(2018) LPELR-44733(CA)

Transcription

1 ADETOUN v. LAFARGE AFRICA PLC & ANOR CITATION: In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan CHINWE EUGENIA IYIZOBA HARUNA SIMON TSAMMANI NONYEREM OKORONKWO ON WEDNESDAY, 13TH JUNE, 2018 Suit No: CA/I/225/2011 Before Their Lordships: Between MRS. COMFORT OYELADUN ADETOUN 1. LAFARGE AFRICA PLC 2. MR. SUNDAY OPEIFA RATIO DECIDENDI 1. ACTION - PLEADINGS: Whether a party must call evidence to support his pleadings And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) - Respondent(s) "It is trite law that pleadings are bare statements of the facts a party puts forward as the case he will present at the trial. Those facts or averments need be substantiated by oral or documentary evidence through witnesses at the trial. See Eyigebe v. lyaji (2013) 11 NWLR (pt.1365) 407; Olubodun & Ors v. Lawal & Ors (2008) 17 NWLR (pt.1115) 1 and Omisore & Anor v. Aregbesola & Ors (2015) LPELR (SC)."Per TSAMMANI, J.C.A. (P. 29, Paras. D-F) - read in context 2. APPEAL - BRIEF OF ARGUMENT: Attitude of Court to a bad/faulty/inelegant brief of argument "There is no doubt that the Respondent's brief of argument did not comply with the Rules. It is indeed all muddled up. I had to wade through the entire pages of the unplanned brief of argument to fish out the issues for determination. That is not good practice. I shall content myself on this by reference to the observation of Abiru JCA in FUNTUA V INGAWA (2016) LPELR-41166(CA): "The purpose of briefs of arguments filed by parties to an appeal is to assist the Court in determining with precision and in a concise manner the real issues in controversy between the parties and to marshal their arguments and submissions in a way that makes it easy for the Court to discharge this function. Briefs of argument in an appeal contain the story of a party on which the appellate Court Justices are called upon to adjudicate. Like all good stories, the arguments in the briefs must flow; they must be consistent, they must be concise, they must be comprehensive, they must be comprehensible; and they must be accurate..." While I concede the flaws in the Respondent's brief which I hope Counsel will take note of in order to avoid such pitfalls in the future, I do not consider the brief so bad as to warrant its striking out. The points made therein are comprehensible enough. I shall therefore make the best of the brief."per IYIZOBA, J.C.A. (Pp. 5-6, Paras. A-B) - read in context

