MR. KENNETH AHIA v. STARCOMMS LIMITED (2013)

MR. KENNETH AHIA v. STARCOMMS LIMITED

(2013)LCN/6636(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of December, 2013

CA/L/697/10

RATIO

WHETHER THE DOCTRINE OF RES IPSA LOQUITUR RAISES A PRESUMPTION OF NEGLIGENCE AGAINST THE DEFENDANT

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MR. KENNETH AHIA Appellant(s)

AND

STARCOMMS LIMITED Respondent(s)

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated 18/7/2005, and filed at the Lagos State High Court, the Appellant, a legal practitioner, claimed as follows against the Respondent –
1. Special damages for the sum of N44,000.00
2. General damages in the sum of N5,000,000.00 for loss of date and inconveniences as a result of the negligent conduct of the Defendant (Respondent herein)
Pleadings were duly filed, and at the trial itself, the Appellant testified for himself as the sole witness, and he tendered the following documents in evidence –
Exhibit C1 – A subscriber’s copy of Starcomms Billing Account (Deposit) slip of Zenith Bank PLC dated 23/6/06.
Exhibit C2 – Original Invoice of receipt issued to his law firm dated 24/5/06.
Exhibit C3 – An acknowledged copy of a letter of complaint from Ken Ahia & Associates to the Customer Service Manager of the Respondent dated 28/7/06.
The Respondent also called one witness – Uduak Usong, a data support Engineer with the Respondent, and he tendered the following 2 documents in evidence –
Exhibit D1 – A copy of the Respondent’s reply to the Appellant’s letter dated 6/7/2006
Exhibit D2 – A photocopy of the Respondent’s Register from 23/6/2006 to 27/6/2006, signed by the Appellant.
The letters they tendered contain the gist of their respective cases. Exhibit C3 is dated 28/6/2005, written by the Appellant’s law firm to the Respondent; it reads –
“On Friday [23/6/2006], our Managing Counsel called your customer service lines and made enquires about your data services for our telephone line. He was advised to bring the computer system and phone line to your office for configuration. He brought the Starcomms phone line No. 8502009 and the computer to your office as requested. We subscribed to 11:00pm to 6:00am services and paid the sum N9,000.00 representing 2 months subscription vide your receipts number 99267 of 23/6/06. The computer was taken by your technicians and purportedly configured for use of Starcomm services. Later on in the night, when our Managing Partner put on the computer, he discovered that the computer could not boot. It is important to say that this same computer has been in use for more than one year without any complaints and was used the previous day by the undersigned. It contains invaluable information and data important to our practice as lawyers. Many precedents vital to running of a law firm are contained therein including complete files for clients. The value of information contained therein cannot be quantified. Our computer engineer was called in and he informed us that the computer’s hard drive had crashed and information contained therein could not be retrieved. The undersigned came to your office this morning to complain and despite the good efforts mode by your customer services to be sympathetic, the technician who caused the problem, one Akwa Ibom man on the fat side and dark, said to be the head of the section was very uncaring and insensitive, Consequently, we have no other option than to demand for damages for the negligent collapse of our system and loss of invaluable data. We therefore demand the payment to this law firm within 7 days from the date of this letter the sum of five million Naira (N5,000,000.00) as special damages. Please note that at the expiration of the notice hereby given, we shall cause a writ of summons to be issued by the Lagos State High Court, against you, if our demands are not met”. [Signed by the Appellant for Ken Ahia & Associates]
The Respondent’s reply to the above letter is Exhibit D1, and it reads as follows –
“We write in response to your letter dated 28th June 2006 in which you complained about the crash of your operating system. Kindly be informed that Management investigated your claims and was able to establish that our technicians never configured the said system as claimed. The process of system crash is a technical issue and it was established that your system never could have crashed as result of the support we offered you. While we sympathize with you on the crash and consequent loss of your data, Starcomms wish to state that it was not responsible for the crash of your system and therefore is not liable for any damages whatsoever”.
After the adoption of Final Addresses, the learned trial Judge, Y. A. Adesanya, J., delivered his Judgment on the 19th of March 2010, wherein he found against the Appellant and concluded that he – “is not entitled to any of the reliefs claimed”.
