances of occurrence of the accident, the onus of proof of negligence, normally placed on the claimant, shifts and the defendant is required to establish that there was in fact no negligence on his part- Management Entetprises Ltd Vs Olusanya (1987) 2 NWLR (Pt 55) 179, Flash Fixed Odds Ltd Vs Akatugba (2001) 9 NWLR (Pt 717) 46, Shell Petroleum Development Co Ltd Vs Anaro (2015) 12 NWLR (Pt 1472) 122. It was not in contest between the parties that the Respondent led cogent and credible evidence explaining the circumstances of the occurrence of the fire incident through the testimonies of the first and third prosecution witnesses. The onus thus shifted to the Appellant to establish that there was no negligence on its part.
?
In arguing this point in this appeal, Counsel to the Appellant conceded that the petrol tanker that was gutted by fire and the service station were under the management and control of the Appellant and its agents and servants and he stated therefrom that it must be

shown that the Appellant acted carelessly, recklessly and willfully without observing the standard required of it by law or of a reasonable man. Counsel thereafter stated that the evidence was that the fire outbreak was caused by a sudden rush of vapour from the underground tank which quickly spread to the petrol tanker discharging the fuel and which resulted in flames and that since there was no evidence linking the sudden rush of vapour from the underground to the negligent act or omission of the Appellant, it was an act of God over which the Appellant had no control. Counsel concluded that the Appellant passed the reasonable man standard test and was thus relieved of all liabilities of negligence.

These entire arguments of Counsel to the Appellant are completely at variance with the case pleaded and canvassed by the Appellant on negligence before the lower Court. There is no correlation between the case of the Appellant on the pleadings and in the evidence led before the lower Court and the above arguments of Counsel to the Appellant. Now, It is elementary that an appeal is an invitation to a higher Court to review the decision of a lower Court in

order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31. In carrying out this task the appellate Court is limited by the records of appeal in that appeals are heard and decided on the basis of the records of appeal compiled and transmitted by the parties from the lower Court to the appellate Court. The records of appeal are binding on the Court, the parties and their Counsel. An appellate Court has no jurisdiction to go outside the records of appeal and draw a conclusion which is not supported by the records – Onwuka Vs Ononuju (2009) 11 NWLR (Pt 1151) 174, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (pt 1173) 384 and Garuba Vs Omokhodion (2011) 14 NWLR (Pt1269) 145.
?
Hence, parties are not allowed to canvass on appeal cases different from those canvassed in the lower Court and which is contained in the records of appeal. A party must be consistent with the case he presents in Court and he is

no allowed to plead a case in the lower Court and then turn somersault to plead a different case before the Court of Appeal – Suberu Vs State (2010) 8 NWLR (Pt 1197) 586 and Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303. This Court will thus discountenance these new found arguments of Counsel to the Appellant in this appeal and consider the correctness of the decision of lower Court on the finding of negligence on the basis of the case the Appellant canvassed in the lower Court.

The case of the Appellant before the lower Court was that it should not be held negligent because the petrol tanker that was discharging fuel into the underground tank at the time the fire incident occurred was not at all material times under its management and control or that of its agents or servants, but under the management and control of the independent contractor, one Alhaji Ali Mohammed who owned the petrol tanker and that it had at all material times kept and complied fully with the standard fire safety regulations as confirmed by the Kaduna State Fire Service in its investigation of the fire incident.

One of the basic ends of the law of tort is to place the ultimate

liability for negligent injury on the person or persons who are primarily responsible for the injury inflicted.
So as a general rule, every person who is legally responsible is liable for his own negligence which is the proximate cause of injury to another, or damage to property. Liability for tort founded on negligence should not be imposed on one who has not been negligent. Hence, in the absence of a Statute to the contrary, and except in the clearest of cases and where interests of justice demand, the negligent conduct of one person will not be imputed to another if he neither authorized such conduct, participated therein, nor had the right of control, and it has been held to be fundamental that, in order to impute negligence of one person to another, such person must stand in some special vicarious relationship such as exist between a master and a servant, a principal and agent, etc.
?
It is a well established general principle of law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants and agents, even though the acts are done in carrying out the works for his benefit.<br< p=””