2 3. TORT - NEGLIGENCE: What a plaintiff must plead to establish negligence in case of accident "In an action for negligence founded on an accident, it is the duty of the Plaintiff to prove that the accident was as a result of the negligence of the defendant. The mere occurrence of an accident is not proof of negligence. See NGILARI VS. MOTHERCAT LTD (SUPRA) cited by both counsel where the Supreme Court observed: "Mere occurrence of accident is not proof of negligence. Thus to succeed in a claim of negligence it is not enough to prove that there was an accident. The Plaintiff must prove that the accident was a result of the negligence of the defendant. Therefore, the circumstances, the nature and extent of the accident must be pleaded and evidence adduced thereon. Then the Court will be able to determine whether partially or wholly, either the Plaintiff or the Defendant caused the accident." See also ABUBAKAR V JOSEPH (2008) LPELR-48(SC) or (2002) 5 NWLR (PT. 759) 188 and KALLA V. JARMAKANI TRANSPORT LTD (1961) ALL NLR 747. Dr. Olayemi Olowolafe in his brief submitted that the Court below was wrong in concluding that the Appellant did not establish a case of negligence against the Respondents. He was certain that the burden was discharged. Unfortunately this is very far from the case. Negligence is a question of fact and each case must be determined in accordance with its peculiar facts. In the case of ABUBAKAR V JOSEPH (SUPRA) TOBI JSC (of blessed memory) in his contribution observed: "The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars of negligence pleaded will be fatal to the case of the plaintiff." The Plaintiff who alleges negligence must plead the relevant facts showing that the defendant was negligent and then he must proceed to call evidence in proof of the pleaded facts. The Appellant pleaded in full the details and particulars of negligence in paragraphs 4 and 5 of the Amended Statement of Claim at pages 21 and 22 of the Record of appeal as follows: 4. At about 8.00pm on the 31st day of October 1998, the deceased was a passenger in a commercial bus coming from Abeokuta moving along Abeokuta-Ifo-Lagos Road, in the direction of Ifo Town when the 2nd defendant negligently drove, managed and controlled the forklift caterpillar, mentioned in paragraph 2 above herein, the property of the 1st defendant, across the said Abeokuta-Ifo-Lagos Road at Ewekoro that the 2nd defendant caused or permitted the said forklift caterpillar to violently collide with the said commercial bus. Particulars (a) Failure to keep any or any proper lookout or to have any or any sufficient regard for traffic that was or might reasonably be expected to be on the said road. (b) Causing or permitting the said forklift caterpillar to cross the road and thereto collide with the commercial bus. (c) Causing or permitting the said forklift caterpillar to cross the road without warning and failing to take any or adequate measures to warn vehicles driving along the road of the crossing of the forklift caterpillar. (d) Causing or permitting the said forklift caterpillar to be driven when they knew or ought to have known that the forklift caterpillar, when it was loaded, would be driven unevenly and unsafely along the said road. (e) Causing or permitting the said forklift caterpillar to be driven across the said road when they knew or ought to have known that the road thereof was in an unsafe condition. (f) Failure to take any or any special care at the point of the crossing of the road. (g) Failing to see the said commercial bus in sufficient time to avoid the said collision or at all. (h) Failing to stop or desist from crossing the road or to swerve or any other way to so manage or control the said forklift caterpillar as to avoid the said collision. (i) Failing to desist from or avoid driving the said forklift caterpillar on the public highway without any driving licence, vehicle licence and vehicle insurance. 5. In the alternative to paragraph 4 above herein, the plaintiff pleads "res ipsa loquitor" in relying on the very nature of the accident described above itself as evidence of the negligence of the defendants. In proof of her case, the Appellant called 4 witnesses. But none of the witnesses actually saw the accident happen and none was able to give evidence in support of the facts and particulars of negligence pleaded. The first witness PW 1- Dr. Adebajo, gave evidence of the injury sustained by the deceased. He was not an eye-witness to the accident and his evidence had nothing at all to do with whether or not the Respondents were negligent. Same applies to PW2 and PW4. The learned trial Judge in his judgment at page 169 of the Record observed: "The Plaintiff called four (4) witnesses and only the PW3 said something about the accident. His admissible evidence goes thus 'On 31/10/98, I was travelling back to Ilaro from Abeokuta around 8.pm. I got the WAPCO factory; I met a huge crowd at an accident scene. An accident had just occurred, the vehicles were still there, the people were still there. A police constable flagged me down and requested me to convey one of the passengers who was lying critically in pool of blood in the main road, unconscious to General Hospital, Ilaro for medical attention...in the course of conveying the man to the hospital, the constable had told me that the victim was in a commercial bus with Lagos colour. I saw the bus, that the bus had accident with a caterpillar belonging to the 1st defendant...i saw the commercial bus facing Lagos direction. I saw the caterpillar in front of the bus, across the road, the accident had just occurred when I got there. It was about 8.00p.m, there was darkness...at the scene of the accident, I noticed that the victim was in a pool of blood on the ground.' Under cross-examination the witness said: '...I did not see the accident occurring. I am not in a position to say how it occurred. I am also not in a position to say who was right or wrong.' I hold the view that the pieces of evidence above prove neither the negligence alleged nor any of the particulars as set out in paragraph 4 of the plaintiff's amended pleadings. If the evidence is worth anything at all, it only proves that an accident occurred..." I entirely agree with the learned trial Judge. None of the witnesses called by the Appellant gave evidence of negligence as pleaded above. The appellant ought to have, for example, called the driver of the commercial bus in which the deceased was travelling. He would have been able to give first hand testimony of what actually transpired or any other eye witness to the accident. Rather, surprisingly, Dr. Olowolafe thought he could achieve his purpose by tendering through PW2, the appellant Exhibit K the certified true copy of legal advice dated 07/09/99 issued in charge no. MOT/576/MT/1998 stating that the road accident occurred as a result of the negligent driving of the 2nd Respondent when he drove the 1st Respondent's vehicle across the road at 8.00pm in the night without headlights and brake lights; that he was