(2018) LPELR-44701(SC)

Transcription

1 CHUDI VERDICAL CO. LTD v. IFESINACHI INDUSTRIES (NIG) LTD & ANOR CITATION: In the Supreme Court of Nigeria MUSA DATTIJO MUHAMMAD ON FRIDAY, 8TH JUNE, 2018 Suit No: SC.246/2009 Before Their Lordships: KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN CHIMA CENTUS NWEZE EJEMBI EKO PAUL ADAMU GALINJE CHUDI VERDICAL CO. LTD Between And 1. IFESINACHI INDUSTRIES NIG. LTD 2. FELIX EDEOGA RATIO DECIDENDI 1. ACTION - PLEADINGS: How to plead the doctrine of res ipsa loquitur Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court Justice of the Supreme Court - Appellant(s) - Respondent(s) "At the lower Court the counsel to the present Respondent submitted, on authority of KUTI v. TUGBOGBO (1967) 1 NMLR 419, that the doctrine of res ipsa loquitur can be pleaded either by specifically reciting the latin maxim or by averments showing that the plaintiff intends to rely on it by pleading the very incident on which he claims against the defendant. I agree."(dissenting)per EKO, J.S.C. (Pp , Paras. E-A) - read in context 2. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Position of the law as regards judgment of a Court not appealed against "The law is settled that any point of law and/or facts not appealed against is deemed to have been conceded by the party against whom it was decided and the said point remains binding on the parties. See Vaswani Trading Co. V Savalakh & Co (1972) 12 SC, Chief Ogunyade V. Oshunkeye & anor (2007) 12 NWLR (Pt 1057) 218 at 257 and AG Lagos State V AG Federation & Ors (2014) LPELR (SC)."Per MUHAMMAD, J.S.C. (P. 16, Paras. A-C) - read in context

2 3. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court "At the lower Court the finding that the appellant, as the plaintiff, had abandoned their pleadings on the "particulars of negligence" in paragraph 5 of the Statement of Claim was not challenged. The Respondents, as the defendants, are therefore deemed to have accepted that finding. It is trite that facts not disputed are taken as admitted and accepted as between the parties."(dissenting)per EKO, J.S.C. (Pp , Paras. E-A) - read in context 4. EVIDENCE - DIRECT EVIDENCE: Preference of Courts for direct evidence where obtainable "Section 76 of the Evidence Act, 1990 (now Section 126 of the Evidence Act, 2011) requires that oral evidence in all cases must be direct. Evidence is direct when, if the fact to be proved was seen, then by the witness who saw it. If it was heard, then it must be the evidence of the witness who heard it."(dissenting)per EKO, J.S.C. (P. 44, Paras. A-B) - read in context 5. TORT - RES IPSA LOQUITUR: Application of the doctrine of res ipsa loquitur and the effect thereof "As earlier demonstrated in this judgment, the trial Court has not only adjudged plaintiff/appellant's invocation of the doctrine of res ipsa loquitur proper but that its claim has been made out through the preferred procedure. The lower Court, on the other hand, holds otherwise. The two Courts purport to rely on decisions of this Court in arriving at their divergent decisions. Certainly, the Courts cannot both be right at the same time. What is then the correct definition of the doctrine, when and how has this Court, in its very many decisions, held it could successfully be invoked? Res ipsa loquitur is a rule of evidence that affects the onus of proof. The principle is invoked on the basis of an event which, in the ordinary course of things, would not have occurred except same was caused by negligence for which there is no explanation. The doctrine merely shifts the onus on the defendant and does not avail a claimant who sufficiently knows the fact that caused the event and ceases to apply where the defendant gave an explanation. The doctrine is only invoked where the circumstances of the particular case allow, given the unexplained facts around the event, the inference that it could only have been caused by some act of negligence on the part of the defendant. The event on the basis of which the plaintiff invokes the doctrine must speak eloquently for itself that the negligence of the defendant had brought it about and the state of things complained of have remained unexplained. See Ojo V Gharoro & ors (2006) 10 NWLR (Pt 987) 173; (2005) LPELR-2383 (SC). In Odebunmi & Ors V Abdullahi (1997) 2 NWLR (part 489) 526 at 535 this Court has held per Belgore JSC thus:- "Where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process and that accident is such as does occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the afore-mentioned management as to how the accident happened, the accident is presumed in such cases for in such cases negligence is inferred to have resulted from want of care by the persons in the management of their agents or servants. The maxim Res Ipsa Loquitur means things speak for themselves." The true state of the law, therefore, is that the doctrine does not apply if facts as to the cause of the injury are sufficiently known or where the defendant gave an explanation in relation to the cause of the injury. Reliance on the doctrine, be it stressed, is a confession on the part of the plaintiff that he has no direct and affirmative evidence of the negligence he complains against the defendant and that reliance is placed only on the surrounding circumstances which simply establishes the negligence. See Management Enterprises Ltd V Otusanya (1987) 2 NWLR (Pt 55) 179, Strabag Construction (Nig) Ltd V Ogarekpe (1991) 1 NWLR (Pt 170) 733 at 750 and Sylvester Ifeanyi Ibekendu V. Sylvester Ike (1993) LPELR-1390 (SC) and Royal Ade (Nig) Ltd v. N.O.O.M. Co Plc (2004) 8 NWLR (Pt 874) In applying the principle enunciated in the foregoing authorities, the lower Court at page 230 of the record of appeal rightly held that since there "is evidence of how the accident" the plaintiff/appellant appears to know how the injury the defendants/respondents inflicted on him occurred, "res ipsa loquitur is misconceived and inappropriate" and that rather "it is meant to apply where there is no other proof of negligence than the accident itself." I cannot agree more."per MUHAMMAD, J.S.C. (Pp , Paras. A-A) - read in context