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This general rule is, however, subject to qualifications. One of such exceptions is where the work involves extra-hazardous acts, that is, acts which, in their very nature involve in the eyes of the law special danger to others; of such acts the causing of fire and explosions are obvious established instances, or where the works involve dangerous substances, a person is equally bound by an inescapable duty. The point may perhaps be crystallized by saying that he has no merely a duty to take care but also a duty to ensure that care is taken. It is, therefore, a matter of no importance in these classes of cases whether he delegates the duty to a servant or contractor. The burden of the duty cannot be thrown off, and if care has not been taken, wherever the fault may be, however he may have protected himself by special covenant with the individual or contractor actually in fault, he is liable in law to the party who has suffered by the default – Umudje Vs Shell Petroleum Development Co (Nig) Ltd (1975) 9-11 SC 155, ISC Services Ltd Vs Genak Continental Ltd (2006) 6 NWLR (Pt 977) 481, Shell Petroleum Development Co (Nig) Ltd Vs Awillie-Odele-Okogbo (2011)

LPELR-CA/PH/289/2006.
In Black Vs Christchurch Finance Co. (1894) AC 48, a case of creating a fire in the bush which spread to an adjoining owner’s land, it was said in the opinion of the Privy Council:
?The lighting of fire on open bush land, where it may readily spread to adjoining property and cause serious damage, is an operation necessarily attended with great danger, and a proprietor who executes such an operation is bound to use all reasonable precautions to prevent the fire extending to his neighbour?s property (sic utere tuo alienum non laedas). And if he authorizes another to act for him he is bound not only to stipulate that such precautions shall be taken, but also to see that these are observed, otherwise he will be responsible for the consequences.?
In The Pass of Ballater (1942) P.112, the Court stated that the precautions to be considered reasonable in the circumstances vary naturally with the ratio of danger, that is to say, precautions which might be considered reasonable where danger is small might be plainly insufficient where the danger increased. In Savage Vs Wilby and Wilby and Delong (1954) DLR 204, the

Court held that a person who employs an independent contractor, to do work which in the ordinary method of its performance, involves a risk of damage unless proper care is taken, is not absolved from liability where the damage does occur (as a result of the contractor’s failure to take proper care) merely because he has employed a competent contractor and it is immaterial that the person engaging the contractor does not himself know of the danger; he is still liable since, common means being employed, he ought to have foreseen the danger. See also Holiday Vs National Telephone Co. (1899) 2 QB 392, Brooke Vs Bool (1928) 2 13 578, Honeywell and Stein Ltd Vs Larkin Brothers Ltd (1934) 1 KB 191, Penny Vs Kendricks (1956) 1 WLR 95, Balfour Vs Barty-King (1957) 1 QB 496 and Municipality of Cape Breton Vs Chappell’s Ltd (1963) 36 DLR (2d) 58.
?The product involved in the present case is fuel. The fire incident occurred when petrol was being discharged from petrol tanker into the underground tanks in the service station of the Appellant. Petrol falls into the categorization of very dangerous substance and the handling and discharge of which is an inherently

dangerous operation. This point was explained in Hutson Vs United Motor Service (1936) 2 DLR 390 and 392-393 thus:
?Gasoline is a dangerous substance. Gasoline vapour is far more dangerous and when it is exposed to contact with a flame or spark an explosion is inevitable. The care necessary in such case is consummate care and as Pollock on Tort, 13th Ed. p.518 says:- ?It is doubtful whether even this be strong enough. At least we do not know any English case of this kind? where unsuccessful diligence on the defendant?s past was held to exonerate him.?
In Peters Vs North Star Oil Ltd (1966) 54 DLR (2d) 364, the Court held that delivery of gasoline is an inherently dangerous act, so that even if the distributor were an independent contactors the defendant company would remain liable as the duty in such situations is so stringent as to amount practically to a guarantee of safety and this duty cannot be delegated. Similar statements were made by the Courts in McDonald Vs Associated Fuels Ltd (1954) 3 DLR 775 and Ayoub Vs Beaupre and Bense 45 DLR (2d) 411. The Appellant in the instant appeal cannot thus seek to be absolved of