not licensed to drive any vehicle at all; and that he obstructed the lane of oncoming vehicles. Dr. Olowolafe by this Exhibit K came to the conclusion and indeed invited the Court to join him in concluding that the 2nd Respondent was responsible for the accident and the loss of lives. There are so many stories behind this Exhibit K and its reversal by another legal advice by the Ministry Exhibit K1 and the subsequent withdrawal of the charges in the magistrate Court. These stories are of no relevance in this appeal as the concern here is to determine whether the learned trial Judge was right in holding that the Appellant failed to discharge the burden of proving negligence of the Respondents in order to be entitled to the damages claimed. On Exhibit K, the lower Court held thus: "In relation to Exhibit K on which Mr. Olowolafe placed heavy reliance, it suffices to say that the exhibit is not more than what it says - an advice. It is not conclusive of the allegations contained therein. The allegations will still need to be proved and tested at the trial. Apart from the fact that the exhibit was not tendered by the maker to afford the defence of opportunity of cross-examining on it, it is clear on the face of the exhibit that the recommendation that the second defendant be charged for causing death by dangerous driving and dangerous driving was based on facts extracted from the Police case file...in the circumstances of the above, exhibit K in my view is nothing but documentary hearsay and consequently of no probative value. I so hold. I therefore hold that the plaintiff failed to prove paragraph 4 of her pleadings." I agree with the views of the lower Court. Contrary to the view of learned counsel for the Respondent, the learned trial judge was right in referring to Exhibit K as documentary hearsay based on the purpose for which the Appellant tendered it - to prove that the contents are true and that the 2nd respondent was indeed negligent. With all due respect to Dr Olowolafe, he completely misconceived the law to have imagined that Exhibit K could be admissible in proof of the negligence of the Respondents. Exhibit K was as found by the learned trial judge mere legal advice given by the Ministry of Justice that the 2nd Respondent be charged with a criminal offence based on preliminary investigations and proofs of evidence garnered from the Police case file. Exhibit K does not constitute proof of the allegations contained therein. It is still for the Prosecution at the Magistrate Court to adduce satisfactory evidence of the allegations by calling as witnesses the investigating police officer and the witnesses whose proofs of evidence are in the Police case file. The witnesses must be subjected to cross-examination; and proper evaluation of the evidence carried out by the Magistrate before any credibility can be accorded to the allegations in Exhibit K. They are mere allegations. It is quite ridiculous that Dr. Olowolafe wasted so much time on these exhibits and indeed expected the Court to accept Exhibit K as evidence of the negligence of the Respondents in the circumstances. Learned counsel actually believed he could do this, hence his proliferation of grounds of appeal based on Exhibits K and K1! Such precious waste of time and resources! There just was no evidence to support the Appellants pleadings on negligence. The lower Court is right in its conclusion that the Appellant failed to call evidence to support her pleadings. In the case of NATIONAL INVESTMENT & PROPERTIES LTD V. THOMPSON ORGANIZATION LTD & ORS (1969) NMLR 104 the Court observed: "A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted". It is trite law that parties are bound by their pleadings. Their case stands or falls by the averments in the pleadings and the evidence adduced in support thereof. See OMOBORIOWO & ORS V AJASIN (1984) LPELR-2643 (SC); ALAHASSAN & ANOR V ISHAKU & ORS (1016) LPELR (SC). The learned trial judge was right that the Appellant failed to prove its case. On the doctrine of res ipsa loquitor pleaded in paragraph 5 of the Amended Statement of Claim the lower Court rightly held that the Appellant having failed to lead evidence of negligence or even evidence of the nature of the accident from which the inference of negligence can be drawn, the plea of res ipsa loquitor was 'dead on arrival'. The Court concluded: "In any event, since no proof of negligence is required beyond the accident itself for the maxim to apply, the question now is was there any evidence of the accident? I answer in the negative. The only evidence on record is that of PW3 who arrived at the scene after the accident had happened. Even his evidence of what he saw i.e. "I saw the commercial bus facing Lagos direction. I saw the caterpillar in front of the bus, across the road..." is not only unreliable; it is insufficient as proof of the accident or happening of any unexplained occurrence or circumstance from which the negligence of the 2nd defendant can be inferred. In the entire circumstance of this case I hold the view that the plea of res ipsa loquitor cannot avail the plaintiff. It is regrettable that the much the plaintiff was able to prove in this case was that an accident in which the deceased sustained injuries from which he died happened. There is no evidence of how the accident happened. Save to speculate, not even was there any evidence that the commercial bus in which the deceased was travelling ran into the caterpillar, at least to explain how the injuries which led to death of the deceased was sustained. Since the PW3 did not say that, it means he did not see the vehicles in that position. The corollary is that the plaintiff failed woefully to even make out a prima facie case of the allegation of negligence against the defendants to warrant any explanation from the defendants. I so hold. The claim must in the circumstances fail. It fails and is dismissed." I am in agreement with the views of the learned trial judge."per IYIZOBA, J.C.A. (Pp , Paras. F-D) - read in context 4. TORT - RES IPSA LOQUITUR: At what instance will the doctrine of res ipsa loquitor not apply "The Appellant sought to rely on the doctrine of res ipsa loquitor. The doctrine applies only where the cause of the accident is not known. It therefore means, the thing speaks for itself"; and therefore applies when from the nature of the accident, negligence on the part of the Defendant can be inferred. It operates to shift the burden on the Defendant to explain and show that the accident occurred without any fault on his part. Consequently, where the facts constituting negligence have been pleaded, the doctrine will no longer apply. See SPDC (Nig.) Ltd v. Edamkue Ors (2009) 4 FWLR (pt.496) 9077; Ibekendu v. Ike (1993) LPELR (SC) and Strabag Construction (Nig) Ltd v. Odarekpe (1991) 1 NWLR (pt.170) 733. The Appellant having pleaded the facts she claims amounts to negligence on the part of the Respondents could not have recourse to the doctrine of res ipsa loquitor."per TSAMMANI, J.C.A. (Pp , Paras. B-A) - read in context