3 6. TORT - RES IPSA LOQUITUR: Application of the doctrine of res ipsa loquitur and the effect thereof "The principle of res ipsa loquitur, that arose for consideration in this case, is a rule of evidence relied upon in a claim for damages for negligence. Where the rule is relied upon it postulates that in the circumstances of the case, the event that gave rise to the alleged negligence tells its own story. That story must be a clear and unambiguous story of lack of duty of care. The rule raises a rebuttable presumption. It will be successfully rebutted where there is evidence showing that despite the mishap, the defendant was not at fault: See: Royal Ade Nig. Ltd. & Anor Vs N.O.C.M. Co Plc. (2004) 8 NWLR (Pt.874) 206; Ojo V Gharoro & Ors (2006) 10 NWLR (Pt.987) 173; Odebunmi & Ors V Abdullahi (1997) 2 NWLR (pt.489) 526; Plateau State Health Services Management Board & Anor V Goshwe (2013) 2 NWLR (Pt.1338) 383. In Odebunmi Vs Abdullahi 536 A-C, the rule was explained thus: "Where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process, and that accident is such as does not occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the aforementioned management as to how the accident occurred, the accident is presumed to occur due to lack of care. Thus negligence is presumed in such cases; for in such cases, negligence is inferred to have resulted from the want of care by the persons in the management or their agents or servants. The maxim res ipsa loquitur means "things speak for themselves." (Underlining mine). For the rule to apply, certain conditions must be met, to wit: (a) That the thing which caused the damage was under the care and control of the defendant; (b) That the occurrence is such that it could not have happened in the absence of negligence; and (c) That there is no evidence as to why or how the occurrence took place. See: NEPA Vs Alli (1992) 8 NWLR (Pt.259) 302 A-G. The onus therefore falls on the defendant to explain and show that the accident occurred without fault on his part. See: S.P.D.C. (Nig) Ltd Vs Edamkue & Ors (2009) 14 NWLR (pt.1160) 1. The doctrine will not apply where the cause of the accident is known. See: Onwuka V Omogui (1992) 3 NWLR (Pt.230) 393; Ibeanu & Anor V Ogbeide & Anor (1998) 12 NWLR (pt.576) 1."Per KEKERE-EKUN, J.S.C. (Pp , Paras. D-D) - read in context

4 7. TORT - RES IPSA LOQUITUR: Application of the doctrine of res ipsa loquitur and the effect thereof "My Lords, there is unanimity of scholastic and judicial views that the maxim, res ipsa loquitur, does not represent a principle of law, D. Howarth "General Defences," in A. Grubb (ed), Butterworths' Common Law series, The Law of Tort (London: LexisNexis, 2002), paragraph 13-46, page 625; Ratcliffe v. Plymouth and Torbay Health Authority [1993] Lloyd's Rep Med 162, I77. Indeed, Morris LJ, even, described the maxim as a "convenient formula" possessing no magical qualities, Roe v. Minister of Health [1954] 2 QB 66, 87. According to Hobhouse LJ in Ratcliffe v. Plymouth and Torbay Health Authority (supra): Res ipsa loquitur is not a principle of law; it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case is being made out. When expert or factual evidence has been called on both sides at a trial its usefulness will normally have long been exhausted. However, contrary to the above views, Maham v. Osborne (1973) 2KB 14; (1939) 1 All ER 535 maintained that "the doctrine... is premised on two rebuttable assumptions, namely, that the event happened as a result of breach of duty of care that somebody owes his neighbour and that somebody is the defendant." On their part, Nigerian Courts have subscribed to the view that the doctrine is a rule of evidence, Management Enterprises Ltd and Anor v. Jonathan Otusanya (1987) LPELR-1834 (SC); Chanchangi and Sons Ltd v. N.R.C. Ltd (1996) 5 NWLR (pt.446) 46; UBN Ltd v. Umeh and Sons Ltd (1996) 1 NWLR (Pt. 426) 565. Now, the said Latin maxim, res ipsa loquitur, [the thing speaks for itself], whose essential element is that the mere fact of the happening of the accident should tell its own story so as to establish a prima facie case against the defendant, W.V.H. Rogers, Winfield and Jolowicz, Tort, (London: Sweet and Maxwell, 2006) [seventeenth edition], paragraph 5-81, page 261, only operates under certain conditions. They are: (a) proof of the happening of an unexplained occurrence;(b) the occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and (C) the circumstances must point to the negligence in question being that of the defendant rather than that of any other person, PSHS Management Board and Anor v. Goshwe (2012) LPELR-9830 (SC), citing Royal Ade Nig Ltd v. NOCM Co. Plc [2004] 8 NWLR (Pt. 874) 206. Oputa, JSC, further explained that: This Latin maxim is applicable to actions for injury by negligence where no proof of such negligence is required beyond the accident itself, which is such as necessarily to involve negligence...see, Batavia (1845) 2 W. Rolf 407; The Valdis (1915) 31 T.L.R '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: Barkway v. South Wales Transport (1950) 1 All E.R.392. Reliance on the doctrine of 'res ipsa' is thus a confession by the plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant but that the surrounding circumstances amply establish such negligence. See Management Enterprises Ltd and Anor v. Jonathan Otusanya (1987) LPELR-1834 (SC) C-B; italics supplied for emphasis, also, per Belgore, JSC (as he then was) in Odebunmi and Ors v. Abdullahi [1997] 2 NWLR (pt 489) 526, 535 ; PSHM Board v. Goshwe (supra); Iyere v. Bendel Feed and Flour Mills Ltd (2008) LPELR-1578 (SC) at 40 B-D; [2008] 7-12 SC 151."Per NWEZE, J.S.C. (Pp , Paras. D-G) - read in context