Dissatisfied with the decision, the Appellant filed a Notice of Appeal containing five Grounds of Appeal in this Court. Briefs of Arguments were filed, exchanged, and adopted. In the Appellant’s brief prepared by Madueke Okafor, Esq., it was submitted that the Issues that call for determination in this appeal are as follows –
a. Whether the Honourable Trial Court was right in holding that the time lapse between when the alleged crash was said to have occurred and when it was reported to the Respondent and the failure to make the Respondent’s office the first port of call with the said computer after the crash was enough to discharge the presumption of negligence raised by the operation of the principle of res ipsa loquitur.
b. Whether the Honourable trial Court was right when it held that the Appellant did not establish a prima facie case of negligence that required to be rebutted by Respondent. Alternatively;
c. Whether the Honourable trial Court was right when it failed to grant the reliefs sought by the Appellant.
The Respondent, however, contends in its Brief of Argument settled by Alexander Ishogba, Esq., that the three Issues that arise for determination in the appeal are –
1. Whether the Appellant established all or any of the claims at the lower Court that the Respondent’s activities were in fact responsible for the alleged crash of his computer.
2. Whether the trial High Court Judge failed to properly evaluate all material evidence before him in arriving at the decision which dismissed the Appellants case.
3. If the answer to Issue 2 above is in the affirmative, has such misfeasance or nonfeasance occasioned miscarriage of justice?
In my view, the issue formulated by the Appellant as an alternative to Issue b. encompasses all his complaints against the Judgment of the lower Court. It is also my belief that the issue of res ipsu loquitur [that is – the thing speaks for itself], would go a long way in determining this appeal; I will deal with that aspect first.
Firstly, the lower Court found that “the computer was at the relevant time, in good working condition”, and as to whether it did in fact crash; it held that –
“the Defendant in paragraph 12, averred that it had asked the Claimant verbally to produce the Engineer, who worked on the Computer, and that the Claimant had refused, it did not, however, state why and only seeks to introduce the reason during re-examination. I must again state that parties did not join issues on this very important fact. Pleadings are the bedrock upon which evidence is laid and a fair trial is conducted, pleadings are meant primarily to let parties know each other’s case – – “.
After evaluating the evidence and applying the law thereto, he concluded thus –
“In the light of the totality of the evidence analyzed above, I must find and hold that the Claimant did not make out a prima facie case of negligence against the Defendant, which stood to be rebutted by the Defendant. In other words, the circumstances do not lead to the inference of negligence and it cannot be said in truth that the thing (occurrence of the crash) speaks for itself. Even if I were to find that a prima facie case of negligence was made out, I must then find in the light of the totality of the evidence in particular DW1’s evidence that he did not configure or caused any procedure or action to be carried out on Claimant’s computer system that could affect its software and/or hardware and cause it to crash, the time lapse between when alleged crash was said to have occurred and when it was reported to the Defendant, the failure of the Claimant to make the Defendant’s office the first port of call and the with (sic) the said computer system after the crash, that any presumption of negligence that may have been raised by the operation of the principle res ipso loquitur has been discharged by the Defendant. Having found as I have on the first issue for determination, it follows that the Claimant is not entitled to any of the reliefs claimed. The Appellant’s contention is that since his computer was in good condition when he took it to the Respondent’s office and it did not explain why the crash occurred – this is a typical case where the doctrine of res ipsa loquitur ought to be applied, and the lower Court was clearly wrong not to apply same on the ground that he did not make its office the first port of call after discovering his computer crashed. Citing, Management Enterprises Ltd. Otusanya (1987) 7 NSCC 577 and Ibekendu v. Ike (1993) 6 NWLR (Pt. 299) 287, he argued that he discharged the duty on him to show that an accident resulted and that he had suffered injury; that the question as to why the Respondent’s office was not his first port of call is irrelevant and the lower Court’s conclusion, quite erroneous and misdirected; that what is material is the crash of the computer; that its finding that Exhibit C2 was the invoice for the repair is consistent with his testimony that he immediately called his engineer to look at it so making its office the first port of call would be relevant if it was the suppliers of the computer or if there was any evidence that an earlier report of the crash to it would have led to the revival of the computer.