negligence simply because it contracted out the transportation of petrol from its terminal in Lagos and the discharge of the petrol into its underground tanks at the service station in question to an independent contractor. The Appellant must go further to state the precautions it stipulated for the independent contractor to take in the transportation and discharge of the petrol and/or the steps it took to ensure that the independent contractor took the precautions. Nothing of such was either pleaded or led in evidence by the Appellant.

In proof of the assertion that it complied fully with the standard fire safety regulations, the Appellant tendered the letter of the Kaduna State Fire Service dated the 15th of December, 2008 as Exhibit D1. The letter read thus:
“It was reported to our station about 7:25 pm on Tuesday, 25th November, 2008 that there was a fire outbreak at Mobil Service Station, Ali Akilu Road, near Luggard Hall round about.
Firefighters from the State Fire Service Department responded immediately to the distress call. On arrival at the fire ground we found out that a truck with reg. No XA 965 QAP carrying 33,000 liters PMS

(Petrol) was already engulfed by fire. We fought the fire until it was completely out with two drums of foam chemical and 10,000 liters of water.
Investigation by the Fire Prevention Unit of the State Fire Service showed that the truck carrying the fuel was completely burnt and the radiation from the burning truck’s flame spread to the neighbouring Barbedos Motors and structurally damaged fifteen (15) different vehicles. We also observed that the service station has a boundary wall, fire safety devices, earthing wire and a clean premises in compliance with standard fire safety regulations, before the fire outbreak occurred.
The possible cause of the fire was an accidental rush of vapour which quickly spread to the truck. …”
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The letter did not say anything about the precautionary steps that the Appellant stipulated for the independent contractor who transported and discharged the petrol to take and/or the steps the Appellant took to ensure that the independent contractor took the precautions. What is important are the steps of proper care taken by the Appellant to forestall the occurrence of the fire and not the facilities it possessed to combat a

fire outbreak. The letter, Exhibit D1, was talking of the facilities of the Appellant to combat a fire outbreak and even there, it was very vague on the details of standard fire safety regulations that it said the Appellant complied with. The contents of the letter did not assist the case of the Appellant on its claim of non-negligence. The Appellant did not discharge the onus on it to show that it was not negligent. The finding of the lower Court that the Appellant breached its duty of care to the Respondent cannot thus be impeached in the circumstances.
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The next consideration is the third condition of negligence; that the Respondent suffered damages arising from the breach. Damages may be defined as the disadvantage which is suffered by a person as a result of the act or default of another. It may also be defined as a loss or deterioration caused by the negligence, design or accident of one person to another, in respect of the latter’s person or property. The Respondent pleaded and led evidence through the first and third plaintiff witnesses that the resultant radiation from the fire incident that consumed the petrol tanker destroyed fifteen of its new cars

and seven canopies in its compound, The Respondent pleaded and led evidence on the particulars of the cars and canopies and their replacement costs. The Respondent also pleaded and led evidence on the facts that it brought the damage caused to its cars and canopies by the radiation of the fire outbreak to the notice of the staff of the Appellant and that representatives of the Appellant from Kaduna, Kano, Abuja and Lagos came to its premises to assess the damage. It pleaded and tendered the photographs of the damaged vehicles in evidence as Exhibits 1 to 24 and of the canopies as Exhibit 5, 5A to 5C. The pictures depicted damaged vehicles and burnt canopies.
?
In its response, the Appellant did not meet the averments of the Respondent on damage to fifteen of its cars and seven canopies with any specific and directed denials, but with general denials. The two defence witnesses said nothing in their evidence in examinations in chief to contradict or countermand the testimonies of the plaintiff witnesses on the issue, and it was only under cross-examination that the first defence offered some half-hearted denials of the assertion of damage to the Respondent’s