5 8. TORT - RES IPSA LOQUITUR: At what instance will the doctrine of res ipsa loquitor not apply "The Appellant at paragraph 5 of the statement of claim pleaded negligence and gave particulars of the alleged negligence. At paragraph 6 of the said statement of claim, the Appellant sought for the invocation of the doctrine of res ipsa loquitor. The trial Judge applied the doctrine of res ipsa loquitor, even though the Respondents called evidence to deny any alleged negligence or liability on their part leading to the fire disaster that damaged the Appellant's fuel station. In the light of the available evidence, the lower Court was right when it held that the doctrine of res ipsa loquitor will not apply in the circumstances of this case, since the appellant's case was built around the tort of negligence. In Barkway v South Wales Transport Co. Ltd (1950) 1 All ER 392 at 394, it was held:- "The doctrine is dependent on the absence of explanation, and although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not." The position of the Law is that the doctrine of res ipsa loquitor can be pleaded in the alternative to particulars of negligence. The doctrine clearly does not apply where the cause of the injury is known and negligence can be attributable to individual or group of persons where such negligence is proved. The Appellant in the instant case relied on tort of negligence which it failed to prove. It can therefore not turn round to rely on the doctrine of res ipsa loquitor."per GALINJE, J.S.C. (Pp , Paras. D-A) - read in context 9. TORT - RES IPSA LOQUITUR: Approach of Courts in applying the particulars of negligence and the doctrine of res ipsa loquitur "The only question on the onus of proof is whether the learned trial Judge was right in his finding that "from the surrounding circumstances this is a proper case - the plaintiff can invoke the maxim - res ipsa loquitur". The Lower Court, relying on OMEZIRI v. OKO (2004) 13 NWLR (pt. 890) 300, was right in holding that while a plaintiff may rely on the doctrine of res ipsa loquitur in alternative, the Court is not competent to simultaneously examine the doctrine of res ipsa loquitur with specific particulars of negligence and give judgment on both."(dissenting)per EKO, J.S.C. (P. 34, Paras. A-D) - read in context 10. TORT - RES IPSA LOQUITUR: Purpose of the doctrine of res ipsa loquitur "The lower Court was also right, in my view, when they restated that the purpose of the doctrine of res ipsa loquitur, based on common sense, is "to enable justice to be done when the facts bearing on the causation and the standard of care exercised (by the defendant) are unknown to the claimant but ought to be within the knowledge of the defendant."(dissenting)per EKO, J.S.C. (P. 35, Paras. B-D) - read in context

6 11. TORT - RES IPSA LOQUITUR: Meaning and nature of the doctrine of res ipsa loquitur "Section 140 of the Evidence Act, 2011 (formerly Section 142) provides that when a fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Section 167 of the same Evidence Act, (formerly Section 149) vests in the Court the discretion or power to presume the existence of any fact which is likely to have happened regard being had to the common course of natural events, human conduct, etc. Sections 140 and 167 appear to be the basis for the rule of presumption in the doctrine of Res Ipsa Loquitur. The law on res Ipsa loquitur restated in BARKWAY v. SOUTH WALES TRANSPORT CO. LTD (1950) 1 ALL E.R 392 at 394 that- The doctrine is dependent on the absence of explanation, and although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, in the facts as established, negligence is to be inferred or not; is very much apposite. From the undisputed evidence of the Pw.3, believed by the trial Court the facts, as to the cause of the damage to the petrol service station, are not sufficiently known to the plaintiff. That is the situation that warrants the defendants to give an adequate explanation of the cause of the fire, from their Morcopolo bus, that damaged the said petrol service station. The plaintiff, in this case, speaks because the facts stand unexplained and therefore the reasonable and natural inference, from the facts established, is that the damage to its petrol service station happened because of some fault, act or negligence reasonably attributable to the defendants: STRABAG CONST. (NIG) LTD v. OGAREKPE (1991) 1 NWLR (pt. 170) 733. The defendants, as the Respondents herein, have not, speaking through Dw.1, offered any reasonable explanation that rebuts, or could rebut, any inference of negligence on their part. Res ipsa loquitur, a rule of evidence or presumption, therefore applies. Res ipsa loquitur is not itself a tort. Rather it is a rule of evidence suggesting that the injury or harm may not have occurred in the absence of the alleged negligence. The latin maxim - res ipsa loquitur, means "the thing speaks for itself". It raises presumption in favour of the plaintiff that prima facie the defendant was negligent, unless he offers satisfactory explanation as to how the damage or injury suffered by the plaintiff occurred and that he was not in any way negligent. Res ipsa loquitur does not apply if the cause of the harm or damage is known. Thus, as H. L. A Hart & Tony Honore stated in their work: "causation In The Law" pages (2nd ed. 1985): The application of the principle nearly always presupposes that some part of the causal process is known, but what is lacking is evidence of its connection with the defendant's act or omission. When the fact of control is used to justify the inference that defendant's negligence was responsible it must of course be shown that the thing in his control in fact caused the harm. It is not in dispute in the instant case that the respondents' Marcopolo luxury bus, under the control of Dw.1 (2nd Defendant), had swerved from the main road unto the Appellant's petrol service station and burst into flames and that the resultant fire caused the harm or damage to the appellant's petrol service station. It is on this fact the res ipsa loquitur, being an appropriate form of circumstantial evidence, avails the Appellant to establish the respondents' likely negligence. The maxim or doctrine simply implies that the Court does not, and cannot find out, what actually happened in the particular individual case. It does raise a prima facie case in favour of the plaintiff; that is prima facie presumption of another fact unless and until the contrary is proved. Though in reality res ipsa loquitur belongs to the law of torts; it is however not a head of tort. It is just a mere rule of evidence in the tort of negligence. It raises the prima facie presumption that when a thing in the control of the defendant causes harm or injury to the plaintiff negligence is inferred unless and until the defendant proves the contrary."(dissenting)per EKO, J.S.C. (Pp , Paras. C-A) - read in context