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4 CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Ilaro Judicial Division in Suit No. HCT/332/2001 delivered on 21/04/11, Coram Onafowokan J. dismissing the claims of the Plaintiff/Appellant. The Appellant as Plaintiff commenced an action by writ of summons dated and filed on 30/10/01 but sealed on 28/01/02. By paragraph 12 of her amended Statement of Claim she claimed against the Respondents as Defendants jointly and severally as follows: a. N25, 750, only as special and general damages under the Torts Law Cap. 126 Laws of Ogun State b. 10% interest per annum on sum assessed by the Court from the date of judgment until payment is made; and c. N50, as cost of this suit. FACTS: The Appellant s case as pleaded is that on 31/10/98, her husband, the deceased was a passenger in a commercial bus travelling from Abeokuta to Lagos along Abeokuta-Ifo- Lagos Road in the direction of Ifo Town when at about 8.00pm at Ewekoro the 2nd Respondent an employee of 1

5 the 1st Respondent negligently drove, managed and controlled a forklift caterpillar across the road and caused the forklift to violently collide with the said commercial bus in consequence of which the deceased sustained severe injuries from which he died two days later on 02/11/98. The Respondents denied the allegation of negligence and liability for the death of the deceased. They claimed the accident was caused by the negligence of the driver of the commercial bus in which the deceased was travelling. Pleadings were filed and exchanged. In proof of their case, the Appellant testified and called three other witnesses. She tendered Exhibits A R. After the accident, the driver of the caterpillar, the 2nd Respondent herein and the driver of the commercial bus had been charged to the magistrate Court Ota for causing death by dangerous driving and were subsequently discharged based on legal advice from DPP Ogun State Ministry of Justice, Abeokuta. Certified True Copies of the legal advice were admitted in evidence as Exhibit K and K1. The Respondents called two witnesses. At the end of the trial, the parties filed and adopted their written addresses. In a well considered 2

6 judgment, the learned trial judge dismissed all the claims of the Appellant on the ground of failure to adduce evidence of negligence against the Respondents. Dissatisfied with the judgment the Appellant appealed by a Notice of Appeal which was subsequently amended. From the 9 grounds of appeal in the amended Notice of Appeal, the Appellant distilled two issues as follows: 1. Whether the Appellant established a case of negligence against the Respondents, from which the death of the deceased husband, father and son of the suit beneficiaries resulted, thereby making the Respondents liable in damages to the Appellant and the other suit beneficiaries? (Grounds 1 to 9 of the Notice of Appeal) 2. Whether the Appellant is entitled to, and the Respondents are liable for the reliefs claimed; and if yes, what is the extent of such entitlement and/or liability? (Grounds 7, 8, and 9 of the Notice of Appeal) The Respondents in their brief formulated three issues for determination as follows: 1. Whether the Appellant proved negligence or res ipsa loquitor 2. Whether Exhibit K has any probative or evidential value to prove the Appellant s case. 3

