R.C.C. CONSTRUCTION COMPANY NIGERIA LIMITED & ANOR v. MR. KEHINDE ADESANMI & ANOR
(2019)LCN/12889(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/AK/202/2016
RATIO
EVIDENCE: TENDERING A DOCUMENT
“The law is trite as rightly stated by the trial Court that the proper person through whom a document is tendered is the maker of a document. If a person who is not the maker of a document tenders the document, the Court should not attach any probative value to the document not being the maker of the document as he cannot answer questions arising from any cross-examination. See Lambert V. Nigeria Navy (2006) NWLR (Pt. 980) 525.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
INTERPRETATION: MEANING OF SPEACIAL AND GENERAL DAMAGES
“Special damages are such that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the Plaintiff as a matter of course. They are exceptional in their character and connotes specific items of loss which the Plaintiff alleges are the result of the Defendants act of breach of duty complained of. Unlike general damages, special damages must be claimed specifically and strictly proved and the Court is not entitled to make its own estimate of the same. General damages, on the other hand, are such as the law will presume to be the direct natural or probable consequence of the act complained of, it need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and may be averred generally. This includes compensation for pain and suffering and the like, if injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. General damages covers all losses which are not capable of exact quantification. There is no fixed rule by which to assess general damages, it is in the discretion of the Court to award a fair and reasonable compensation having regard to be circumstances of the particular loss. See generally the cases ofObasuyi V. Business Ventures Ltd (2000) 12 WRN 112; Incar (Nigeria) Limited V. Transport Ltd (1975) NSCC 115; Dumez (Nigeria) Ltd V. Patric Ogboli (1972) 1 All NLR 241; and Ukachukwu V. Uzodinma (2007) 9 NWLR (Pt. 1038) 167.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
TORT: MEANING OF NEGLIGENCE
“negligence in tort connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. In other words, it is the omission or failure to do something which a reasonable man under similar circumstance would do or the doing of something which a reasonable and prudent man would not do. See U.T.B (Nig.) V. Ozoemena (2007) 3 NWLR (Pt. 1022) 488; Odinaka V. Moghalu (1992) 4 NWLR (Pt. 233) 1 and Lochgelly Iron & Coal Co. V. Mcmullan (1934) A.C. 1.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
TORT: INGREDIENTS FOR NEGLIGENCE
“As rightly submitted by both parties in this appeal, an action for negligence is complete where the following three conditions are satisfied:
(a) The Defendant owed a duty of care to the Plaintiff,
(b) There was breach of that duty by the Defendant; and
(c) Damage was suffered by the Plaintiff resulting from the breach. See U.T.B. (Nig) V. Ozoemena(supra); Agbonmagbe Bank Ltd V. C.F.A.D (1966) 1 All NLR 140; Oyidiabu V. Okechukwu (1972) 5 SC 191; and the famous English case of Donoghue V. Stevenson (1932) AC 562.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
TORT: DUTY OF CARE
“The duty of care contemplated in negligence exists where there is sufficient relationship of proximity or neighbourhood, as between a wrongdoer and the person who has suffered damage, such that in the reasonable contemplation of the wrongdoer, carelessness on his part may likely cause damage to the injured person. See Donoghue V. Stevenson (supra).” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
TORT: REASONABLE MAN’S TEST
“Although negligence is a question of fact, each case must be decided in the light of its own facts and circumstances; the established principle of law is that degree of care which the duty involves must be proportional to the degree of risk involved if the duty of care should not be fulfilled. See North Western Utilities Ltd V. London Guarantee & Accident Co. Ltd (1936) AC 108; UTB (Nig.) V. Ozoemena (supra). The test is that of a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs…In law a person becomes liable for negligence where there is failure on his part to use requisite amount of care required by law in the case where duty of care exists. See International Messengers Nig. Ltd V. Engineer David Nwachukwu (2004) 13 NWLR (Pt. 891) 543.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICE
MOHAMMED AMBI-USI DANJUMA justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD justice of The Court of Appeal of Nigeria
Between
1. R.C.C. CONSTRUCTION COY. NIG. LTD
2. LEADWAY ASSURANCE COY. LTDAppellant(s)
AND
1. MR. KEHINDE ADESANMI
2. MR. TAIWO ADESANMIRespondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
The Appellants appeal is against the judgment of Osun State High Court sitting at Ile-ife, delivered by A.B. Abdulkareem, J. on the 5th May, 2016 against the Defendants now Appellants. The Plaintiffs are now the Respondents before this Court.
The Plaintiffs by Writ of Summons and Statement of Claim dated and filed on the 21st December, 2010 claims against the Defendants jointly and severally as follows:
The sum of Forty-Four Million, Four Hundred and Seventy Thousand, One Hundred and Fifteen Naira only (N44, 470,115.00) being special and- general damages claimed against the two Defendants jointly and severally for loss of life, medical expenses incurred, loss of life expectancy, agonies suffered by the bread winner and dependants of the Plaintiffs in person of Late Prince Gabriel A. Adesanmi who on January 6th, 2006 was injured by a blasted stone that flew from the stone quarry of 1st Defendant located at Oke Apata via Oke Ogbo, Ile-Ife, Osun State of Nigeria, which caused injury to the Late Prince Gabriel A. Adesanmi at his upper right hand side buttocks through gross negligence of the 1st Defendant thereby causing the loss of life, agonies, medical expenses and loss of life expectancy to the Late Prince Gabriel A. Adesanya. The Plaintiffs and other Defendants of Late Prince Gabriel A. Adesanya had in no small way suffered a lot for the loss of their dependant and bread winner.
The Defendants by filing their joint statement of defence dated 1st April, 2012 and filed on the 3rd April, 2012. Both parties frontloaded their respective witnesses statements on oath and documents relied upon.
In the course of the proceedings, the Plaintiffs called three witnesses and the defendants called two witnesses. Written addresses were filed and exchanged between the parties; the trial Judge, on the 5th May, 2016 entered judgment in favour of the Plaintiffs by awarding the sum of Ten Million Naira (N10,000,000.00) as General Damages against the Defendants.