7 MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Enugu Division, delivered on the 20th day of May 2009, allowing the appeal of the respondents from the decision of the High Court of Anambra State in suit No: A/25/2003 dated the 3rd day of February The brief facts relevant to the appeal are as hereinunder stated. By paragraph 14 of its statement of claim, the plaintiff/appellant's claims against the defendants/respondents jointly and severally is for:- "(1) The sum of N13,532,464.00k (Thirteen million, five hundred and thirty two thousand, four hundred and sixty four naira) being special and general damages arising from the damage and loss occasioned to the Plaintiff by the defendants. (2) Cost of the action. The defendants/respondents denied liability in their statement of defence. With pleadings filed and exchanged, the case proceeded to trial. The plaintiff/appellant's case is that the negligent act of the defendants caused damage to its petrol service station. The doctrine of Res Ipsa loquitur is also asserted in the alternative.

8 1

9 The case of the defendants/respondents, on the other hand, is that armed robbers over powered the 2nd defendant/respondent at Amansea, took over control of and drove the Mercedes marcopolo bus to and after robbing the passengers set the vehicle ablaze at the appellant s petrol service station. At the end of trial, including addresses of counsel, the Court entered judgment in favour of the plaintiff/appellant. The instant appeal is informed by the decision of the lower Court allowing the defendants/respondents appeal from the trial Court's decision. Having earlier filed and exchanged their briefs of argument, parties identified, adopted and relied on the briefs at the hearing of the appeal. At page 6 of the appellant's brief settled by O.R. Ulasi SAN, the two issues distilled as having arisen for the determination of the appeal read:- "(1) Whether the learned Justices of the Court of Appeal were right in their decision that the plea of res ipsa loquitur by the appellant and the reliance on same by the trial Court were both misconceived? (2) Whether the learned Justices of the Court 2

10 of Appeal were right in dismissing the award of special damages by the trial Court?" The two similar issues formulated in the respondents' brief settled by A.O. Mogboh Jnr for the determination of the appeal are:- "(i) Whether the learned Justices of the Court of Appeal were right in holding that the trial Court misconceived the plea of res ipsa loquitor by the appellant and place reliance on same. (ii) Whether the award of special damages as dismissed by the Court of Appeal was right." The appeal will be determined on the basis of the two issues distilled by the appellant. On the 1st issue, learned appellant's counsel refers to the trial Court s judgment at page 89 lines 3-8 of the record of appeal and submits that though the appellant had pleaded negligence and res ipsa loquitur in the alternative, having led no evidence on negligence, the trial Court is right to have deemed that aspect of appellant's claims as abandoned. The finding of the lower Court at page 225 lines of the record of appeal that the trial Court had treated negligence and the doctrine of res ipsa loquitur 3

11 conjunctively, it is contended, is therefore erroneous. Relying on Ezemba V Ibeneme (2004) 14 NWLR (Pt 894) 649, Durosaro V Ayorinde (2005) 8 NWLR (Pt 927) 407 and Omoboriowo V Ajasin (1984) 1 SCNLR 108, learned counsel submits that a party is at liberty to plead in excess of its case and obtain judgment only on pleaded facts that are supported by evidence. Further arguing the appeal, learned appellant's counsel refers to page 90, lines 24-25, and page 91 lines 1-7 of the record and submits that the trial Court's evaluation of the evidence on appellant's invocation of res ipsa loquitur is beyond reproach. The lower Court's finding at page 230 lines of the record that appellant's plea of res ipsa loquitur has been rebutted by the respondents is not supported by the evidence on record. DW1, it is argued, gave the evidence the lower Court found to be the rebuttal of the plea. The trial Court's finding at page 93 lines 25 to 26 and 94 lines 1-5 of the record, that the witness is not a witness of truth, it is further submitted, is unassailable. It is urged that the issue be resolved in appellant's favour. Replying, learned respondents' counsel refers to page 230 4

