NATIONAL ELECTRIC POWER AUTHORITY (NEPA) V. MALAM MUHAMMAD AUWAL (2010)

NATIONAL ELECTRIC POWER AUTHORITY (NEPA) V. MALAM MUHAMMAD AUWAL

(2010)LCN/3565(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of February, 2010

CA/K/130/2007

RATIO

DAMAGES: MEANING OF GENERAL DAMAGES

General damages is defined as such that the law will presume to be the direct natural or probable consequence of the act complained of or damages resulting from the loss flowing naturally from the breach of contract and is incurred in due consequence of the breach. It must be noted that general damages is not the same as special damages where one has to itemise and prove all issues being claimed. But whether general or special damages, it must be noted that double compensation should be avoided. See Ijebu-Ode Local Government V. Adedeji Balogun & Co. (1991) 1 NWLR (Pt 166) 158; UBN PLC Vs Omniproducts Nig. Ltd (2006) All FWLR (pt 323) 1726. PER JOHN INYANG OKORO, J.C.A

TORT: DUTY OF A PLAINTIFF TO BE AWARDED DAMAGES IN AN ACTION FOR NEGLIGENCE

In an action for negligence, for the plaintiff to be awarded damages, he must show the existence of a duty of care by the defendant, the breach of that duty and damages suffered as a result of that Breach. PER JOHN INYANG OKORO, J.C.A

COURT: WHETHER A COURT HAS JURISDICTION TO GRANT A RELIEF NOT ASKED FOR

Let me start by saying that, a court of law has no jurisdiction to grant a relief not asked for by the plaintiff. Therefore, a party who desires a court to grant him any relief, he must ask for it. See Ugo V. Obiekwe (1989) I NWLR (pt 99) 566. Where a party fails to ask for a relief from the court, no matter how sympathetic the situation may be, no relief shall be granted as sympathy has no place in the determination of disputes in the court. See Bhojsons PLC Vs Daniel Khalio (2000) 5 NWLR (pt 973) 330. See also Okori V. Ifeagua (supra). PER JOHN INYANG OKORO, J.C.A

COURT: ATTITUDE OF COURTS TOWARDS DWELLING ON TECHNICALITIES

Courts are enjoined not to allow technicalities to deny a party justice. The days of technicalities are over and we are now endeavouring to do substantial justice. See Abubakar V. Yar’Adua (2008) 4 NWLR (pt 1078) 465, Agbakoba V. FRN (2008) 7 NWLR (pt 1085) 38. It will not be in the interest of justice to add more sorrow, pain and anguish to the Respondent simply because the learned trial judge interrupted his evidence. PER JOHN INYANG OKORO, J.C.A

JUSTICES

MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA N. ORJI – ABADUA Justice of The Court of Appeal of Nigeria

Between

NATIONAL ELECTRIC POWER
AUTHORITY (NEPA) Appellant(s)

AND

MALAM MUHAMMAD AUWAL Respondent(s)