He further submitted that there is no evidence that the Respondent has the capacity to repair a crashed computer so as to necessitate making its office the first port of call; that the question posed by the lower court would be likened to asking the victim of an accident caused by a reckless driver of a company’s car to report to the company first before heading for hospital where he could get treatment especially when the company is not known to provide medical services; that that there is no controversy as to when the computer stopped working nor as to the fact that it did not boot when he got home and sought to switch same on; that the lower Court by its question and resolution of same, was adjudicating on an issue that was not in controversy and not raised by the parties; and that a Court has no power to adjudicate on issues not brought before it by parties, citing Oro v. Falade (1995) 5 NWLR (Pt. 395) 402. He further submitted as follows –
‘The so-called time lapse between the time the crash occurred and when Respondent was informed has no bearing to the application of the principle. What is important is the time the computer crashed and who was in its control or management at the time. If the computer was working well when it was brought to the Respondent’s office as found by the trial Court and stopped working at the next phase when it was sought to be switched on, as [he] demonstrated, then this is a typical case for the application of the principle of res ipsa loquitur. The learned trial Judge misconceived the case [he] put to it and misdirected himself on the applicable law thereby occasioning o miscarriage of justice against the [him]. Similarly, the position of the learned trial Judge that “it would seem  that the time lapse between the alleged date of detection of the crash vis-‘E0-vis when the Defendant handled the computer and when the latter was informed of the crash is such that allows for any other supervening event” has no foundation or justification. Besides not being the case put forward by the Respondent, it is not borne out by evidence. In fact, it is simply speculative”.
He cited Ejezie v. Anuwu (2008) 12 NWLR (1101) 466 and Ikenta Best Nig. Ltd v. A.G. Rivers (2008) 6 NWLR (Pt. 084) 612 on the position of the law on speculation, and Oro v. Falade (supra), where the Supreme Court held that where a trial Court misdirects itself in a case, an appellate Court is bound to set aside its Judgment.
The Respondent argued that he failed to establish that its activities were responsible for the crash of his computer; that the crash could have been due to the activities of a third party that he invited to install and reload the hard drive he purchased from Resnet on 24/6/2006, a day after it carried out the upgrading; that the additional activities carried out on 24/6/2006 may be why he did not notify it until 28/6/2006 since the so called computer engineer/expert was busy performing installation and reloading of the 40 GB hard drives on the computer; that his deliberate and persistent refusal to produce the computer and computer engineer who did subsequent installation on the computer, dealt a terrible blow to his attempt to establish or attribute the crash of the computer to it; and that it might be of interest to this Court to ask the Appellant the following questions –
a. If the computer did not boot on the evening of 23/6/06 why did the Appellant purchase 40 GB HDD for reloading?
b. Is it possible to reload and install hard drive on a computer that failed to boot?
c. Who did the Appellant engage to perform the installation and reloading from 4/6/06 – 27/6/06 and what is the Academic and Technical competence of the person so engaged by the Appellant?
It is the Respondent’s contention that until the Appellant provides suitable and cogent answers to these questions; it will be absurd to hold that he established a connection between the crash of the computer and the Respondent’s activities.
The Appellant filed a Reply brief where he submitted that evidence about the computer engineer installing and reloading 40 GB hard drives on his computer, was not brought before the lower Court, thus, it cannot be canvassed on appeal; that the assertion is complete fiction as it is not borne out by the record; that the computer engineer he hired only confirmed the computer had crashed and he did not do any installation in the computer; and that more importantly, there was no purchase of 40GB (whatever it means) much less installation or reloading of same.