Dissatisfied with the decision of the trial Court, the Appellants herein approached this Court vide a Notice of Appeal dated 1st June, 2016 but filed on the 2nd June, 2016. Containing seven (7) grounds of appal. In line with the rules of this Court, parties filed and exchanged their briefs of argument. The Appellants Brief dated 5th December, 2017 was filed on the 8th December, 2017 but deemed properly filed and served on the 17th January, 2018. The Respondents Brief dated 2nd March, 2018 was filed and served on the 25th October, 2018.
The Appellants submitted the following four (4) Issues for determination of this appeal:
1. Whether the learned trial judge was right when he held that the 1st defendant was liable in negligence.
2. Whether the learned trial was right when he held the 1st defendant was strictly liable under the rule in Ryland V. Fletcher when the 1st defendant did not make unnatural use of its land or accumulate any dangerous objects on the land and “the thing” did not escape to a place outside the 1st appellant’s land.
3. Whether the learned trial judge was right by awarding the sum of N10,000,000.00 (Ten Million Naira in favour of the respondents as general damages.
4. Whether the learned trial judge properly evaluated the evidence before it.
These issues were adopted by the Respondents in their brief of argument and having regard to the grounds of appeal, they are comprehensive and sufficient for the determination of this appeal; the issues are therefore so adopted by me.
ARGUMENT
ISSUE ONE
Whether the learned trial Judge was right when he held that the 1st Defendant was liable in negligence (Ground 1, 4, 6 and 7).
Arguing this issue, the Learned Counsel on behalf of the Appellants submitted that for a person to be held liable for the tort of negligence, three elements must co-exist and established by the Plaintiff, that is the Defendant owed a duty of care; there was breach of that duty and damage was suffered from the breach. He cited many decided cases in support of the principle which includes Oyidiobu V. Okechukwu (1972) 5 SCP 191; Nigerian Breweries Plc V. David Audu (2009) LPELR 8863; Kabo Air Ltd V. Mohammed (2015) 5 NWLR (Pt. 1451) 65; UBA PLC V. Godm Shoes Industries (Nig.) Ltd (2010) LPELR 9255 and Iginovia Orhue V. National Electric Power Authority (1998) LPELR 2758 (SC) P 10. He submitted that the 1st Appellant obtained a licence from the Federal Ministry of Mines and Steel to carry out quarry operations at Oke Apata Village, Ile-Ife in Osun State which covered a radius of 200 metres.
He argued that standard blasting regulations were complied with by the Appellants to ensure that passersby were aware that the 1st Appellant was about to commence a blasting operation. The 1st Appellant erected the red flag and posters on the outer limits of the non-safe areas of the blast zone to warn the settlers of the inherent dangers in the blasting operation.
He submitted that the 1st Appellant commenced blasting operation since 2005 without accident because he has been complying with the standard regulation and even on the day of the incidence the usual warning precautions were followed.
The Learned Counsel referred to the evidence of DW1 in his Statement of Oath and under Cross-Examination at page 159 of the Record and submitted that the 1st Appellant was alerted that the diseased was hit by a stone from the blast. The deceased was found to be within few poles of the blasting operation carrying out a survey of the area. He argued that the deceased had no business on the quarry site as the whole site had exclusively been leased to the 1st Appellant.
Counsel referred to the cases of Kabo Air Ltd V. Mohammed (supra). Oilsery Ltd V. L.A. Ibeanu & Company Nigeria Ltd & Anor (2007) LPELR 5149 P. 19 and Olam (Nigeria) Limited V. Intercontinental Bank Limited (2009) LPELR 8275 P. 50 51. On the meaning of duty of care and submitted that the 1st Appellant did not admit owing the deceased a duty of care but rather the contention was that the 1st Appellant discharged the duty of care it owed the deceased. He argued that it was erroneous for the learned trial Judge to have held that the Appellants admitted owing the deceased a duty of care especially as he failed to consider the fact that the 1st Appellant discharged the duty of care it owed. He also submitted that by paragraph 17 and 18 of the Defendants (sic) witness statement on oath and paragraph 9 of the statement of defence, the 1st Appellant had discharged the duty of care it owed to the members of public including the deceased through the measures put in place before carrying out the blasting operation and that the 1st Appellant was not negligent.
The learned Counsel also referred to page 213 of the Record of Appeal and submitted that the safety steps taken by the 1st Appellant includes red flags, going round the village to inform the villagers and blocking of the entrance of the quarry but not limited to blowing of siren. He argued that there was nothing on record for the trial Judge to have preferred the evidence on time the siren was blown alone without considering other evidence that the 1st Defendant took every reasonable step to ensure that no accident occurred. He further contended that PW2 was discredited under cross-examination and could not state the period when the 1st Appellant blew the siren and when the blasting operation started. He urged this Court to interfere with that finding as it is not supported by credible evidence. He relied on the case of ANPP V. REC Akwa Ibom State (2008) 8 NWLR (Pt. 1090) 453.
The learned Counsel for the Appellant submitted on the 2nd requirement of negligence which a Plaintiff must establish to entitle him to the award of damages, that the legal standard for determining whether the 1st Appellant breached his duty of care is that of a reasonable man. He relied on the case of Aluminium Manufacturing Co. Of Nigeria Ltd V. Volkswagen of Nigeria Ltd (2010) LPELR 3759.
He submitted that the 1st Appellant had discharged the duty of care that rests on him and could no longer breach the same duty and that no evidence upon which the finding of negligence against him can be based. He also relied on the case of Benson V. Otubor (1975) 3 SC. 9.