12 from line 24 and page 231 lines 5-8 of the record of appeal and submits that the lower Court's findings thereat draw from the evidence of DW1 as corroborated by the testimony of PW1. Citing S.P.D.C (Nig)Ltd V Ekwens (2009) 4 NWLR (Pt1131) at 235 and Ezeonwu V Onyechi (1996) 3 NWLR (Pt 438) 499 in support, learned respondents' counsel argues that appellant is bound by its pleading and, not having pleaded res ipsa loquitur in the alternative, is not entitled to the judgment the trial Court wrongly entered in its favour. The lower Court, it is argued, rightly interfered and set-aside the judgment. Further relying on Ibekendu V Ike (1993) 6 NWLR (Pt 239) 287, A.N.T.S. V Atoloye (1993) 6 NWLR (Pt 298) 233 and Omeziri V Oko (2004) 13 NWLR (Pt 890) 300, learned respondents' counsel submits that granting without conceding that the appellant has pleaded the principle, res ipsa loquitur must not only be specifically pleaded but also especially proved. The trial Court, it is argued, lacks the competence of deciding whether the appellant has made out the principle by considering the specific particulars of the negligence enumerated in the statement of claim. No 5

13 lawful finding of liability can arise from an invocation of res ipsa loquitur on the basis of the facts specifically pleaded by the appellant in support of his separate claim from the respondents' negligence. Concluding, learned counsel refers to the decisions in Ezomo v. AG Bendel (1986) 4 NWLR (Pt 36) 488, Afolabi v. Adekunle (1983) 8 SC 98 at 119 and Imam V Sheriff (2005) 4 NWLR (Pt.914) 80 at 220 and submits that the lower Court's decision which pegs the appellant to the case it made and disallows it from shifting therefrom be sustained. My lords, the narrow issue this appeal raises is whether the plaintiff/appellant's reliance on the doctrine of res ipsa loquitur to recover damages arising from the injury inflicted on it by the defendants/respondents that cannot be otherwise established is lawful. In paragraphs 5 and 6 of his statement of claim the appellant as plaintiff avers as follows:- "5. In the early hours of 23rd May, 2003 the 2nd defendant who was driving bus No. XB 879 BDG in the course of his employment in the direction towards Onitsha drove the said bus in such circumstances of negligence that it left the unobstructed highway and 6

14 crashed into the plaintiffs petrol station where it got completely burnt and, in the process, caused extensive damage to the station. PARTICULARS OF NEGLIGENCE (a) Allowing the said bus to career out of a straight, level and unobstructed highway to crash into the Petrol station. (b) Driving at night with disadvantages of vision, weather and accidents including exposure to armed robbery attacks which is Prevalent and in disregard of warnings by the Federal Road Safety Commission against night travel by luxury bus drivers. (c) Failing to take any or any adequate or effective measures whether by putting a brake on the said bus or securing same or otherwise to prevent the said bus from leaving the highway and crashing into the petrol station. (d) Carrying drums of inflammable gas in the luggage trunk of the bus which aided the fire outbreak upon impact. 6. The plaintiff will contend at the trial that the circumstances of the accident were such as to entitle it to invoke the maxim of res ipsa loquitor and the plea is hereby invoked. (Underlining supplied for emphasis). 7

15 Paragraph 5(c) wherein the defendants/respondents particularly joined issue with the appellant reads:- 5 The defendants deny paragraph 5 of the statement of claim that the 2nd defendant drove the luxury bus and crashed the same into the service station but avers that the cause of the crash and subsequent burning of the filling station was caused by armed robbers who not only drove the bus into the station but poured petrol on its tyres and set it ablaze men of Nigerian police head quarters investigated the inferno... the police reports on it shall be relied upon at the trial of this suit. (c) The vehicle was forced and driven into the petrol service station by armed robbers and there was nothing like crash as there was no physical contact between the bus and the component part of the petrol service station. The armed robber after robbing the passengers poured petrol at the tyre before setting it ablaze. 6. The defendants deny paragraph 6 to the extent that the maxim of res ipsa loquitor applied and at the trial shall contend that the plaintiff should prove negligence strictly." (Underling supplied for emphasis). 8

16 In proof of its pleadings the appellant relied on three witnesses. PW1, the police officer who investigated the fire incident at the petrol service station, under crossexamination inter-alia told the trial Court, at page 23 of the record of appeal, as follows:- The cause of the inferno was the swerving of the Ifesinachi Luxurious bus off the express road into the filling station in an attempt to escape the armed robbers' bullet. The impact of the vehicle on the dispensing pumps and canopies ignited the fire that destroyed the bus and part of the filling station The [passengers] I met at Toronto hospital had gunshot wounds and bruises while scattering out of the vehicle in the stampede that ensued PWII is the photographer who snapped the photographs through whom exhibits C to C3 on the extent of the damage at petrol service station were tendered. PWIII, the alter ego of the appellant, through whom evidence on the extent of the damage at the service station is proffered, at page 29 of the record of appeal, stated under cross-examination:- "I did not witness the incident. When the incident happened my station was not opened to the public. 9