He cited Larmie v. DPMS (2005) 18 NWLR (Pt. 958) 438 on counsel dwelling on extrinsic matters not contained in the Record, and argued that the lower Court found that the computer was in good working condition when it was brought to the Respondent’s office; that it has a duty to explain why the computer failed to remain in good working condition after its officers operated on it nor has it explained that it took all care and all precaution in its handling of the computer; that the questions posed by the Respondent in its brief begs the issues at stake; that they are academic and base on assumptions not relevant to this case and not borne out by the record; and no appeal can be founded on academic points or hypothetical questions, citing UBN Plc. v. BCP Ltd. (2002) 12 NWLR (Pt. 781) 424. He contends that if the lower Court had correctly applied the principle of res ipsa loquitur to this case, it would have arrived at a decision that is favourable to him.
Apparently, the Appellant is not that conversant with his case, and if the Respondent could respond to his Reply Brief, which the law does not allow it to, then it would draw the Appellant’s attention to his own Exhibit C2, which is a –
“Resnet Invoice No. 123 dated 24th/06/06 for the sum of N35,000.00″; it reads –
S/N   Qty        Description of goods          Unit Price                        Amount
1           40 GB HDD                      10,000                            10,000
Installation and                25,000                            25,000
Reload of System
Completed                      Total                               35,000”
There it is in black and white; the computer Engineer issued him with a receipt showing that he performed – “installation and reloading of 40 GB Hard drives on the computer”, and the Respondent’s mention of same is NOT “complete fiction”, as the Appellant put it. So, he cannot make a case that – “there was no purchase of 40 GB (whatsoever that means) much less installation or reloading of same”.
All the same, his case rides on the fact that the doctrine of res ipsa loquitur applies seeing that he took his computer to the Respondent for an internet facility and his computer crashed thereafter. In holding that the doctrine did not apply, the lower Court relied on the decisions in Strabag Construction Ltd. v. Ogarekpe (1991) 1 NWLR (Pt. 170) 747 and Management Enterprises Ltd. v. Otusanya (supra), see also (1987) 2 NWLR (Pt. 55) 179, wherein, as the Appellant submitted, Oputa, JSC, laid down the guide for the application of the doctrine, as follows –
“Res ipsa loquitur literally means “the thing speaks for itself”. This Latin maxim is applicable to actions for injury by negligence where no proof of such negligence is required beyond the accidence itself, which is such as necessarily to involve negligence –
“Res ipsa loquitur” is no more than a rule of evidence affecting the onus of proof. The essence of the maxim is that an event which in the ordinary course of things, was more likely than not to be caused by negligence was by itself evidence of negligence depending of course on the absence of explanation. The doctrine merely shifts the onus on the Defendant. If the facts are sufficiently known or where the Defendant gave an explanation, the doctrine will no longer apply – – Reliance on the doctrine of Res ipso loquitur is thus a confessi.cn by the Plaintiff that he has no direct and affirmative evidence of the negligence complained of against the Defendant but the surrounding circumstances amply establish such negligence. In relying on res ipso loquitur, a Plaintiff merely proves the resultant accident and injury and then asks the Court to infer therefrom negligence on the Defendant. – – – A there is evidence of how the occurrence took place there an appeal to res ipso loquitur is misconceived and inappropriate. There again, the question of the Defendant’s negligence must be determined on the available evidence. .In other words, the doctrine of res ipsa loquitur is not meant to supplement inconclusive evidence of negligence on the part of the Plaintiff. Rather it is meant to apply where there is no other proof of negligence than the occident itself”.
See also Onwuka v. Omogui (1992) 3 NWLR (pt. 230) 393, where the Supreme Court restated that the principle only shifts the onus of proof. It explained that –
“The doctrine means that an accident may by its nature be more consistent with its being caused by negligence for which the Defendant is responsible than other causes, and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. In such a case, the burden of proof is on the. Defendant to explain and to show that it occurred without fault on his part. The principle only shifts the onus of proof, which is adequately met by showing that – – the Defendant was not in fact negligent. He is not to be held liable because he cannot prove exactly how the accident happened; it is sufficient if he satisfies the Court that he personally was not negligent”.