On the 3rd requirement, the learned Counsel submitted that since there was no breach of duty of care on the part of the 1st Appellant it flows there from that the 1st appellant cannot be held liable for damage that late Gabriel Adesanmi suffered. The damage that occurred did not arise from action or inaction of the 1st appellant but from the stubborn refusal of the deceased to leave the danger-zone after the warning siren was blown. He submitted that the mere fact that the Plaintiff suffered actual damage does not Ipso facto establish the Defendants negligence or that he caused the damage. He relied on the cases of Ogbiri & Anor V. Nigeria Agip Oil Company Ltd (2010) LPELR 4686 and Universal Trust Bank of Nigeria V. Fidelia Ozoemena (2007) LPELR 3414.
He further submitted that negligence is a question of fact and not law, each case must be decided in the light of its own facts. Where a Plaintiff pleads and relies on negligence by conduct or action of the Defendant, he must prove the conduct or action by evidence and the circumstances of its occurrence giving rise to the breach of duty of care. He cited the cases of Olam (Nigeria) Limited V. Intercontinental Bank Limited (2007) LPELR 8275; Ngilari V. Mothercat (1999) 13 NWLR (Pt. 636) (no page provided) and Universal Trust Bank of Nigeria V. Fidelia Ozoemena (Supra). He submitted that the 1st Appellant cannot be liable for the fault of the deceased and for whatever damage suffered by any trespasser. He also submitted that in the light of the ingredients of negligence argued above, the Appellants were not negligent and urged this Court to resolve this issue in favour of the Appellants.
The respondents, on the other hand, Respondents on this issue brought their Counsel at page 2 of the Respondents brief settled by W. L. Adeboye (Mrs.) that contrary to the submissions of the Appellants Counsel, the 1st Appellant was negligent in carrying out its quarry operations and therefore responsible for the death of Prince Gabriel Adesanmi the deceased and father of the Respondents.
The learned Counsel submitted that in an action for negligence the first question is whether the Defendant owed a duty of care to the Plaintiff and a duty of care is owed whenever in the circumstances it is foreseeable that if the defendant does not exercise due care the Plaintiff will be harmed. He copiously produce the dictum of Lord Atkim on the foreseability test, otherwise known as the neighbour principle in the case of Donoghue V. Stevenson (1932) AC 562 (HL) and also the case of Capro Industries Plc V. Dicman (1990) 2 AC 605 (HL).
The learned Counsel argued that from the pleadings the 1st Appellant admitted paragraphs 3, 4, 5, 7, 19, 45 and 50 of the Statement of Claim. He submitted that paragraphs 3 and 4 of the statement of claim are deemed established and does not require further proof, consequently the 1st Appellant is a neighbour to different groups of people around its quarry site where blasting of rocks is being carried out. The neighbours include the inhabitants of Oke Apata Village, the passerby, the farmers, owners of adjourning properties, the Surveyors working around the quarry site e.t.c. These people are closely and directly affected by Appellants acts and ought to reasonably have them in contemplations, ensure the safety of everyone around the site by not allowing escape particles from the blasting of rocks to injure them.
The learned Counsel, on the meaning of negligence, cited a number of Supreme Court cases and submitted that in an action for negligence, the Plaintiff must prove the existence, the Plaintiff must prove the existence of duty of care owed to the Plaintiff by the Defendant and damages suffered by the Plaintiff resulting from the breach. He relied on the case of Abubakar V. Joseph (2008) 50 WRN at P. 37.
Counsel made references to paragraph 1 of the Appellant Statement of Defence and paragraphs 3, 4, 7 of the Respondents Statement of Defence and submitted that the necessary inference to make from the paragraphs is that the 1st Appellant owes a duty to people around the quarry site to blow siren at least one hour before commencing the blast and he urged this Court to accept the inference.
He also made copious reference to paragraphs 8 and 9 of the Respondents Statement of Claim, paragraph 15 of the Defendants Witness Statement on Oath at page 67 of the Record and paragraphs 9 11 at page 60 of the Record. He submitted that the admission by the 1st Appellant that he owed everybody including the deceased a duty of care needs no further proof and urged this Court to so hold.
On the second element which is the breach of the duty of care, the learned Counsel submitted that by evidence of PW1 and PW2 the Appellants did not follow the safety regulation before commencing the blasting of rocks. The Appellants claimed to have informed the villagers but non of them was called as a witness, the presumption is their evidence would have been unfavourable to the Appellants case. He relied on the case of Omotayo V. State (2013) 2 NWLR P. 235 and S. 167 (d) of the Evidence Act 2011. He submitted that the failure of the 1st Appellant to ensure the safety of deceased and urged this Court to so hold.
The learned Counsel on the third requirement copiously produced paragraphs 8 and 13 of the Appellants Statement of Defence, he also referred to the evidence of DW1 and DW2 and submitted that the deceased, father of the Respondents, was hit by a rock following the blast. He urged this Court to resolve this issue against the Appellants and in favour of the Respondents. He also urged this Court to hold that the trial Judge was right when he held that the Appellants were liable in negligence.
ISSUE TWO
Whether the learned trial Judge was right when he held that the 1st Defendant was strictly liable under the rule Ryland V. Fletcher when the 1st Defendant did not make unnatural use of its land or accumulate any dangerous objects on the land and the thing did not escape to a place outside the 1st Appellants land. (Grounds 3, 4, 6 and 7).
Arguing this issue, learned Counsel for the Appellants produced the principle in Ryland V. Fletcher (1886) LRI BXCH 265 and submitted that the rule does not apply to the present suit, he argued that the 1st Appellant was granted licence and lease to carry out quarrying operation under S. 78 of the Minerals and Mining Act 2007 vide Exhibits E and F. The stones used for quarrying operation are natural objects of the land, the stone did not escape out of the 1st Appellants territory covered by the lease but hit the deceased within the area covered by the lease and that rendered the rule in Ryland v. Fletcher inapplicable in this case.
Learned Counsel submitted that the conclusion of the trial Judge at page 209 of the Record that the Defendant is liable for accumulating explosives is not supported by the pleadings and evidence before the trial Court, it is not the duty of the Court to scout for evidence or to speculate; the Court and parties are bound by the facts pleaded. He cited the cases of Igbinokpogie & Anor V. Ogedegbe (2001) LPELR 1445 P. 18; Kano V. Oyelakin (1993) LPELR 1662 P. 30.