17 I woke up on 23/5/03 to see my station as represented in exhibits C to C3." Under cross-examination, he reiterated thus:- "I had no personal knowledge of what led to the inferno." The lone witness the defendants/respondents led in defence, see pages of the record of appeal, inter-alia stated as follows:- "... I am a driver. I drive a luxurious bus. On 28/5/03 I was returning from Jos to Onitsha...at Agu Awka some people came into my bus, overpowered me and caused control of the vehicle... They shot me on my right hand on the face and at the back of my neck. I became unconscious. They dragged me out of my seat and I fell on the ground. I regained my consciousness and recovered that I was in the hospital receiving treatment... I later heard that my vehicle was burnt." Under cross-examination, DW1 stated that the police escort in the vehicle, on the fateful day as is the practice, had searched passengers who boarded the vehicle before they took off from Jos and in the course of their journey. In finding for the plaintiff/appellant the trial Court started 10

18 its judgment at page of the record of appeal, as follows:- "... the main issue for determination in this case is that whether damage to the plaintiff's petrol service station was as a result of negligence on the part of the defendants. I had earlier indicated in this judgment that the plaintiff pleaded particulars of negligence and Res Ipsa Loquitur in the alternative. It would however appear from the evidence led at the trial that the plaintiff is now relying solely on the doctrine of Res Ipsa Loquitur...from the surrounding circumstances this is a proper case where the plaintiff can invoke the maxim Res Ipsa Loquitur the onus therefore shifted on the defendant to explain how the accident happened." (Underlining supplied for emphasis). The Court enthused further at page 93 of the record of appeal thus:- It is my view that the presumption raised by the doctrine of Res Ipsa Loquitur, which has been successfully raised by the Plaintiff cannot be rebutted by the defendants by merely offering evidence that armed robbers boarded the vehicle in question at Jos. The defendants must go further to lead evidence that the presence of the armed 11

19 robbers inside the said vehicle was not due to negligence on their part. The presence of the said robbers could easily have been detected if the defendants had conducted a thorough and proper search and there is no evidence that the arms used for the said robbery were concealed in such a manner that it could not have been detected through a thorough search on the passengers. I therefore hold that the defendants have failed to rebut the presumption of Res Ipsa Loquitur." Defendants/respondents' notice of appeal to the lower court against the trial court's foregoing decision is at pages of the record of appeal wherefrom their three grounds of appeal are hereinunder reproduced for ease of reference:- "2 GROUND OF APPEAL 1. ERROR IN LAW: The learned trial judge erred in law in finding for the plaintiff on the basis of proof under the maxim Res ipsa loquitur when the plaintiff has not proved that the defendant were the people who brought the vehicle into the service station. PARTICULARS OF ERROR (a) Under the principle of Res ipsa loquitur the plaintiff must establish that the defendants brought 12

20 in or was in control of the vehicle that caused the havoc at the time of accident or injury in question. (b) That Court cannot on a mere finding that the motor vehicle which was burnt belonged to the first Defendant concluded (sic) that the Defendants were jointly and severally liable to this Plaitniff for the inferno. (c) The Court cannot measure liability on the absence of the Proof as negligence notwithstanding the principle of Res Ipsa Loquitur is not a strict liability wrong but is applicable only where there is prima facie case. 2. ERROR IN LAW The learned Trial judge erred in law when he entered judgment for the Plaintiff in respect of the special damages without adequate proof. PARTICULARS OF ERROR. (a) Under the claim for special damages must be strictly particularized and proved before the Plaintiff is entitled to be awarded any sum at all. (b) That learned Counsel for the Plaintiff in his pleading made all her claim special damages. The evidence lead by the Plaintiff was not sufficient for the Plaintiff to be entitled to any claim as she did not prove the cost of building the station before the inferno but only brought receipt for destroyed parts. 13

21 (c) The entire claim of the Plaintiff was not strictly proved nor particularised to be entitled to the award. 3. The judgment is altogether unwarranted and is against the weight of evidence. (underlining supplied for emphasis). The two issues formulated by the lower Court and on the basis of which it resolved the appeal before it, see page 225 of the record, read:- (i) Whether negligence and the Doctrine of Res Ipsa Loquitur can be treated conjunctively or in the alternative. (ii) Whether the plaintiff particularly pleaded and proved the award of special damages. In resolving the first issue, the Court at page 229 of the record opined thus:- "... In my view the state of defence put foreward as (sic) evaluated by the trial judge will require proof of particulars of negligence. In the instant case however the respondent did not plead the particulars of negligence as an issue before the trial judge, instead he pleaded Res Ipsa Loquitur which the trial judge found in his favour. The doctrine of Res Ipsa Loquitur had been stated earlier in this judgment not to be a rule of law. The finding of the trial judge on the 14

22 doctrine of res Ipsa loquitur against the Appellant, therefore cannot stand. The lower Court, in allowing defendants/respondents' appeal from the trial Court s judgment, proceeded at pages , of the record of appeal, thus:- "If there is evidence of how the occurrence took place an appeal to res ipsa loquitur is misconceived and inappropriate In other words, the doctrine of res ipsa loquitur is not meant to implement 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 accident itself. (Underlining supplied for emphasis). The Court concluded its resolution of the 1st issue thus:- It is quite clear from all that is stated above given the state of evidence before the trial Court, relying on res ipsa loquitur by the respondent, and finding by the trial judge in his favour based on the doctrine of res ipsa loquitur were both misconceived." It is evident from the record of this appeal that none of the parties to the dispute from which the appeal has arisen appealed against the trial Court's abandonment of 15