cars and canopies by saying that he was not aware of the damages, and not that the damages did not occur. Exhibit D1, the report of the Kaduna State Fire Service on the fire incident, was tendered by the Appellant in proof of its defence and the document affirmed the case of the Respondent that the radiation from the fire incident spread into its compound and destroyed fifteen different cars. It is settled law that where a witness called by a defendant gives evidence which supports the claimant’s case and the defendant does not treat him as a hostile witness, the evidence of such witness must be treated as an admission upon which the claimant is entitled to rely as further reinforcement of his case – Okafor Vs Idigo (1984) 1 SCNLR 481, Adebambo Vs Olowosago (1985) 3 NWLR (Pt 17) 207, Elewuju Vs Onisaodu (2000) 3 NWLR (Pt 647) 95, Alikor Vs Ogwo (2010) 5 NWLR (Pt 1187) 281.
?
The Respondent obviously made out a more credible case that it suffered damage by reason of the negligence of the Appellant. The Respondent thus satisfied the three conditions necessary for the lower Court to make a finding of negligence against the Appellant. The finding of negligence

made by the lower Court was supported by the pleadings and the evidence led by the parties and this Court has not been given any reason to tamper with the finding. The first issue for determination in this appeal is resolved in favour of the Respondent.

Issue Two
Whether the lower Court followed the establish principles of damages in awarding the Respondent the sum of N30 Million and N150,000.00 as special damages and general damages respectively against the Appellant.
?
The damage claims of the Respondent before the lower Court were for special damages in the sum N96.1 Million being the market value of the fifteen numbered assorted cars and seven canopies damaged by reason of the Appellant’s negligence and the sum of N260 Million as general damages as loss of business prospects by reason of the fire incident. In dealing with the claim for special damages, the lower Court stated in the judgment thus:
“Without much ado, I agree with the submissions of the Defendant that the Plaintiffs are not entitled to claim for total loss of the damaged items which were neither physically tendered in Court nor tangible evidence of absolute damage

established by evidence before the Court. The testimonies of the Plaintiffs witnesses in so far as the damaged motor vehicles are concerned are that they were all driven out of the
Plaintiff?s premises during which some additional damage were occasioned on the vehicles. The further evidence of the Plaintiffs witnesses are that the damaged vehicles were kept by the Plaintiff’s Chairman in an undisclosed location. The failure to physically tender the damaged vehicles robs this Court the opportunity to physically form an opinion as to whether the Plaintiff is entitled to compensation in damages for total loss.
… I cannot therefore accept the Plaintiff?s explanation as to justify the claim for total loss as the scrap for the damaged vehicles were not before the Court. Indeed the admission by the Plaintiffs witnesses that the damaged vehicles were driven out suggests that the damage was not absolute. …
It is my further view that the Plaintiff being a commercial/trading company ought to take mitigating steps to diminish its loss either by way of insurance policy or some other ways of repairs of the damaged vehicles which have been

adjudged by this Court as having been driven out on their wheels suggesting they could still be in their substantial commercial value. It will be unwise and a bad business decision to expect the Plaintiff to keep the damaged vehicles in their damaged form in an undisclosed location, and without tendering them as exhibits before this Court. Where the Plaintiff does so, it may be guilty of some contributory loss or deterioration of value to the damaged vehicles.” (see pages 370 to 371 of the records)
?
Consequent on these findings, the lower Court rejected the claim for special damages in the sum N96.1 Million as market value of the fifteen numbered assorted cars and seven canopies damaged in the fire incident, and in its stead awarded the sum of N30 Million special damages as the cost of restoration/repair of the said damaged vehicles and canopies to their status ante the 25th of November, 2008 i.e. before the fire incident which damaged the vehicles. The Respondent did not appeal these findings and the refusal of the lower Court to award it the sum of N96.1 Million claimed. It thus accepted that it did not lead credible evidence to entitle it to the sum of

N96.1 Million claimed as special damages for the total loss value of the damaged cars and canopies. The question in this issue for determination is whether the award of special damages of N30 Million as cost of restoration/repair of the damaged vehicles and canopies was justified.