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court holden at Kaduna and presided over by Hon. Justice A.M Liman which said judgment was delivered on the 28th day of November, 2006 wherein the said court granted general damages in the sum of N10,000,000.00 (Ten Million Naira) only to the Respondent against the Appellant.
The Respondent (as plaintiff) at the court below had through a 31 paragraph statement of claim dated and filed on the 22nd day of March, 2004 claimed as next of kin of late Nazifi Muhammad Auwal three Declarative Reliefs and an order directing the Appellant to pay a total sum of N10,000,000.00 (Ten Million Naira) only as general damages ” for lost (sic), continuous pain, anguish, shock and continuous psychological trauma caused the plaintiff, by the defendant act(s) and omission(s).” The defendant rebutted the claim through a statement of defence dated and filed on the 16th day of April, 2004.
The gist of the Respondents’ claim is to the effect that the Appellant through the negligent conduct of some of their servants who disconnected electricity supply to some properties at Augwan mai Gwado Zaria, Kaduna negligently left electrical wires uncovered with current on the road near ECWA Church. That the said uncovered wires electrocuted and caused the death of the Respondent’s ten year old son, Nazifi Muhammad Auwal.
After hearing evidence from both parties, the learned trial Judge found the Appellant liable in negligence when he held as follows:-
I am of the view that the death was caused by the conduct of the defendant The evidence of disconnection, the proof of fault, and the fact that on three occasions, Pw, had reported to the Appellant on incidence of shock (a fact I believe) which they neglected to come to rectify, all point to one conclusion, of culpable negligence on their part.
Consequent upon these findings, the learned trial Judge proceeded to award general damages to the Respondent in the total sum of N10,000,000.00 (Ten Million Naira) only claimed by the Respondent. It is therefore against this judgment that the Appellant has filed this Appeal. In all, six grounds of appeal are contained in the Notice of appeal dated and filed on the 6th of December, 2006.
From the six grounds, the learned counsel for the Appellant, Charles Mafua Esq. formulated three issues for the determination of this appeal as follows:-
1. Whether or not the trial court had jurisdiction to hear and determine this case.
2. Whether the award of damages to the Respondent was in accordance with law.
3. Whether the Respondent discharged the burden of proof placed on him.
The learned counsel for the Respondent, M. K. Sanusi Esq. did not formulate any issue but adopts the three issues formulated by the Appellant. I shall in the circumstance determine this appeal on the three issues as formulated by the Appellant.
The learned counsel for the Appellant contends on the first issue that the commencement and conclusion of this suit was carried out in a wrong court i.e the Federal High Court. According to him, at common law, death extinguishes any existing cause of action in tort by one against the other citing Winfield and Jolowicz on Torts, 11th Edition by W.V.H Rogers, chapter 23 pg 230 – 231 that the cause of action usually extinguishes with the deceased and that it was because of this that the Respondent sued the Appellant as next of kin of the deceased.
Learned Counsel contends that the provisions of the Fatal Accident Law of Kaduna State covers an action relating to and flowing from the death of the Respondent’s son as a result of the wrongful act, neglect or default of the appellants’ servants. It is further contended that by sections 9 and 2 of the said law, the Respondent’s action ought to have been commenced at the Kaduna State High Court and not the Federal High Court. That the jurisdiction of the Federal High Court was cut down by the expresses provision of the Fatal Accident Law of Kaduna State citing the case of Stowe V. Stowe (2000) FWLR (pt 24) 1424 at 1433 – 1434 paras H – A.
Citing several authorities including NDIC V. CBN & Anor (2000) FWLR (pt 99) 1021, Elugbe V. Omokhafe (2004) 18 NWLR (pt 905)319 and Gaji V. Paye (2003) 8 NWLR (pt 823) 583, the learned counsel concluded on this issue that issue of jurisdiction, being a threshold issue can be raised at any stage of the case, be it at the trial, on appeal to the court of Appeal or Supreme Court or the Court can even raise it suo motu. He then urged this court to resolve this issue in favour of the Appellant.
In his response, the learned counsel for the Respondent submitted that to determine whether the subject matter of an action is within the jurisdiction of the court or not, one has to look only at the reliefs sought by the plaintiff in his statement of claim relying on the case of Dr. Taiwo Oloruntoba Oju & 5 Ors Vs Prof. P.A. Dopamu & 6 Ors (2003) FWLR (pt 158) 1268. That it is a misplacement of priorities to still abide by the common Law where there are locally specific statutes, decisions and authorities on the issue. Citing the case of NEPA V. Edegbero & 15 Ors (2003) FWLR (pt 139) 1556 and sections 1(1) (2) & (3) of 1999 constitution, also Section 251(i) (q) (r) & (s) and 252(1) thereof, learned counsel submitted that the provision of Sections 3 and 9 of the Fatal Accident Law of Kaduna State have been misconceived by the Appellant as those sections are subjected to other statutes and more particularly the provisions of the constitution of the Federal Republic of Nigeria. Furthermore, that the Appellant being an agency of the Federal Government, the Federal High Court had exclusive jurisdiction in the matter citing the case of Adebileje Vs NEPA (1998)12 NWLR (pt 577) 219 at 227.
Still on this issue, the Respondents counsel in paragraph 4.12 of his brief, submitted that the Appellant misdirected itself, by introducing issues, not canvassed by the parties at the lower court without the leave of this court. That issues bordering on the Fatal Accident Law was never raised or pronounced upon by the court below. That having raised this issue without the leave of court, the arguments herein should be discountenanced, citing the cases of Alh. Iliyasu Umar V. Bayero University, Kano (1988) 78 SC part 2 P.I at 7, Nrs Olufunmilayo Ibironke Kasumu V. Alh. Siriku A. Shitta Bey (2007) FWLR (pt 356) 741, Hon. Justice C.C Nwaogwugwu V. The President of FRN & 5 Ors (2007) All FWLR (pt 358) 1151 at 1174 para D-E.
Finally, he urged this court to hold that the Federal High Court had jurisdiction to entertain this case and resolve this issue in favour of the Respondent.
It is now well settled that issue of jurisdiction is the bedrock of adjudication in Nigerian courts and I dare say in courts worldwide. Whether a court has or does not have jurisdiction is a threshold issue and is of the greatest importance in all manner of litigations before our courts. Whenever the question as to whether a court has or does not have jurisdiction is raised, it must be looked into first or at the earliest opportunity offered depending on the particular proceedings. This is so because any proceedings before a court, no matter how well conducted without jurisdiction, is a nullity and the outcome thereby has no legal consequence whatsoever. Therefore, at any stage the issue of jurisdiction is raised, the court is duty bound to consider it timeously before taking any fresh or further steps in the matter. See Elugbe V. Omokhafe (2004) 18 NWLR (pt 905) 319, Okafor V. Att. Gen. Anambra State (1991) 6NWLR (pt 200) 659, Oredoyin V. Arowolo (1989) 4 NWLR (pt 114) 172.