23 paragraph 5 of the plaintiff/appellant's statement of claim either at the lower Court or even here. The law is settled that any point of law and/or facts not appealed against is deemed to have been conceded by the party against whom it was decided and the said point remains binding on the parties. See Vaswani Trading Co. V Savalakh & Co (1972) 12 SC, Chief Ogunyade V. Oshunkeye & anor (2007) 12 NWLR (Pt 1057) 218 at 257 and AG Lagos State V AG Federation & Ors (2014) LPELR (SC). It then follows that the overriding issue agitated by parties at and which the lower Court decided pertains the plaintiff/appellant s invocation of the doctrine of res ipsa loquitur as pleaded in paragraph 6 of its statement of claim. The agitation which also persists in this appeal is whether on the basis of the principle as pleaded the plaintiff/appellant has proved the damage done to its petrol service station to be in consequence of the breach of the legal duty of care the defendants/respondents owed it. See Benson V Otubor (1975) 3 SC 9, Orhue V. Nepa (1998) 7 NWLR (Pt 557) 187 and U.T.B. V Ozoemena (2007) LPELR-3414 (SC). 16

24 As earlier demonstrated in this judgment, the trial Court has not only adjudged plaintiff/appellant's invocation of the doctrine of res ipsa loquitur proper but that its claim has been made out through the preferred procedure. The lower Court, on the other hand, holds otherwise. The two Courts purport to rely on decisions of this Court in arriving at their divergent decisions. Certainly, the Courts cannot both be right at the same time. What is then the correct definition of the doctrine, when and how has this Court, in its very many decisions, held it could successfully be invoked? Res ipsa loquitur is a rule of evidence that affects the onus of proof. The principle is invoked on the basis of an event which, in the ordinary course of things, would not have occurred except same was caused by negligence for which there is no explanation. The doctrine merely shifts the onus on the defendant and does not avail a claimant who sufficiently knows the fact that caused the event and ceases to apply where the defendant gave an explanation. The doctrine is only invoked where the circumstances of the particular case allow, given the unexplained facts 17

25 around the event, the inference that it could only have been caused by some act of negligence on the part of the defendant. The event on the basis of which the plaintiff invokes the doctrine must speak eloquently for itself that the negligence of the defendant had brought it about and the state of things complained of have remained unexplained. SeeOjo V Gharoro & ors (2006) 10 NWLR (Pt 987) 173; (2005) LPELR-2383 (SC). In Odebunmi & Ors V Abdullahi (1997) 2 NWLR (part 489) 526 at 535 this Court has held per Belgore JSC thus:- "Where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process and that accident is such as does occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the afore-mentioned management as to how the accident happened, the accident is presumed in such cases for in such cases negligence is inferred to have resulted from want of care by the persons in the management of their agents or servants. The maxim Res Ipsa Loquitur means things speak for themselves. 18

26 The true state of the law, therefore, is that the doctrine does not apply if facts as to the cause of the injury are sufficiently known or where the defendant gave an explanation in relation to the cause of the injury. Reliance on the doctrine, be it stressed, is a confession on the part of the plaintiff that he has no direct and affirmative evidence of the negligence he complains against the defendant and that reliance is placed only on the surrounding circumstances which simply establishes the negligence. See Management Enterpries Ltd V Otusanya (1987) 2 NWLR (Pt 55) 179, Strabag Construction (Nig) Ltd V Ogarekpe (1991) 1 NWLR (Pt 170) 733 at 750 and Sylvester Ifeanyi Ibekendu V. Sylvester Ike (1993) LPELR-1390 (SC) and Royal Ade (Nig) Ltd v. N.O.O.M. Co Plc (2004) 8 NWLR (Pt 874) In applying the principle enunciated in the foregoing authorities, the lower Court at page 230 of the record of appeal rightly held that since there "is evidence of how the accident" the plaintiff/appellant appears to know how the injury the defendants/respondents inflicted on him occurred, "res ipsa loquitur is misconceived and inappropriate" and that rather "it is meant to apply 19

27 where there is no other proof of negligence than the accident itself." I cannot agree more. It is glaring from the record of appeal, as alluded to earlier in this judgment, that the trial Court's finding in favour of the plaintiff/appellant, given its resort to the principle of res ipsa loquitur, is based on the evidence of both sides in proof of their respective pleadings for and against plaintiff/appellant's claim. The evidence of PW1 and DW1 show very clearly how the event leading to the fire in the plaintiff/appellant's service station occurred. Both sides appear one that armed robbers overpowered DW1, took control of the vehicle and veered into the service station. Whereas the plaintiff/appellant's case is that but for the negligence of the defendants/respondents, the event, the fire at the service station, would not have occurred, the defendants/respondents case is that it has not been negligent. In the event, therefore, the lower Court's decision is, on the authorities unassailable. The Plaintiff/appellant cannot invoke the principle of res ipsa loquitur against the defendants/respondents on the basis of available evidence 20

28 of how the petrol service station got burnt. I so hold and resolve the 1st issue against the plaintiff/appellant. The issue of considering and resolving the 2nd issue in the appeal has, in the circumstance, become academic. It shall not be embarked upon. Resultantly, the appeal has failed and is hereby dismissed. Parties to bear their respective costs. KUDIRAT MOTONMORI OLATOKUNBO KEKERE- EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, MUSA DATTIJO MUHAMMAD, JSC just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. The principle of res ipsa loquitur, that arose for consideration in this case, is a rule of evidence relied upon in a claim for damages for negligence. Where the rule is relied upon it postulates that in the circumstances of the case, the event that gave rise to the alleged negligence tells its own story. That story must be a clear and unambiguous story of lack of duty of care. The rule raises a rebuttable presumption. It will be successfully rebutted where there is evidence showing that despite the mishap, the defendant 21