Now, special damages means those damages which are the actual but not the necessary result of the injury complained of and which in fact follow as a natural and proximate consequence in the particular case, that is by reason of special circumstances or conditions. Such are damages which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury – Tanko Vs Mai-Waka (2010) 1 NWLR (pt 1176) 468, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd Vs Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt 1192) 97.

It is axiomatic in our jurisprudence that a claim in the nature of special damages must be specifically pleaded with particulars and strictly proved – Agi Vs Access Bank Plc (2014) 9 NWLR (Pt 1411) 121, Union Bank of Nigeria Plc Vs Chimaeze (2014) 9 NWLR (Pt 1411) 766,

British Airways Vs Atoyebi (2014) 13 NWLR (Pt 1424) 253. It is trite that when the law requires that particulars must be supplied in a claim in the nature of special damages, it depends on the nature and facts of each case. A clear inference of what is required can be drawn from the decision of the Supreme Court inAttorney General of Oyo State Vs Fairlakes Hotels Ltd (1989) 5 NWLR (Pt 121) 255 where Agbaje, JSC stated that the requirement to plead particulars of special damages is to ?obviate any surprise to the opposite party who may not be aware of the details and circumstance from which the special damages have arisen or the basis upon which they have been calculated or arrived at by the plaintiff who claims them based on his own precise calculation.? In other words, the detailed basis for the calculation of the sum claimed must be contained in the pleadings.
?On prove of a claim in the nature of special damages, the law is that the party claiming must establish his entitlement to the claim by credible evidence of such character that would suggest he is entitled to it – Agi Vs Access Bank Plc supra, Union Bank of Nigeria Plc Vs Chimaeze

supra. In Neka BBB Manufacturing Co Ltd Vs African Continental Bank Ltd (2004) 2 NWLR (Pt 858) 521. at 540-541, the Supreme Court explained this statement thus:
“It is trite law that where the claimant specifically alleges that he suffered special damages he must per force prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable the loss or damages he has suffered so that the opposing party and the Court as umpire would readily see and appreciate the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not cast on a puerile conception or notion which would give rise to speculation, approximation or estimate or such fractions.?

Now, while it is not in contest that a trial Court is empowered to grant less than the sum claimed as special damages, it is, however, essential that the lesser sum granted must have its foundation in the pleadings and in the evidence led by the parties and it cannot be predicated on conjecture or speculation. The law is that assessment of damages must

be based on the pleadings and evidence adduced and where there is no evidence to support a claim for damages the claim should be dismissed – IMNL Vs Nwachukwu (2004) 13 NWLR (Pt 891) 543, Oke Vs Kaja (2014) 3 NWLR (Pt 1394) 374, First Bank of Nigeria Plc Vs Banjo (2015) 5 NWLR (Pt 1452) 253, Chevron (Nig) Ltd Vs Omoregha (2015) 1,6 NWLR (Pt 1485) 336. The Respondent in the instant case neither pleaded nor led any evidence to prove the cost of restoration/repair of the damaged fifteen vehicles and canopies to their status ante the 25th of November, 2008. The sum of N30 Million awarded as special damages had no basis either in the pleadings of or in the evidence led by the Respondent. It was a mere conjecture of the lower Court. The award was completely against all known principles governing the award of special damages. It cannot be allowed to stand and it will be set aside.

On the award of the sum of N150,000.00 as general damages, the law is that where a trial Court finds that a claimant made out a credible case of negligence against a defendant, such claimant is entitled to an award of general damages -Iyere Vs Bendel Feeds and Flour Mills Ltd (2008)

18 NWLR (Pt 1119) 300.

General damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the Court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man – Akinfosile Vs Mobil Oil (Nig) Ltd (1969) NCLR 253, United Bank of Africa Plc Vs Ogundokun (2009) 6 NWLR (Pt 1138) 450.