7 3. Whether there is evidence that the deceased died from the injuries sustained from the accident or whether death can by reasonable inference be said to have arisen from the negligence of hospital. The Appellant in his Reply brief dated and filed on 25/05/17 prayed the Court to strike out the Respondents brief of argument for incompetence on the grounds inter alia of failure to comply with Order 1 Rule 4(2) of the Court of Appeal Rules 2011 following the case of ARCHBODEN ENGINEERING LIMITED VS. WATER RESOURCES HYDRA TECHNIQUE W. A. G. (1995) 3 NWLR (PART 300) Counsel further contended that the Respondents' Brief did not contain any table of content or concise Statement of facts; and that the arguments were all mixed up without any indication of the grounds of appeal from which the individual issues were distilled. He cited numerous authorities. He further submitted that there are 3 names of counsel listed in the brief as representing the Respondents, without any indication of which of the three signed the brief; that only one receipt of payment in lieu of stamp and seal was attached. Counsel submitted that all 4

8 the irregularities rendered Respondents' Brief incompetent and liable to be struck out. There is no doubt that the Respondent s brief of argument did not comply with the Rules. It is indeed all muddled up. I had to wade through the entire pages of the unplanned brief of argument to fish out the issues for determination. That is not good practice. I shall content myself on this by reference to the observation of Abiru JCA in FUNTUA V INGAWA (2016) LPELR-41166(CA): The purpose of briefs of arguments filed by parties to an appeal is to assist the Court in determining with precision and in a concise manner the real issues in controversy between the parties and to marshal their arguments and submissions in a way that makes it easy for the Court to discharge this function. Briefs of argument in an appeal contain the story of a party on which the appellate Court Justices are called upon to adjudicate. Like all good stories, the arguments in the briefs must flow; they must be consistent, they must be concise, they must be comprehensive, they must be comprehensible; and they must be accurate... 5

9 While I concede the flaws in the Respondent s brief which I hope Counsel will take note of in order to avoid such pitfalls in the future, I do not consider the brief so bad as to warrant its striking out. The points made therein are comprehensible enough. I shall therefore make the best of the brief. In fact the two briefs, both the Appellant s brief and the Respondent s brief are far from concise. They are un-necessarily verbose and unwieldy. They dwelt at length on irrelevant issues. As pointed out by learned counsel for the Respondents in their brief there was a proliferation of grounds of appeal revolving around Exhibits K & K1, exhibits which are truly of little consequence in the case as will be shown later in the judgment. I shall however ignore the irrelevant points and deal with the relevant ones. Having meticulously gone through the Record of appeal and the briefs of argument, I am of the view that this appeal can conveniently be determined on the sole issue: Whether the Appellant established a case of negligence against the Respondents. APPELLANT S ARGUMENTS: Learned counsel for the Appellant, Dr. Olayemi Olowolafe 6

10 in his brief submitted that the Court below was wrong in concluding that the Appellant did not establish a case of negligence against the Respondents. He referred to the testimony of PW1, the medical doctor, the exhibits he tendered as to the cause of death Exhibits A & B; Exhibit K, the certified true copy of Legal Advice from the Ministry of Justice dated 7th September, 1999 issued in Charge No. MOT/576/MT/1998; the oral testimony of PW3, DW1 and DW2 and the inconsistencies in the evidence of the Defence witnesses DW1 & DW2; and submitted thus: the Appellant urges on this Court of Appeal that the evidence adduced by the Appellant preponderate those of the Respondents, for the probability of the negligence of the Respondents which resulted to the death of the deceased. More so, that all the statutory requirements in a fatal accident under the Torts Law of Ogun State were satisfied by the Appellant. As has been held in a plethora of cases, such as Ngilari vs. Mothercat Ltd. (1999) 13 NWLR (Part 636) 626 at 628, Joseph vs. Abubakar (2002) 5 NWLR (Part 759) 185, etc., accident cases, such as in this instant suit, must be 7