Thus, the doctrine of res ipsa loquitur is premised or predicated on the mere fact of the event happening, which is based two rebuttable presumptions – (1) that the event happened as a result of a duty of care somebody owe his neighbor (2) And that somebody is the Defendant – see Ojo v. Gharoro (2006) 10 NWLR (pt. 897) 173 at 216 SC and Royal Ade (Nig.) Ltd. v. N.O.C.M. Co. Plc. (2004) 8 NWLR (Pt. 874) 206 at 228 SC, where the Supreme Court per Edozie, JSC, also said that –
“The maxim comes into operation: (1) on proof of the happening of an unexplained occurrence, (2) when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff: and (3) the circumstances point to the negligence in question in being that of the Defendant rather than that of any other person. When the maxims applies, it merely raises a presumption of negligence against the Defendant but the presumption is a rebuttable one. When a prima facie case of negligence against the Defendant has been established under the doctrine of res ipsa loquitur, the Defendant can rebut that case by proving that he was not negligent even though he cannot prove how the accident happened”.
In this case, in holding that the doctrine did not apply, the lower Court observed –
“The Claimant under cross-examination said he did not ask the Defendant to test the computer before taking it back from the Defendant and the latter has no such facility and that the first time he tested the computer was he got back home with it and found that the computer could not boot. It was argued that the Defendant and its officers were the last persons to use or operate the said computer before its eventual crash. There is uncontradicted evidence before the Court that the computer was brought to the Defendant’s office on 23/06/2008 to be installed with the Defendant’s internet services and the process of installation was done in the presence of the Claimant. The process of installation, which DW1 denied entailed a configuration of Claimant’s computer system, was stated in DW1’s evidence in chief as entailing checking if the computer system had a 33600 modem that recognizes its network and this procedure consists of putting in the username, that is the phone number of the owner of the computer system; putting in the password and also the phone number of the owner; confirming the owner’s password and; dialing the owner’s number, when the number is dialed and Starcomms network is connected, the subscriber is automatically connected to the internet. DW1 also gave evidence that on checking [his] computer system, he discovered that the Claimant’s computer system had the aforementioned modem and that the internet was accordingly inserted. It is also the evidence of DW1 that the aforementioned procedure was carried out – – in the presence of the Claimant and that the computer system neither sent an error message while booting nor was it slow in booting or display any other sign telltale sign that it was about to crash”.
Was the lower Court right to hold that the doctrine does not apply in this case? Let us look at the hard facts objectively; the Appellant took his computer to the Respondent’s office on the said 23/06/2008. He has not denied DW1’s testimony that the internet facility was inserted into the computer in his presence, and as the lower Court also pointed out, he did not deny that he wrote his name in the Register, which DW1 said is signed by any customer, who engages their services. The Appellant claimed that it was when he got home with the computer in the evening of that same day, 23/6/2006 that he switched it on but it could not boot. He also said that he called a computer engineer, who confirmed to him that the computer had crashed, and this is where there is a problem because he admitted under cross-examination – “I did not know how the computer engineer assessed the computer, I was not there”. Put together, his computer did not crash in the Respondent’s office; we only have his word for it that it was when he got home that evening that he discovered it could not boot; he was not there when the said computer engineer assessed the computer, and from arguments in his Reply Brief, he was not even aware of what the computer engineer did with the computer.
At this stage, we are looking at this case from the angle of res ipsa loquitur – the think speaks for itself. Can we truly say that the alleged crash speaks for itself; where did it take place? And who hard control of the computer when it crashed? If it had crashed in the Respondent’s office, then we can say the doctrine applies because a computer in good condition crashed after its officers had worked on it. But the Appellant took the computer home as a satisfied customer, and after he discovered it had a problem, he called a computer engineer, who worked on it, before he reported the crash to the Respondent five days later on 28/6/2006.