It is settled law that an appellate Court does not make a habit of interfering with an award of general damages made by a trial Court and in order to justify such interference, the appellate Court must be convinced that (i) the trial Court acted upon wrong principles of law; or (b) the amount awarded was so extremely high or very small to make it, in the view of the appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is

entitled – Abu Vs Abulime (2007) All FWLR (Pt 396) 683, Usang Vs Hanseatic International Ltd (2009) 11 NWLR (Pt 1153) 522, Oduwole Vs West (2010) 10 NWLR (Pt 1203) 598. Reading through the entire arguments of the Counsel to the Appellant in this appeal, no meaningful reason was advanced to cause this Court to interfere with the award of general damages made by the lower Court. This award stands and will be affirmed.

The second issue for determination is thus resolved partly in favour of the Appellant and partly in favour of the Respondent.

Issue Three
Whether the provisions of the Petroleum Act (Mineral Oils (Safety) Regulations) Cap P10, Laws of the Federation of Nigeria 2004 were applicable in the circumstances of this case?
?
These Regulations were made pursuant to the provisions of Section 9 the Petroleum Act of 1969. The case of the Appellant under this issue for determination is that the Respondent breached the provisions of Section 43 of the Regulations and that this breach obviated any and all responsibilities that Appellant may have had to the Respondent by reason of the negligence. This submission touches on the second question that

one is enjoined to ask in the application of the “neighbour” and the “duty of care” principle – whether there are any considerations which ought to negate or to reduce or limit the scope of the duty or limit the class of persons to whom it is owed or the damage to which a breach of it may give rise – Anya Vs Imo Concorde Hotels Ltd supra.

Counsel to the Appellant postulated that the service station of the Appellant wherein the fire incident took place was one of the premises referred to as “dangerous area” in Section 2 of the Regulations and that Section 43 of the Regulations says that “no person shall place any building in which fire or light other than a flame proof or explosion proof electric lighting installation within 150 feet of the center of any borehole being drilled for or producing oil or gas or being worked over or within 100 feet of a dangerous area.” Counsel stated that the building of the Respondent was within one hundred feet of the service station of the Appellant which was first in time and as such it breached the provisions of the Regulations. Counsel to the Respondent countered that the Regulations were for all intents and purposes

targeted at places where crude oil production was going on and not at ordinary service station, as the Appellant’s, where retail of fuel took place. The lower Court agreed with the Counsel to the Respondent.
?
It is not the intention of this Court to get embroiled in the debate of whether or not the provisions of the Regulations were applicable to service stations such as the Appellant’s. Suffice to say on this issue, that where a party seeks to rely on the provisions of a Statute, though he is not obliged to plead the Statute, he must plead and lead evidence on the factual basis for the application of the provisions of the Statute. In the instant case, for Section 43 of the Regulations to apply, Appellant must plead and lead evidence to show that the location of the Respondent had a building that used “fire or light other than a flame proof or explosion proof electric lighting installation” and that it was located within “100 feet” of the service station. The Appellant did not plead or lead evidence on either of these facts. The basis for the application of provisions of Section 43 of the Regulation was not provided. The Section is thus not applicable in

this case.

Additionally, Section 47 (1) of the Regulations stipulates the punishment for any person who fails to abide the provisions of Section 43 thereof and it is that the person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding N100.00 or to imprisonment not exceeding six months or to both such fine and imprisonment. It is elementary that where a Statute creates an offence and stipulates the punishment applicable to the offence, a Court of law cannot deviate from the punishment stipulated and impose another punishment not in the contemplation of the Statute creating the offence. Thus, even if the Respondent was in breach of the provisions of Section 43 of the Regulations, the only punishment it can be given is as stipulated in Section 47 (1) thereof and not the exoneration of the Appellant from liability for negligent conduct. The provisions of Section 43 of the Regulations provided no succor for the Appellant in the circumstances of this case. This issue for determination is resolved against the Appellant.
?
In conclusion, this Court finds some merit in this appeal and the appeal is allowed in part.