He also submitted that the application of the rule in Ryland V. Fletcher is restricted to interest in land and where damages affect the proprietary interest therein. He cited the cases of Transco Plc V. Stockport Metropolitant Borough Council (2004) 2 AC 1; Universal Trust Bank Nigeria V. Fidelia Ozoemena (2007) LPELR 3414. He further argued that the rule being a strict liability rule admits of certain exceptions which include when the operation complained about is carried out on statutory authority, in such cases, the Respondents must prove negligence on the part of the Appellants. He cited the cases of Geddis V. Proprietors of Bann Reservoir (1878) 3 A.C. 430 and National Electric Power Authority V. R.O Alli & Anor (1992) LPELR 1955.
The learned Counsel submitted that the findings of the trial Court on the liability of the 1st Appellant under the rule in Ryland V. Fletcher was not supported by facts, he urged this Court to reverse same. He relied on the case ofElf Nigeria Ltd V. Opere Sillo & Anor (1994) LPELR 1115. He urged this Court to hold that the Appellants were not liable under the rule in Ryland V. Fletcher and to set aside the findings of the trial Court on this issue.
The Respondents on their part responded to this issue and argued that the Rule in Ryland V. Fletcher is applicable to this case. The Learned Counsel submitted that blasting of rocks is not a natural event, other external materials must have been brought in to cause such a rock to blast and cause the particles to escape and there by occasion injury to the body of a third party.
He referred to page 6 of the Record of appeal and paragraphs 2 and 3 of the Respondents pleading and submitted that it was only the portion of the land that was leased to the 1st Appellant and not the whole parcel of land. He also produced paragraphs 3 5 of the PW1 Written Statement on Oath and further argued that the large parcel of land, part of which quarry is located, belongs to PW1 who employed the deceased, father of the Respondents to cut it into layout. He contended that from the pleading and evidence adduced at the trial Court there was no where the 1st Appellant or his witnesses stated that the totality if evidence was to the 1st Appellant, the only evidence was to the effect that the quarry site of 0.2KM in area belongs to the 1st Appellant, PW1 and the deceased Respondents father are not trespassers.
The Learned Counsel contended that liability for damage caused by dangerous thing is absolute, it is not necessary to prove any negligence or lack of care on the part of any one. Counsel referred to a book titled Charles Worth on Negligence Sixth Edition, paragraph 436 and enumerated 4 salient features of the tort which are things likely to do mischief, an accumulation of them; an escape and damage. He tried to relate each of these salient features to the present case and submitted that whether the rule in Ryland V. Fletcher is applicable or not, a person will be held liable for the tort of negligence where there exist a duty of care owed to the Plaintiff by the Defendant, the Defendant breached that duty and the Plaintiff suffered damages resulting from the breach. He finally urged this Court to resolve this issue in favour of the Respondents.
ISSUE THREE
Whether the learned trial Judge was right by awarding the sum of N10,000,000.00 (Ten Million Naira) in favour of the Respondents as general damages. (Grounds 5, 6 and 7).
Learned Counsel submitted on this issue that general damage will only be awarded where the Plaintiff has established negligence, he argued, as earlier submitted, that negligence in this case has not been established and the learned trial Judge ought not to have awarded damages. He also submitted that even where a party has made a case and entitled to general damages, it is the discretion of the Judge which must be exercised judicially and judiciously. He relied on the cases of Durowaiye V. UBN (2015) 16 NWLR (Pt. 1484) P. 36 37; Abiara V. Reg. T.M.C.N. (2007) 11 NWLR (Pt. 1045) 280 and NDIC V. Ette (2016) 8 NWLR (Pt. 1514) P. 37.
The Appellants Counsel further argued that the trial judge wrongly exercised his discretion to award N10,000,000.00 as general damages to the Respondents. He cited the case of NDIC V. ETTE (supra). He copiously produced the circumstances under which an appeal Court may overturn the findings of the lower Court as in the case of Esika V. Medolu (1997) 1 NWLR (Pt. 485) 54 at 70. He submitted that there was no credible evidence before the trial Court to support the award of N10,000,000.00 as general damages. The oral evidence presented was hyped-up to appeal to sentiment and sentiment has no place in law. He also submitted that in cases of this nature, the law requires the proof by evidence the source of income and ascertained which was not done in this case before awarding the damages. He relied on the case of Omole & Sons Ltd V. Adeyemo (1994) 4 NWLR (Pt. 336) 48 and submitted that the N10,000,000.00 awarded as general damages was speculative, sentimental and not evidential.
The learned Counsel submitted that the principle in John Nwafor & Anor V. Nwamuo Nduka & Anor (1972) LPELR 2093 is apposite in this case; he copiously produced the holding at pages 7 8 and submitted that general damages may be awarded to assuage such a loss which flows naturally from the Defendants act to which the trial Judge must make his own assessment of the quantum of such damages in the light of evidence before him and not base his award on speculative claims or scanty evidence. He cited the cases of ANTS V. Atoloye (1993) 6 NWLR (Pt. 298) 233, and Gari V. Seirafina (Nig.) Ltd (2008) 2 NWLR (Pt. 1070) 1.
The Learned Counsel further submitted that the trial Judge was wrong in awarding the sum of N10,000,000.00 as general damages when there was no direct evidence that the 1st Defendants act was responsible for the death of the deceased upon which the trial Court could have exercise its discretion. He cited a number of decisions on the circumstances under which an Appellate Court would interfere with the exercise of discretion by the trial Court and reverse the award the general damages.
He urged this Court to resolve this issue in favour of the Appellants.
In response to this issue, the learned Counsel for the Respondents submitted that the Respondents established negligence in this case and the trial Court was right to have awarded damages and contrary to the Appellants Counsel, the learned trial Judge exercised his discretion judicially and judiciously in making the award of general damages. He cited the case of Rockonoh Ltd V. Nitel & Anor (2001) 7 NSCQR 171 on what constitute a claim of general damages.