11 established by direct evidence, best evidence or circumstantial evidence strong enough for the Court to infer negligence. The Appellant contends that each and/or all the evidence adduced to support her case, for the establishment and finding of the negligence of the Respondents, fall within one or the other of direct evidence, best evidence or circumstantial evidence strong enough for the inference of the negligence of the Respondents. Hence, the resolution of the Court below (on pages 167 to 172 of the record) for its treatment of all the evidence adduced by the Appellant as lacking evidential value, in making out a case for the proof of the allegation of negligence against the Respondents, is misconceived as it is not at all supported by law. Learned counsel submitted that Exhibit K is admissible in evidence contrary to the view of the learned trial judge that it is documentary hearsay and of no probative value. Counsel further argued that assuming without conceding, that the Appellant failed to prove the negligence of the Respondents, by credible and admissible evidence as held by the Court below, that the principle of res ipsa loquitur 8

12 pleaded in the alternative would apply for the finding of the negligence against the Respondents. Counsel again submitted that assuming without conceding, that the Appellant failed to prove the Respondents' negligence by the evidence(s) adduced, and res ipsa loquitur is not applicable, that the principle of the presumption of equal proportionate fault is applicable to find the Respondents negligent. He argued that the contemporaneousness of the involvement in the accident of only the caterpillar vehicle of the Respondents with the commercial bus vehicle, which is admitted by the Respondents but for which the Court below could not make a finding of negligence by any of the two vehicles or their drivers, postulates the presumption of equal proportionate fault by both the drivers of the two vehicles involved in the accident. A fortiori, none of the two vehicles involved in the collision were under the control of any one of the deceased victim, the Appellant and the suit beneficiaries. The irrefutable inference from the facts of this case, therefore, show clearly that there is not at all any contributory negligence of any one of 9

13 the deceased victim, the Appellant and the suit beneficiaries. In urging this principle of the presumption of equal proportionate fault, on this Court of Appeal for consideration, we posit that since it is a legal impossibility for the cause of the occurred accident to be in lacuna, this Court of Appeal is empowered by Section 167 of the Evidence Act 2011, Updated Cap. E14 LFN 2014 to presume the existence of any fact which it deems likely to have happened having regard to human conduct and common sense. Hence, despite its having been applied in maritime collisions in situations of contemporaneous involvements, there is no legal regime precluding its applicability in a similar terra firma vehicular collision situation, such as in this instant case where the trial Court found it impossible to establish the different degrees of the faults of the (two) vehicles involved in the collision. Ref: The Anneliesse (1970) 1 Lloyd's Rep. 355 at 363 OR (1969) 2 Llyod's Rep. 78 at 93. The arising legal implication, on the postulated presumption of equal proportionate fault, is that the Respondents are joint tortfeasors with the driver and owner of the commercial bus vehicle in 10

14 which the deceased victim was traveling when the accident occurred. Hence, the Respondents, as joint tortfeasors, are liable for the whole damages resulting from the occurred accident, but with the right to seek for contribution from their other joint tortfeasors. Ref: Agbaje and Pool House Group vs. James (1967) NMLR 49; Onyedinma vs. Nnite (1997) 3 NWLR (Part 493) 333 at 347D-E; Izuogu vs. Emuwa (1991) 4 NWLR (PART 183) 78 AT 85F-G; Iyalekhue vs. Omoregbe (1991) 3 NWLR (PART 177) 94 at 104H-105A; Balogun vs. Amubikahun (1989) 3 NWLR (Part 107) 18 at 26G-27B & 30C; Okonkwo vs. Okolo (1988) 2 NWLR (Part 79) 632; Ezeadukwa vs. Maduka (1997) 8 NWLR (518) 635 at 666E-G. After submissions on the second issue concerning reliefs claimed, learned counsel urged the Court to resolve the issues in favour of the Appellant and to allow the appeal and grant the reliefs sought in the Amended Notice of Appeal. RESPONDENT S ARGUMENTS: Learned counsel for the Respondents examined in detail the evidence of the four witnesses called by the Appellant PW1 PW4 and dismissed their evidence as unhelpful in 11