The judgment of the High Court of Kaduna State in Suit No KDH/KAD/226/2009 delivered by Honorable Justice B. U. Bukola on the 17th of September 2012 is hereby affirmed save for the award of N30 Million special damages made in favour of the Respondent, and which award is hereby set aside. The parties shall bear their respective costs in this appeal. These shall be the orders of this Court.

IBRAHIM SHATA BDLIYA, J.C.A.: I have been privileged to read in draft the judgment just delivered by my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA. I concur with the reasonings and conclusion arrived at therein. In furtherance of my concurrence with the lead judgment, let me say few words for emphasis on the doctrine of “res ipsa loquitur?, what it means, its application and evidential nature. Res ipsa loquitor simply means the thing speaks for itself. The purport of the doctrine of res ipsa loquitur is to shift the onus on a defendant to disprove negligence. Odebunmi v. Abdullahi (1997) 2 NWLR (Pt. 489) 526; Ojogbue v. Nnubia (1972) 1 All (Pt. 2) 226.
The doctrine of res ipsa loquitur comes into operation where:

(a) there is

proof of the happening of an unexplained occurrence:
(b) 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;
(c) the circumstances must point to the negligence in question being that of the defendant rather than that person.
See Royal Ade (Nig) Ltd v. NOCM Co. Plc (2004) 8 NWLR (Pt. 874) p. 206. It is also applicable when in the circumstance of a particular case, there are Some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, that the occurrence took place without negligence. In other words, the doctrine applies when the facts stand unexplained, and therefore the natural and reasonable not conjectural inference from the facts, shows that what had happened is reasonably to be attributed to some act of negligence, on the part of somebody. That is, some want of reasonable care in the circumstances. See PSHSMB v. Goshwe (2013) 2 NWLR (Pt. 1338) P. 383 @ 397.
?When a thing is shown to be under the management of a

defendant or his servants and an accident does not occur in the ordinary course of events if the persons who are in management exercise proper care or diligence, then in the absence of any explanation by those in management as aforesaid as to how the accident happened, the accident is presumed to occur due to lack of care. Thus, negligence is presumed in such cases because in such situation negligence is presumed to have resulted from the want of care by the persons in the management or their agents or servants. Odebunmi v. Abdullahi (1997) 2 NWLR (Pt. 489) 526.
Res ipa loquitur is a form of circumstantial evidence by which a plaintiff, in an appropriate case, establishes the defendant’s negligence. It raises a rebuttable presumption of negligence by the defendant and presents a question of fact for the defendant to meet with an explanation.
The presumption of negligence that the doctrine of ipsa loquitur imposes on a defendant is rebuttable. It is for the defendant to show that he was not negligent. See Stragbeg Construction (Nig) Ltd v. Ogerekpe (1991) 1 NWLR (Pt. 170) P. 733.
?
In the instant case before the lower Court, the cause of action was

the fire outbreak which occurred when a petrol tanker was discharging fuel into the underground tank belonging to the appellant at the service station. A tanker carrying, or conveying and or discharging fuel does not ordinarily explode or burst into flame without a cause. The doctrine of ipsa loquitur was rightly resorted to by the appellant at the lower Court when the action was instituted and adjudicated. My learned brother, Abiru JCA, adequately dealt with the principles of the doctrine of res ipsa loquitur, its applicability and evidential nature, especially in cases of negligence as was the case in this suit instituted at the lower Court. It is for foregoings and the fuller comprehensive analysis of the issues raised in appeal, that I, too, hereby allow the appeal in part. I abide by the order made on costs.

AMINA AUDI WAMBAI, J.C.A.: I was privileged to read in draft the lead Judgment just delivered by my learned brother, HABEEB A. O. ABIRU, JCA, with whom I am in agreement that save for the sum of N30 Million special damages wrongly awarded, and which is hereby set aside, the main Judgment itself is flawless and is hereby

affirmed.

Appearances

Seth Nixon with him, N. T. AzaiFor Appellant

AND

O. I. Habeeb with him, M. SaniFor Respondent