In view of the importance of the issue of jurisdiction in litigation, it has been held in a long line of cases that it can be raised at any stage of the proceedings of any court and even for the first time on appeal even up to the Supreme Court. This is notwithstanding the fact that a party either due to some carelessness or oversight, overlooked or failed to raise a legal point bordering on the competence of the court at the earliest opportunity. He should not be estopped or barred from raising same at a later date be it in the court of first mistake or on appeal either in this court or at the Supreme Court. See Onyema V. Oputa (1987) 3 NWLR (pt 60)259, Pan Asian Company Ltd V. NICON (1982) 9 SC 1, Adegoke V. Adibi (1992) 5 NWLR (pt 242) 410, Adesanya V. President (1981) 2 NCLR 358. Let me further state that the duty of raising the issue of absence of jurisdiction in a court to hear a matter is not placed on a particular party though it is always in most cases raised by the defendant in the proceedings. In fact the court can raise the issue suo motu. See Adesanya V. President (supra). Where an issue of jurisdiction is successfully raised, it has the effect of bringing the proceedings to an end in that court as it is usually terminated by an order striking out the suit.

The learned counsel for the Respondent had argued in the instant appeal that since the Appellant failed to seek and obtain the leave of this court to raise this issue which was not canvassed at the court below, it should be discountenanced by this court. I think both parties have agreed that this issue is being I raised in this court for the first time since it was never contemplated at the court below. This issue is what is usually termed as new or fresh issue. It is an issue which was never canvassed and decided upon by the lower court.

The general rule of practice is that when a party seeks to file or raise and argue either in this court or the Apex court a fresh issue not ventilated at the court below, leave to file and argue the issue must first be sought and obtained. This is trite. Where leave is not sought and obtained, the court of appeal will not allow such fresh or new issue to be argued before it. However, when the new issue involves an issue of jurisdiction, the courts have always viewed it differently.

Thus, where the point or issue sought to be raised relates to the issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court even if it is being raised for the first time. In Elugbe V. Omokhafe (supra) the Supreme Court held that the court of Appeal was in error not to have allowed the parties to fully address it on the issue of jurisdiction raised before it. See also Gaji V. Paye (2003) 8 NWLR (pt 823) 583, Obiakor V. State (2002) 10 NWLR (pt 776) 612.