15 establishing negligence on the part of the Respondent. Counsel then examined and analyzed the evidence of the two witnesses who testified for the Respondent and submitted that their evidence remained uncontroverted. He however conceded with due respect to the trial judge, that Exhibits K and K1 documents emanating from the Ministry of Justice may not necessarily be documentary hearsay since they are public documents, certified and tendered in evidence by the Appellant (PW 2) on 09/03/2006, He cited Sections 104(1) and 105 Evidence Act, 2011; TABIK INVESTMENT LTD. V. G.T.B. PLC (2011) ALL FWLR (PT. 602) 1592 S.C (document in the custody of the police); KWARA STATE WATER CORP. V. AIC (NIG.) LTD (2009) ALL FWLR (PT. 485) 1768 C.A. He further submitted relying on OGBUNYIYA & ORS.V. OKUDO & ORS (1979) 3 LRN 318 that such a document need not be tendered by the certifying public officer as the document can be tendered by Counsel from the Bar. He however contended that the decision of the lower Court did not occasion a miscarriage of justice on the Appellant as to constitute a ground for setting aside the trial Court s decision. The reason counsel submitted is that Exhibit 12

16 K had been superseded by Exhibit K1. He argued: It was the same Director of Public Prosecutions who made Exhibit K which the Appellant considers a holy grail that also made a superseding Exhibit K1. Exhibit K recommended the discharge from prosecution of the driver of the commercial bus wherein the Appellant s husband travelled and had the accident, Mr. Samuel Ogunjobi. While Exhibit K1 subsequently recommended that both Mr. Samuel Ogunjobi and the 2nd Respondent be discharged. Whereas the Appellant accepts the advice (Exhibit K) in relation to Mr. Samuel Ogunjobi; She will not accept (Exhibit K1) in relation to the 2nd Respondent and tags it fraudulent despite the circumstances that have tainted the integrity of Exhibit K and necessitated its withdrawal by Exhibit K1. The Appellant neither pleaded fraud or any particulars of fraud. This allegation was therefore never in issue...in concluding that the Appellant failed to prove negligence against the Respondents the Court below held as follows: In relation to exhibit K on which Mr. Olowolafe placed heavy reliance, it suffices to say that the exhibit is not more than 13

17 what it says - an advice. It is not conclusive of the allegations contained therein. The allegations will still need to be proved and tested at the trial. It is clear on the face of the exhibit that the recommendation that the 2nd Defendant be charged for causing death by dangerous driving was based on facts extracted from police case file. Citing the cases of MURANA ELEMO & ORS V. FASASI OMOLADE & ORS (1968) NMLR 359 AT 361; R.V. ANI NWOKOROAFOR & ORS (1944) W.A.C.A. 221 AND CYRIL AREH V. COMMISSIONER OF POLICE, 1959 W.R.N.L.R. 231 and NGILARI V. MOTHER CAT LTD (1999) 13 NWLR (PT. 636) 628, learned counsel submitted that the burden of proof was on the Appellant and she completely failed to discharge that burden; that at best, the Appellant was able to establish the occurrence of an accident and the death of her husband from the injuries of the accident; but failed to discharge the burden of proving the Respondents negligence resulting in the accident. Counsel submitted that there was no evidence to contradict the pleading and the evidence of the Respondents that the accident was caused by the 14

18 negligence of Mr. Samuel Ogunjobi the driver of the commercial bus; thus leaving the evidence unchallenged and un-contradicted. He cited ILUYOMADE V. OGUNSAKIN (SUPRA) to submit that the Court below was right to have held that the Appellant could neither prove negligence alleged nor any of the particulars as set out in paragraph 4 of the Plaintiff s amended pleadings. On whether the doctrine of res ipsa loquitor was applicable, counsel referred to the holding of the Court below that: It is noteworthy that paragraph 4 of the pleading sets out the facts of negligence and in the particulars which I held above were not proved. It is also instructive to note that in the absence of eye witness account of the facts of the alleged negligence and the nature of accident were extracted from exhibit K which I have found to be documentary hearsay and of no probative value. In the circumstance, the plea of res ipsa loquitor sought to be founded on the very nature of accident as pleaded in paragraph 4 appears dead on arrival. In any event, since no proof of negligence is required beyond the accident itself 15

19 for the maxim to apply, the question now is was there any evidence of the accident? I answer in the negative. Counsel submitted relying on NBC V NWANERI (2000) 14 NWLR (PT. 686) 35 that the doctrine of res Ipsa loquitor will only apply where there is no explanation as to the cause of the accident; that where an explanation has been given or proffered, the doctrine will not operate because the doctrine operates when an accident which has all the hallmarks of negligence occurs and there is no explanation as to its cause or the defendant is unable to explain it; it being obvious that it is a clear case of negligence. Learned counsel submitted that in essence, the trial Court held that the Appellant did not prove negligence; and could not prove the accident for the doctrine of res ipsa loquitor to apply and did not therefore establish any responsibility for that accident against the Respondent. He opined that the decision of the trial Court is correct and urged the Court on that ground alone to dismiss this appeal as being without merit RESOLUTION: In an action for negligence founded on an accident, it is the 16