What is any Court to make of this situation but to put a question mark on it, and the lower Court did in fact do so. It asked the following questions and held –
“Why did the Claimant wait till 28/06/2000, five days after and the 3rd working day after he discovered the crash of the computer? Exhibit C2, which is the invoice for the repair of the crashed computer, is dated 24/06/2006 i.e. the very next day after the discovery of the crash, why again was the Defendant’s office not the first port of call, since the Defendants officer was the lost person to have handled the computer before it allegedly crashed. It would seem from the above stated pieces of evidence that the time lapse between the alleged date of detection of the crash vis-‘E0-vis when the Defendant handled the computer and when the latter was informed of the crash is such that allows for any other supervening event that it cannot be said that the computer was under the management and control of the Defendant or its officer at a time when the incidence of crash could be said to have occurred”.
The Appellant argued vehemently that the points raised by the lower Court are “misdirected” and likened its question to asking the victim of an accident caused by a reckless company driver to report to the company before going to hospital. But the situation with his computer cannot be equated with an accident because his computer did not crash in the Respondent’s officer, and since he alleged that its officer was the last person to handle the computer, he should have complained to the Respondent the next day or next working day. But he did not report the crash to the Respondent until five days later, after he called a computer engineer to repair it, which allows for any other supervening event, as the lower Court said.
The word “supervene” means “to follow or come about unexpectedly, usually interrupting or changing what is going on” – see Encarta Dictionaries. Anything could have happened to the computer after the Appellant took it home and the lower Court’s reasoning in that direction does not amount to speculation. In the circumstances, it is right to hold that – “it cannot be said that the computer was under the control and management of the [Respondent] when it crashed”, and to conclude that the doctrine of res ipsa loquitur does not apply to this case.
The Appellant has also complained that the lower Court was wrong to hold that he did not make out a prima facie case of negligence against the Respondent, which stood to be rebutted by the Respondent. He argued that the Respondents in the case of Royal Ade (Nig.) Ltd. v. N.O.C.M. Co. Plc. (supra), which the lower Court relied on, took all necessary precautions that absolved them of liability, which is not the same in this case; that the lower Court’s position is a clear demonstration that it misconceived his case and misdirected itself as to the law; that the law is that once accident is shown to have happened, the onus falls on the Defendant to prove that it was not negligent; that the accident is, simpliciter, a prima facie case of negligence against the Respondent and its duty is to show it was not negligent, but this duty was not discharged, citing Royal Ade (Nig.) Ltd. v. N.O.C.M. (supra), and Onwuka v. Omogui (supra); and that it is not enough for the Respondent to merely deny liability; it has to show that the accident occurred without its faults, citing Kuti & Anor v. Jibowu & Anor. (1972) NSCC 447.
The Respondent submitted that the evaluation and ascription of probative value to evidence is the primary function of a trial Court, and an appellant Court will not reverse a decision because it would have given a better decision, except such occasioned a miscarriage of justice, citing Agbabiaka v. Saidu & 11 Ors. (1998) 7 SCNJ 305 and Adejumo v. Ayantegbe (1998) 2 NWLR 203, Afribank (Nig.) Plc. v. Adigun (2009) 11 NWLR (Pt. 1152) 329 and Anyegwu v. Onuche (2009) 2 NWLR (Pt. 1129) 559; that the lower Court painstakingly considered the evidence and judicially and judiciously decided the case; that no miscarriage of justice was occasioned; and that to allow the appeal on this ground will amount to institutionalizing what the Appellant is complaining of, i.e. Miscarriage of Justice.
Once again, it appears that the Appellant mixed up the principles involved in determining whether the doctrine of res ipsa loquitur applies in any given case, but the doctrine is no more than a rule of evidence affecting the onus of proof. Where it does not apply, the burden still rests on the Plaintiff to prove negligence.
The question of the Defendant’s negligence must be determined on the available evidence because “the doctrine of res ipsa loquitur is not meant to supplement inconclusive evidence” – see Royal Ade (Nig.) Ltd. v. N.O.C.M. Co. Plc. (supra), relied on by the lower Court but not in the way he implied. This is what it said –