I therefore hold, relying on the above Supreme Court cases that the Appellant can successfully argue this issue of jurisdiction in this court with or without the leave of this court.
Having said so, the next aspect of this issue is that the learned counsel for the Appellant anchored his issue of lack of jurisdiction of the lower court on the fact as contained in paragraph 4:7 of his brief to the effect “that at common law, death extinguishes any existing cause of action in tort by one against the other” citing Winfield and Joiowicz on Torts, 11th Edition by W.V.H. Rogers at chapter 23 pp 530-531 and that the Respondent realizing this, sued as next of kin of the deceased. Therefore, it is a matter which falls squarely under the Fatal Accidents Law of Kaduna State within the jurisdiction of Kaduna State High Court and not the Federal High Court as in this case.
I think learned counsel will need to read the 17th Edition of Winfield & Joiowicz on Torts which is the latest Edition where there is significant explanation on the departure from the archaic common Law Rule. On page 1007 thereof paragraph 23.2, the learned Author States:-
“At Common Law the general rule was that death of either party extinguished any existing cause of action in tort by one against the other actio personalis moriturcum persona… but it was not until 1934 that the defects of the law were forced on the attention of the legislature by the growth of motor traffic and its accompanying toll of accidents. Accordingly, the Law Reform (miscellaneous Provisions) Act 1934 was passed to provide generally for the survival of causes of action subsisting when the tort feasor or the injured person dies”
By section 1(1) of the Act, all causes of action subsisting against or vested in any person on his death, except causes of action for defamation, now survive against, or, as the case may be, for the benefit of his estate. It should be noted that quite apart from this, the absurdity of the common Law Rule made way for the emergence of the Fatal Accidents Act 1976 wherein it is provided that whenever the death of a person is caused by the wrongful act, neglect or default of another such, as would (if death had not ensued) have entitled the injured person to sue and recover damages in respect thereof, then the person who would have been liable if death had not ensued shall be liable to an action for damages on behalf of the dependants, notwithstanding the death of the person injured.
The question may be asked, if English Law has since deported from the Common Law Rule that the death of a person extincts a cause of action he may have had, why should we in Nigeria continue to hold onto such anachronistic rule of law? I think learned counsel for the Appellant should always go for the latest Edition of books so that he may not be left behind. The law is dynamic and changes are made on a daily basis to accommodate the realities of the modern society. That could have knocked off the basis for raising this issue but since this is an intermediate court, I shall continue to look at the other aspects raised in this issue.
The learned counsel for the Appellant, in order to show that the Federal High Court lacked the jurisdiction to entertain this matter, tried, though in vain to change the character of the Respondent’s claim at the court below and create a new one radically different from the Respondents’ claim,or is it a case of giving a dog a bad name in order to hang it? The Respondent sued the Appellant for the tort of negligence at the Federal High Court. Both parties fought the case on that basis. But in this court, the appellant is saying, no, it was not a case of negligence but a case under the Fatal Accident Law of Kaduna State. In as much as the court can allow a party to raise fresh issue and argue same on appeal, the courts will certainly not allow the Appellant to introduce issues that will radically change the case of the Respondent at the lower court. The new issue must relate to the claim of the plaintiff. There is need to emphasise that although the issue of jurisdiction can be raised at any time with or without leave of this court, the point must be made that it should not be allowed to run wild. Rather it should be confined to the subject matter before the court vis-a-vis the statement of claim of the plaintiff.
The Respondent sued the Appellant as the father of the deceased child for the tort of negligence and claimed damages against the Appellant for negligently exposing naked wire on the floor which the child marched and was electrocuted. A claim under the Fatal Accident Law was never contemplated. In Otaru V. Idris (1999) 4 sc (pt 11) 87 at 92, the Supreme court defined the tort of Negligence to be:-
“That NEGLIGENCE is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. Further, negligence consists of failure to exercise due care in the circumstances in which a duty of care exists, It was further submitted that a duty of care, namely that which is owed to persons so closely and directly affected by the act of another and who ought to be in his contemplation existed vide Donoghue V. Stephenson (1932) AC 562 at 580 – 581. Such that in the final analysis the tort of NEGLIGENCE involves (i) a careless act or omission and (ii) a duty to the person injured.”
As I said earlier, the case before the court below was for damages arising from the negligent act of the Appellant. The Respondent never sued under the Fatal Accident Law of Kaduna State. Therefore, to now argue whether or not the court below had jurisdiction to hear this matter under the Fatal Accidents Law of Kaduna State is a new issue of jurisdiction which has the character of setting up a new claim radically different from what the parties fought at the court below. It will not be in the interest of justice to convert the Respondents’ claim to fall within the Fatal Accident Law in order to nail it as it were. It is on this note that I hold that the claim which we are being asked to determine whether the Federal High Court had jurisdiction to entertain is quite different from the claim that was ventilated before that court. I shall refuse to do so. Accordingly, I resolve this issue against the Appellant for although he can raise the issue of jurisdiction with or without leave of court at any stage, such issue must relate to and concern the claim of the plaintiff before the lower court, no more, no less.
The substance of the second issue is that the court below failed to apply section 7 of the Fatal Accident Law of Kaduna State in apportioning damages. That since the court used another method in assessing damages, the award should be set aside. Without much ado, I think this issue is infected by the same virus which terminated the life of the first issue. The learned trial Judge, as was observed by the learned counsel for the Respondent did not misapply wrong principles in awarding damages. He could not have been expected to award damages under the Fatal Accidents Law of Kaduna State which was not the case before him. In the instant case, the court having found the Appellant negligent, awarded N10,000,000.00 general damages against the Appellant.