The learned Counsel for the Respondents argued that the authorities cited by the Appellants in paragraph 6:5 of their Brief were wrongly used as there is nothing in the Judgment of the trial Court that suggest that the Judge took into consideration matters that should be considered in award of special damages, he urged this Court to so hold.
On the meaning of general damages, the learned Counsel produced the dicta in the case ofInt. Messengers Ltd V. Nwachukwu (2004) 18 NSCQR 875 at 891. He responded on the circumstances in which an appeal Court can interfere with an award of damages by the trial Court and submitted that the trial Court did not act under a mistake of the law or misconceive facts and did not disregard principles or took irrelevant facts into account. He also contended that no in justice will occur against the Appellants if the general damages awarded is not interfered with. He urged this Court not to interfere with the award made by the trial Judge.
The Learned Counsel also submitted that exercise of discretion by the trial Judge was supported by the claims and evidence adduced by the Respondents and there was no appeal as to sentiment, the decision was based on the evaluation of evidence before it and its discretion was exercised on that basis. He submitted that the trial Judge was right to have relied on the Rule in Ryland V. Fletcher to hold that the Appellants were negligent.
The Learned Counsel contended that the Appellants arguments in paragraphs 6:11 6:13 of their brief will only be applicable where the claim is one of special damage and not general damage, he urged the Court to discountenance the argument in that respect. He cited the case of International Messangers Nig. Ltd. V. Engineer David Nwanchukwu (2004) 13 NWLR (Pt. 891) P. 543 and produced the dicta of the apex Court on the general and special damages.
He submitted that the Appellants were negligent and that there is no reason for this Court to interfere with the findings of the trial Court as it was arrived at after application of correct principles and proper evaluation of evidence. He urged this Court to resolve this issue in favour of the Respondents and hold that the trial Judge was right in awarding N10,000,000.00 as general damages in favour of the Respondents.
ISSUE FOUR
Whether the learned trial Judge properly evaluated the evidence before it (Grounds 1, 2, 3, 4, 5, 6 and 7).
Arguing this issue, the learned Counsel for the Appellants contended that a community reading of the facts and the judgment of the trial Court indicates that there was no proper evaluation of the facts of this case. He argued that the application of the rule in Ryland V. Fletcher (supra) to determine the liability of the Appellants indicates improper evaluation of the facts of this case. On evaluation of evidence he referred us to the cases of Jolugbo & Anor V. Aina & Anor (2016) LPELR 40352 and Enemchukwu V. Okoye & Anor (2016) LPELR-40027.
The Learned Counsel argued that the application of the clause I believe and accept, I do not believe in the judgment of the trial Court does not automatically input adequate and proper evaluation of evidence. The trial Judge failed to give reasons for his belief and disbelieve as a magic word that cures the defect of inadequate evaluation. He relied on the cases of Morka & Ors V. The State (1998) LPELR 5631 P. 15; Mallam Jomoh Salawu & Anor V. Mallam Aliyu A. Yussuf & Anor (2007) LPELR 2988; Bello V. The State (2006) LPELR 7710 P. 20; Isu V. Uche & Ors (2009) LPELR 8855 P. 26; Okonkwo V. Okonkwo (2014) 17 NWLR (Pt. 1435) Pp 68 69; Gbemisola V. Bolarinwa (2014) 9 NWLR (Pt. 1411) Pp 41 42 and Akpang V. Amiye (2015) 18 NWLR (Pt. 1490) P. 164.
Counsel referred to page 209 of the Record of Appeal and submitted that the trial Judge scouted for evidence to support his judgment as there was no evidence before the Court that the 1st Appellant accumulated explosives. Still on page 209 of the record, the pleadings and evidence before the trial Court was that the accident occurred on the land the 1st Appellant has control over and was not the findings of the trial Court. The Counsel also made copious reference to page 211 of the Record and submitted that the trial Court having failed to properly evaluate the evidence before it, the Appeal Court is robbed of the power to evaluate the evidence in this case. He cited the cases of Alabi V. Doherty (2005) 18 NWLR (Pt. 957) P. 432; Ishola V. UBN Ltd (supra); Ekong V. Otop (2014) 11 NWLR (pt. 1419) Pp. 573 574 and Gbemisola V. Bolarinwa (supra).
On the time to which the 1st Defendant blew the warning sirens, the Learned Counsel argued that the evidence of DW2 that the Defendant commenced blasting operations 30 minutes after blowing the warning siren and that of DW1 were not cross examined which should be deemed accepted but the trial Judge chose to disbelieve the testimonies of those witnesses on the time blasting operation. Counsel also argued that Exhibit D which is a public document ought to have been acted upon by the trial Court without placing the necessity of calling the maker so long it has satisfied the requirement of Section 102 of the Evidence Act, 2011. He submitted that the trial Judge erred in law when he held the Exhibit D the police investigation report amounts to a documentary hearsay. It is unnecessary for the maker of the document to be ascribed to the document. He supported his argument with the case of Nwakodo V. Ohajuruka (2010) All FWLR (Pt. 511) 849; Tabik Investment Ltd & Anor V. GTB Plc (2011) LPELR 3131; Achu V. Okonkwo (2016) LPELR 41015; Kerri V. Ezunaka Brothers Enterprises Ltd & Ors (2003) LPELR 12399; Anyakora V. Obiakor (1990) 2 NWLR (Pt. 130) 52 and Kawu V. Minister, FCT & Ors (2016) LPELR 41142.
Counsel invited this Court to invoke its powers and discretion to examine Exhibit D as failure by the trial Court occasioned miscarriage of justice. He relied on the cases of Hon. Lawal M. Rabiu & Anor V. Hon. Jumare Tanimu Magaji & Ors (2010) LPELR 4889 and Gonzee Nigeria Ltd V. Nigeria Education Research and Development Council & 2 Ors (2005) 6 SC (Pt. 1) 75. He urged this Court to hold that the trial Court failed to properly evaluate the evidence before it.