“The maxim “res ipsa loquitur” is not a rule of law; it merely describes a state of the evidence from which it was proper to draw an inference of negligence. It is “no more than a rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the Defendant are at the outset unknown to the Plaintiff and ore or ought to be with the knowledge of the Defendant, However, a Plaintiff cannot rely on the maxim to create a presumption of negligence where there is no evidence of negligence but there exists a possible non negligent cause of the injury”. The principle only shifts the onus of proof, which is adequately met by showing that despite the accident; the Defendant was not in fact negligent. He is not to be held liable because he cannot prove exactly how the accident happened, it is sufficient if he satisfies the Court that he personally was not negligent. See Royal Ade (Nig.) Ltd. v. N.O.C.M. Co. Plc. (supra)”.
The lower Court stated the correct position of the law regarding the doctrine of res ipsa loquitur vis-a-vis an alleged negligence. The Appellant must prove same –
See Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173, where Tobi, JSC, aptly stated –
“Negligence, and in the con of this case, illustrating to the specific tort of res ipsa loquitur is a negative tort, as far as the Defendant is concerned. The low therefore places a burden on the Plaintiff to prove that the Defendant was negligent, and the act of leaving the piece of needle in the abdomen of the Appellant (which qualified as the happening event) says it all. In the proof of the act, the Plaintiff must satisfy the twin but alternative standards of proof (a) balance of probability and (b) preponderance of evidence. In either of these standards, the Plaintiff must come out clearly with cogent evidence as to the specific acts or acts of the Defendant, which resulted in the negligence and not merely on agglomeration of act or acts locking specificity. For res ipsa loquitur to apply, the event which gave rise to the negligence must tell its own story and it must invariably be a clear and unambiguous story of lack of duty of care”.
In Ojo v. Gharoro (supra), the Appellant’s case was that during an operation, the 1st and 3rd Respondents negligently left a broken needle in her womb, however, in dismissing her appeal, the Supreme Court per Oguntade, JSC, held as follows –
“Did the Plaintiff succeed in moving her case forward by the reliance placed on res ipsa loquitur? Plaintiff’s evidence only showed that a broken needle was left inside her following the operation she had. There was nothing to show that it was the result of negligence on the part of the Defendants . It is manifest from the evidence of DW1 that the circumstances in which the needle got broken were accidental.
The process of carrying out a surgical operation, which the plaintiff had and the risks involved were only within the knowledge of surgical experts. The Plaintiff did not call any evidence to show that a surgical needle could not have got broken if the surgeon involved were not negligent. It seems to me, therefore, that the uncontradicted evidence of 1st DW completely negated the inference of negligence on the part of the Defendants’.
The Supreme Court refused to allow sentiments prevail. As Tobi, JSC, put it –
“While I am in sympathy with the position of the Appellant, my sentiments will not go far to give her judgment by allowing this appeal. After all, it is good law that sentiments have no place in the judicial process, particularly when the sentiments are against the law. The Judge that I am, I must bow to the law and I so bow”
In this case, the Appellant did not establish any basics on which to build his case that his computer crashed due to some negligence on the part of the Respondent. So, the lower Court is right; he did not make out a prima facie case of negligence against the Respondent, which stood to be rebutted by it. His appeal lacks merit; it fails and is, therefore, dismissed. There will be no order as to cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in entire agreement with the lucid judgment prepared by my learned brother, Amina Adamu Augie, J.C.A., (Hon. P.J.) and I adopt the judgment as my own with nothing useful to add.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother Amina Adamu Augie, JCA and I am also of the view that the appeal lacks merit and should fail. My learned brother covered the field in his reasoning and conclusion and I have nothing useful to add than to say that the appeal should be and is hereby dismissed. The Judgment of the lower court delivered on 19-03-2010 is hereby affirmed. I also abide by the consequential orders made in the lead judgment including that of costs.

Appearances

For Appellant

AND

Mr. Kenneth Ahia, in Person

Alexander Ishogba, Esq. – RespondentFor Respondent