I think the learned trial Judge was right when he held that the Appellant owed the defendant a duty of making sure that it does not abandon naked wires indiscriminately and when it abandoned the wire carelessly which electrocuted the Respondents 10 year old son, the Appellant had breached that duty of care. It is also my view that the court below appropriately awarded general damages against the Appellant. The complaint that he did not follow the format prescribed under section 7 of the Fatal Accidents Law of Kaduna State is of no moment here. I accordingly resolve this issue against the Appellant.
On the last issue, the learned counsel for the Appellant submitted that it is trite that the claimant must establish his claim before the court through evidence but that the Respondent herein failed to tell the court what he wanted, relying on the case of Okiri V. Ifeagha (2001) FWLR (pt 73) 140. Further, that the totality of the Respondent’s evidence did not support the allegation of negligence on the part of the Appellant to ground the finding of facts made by the trial court. Relying on the Supreme Court case of Ololo V. Agip (2001) 6 SCNJ 124 at 133, the learned counsel further submits that negligence is a question of fact to be established by evidence and that each case must be decided in the light of its own particular facts. That the totality of the Respondents’ evidence consists of hearsay and lack of eye witness account as found by the trial Judge. Finally, learned counsel cited the case of Maigoro V. Bashir (2000) FWLR (pt 19) 553 and submitted that the evidence led by the Respondent should not be relied upon as prove of negligence for even the learned trial judge did not make any specific finding on how death resulted through electrocution but relied on conflicting and contradictory evidence such as the proof of fault, the fact that on three occasions, Pw2 had reported to the Appellant incidents of shock which was neglected to arrive at the conclusion that the appellant was negligent. Also, that no effort was made by the Respondent to challenge the pleadings and evidence of the Appellant on the fact that when an electrical wire is disconnected, no current passes through it. He urged the court to resolve this issue in favour of the Appellant.
In his reply, the learned counsel for the Respondent submitted that by section 74(1) (m) of the Evidence Act 1990, the court is empowered to take judicial notice of the record/processes before it and that the trial Judge was right to have taken judicial notice of the relief of the Respondent before him. Secondly, that the claim of the Respondent was established as required under section 137(1) & (2) of the Evidence Act and that it was not even challenged during cross examination relying on the case of Major J.Z. Umoru (Rtd) & Anor Vs Alh. Abubakar Ziliri (2003) FWLR (pt 172) 1920. It was counsels further contention that Exhibits A and B were documents the Respondent tendered to further prove his case and that since the Appellant did not challenge those documents, the court below was right to rely on them in its judgment. Furthermore, that the case being a civil matter, was proved on the balance of probabilities citing the case of Alh. Buba Usman V. Mohammed Tammu Garba (2003) FWLR (pt 177) 815. Learned counsel debunked the submission of the Appellant that it proved that after disconnection, no current could pass through the abandoned wire. He urged this court to hold that the Respondent had proved his case before the court below.
Let me start by saying that, a court of law has no jurisdiction to grant a relief not asked for by the plaintiff. Therefore, a party who desires a court to grant him any relief, he must ask for it. See Ugo V. Obiekwe (1989) I NWLR (pt 99) 566. Where a party fails to ask for a relief from the court, no matter how sympathetic the situation may be, no relief shall be granted as sympathy has no place in the determination of disputes in the court. See Bhojsons PLC Vs Daniel Khalio (2000) 5 NWLR (pt 973) 330. See also Okori V. Ifeagua (supra).
The learned counsel for the Appellant in the instant appeal had contended that the Respondent did not ask for the relief granted by the learned trial Judge. The learned counsel for the Respondent merely stated in reply that the court below was right to take judicial notice of the record before it. It is sad indeed that learned counsel for the Respondent did not treat this aspect of the issue with the weight it deserves. Even the case of Bhojsons V. Khalio (supra) relied upon by him is to the contrary. Does counsel not know that the court is not a Father Christmas and does not grant what a party does not ask for? I note that in the statement of claim filed by the Respondent spanning pages 6 to 9 of the Record of proceedings, the reliefs sought by the Respondent are clearly set out there as follows:-
“1. DECLARATION that the omission of the Defendants’ staff, leaving an electrical wire uncovered which consequently caused the death of Nazifi Muhammad Auwal is a Gross Negligence
2. DECLARATION that the death of late Muhammad Auwal was the consequence of the defendants’ act(s) and omission(s).
3. A DECLARATION that the plaintiff is entitled to be compensated with damages for the lost (sic), psychological trauma and shock caused the plaintiff by the Defendants act(s) omission(s)
4. AN ORDER directing the defendants to pay the plaintiff the sum of N10,000,000.00 (Ten Million) being general, damages for lost, (sic) continuous pain, anguish, shock and continuous psychological trauma caused the plaintiff by the Defendants act(s and omission(s).”