In conclusion, the Appellants Counsel urged this Court to resolve all the issues in favour of the Appellants, set aside the judgment of the lower Court and make further orders as may be deemed fit in the circumstances.
The Respondents, on the other hand, through their Counsel, responded on this issue that it is clear from the judgment of the trial Court, that the learned Judge clearly and without sentiment evaluated the evidence led by both parties. On valuation of evidence, the learned Counsel copiously referred and produced in his brief the dicta in the case of Kwajaffa V. Bank of the North Ltd. (2004) 18 NSCQR 543 at 566. He submitted that the learned trial Judge did use phrases like I believe, I accept and I do not believe, the trial Judge evaluated the evidence led by both parties. He made references to the record of appeal at pages 213 214 and submitted that the trial Judge carefully, adequately and effectively evaluated the evidence led by both parties and gave value and quality to such evidence, he also put on record the reason why he preferred the evidence of the Respondents to that of the Appellants.
The Counsel submitted that contrary to the argument of the Appellants the trial Judge did not scout for evidence to support his judgment. The holding of the trial Court at page 209 of the record was based on evidence, he referred to paragraph 13 of the Respondents pleading at page 7 of the record which was admitted by the Appellants in paragraph 8 of their statement of defence. He submitted that the trial Court did not make a case for the parties different from what they pleaded, though the trial Court drew inference from evidence led by the parties which is allowed in law. He cited the case of MTN Nigeria Communications Limited V. Mundra Ventures Nigeria Limited (supra) and submitted that the trial Court had good ground to hold that the stone which hit the deceased escaped to a place which was outside the 1st Defendants occupation and control. The learned trial Judge clearly followed the principle of negligence; even though the argument of the Appellants Counsel is contradictory; in one hand he admitted the Appellants owed a duty of care which they had discharged and in another breath he said they never owed a duty of care to the Respondents.
He submitted that the trial Court properly evaluated the evidence before it and the Appellate Court has no duty to interfere with the findings of the Court. He relied on the case of Arisons V. Mil. Govt. Ogun State (2009) 38 NSCQR 745 at 773 and cases cited by the Appellants Counsel to that respect.
The Learned Respondents Counsel also submitted that contrary to paragraph 7.27 of the Appellants Brief, there were conflicting evidence as to the time the siren was blown and the time the blasting commenced. According to the Respondents, the blasting commenced immediately after the siren went off as against the required 30 minutes interval. He further submitted that it is wrong to conclude that failure to cross examine an adversarys witness on point is deemed an acceptance. The mere fact that evidence is unchallenged is not tantamount to proof, such evidence must be credible and relevant to the facts in issue. He relied on the cases of MTN Nigeria Telecommunication Limited V. Mundra Ventures Nigeria Limited (2016) LPELR 40343 P. 35; Cameroon Airlines V. Mike Otutuizu (2005) 9 NWLR (Pt. 929) 202; Ishola Lawson V. Afani Continental Co. Nig. Ltd (2002) 2 NWLR (Pt. 752) 585; Omoregbe V. Lawem (1981) 3 SC 108 and Oduola V. Coker (1981) 5 SC 197.
On Exhibit D, Learned Counsel for the Respondents submitted that it is not all admissible evidence that can be given probative value by the Court, admissibility is one thing while probative value or weight attach to the document is another thing. He argued that the law requires the maker of the document to tender it in evidence so as to answer questions arising from it, the non maker is not in a position to answer question arising from that document. He stated circumstances where there the non maker is dead or can only be produced by invoking the party so much expenses that could be outrageous in the circumstances of the case. He relied on the case of Okoye V. Obiaso (2010) LPELR 2507 (SC) Pages 21 22.
He further submitted that certification of a public document only rendered it admissible in form and does not translate to attaching any weight to it. He produced the dicta in the case of Executive Governor, Ekiti State & 2 Ors V. Chief A. A. Abe & 4 Ors (2016) LPELR 40152 and submitted that the trial Court was right to have refused to attach any probative value to Exhibit D that was not tendered through the maker. He also submitted that all the authorities cited by the Appellants are to the effect that a public document becomes admissible on mere certification but did not talk about probative value to be attached to it. He urged this Court to resolve this issue in favour of the Respondents and against the Appellants.
In conclusion, the Learned Counsel urged this Court to resolve all the issues in this appeal against the Appellants and in favour of the Respondents, uphold the Judgment of the lower Court and dismiss this appeal with substantial costs.
RESOLUTION
Issue one, negligence in tort connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. In other words, it is the omission or failure to do something which a reasonable man under similar circumstance would do or the doing of something which a reasonable and prudent man would not do. See U.T.B (Nig.) V. Ozoemena (2007) 3 NWLR (Pt. 1022) 488; Odinaka V. Moghalu (1992) 4 NWLR (Pt. 233) 1 and Lochgelly Iron & Coal Co. V. Mcmullan (1934) A.C. 1.
As rightly submitted by both parties in this appeal, an action for negligence is complete where the following three conditions are satisfied:
(a) The Defendant owed a duty of care to the Plaintiff,
(b) There was breach of that duty by the Defendant; and
(c) Damage was suffered by the Plaintiff resulting from the breach. See U.T.B. (Nig) V. Ozoemena(supra); Agbonmagbe Bank Ltd V. C.F.A.D (1966) 1 All NLR 140; Oyidiabu V. Okechukwu (1972) 5 SC 191; and the famous English case of Donoghue V. Stevenson (1932) AC 562.
The duty of care contemplated in negligence exists where there is sufficient relationship of proximity or neighbourhood, as between a wrongdoer and the person who has suffered damage, such that in the reasonable contemplation of the wrongdoer, carelessness on his part may likely cause damage to the injured person. See Donoghue V. Stevenson (supra).
In the instant case, from the facts and evidence adduced by both parties at the trial Court, it is not in dispute that the deceased Mr. Prince G. A. Adesanya was carrying out a survey of a land around the premises where the 1st Appellant conduct its Quarry operation on the fateful day when the deceased sustained an injury resulting from a particle that escaped from the blast of a rock by the 1st Appellant. Obviously quarry operation by its nature is one that can cause harm or injury to people around the place and that was why the government attached safety regulation in granting licence to operate. There is therefore foreseeable damage that may result where safety regulation is not followed.