29 was not at fault: See: Royal Ade Nig. Ltd. & Anor Vs N.O.C.M. Co Plc. (2004) 8 NWLR (Pt.874) 206; Ojo V Gharoro & Ors (2006) 10 NWLR (Pt.987) 173; Odebunmi & Ors V Abdullahi (1997) 2 NWLR (pt.489) 526; Plateau State Health Services Management Board & Anor V Goshwe (2013) 2 NWLR (Pt.1338) 383. In Odebunmi Vs Abdullahi 536 A-C, the rule was explained thus: "Where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process, and that accident is such as does not occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the aforementioned management as to how the accident occurred, the accident is presumed to occur due to lack of care. Thus negligence is presumed in such cases; for in such cases, negligence is inferred to have resulted from the want of care by the persons in the management or their agents or servants. The maxim res ipsa loquitur means "things speak for themselves. (Underlining mine). 22

30 For the rule to apply, certain conditions must be met, to wit: (a) That the thing which caused the damage was under the care and control of the defendant; (b) That the occurrence is such that it could not have happened in the absence of negligence; and (c) That there is no evidence as to why or how the occurrence took place. See: NEPA Vs Alli (1992) 8 NWLR (Pt.259) 302 A-G. The onus therefore falls on the defendant to explain and show that the accident occurred without fault on his part. See: S.P.D.C. (Nig) Ltd Vs Edamkue & Ors (2009) 14 NWLR (pt.1160) 1. The doctrine will not apply where the cause of the accident is known. See: Onwuka V Omogui (1992) 3 NWLR (Pt.230) 393; Ibeanu & Anor V Ogbeide & Anor (1998) 12 NWLR (pt.576) 1. In the instant case, the respondents pleaded and gave evidence to the effect that the luxury bus, which was under their control and management, was attacked by armed robbers, who overpowered the 2nd respondent, drove the bus into the appellant's petrol station and set it ablaze, which action resulted in the damage to the petrol station. PW1, a Police Officer, who testified in support of the 23

31 appellant's case, confirmed that on 23/05/2003, a case of armed robbery was reported at the Divisional Crime Branch, of Abagana Division where he was attached and referred to him for investigation. He visited the scene of crime, which was the appellant's filling station where he saw the damage done to the filling station and the luxury bus driven by the 2nd appellant. He visited victims of the armed robbery attack at the hospital and found that they had gunshot wounds. His evidence was that they were passengers in the vehicle who ran out in the stampede that ensured. I agree entirely with the Court below that since there was evidence explaining how the accident occurred, the doctrine of res ipsa loquitur was inapplicable. The evidence of PW1, in my view, knocked the bottom off the appellant s case. The judgment of the Court below, in my humble view is unassailable. For these and the more exhaustive reasons ably advanced in the lead judgment, I find no merit in this appeal. It is hereby dismissed. The judgment of the lower Court is affirmed. I abide by the order as to costs as stated in the lead judgment. 24

32 CHIMA CENTUS NWEZE, J.S.C.: I read, in advance, the draft of the leading judgment which my Lord, Musa Dattijo Muhammad, JSC, just delivered. I entirely, agree with His Lordship that, being unmeritorious, this appeal should be dismissed. At pages of the record, the lower Court intoned thus: If there is evidence of how the occurrence took place an appeal to res ipsa loquitor (sic) is misconceived and inappropriate... In other words, the doctrine of res ipsa loguitor (sic) is not meant to implement 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 accident itself. [Italics supplied for emphasis] My Lords, there is unanimity of scholastic and judicial views that the maxim, res ipsa loquitur, does not represent a principle of law, D. Howarth "General Defences," in A. Grubb (ed), Butterworths' Common Law series, The Law of Tort (London: LexisNexis, 2002), paragraph 13-46, page 625; Ratcliffe v. Plymouth and Torbay Health Authority [1993] Lloyd's Rep Med 162, I77. Indeed, Morris 25

33 LJ, even, described the maxim as a "convenient formula" possessing no magical qualities, Roe v. Minister of Health [1954] 2 QB 66, 87. According to Hobhouse LJ in Ratcliffe v. Plymouth and Torbay Health Authority (supra): Res ipsa loquitur is not a principle of law; it does not relate to or raise any presumption. It is merely a guide to help to identify when a prima facie case is being made out. When expert or factual evidence has been called on both sides at a trial its usefulness will normally have long been exhausted. However, contrary to the above views, Maham v. Osborne (1973) 2KB 14; (1939) 1 All ER 535 maintained that "the doctrine... is premised on two rebuttable assumptions, namely, that the event happened as a result of breach of duty of care that somebody owes his neighbour and that somebody is the defendant." On their part, Nigerian Courts have subscribed to the view that the doctrine is a rule of evidence, Management Enterprises Ltd and Anor v. Jonathan Otusanya (1987) LPELR-1834 (SC); Chanchangi and Sons Ltd v. N.R.C. Ltd (1996) 5 NWLR (pt.446) 46; UBN Ltd v. Umeh and Sons Ltd (1996) 1 NWLR (Pt. 426)