It must be stated once again, may be for emphasis that pleadings do not translate into evidence. The plaintiff must lead credible evidence in prove of the averments in the pleadings. Where there is no evidence to back up the pleadings, such averments are deemed abandoned and cannot take the place of evidence in court. See Egom V. Eno (2008) 12 NWLR (pt 1098) 320, Veepee Ind. Ltd V. Cocoa Ind. Ltd (2008) 13 NWLR (pt 1105) 486, Akingbehin V. Thompson (2008) 6 NWLR (pt 1083) 270.

In the instant appeal, the Respondent and his witnesses testified from pages 57 to 65 of the record. The Respondent’s evidence is on pp 63 to 65. He testified as Pw3. In his concluding testimony before the court on page 64 of the record, the following scenario is recorded beginning with a question by his counsel, Mr. Sanusi:-
“Sanusi: Mai. Auwal you are now before this honourable court, what do you want the court to do for you?
A: I am begging this honourable court…
Court: Anyway don’t worry about the relief, the relief is there.
Sanusi: My Lord that will be all for him.
From the above short conversation among the Respondent, his counsel and the court, one fact remains apparent and that is, the Respondents started to tell the court the reliefs he wanted from the court but the court, for whatever reason, stopped him and told him the reliefs are on record. I think the court ought to have allowed the Respondent to state by himself the reliefs he wanted from the court. By the conduct of the learned trial Judge, he could have as well stopped him from giving evidence since the facts of the case were stated in the statement of claim filed before the court. This type of procedure is alien to our procedural law. Since the court can only grant what is asked for, the court should give a party the opportunity to ask for something before granting it. Be that as it may, the issue as to what the reliefs are is not in doubt. Since the Respondent was telling the court what he wanted but the court suo motu stopped him and relied on the reliefs contained in the statement of claim, I do think it will be in the interest of justice to deny the Respondent the reliefs sought from the court simply because the learned trial Judge did not allow him to complete his statement. More so as there appears to be no miscarriage of justice in the circumstance, I shall have the understanding that the learned trial Judge deemed the reliefs adopted so as to save time. May be.