The 1st Appellant therefore owed a duty not only to people around the quarry site but to the entire public to take a reasonable care not to injure any person from the quarry operations, the duty extend to all persons who may likely be injured by its acts or omissions. It is therefore a misconception and out of place for the Appellants Counsel to argue that the Appellants did not admit owing the deceased a duty of care. The law does not only contemplate the duty of care between 1st Appellant and deceased but presumed it to exist being a person likely to be affected by the 1st Appellant quarry operation. See Donoghue V. Stevenson (supra) and Abusomwan V. Marcantile Bank Ltd (1987) 3 NWLR (Pt. 60) 196.
Having determined the existence of duty of care between the 1st Appellant and the deceased, the next relevant consideration is the breach of the duty of care. Learned Appellants Counsel contended that the 1st Appellant had discharged the duty of care owed to the public by complying with the safety regulations. Although negligence is a question of fact, each case must be decided in the light of its own facts and circumstances; the established principle of law is that degree of care which the duty involves must be proportional to the degree of risk involved if the duty of care should not be fulfilled. See North Western Utilities Ltd V. London Guarantee & Accident Co. Ltd (1936) AC 108; UTB (Nig.) V. Ozoemena (supra).
The test is that of a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs. This test when applied to the facts and circumstances of the instant case, it would certainly show that the 1st Appellant did not exhibit the degree of care of a reasonable and prudent man required to exonerate them from liability.
The pleadings and evidence adduced at the trial shows that the deceased and two other persons were carrying out survey work on a land very close to the 1st Appellants Quarry site. There was no evidence that the 1st Appellants staff went round the area that may possibly be affected by the blast to notify the people about the blast of the rock. The evidence only shows that villagers were informed; even where there is a contributory negligence of the deceased, it does not totally exonerate the Appellants from being liable for negligence. Furthermore, the evidence on record clearly shows that the deceased together with PW1 and PW2 were preparing to leave the site after blowing of siren by the staff of the 1st Appellant when the blasting of rock started and consequently a particle escaped and hit the deceased.
One of the safety regulations is that the 1st Appellant should ensure that the area is safe and all people around the area that may be affected by the blast of the rock would be asked to leave before commencing the operation. This safety regulation was not fully and effectively followed by the 1st Appellant. There was therefore breach of duty of care by the Appellant and the deceased died from the injury sustained as a result of a particle that escaped from the blast.
In law a person becomes liable for negligence where there is failure on his part to use requisite amount of care required by law in the case where duty of care exists. See International Messengers Nig. Ltd V. Engineer David Nwachukwu (2004) 13 NWLR (Pt. 891) 543.
The trial Judge was therefore right in holding the 1st Appellant liable for negligence. This issue is resolved in favour of the Respondents.
Issue two, this issue relates to the liability under the principle in Ryland V. Fletcher (1866) L.R. 1 Exch. 265. Liability under this rule is part of class of tortuous liability referred to as strict liability. The rule propounded by Blackburn J., otherwise known as the rule in Ryland V. Fletcher. The rule is as follows:
The person who, for his own purposes and in the course of non-natural use of his land, brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and if he does not do so, is prima facie answerable for all the damages which is the natural consequences of its escape.
The rule was established to cover cases of damages that could not be brought under any of the existing tort. In deciding the liability under this rule the law distinguishes between things which grow or occur naturally on the land and those which are accumulated there artificially by the Defendant. Thus the Defendant will not be liable for damage caused by the escape of rocks, since they are naturally on the land. But he will be liable for any damage arising from the accumulation of materials such as explosives, gas, petrol, water etc on his land. See Umudje V. Shell B.P. Petroleum Development Co. Of Nigeria Ltd (1975) 11 SC. 155.
In the instant case and as rightly argued by the Appellants Counsel, the findings of the trial Court on this principle was not supported by pleadings. There was no averment tending to show there was accumulation of explosives by the 1st Appellant or that the rock was accumulated artificially and not naturally there.
The law is settled that parties as well as the Court are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. It is also not open to a Court to violate the pleadings of the parties and make a case for them contrary to their pleadings. See Ito V. Ekpe (2000) 2 SC 98; Makinde V. Akinwale (2000) 1 SC 98 and Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1.
The trial Court was therefore wrong in holding that he 1st Appellant was liable under the rule in Ryland V. Fletcher (supra); the findings of trial Court in that respect is hereby set aside. Consequently this issue is resolved in favour of the Appellants and against the Respondents.
Issue three, this is a complaint on the award of N10,000,000.00 as general damage by the trial Court to the Respondents. I have carefully considered arguments canvassed by both parties on this issue and it is important to point out the distinction between special and general damages.
Special damages are such that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the Plaintiff as a matter of course. They are exceptional in their character and connotes specific items of loss which the Plaintiff alleges are the result of the Defendants act of breach of duty complained of. Unlike general damages, special damages must be claimed specifically and strictly proved and the Court is not entitled to make its own estimate of the same. General damages, on the other hand, are such as the law will presume to be the direct natural or probable consequence of the act complained of, it need not be specifically pleaded. It arises by inference of law and need not therefore be proved by evidence and may be averred generally. This includes compensation for pain and suffering and the like, if injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. General damages covers all losses which are not capable of exact quantification. There is no fixed rule by which to assess general damages, it is in the discretion of the Court to award a fair and reasonable compensation having regard to be circumstances of the particular loss. See generally the cases ofObasuyi V. Business Ventures Ltd (2000) 12 WRN 112; Incar (Nigeria) Limited V. Transport Ltd (1975) NSCC 115; Dumez (Nigeria) Ltd V. Patric Ogboli (1972) 1 All NLR 241; and Ukachukwu V. Uzodinma (2007) 9 NWLR (Pt. 1038) 167.