Now coming to the entire evidence led by the Respondent at the trial, the learned trial judge found on page 85 of the record of appeal as follows:-
7 am also of the view that the death was caused by the negligent conduct of the defendants. The evidence of disconnection, the proof of fault, and the fact that on three occasions, Pwl had reported to them on incidence of shock (a fact I believe, which they neglected to come and rectify all point to one conclusion, of culpable negligence on their part. If they had responded to the call, the deceased might have not been killed, at least by electrocution. They are negligent and are accordingly liable .”
I have taken a second look at the facts contained in the statement of claim and the evidence of Pw1, Pw2 and Pw3 and I agree completely with the above findings and conclusion of the court below particularly so when compared with the weak defence put up by the Appellant. The court below stated earlier on the same page of the record that:-
“If the defendants admit that the pole and stay were shocking and they went to clear at 2.40 p.m, what explanation do they have concerning an incident that took place at 2.00p.m? It could not be their case that it was after the clearing of the fault that the incident took place. I find the testimony of Dw1, Dw2 and Dw3 as heartlessly false and I cannot but be appalled by their clear loss of conscience as to stand before the court to testify, lying that they were not aware of the death of Nazifi Muhammad.”
These findings of the court below have not been challenged at all. There was abundant evidence which the lower court relied upon to find for the Respondent. It should be bourne in mind that this is a civil matter which was decided on the balance of probabilities or on the preponderance of evidence. As I see it, the court below came to the right conclusion that the imaginary scale tilted in favour of the Respondent. See Alhaji Buba Usman V. Mohammed Tanimu Garba (2003) FWLR (pt 177) 815.
The learned counsel for the Appellant had argued that the testimonies of the Respondent and his witnesses were hearsay. Well, I see it differently. Part of the evidence of Pw3 at page 63 of the record states:-
“On the 15th day of September, 2003 there was a massive disconnection of light and why (sic) they were doing this they left behind a naked wire on the floor. On the 18th September, 2003. Nazifi went to school at 7.30 a.m on that day there was a disconnection and I was at home when they came to call me that wire has shocked Nasifi.
On the 16th day of September, 2003 I came out, went to the place and saw people gathering, he has (sic) being removed from the place, some people bought pick (sic) milk and pouring it in his mouth and while they were giving him the milk he was bringing out food and I rushed him to ABU hospital and the Doctor testified (sic) that he has (sic) being kill (sic) by that electric shock and when I came back I reported to the police… when we were going to bury the boy three people came from NEPA and we went to the burial ground to bury him after that they left but they didn’t put the wire back on that day they only used tie tube to tie the naked wire. The next day, on the 17th, they came back to sympathise with us and at that time when they came Imam Abubakar Sikila was there and since that day they did not come back to say anything.”
There was also a graphic narration of the incident by Pw1, & Pw2. The Appellant has not denied that fault was reported twice but they failed to come until after this fatal damage had occurred. I am not surprised. This attitude of NEPA staff is not restricted to Zaria Area alone where this incident took place. It is a general virus which has infected the entire work force of NEPA. No wonder we keep on experiencing epileptic power supply for years now. Had the staff of the Appellant respondent immediately the reports were made, maybe Nasifi would still be alive today pursuing his education. I hope someday, somebody will have to breathe new life into this establishment which is fast becoming a national embarrassment.
Having said that, I hold that the Respondent led enough and credible evidence to establish his claim before the court below. Accordingly, I answer the question posed in this issue in the affirmative in favour of the Respondent.
On the whole, I find no merit in this appeal and is hereby dismissed. I affirm the judgment of the lower court which awarded N10,000,000.00 general damages in favour of the Respondent. I also award costs of N30,000.00 in favour of the Respondent.

MOHAMMED LAWAL GARBA, J.C.A: I have read a copy of the lead judgment delivered by my learned brother OKORO, JCA, before now,
As usual he has thoroughly considered the three (3) issues submitted by the Appellant for determination in the appeal and proficiently resolved them in line with applicable principles of law. I am in complete agreement with the views expressed and reasons stated for the conclusions on the issues with the emphasis that a party is not permitted in law to change on appeal the case he had made or canvassed at the trial Court since an appeal is simply the continuation of the case put forward in the Court of trial. See I.M.N.L. V. PEGEFOR INDUST.LTD. (2005) ALL FWLR (270) 2018 @ 2028, STANDARD (NIG) ENG. CO. V. NBCI (2006) ALL FWLR (315) 255, OREDOYIN V. AROWOLO (89) 4 NWLR (114)172.
The Appellant cannot therefore in this Court be allowed to use the specious issue of jurisdiction raised by him to change the character of the claims made by the Respondent and determined by the trial Federal High Court.
The claims made by the Respondents at the trial Court were clearly and unequivocally set out in the Statement of Claim and a genuine and proper issue of jurisdiction cannot be raised outside those claims as the Appellant had attempted to do in this appeal.
For all the pungent reasons stated in the lead judgment which I adopt, this appeal is woefully wanting in merit and so is dismissed by me. I abide by the order costs made in the lead judgment.

THERESA NGOLIKA ORJ1-ABADUA, J.C.A: I agree with the reasoning and conclusion reached by my learned brother, JOHN INYANG OKORO, J.C.A, in the leading judgment just delivered by him in this appeal. I, too, dismiss the appeal and hereby affirm the ruling of the trial Court which awarded N10,000,000.00 general damage in favour of the Respondent. I abide by the orders made regarding costs in the leading judgment.

Appearances

Charles Mafua Esq.For Appellant

AND

M.K. Sanusi Esq.For Respondent