Now having spelt out the distinctions between the two classes of damages and principles governing the award of each class of damages, it is instructive to state that the trial Court only granted the Respondents claim for general damages.
The Respondents having successfully established negligence against the Appellants they are therefore entitled to the general damages which the law presumes to be the direct, natural or probable consequences of the Appellants act complained of. It is the discretionary power of the trial Court to award general damage which must be fair and reasonable. It must also be exercised judicially and judiciously.
The trial Court in this case awarded N10,000,00.00 as general damages against the N44,470,155.00 claimed by the Respondents as general and special damages. In my view and in considering the circumstances of this case, the amount awarded by the trial Court is fair, reasonable and not very low or outrageous. There is therefore no basis upon which this Court will interfere with the award of damages made by the trial Court as urged by the Appellants. See the cases of Gbadebo Shittu Olowoake V. Yekini Lawal (2000) 11 NWLR (Pt. 677) 127; Muobike V. Nwigwe (2000) 1 NWLR (Pt. 642) 620; Oyeneyin V. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.
This issue is also resolved in favour of the Respondents and against the Appellants.
Issue four, the Appellants on this issue complained on the proper evaluation of evidence by the trial Court. Both parties led evidence in proof of their pleading; as clearly shown from the record the Plaintiffs called three witnesses and tendered some document, the defendants on their part called 2 witnesses and tendered documents which include Exhibit D the police investigation report.
In civil matter, the Court decides the case on the balance of probabilities or preponderance of evidence. The trial Court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the Plaintiff on one side of the imaginary scale and that of the Defendant on the other side of the scale, and weighing them together. The Court then decides which sides evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence, be it oral and/or documentary. See Olonade V. Sowemimo (2014) 14 NWLR (Pt. 1428) 472.
In the instant case, the trial Court in evaluating the evidence of the parties, considered and preferred the evidence of PW1 and PW2 who were the eye witnesses of the incidence and were also together with the deceased when the incidence occurred, as witnesses of truth and as against the Defendants witnesses who did not impress the trial Court.
The trial Judge in my view considered the quality of evidence of the Plaintiffs witnesses as against that of the Defendants who were under the employment of the 1st Defendant. This is because a Court needs to be circumspect and cautious in relying on and assigning probative value to the evidence of witnesses who are related to the party who brought them. The law is settled that evaluation of relevant and material evidence and ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses as they testified. Where the trial Court which saw, heard and assessed the witnesses as they testified; Where the trial Court evaluated the evidence and justifiably appraises the facts, it is not the business of an appellate Court to substitute own views for the views of the trial Court.
On Exhibit D, the police investigation report, the trial Court rightly admitted the report, being a certified true copy of a public document which can even be tendered from the Bar. A careful examination of the Appellants argument shows that the Appellants Counsel argued and cited authorities that are basically on the admissibility which is contrary to the decision of the trial Court on the issue.
What the trial Court decided which I equally agree with, was that Exhibit D though admissible in evidence and was admitted, but attached no probative value to it since it was not tendered through the maker.
The law is trite as rightly stated by the trial Court that the proper person through whom a document is tendered is the maker of a document. If a person who is not the maker of a document tenders the document, the Court should not attach any probative value to the document not being the maker of the document as he cannot answer questions arising from any cross-examination. See Lambert V. Nigeria Navy (2006) NWLR (Pt. 980) 525.
Furthermore the investigatory power of the police under the law is in respect of criminal matters as opposed to civil matter, the police report therefore will only reflect the criminal aspect of the matter.
The law, as I stated elsewhere in this Judgment, is that where the trial Court, unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. See Fagbenro V. Arobadi (2006) 7 NWLR (Pt. 978) 174; Sha V. Kwan (2000) 5 SC 178; Ojokolobo V. Alamu (1998) 9 NWLR (Pt. 565) 226.
Contrary to the submission of the Appellants Counsel, the trial Judge has adequately evaluated the evidence placed before him which I so hold. The Counsel was also unable to show us that the findings of the trial Court were either perverse or occasioned miscarriage of justice to necessitate the intervention of this Court. This issue is therefore resolved in favour of the Respondents and against the Appellants.
In conclusion, I find no merit whatsoever in this appeal which is consequently dismissed with costs of N20,000.00 in favour of the Respondents and against the Appellants.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, Mohammed Ambi – Usi Danjuma, JCA. I agree with his reasoning and conclusion reached therein.
The essential elements to establish an action in negligence are the existence of a duty to take care owned to the complainant by the defendant; failure to attain that standard of care prescribed by the law; and damage suffered by complainant which must be connected with the breach of duty to take care.
The Supreme Court in S.P.D.C V. ANARO & ORS. (2015) LPELR 24750 (SC) had this to say:
“The principle laid down in RYLAND V. FLETCHER is to the effect that an occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound to take responsibility and prevent it escape. In the event of escape however, the occupier will be liable for all the direct consequences of its escape, even if he has been guilty of no negligence.”
In the instant case, there is an existence of duty to take care owed by the appellants not only to the respondent’s father but to the entire public not to injure any person from the quarry operation, which they failed to attain. The appellants with or without negligence on their part were under duty of care to ensure that there was no injury sustained by any person, the deceased inclusive being a person likely to be affected by the appellant’s quarry operation.
The breach of the duty of care owed by the appellants to the respondents father which results in injury that lead to his death give rise to an action in negligence for damages.
With these and the more detailed reason adumbrated in the lead judgment, I too find no merit in the appeal. I also dismiss the appeal and abide by the consequential orders including the order as to costs.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the judgment just delivered by my learned brother MOHAMMED A. DANJUMA, JCA in draft form. I agree with the reasonings given and adopt the conclusions reached therein. I too find no merit in this appeal and I accordingly dismiss it. I too assess costs at N200,000 in favour of the respondents and against the appellants
Appearances:
Ben T. OgunjobiFor Appellant(s)
J. A. Adeboye with him, W. L. AdeboyeFor Respondent(s)