20 duty of the Plaintiff to prove that the accident was as a result of the negligence of the defendant. The mere occurrence of an accident is not proof of negligence. See NGILARI VS. MOTHERCAT LTD (SUPRA) cited by both counsel where the Supreme Court observed: Mere occurrence of accident is not proof of negligence. Thus to succeed in a claim of negligence it is not enough to prove that there was an accident. The Plaintiff must prove that the accident was a result of the negligence of the defendant. Therefore, the circumstances, the nature and extent of the accident must be pleaded and evidence adduced thereon. Then the Court will be able to determine whether partially or wholly, either the Plaintiff or the Defendant caused the accident. See also ABUBAKAR V JOSEPH (2008) LPELR-48(SC) or (2002) 5 NWLR (PT. 759) 188 and KALLA V. JARMAKANI TRANSPORT LTD (1961) ALL NLR 747. Dr. Olayemi Olowolafe in his brief submitted that the Court below was wrong in concluding that the Appellant did not establish a case of negligence against the Respondents. He was certain that the burden was discharged. Unfortunately this is very far from the case. Negligence is a question of 17

21 fact and each case must be determined in accordance with its peculiar facts. In the case of ABUBAKAR V JOSEPH (SUPRA) TOBI JSC (of blessed memory) in his contribution observed: The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it. Failure to prove particulars of negligence pleaded will be fatal to the case of the plaintiff. The Plaintiff who alleges negligence must plead the relevant facts showing that the defendant was negligent and then he must proceed to call evidence in proof of the pleaded facts. The Appellant pleaded in full the details and particulars of negligence in paragraphs 4 and 5 of the Amended Statement of Claim at pages 21 and 22 of the Record of appeal as follows: 4. At about 8.00pm on the 31st day of October 1998, the deceased was a passenger in a commercial bus coming from Abeokuta moving along Abeokuta-Ifo- Lagos Road, in the direction of Ifo Town when the 2nd defendant negligently drove, managed and controlled the forklift caterpillar, mentioned in 18

22 paragraph 2 above herein, the property of the 1st defendant, across the said Abeokuta-Ifo-Lagos Road at Ewekoro that the 2nd defendant caused or permitted the said forklift caterpillar to violently collide with the said commercial bus. Particulars (a) Failure to keep any or any proper lookout or to have any or any sufficient regard for traffic that was or might reasonably be expected to be on the said road. (b) Causing or permitting the said forklift caterpillar to cross the road and thereto collide with the commercial bus. (c) Causing or permitting the said forklift caterpillar to cross the road without warning and failing to take any or adequate measures to warn vehicles driving along the road of the crossing of the forklift caterpillar. (d) Causing or permitting the said forklift caterpillar to be driven when they knew or ought to have known that the forklift caterpillar, when it was loaded, would be driven unevenly and unsafely along the said road. (e) Causing or permitting the said forklift caterpillar to be driven across the said road when they knew or ought to have known that the road thereof was in an unsafe condition. 19

23 (f) Failure to take any or any special care at the point of the crossing of the road. (g) Failing to see the said commercial bus in sufficient time to avoid the said collision or at all. (h) Failing to stop or desist from crossing the road or to swerve or any other way to so manage or control the said forklift caterpillar as to avoid the said collision. (i) Failing to desist from or avoid driving the said forklift caterpillar on the public highway without any driving licence, vehicle licence and vehicle insurance. 5. In the alternative to paragraph 4 above herein, the plaintiff pleads res ipsa loquitor in relying on the very nature of the accident described above itself as evidence of the negligence of the defendants. In proof of her case, the Appellant called 4 witnesses. But none of the witnesses actually saw the accident happen and none was able to give evidence in support of the facts and particulars of negligence pleaded. The first witness PW 1- Dr. Adebajo, gave evidence of the injury sustained by the deceased. He was not an eye-witness to the accident and his evidence had nothing at all to do with 20

24 whether or not the Respondents were negligent. Same applies to PW2 and PW4. The learned trial Judge in his judgment at page 169 of the Record observed: The Plaintiff called four (4) witnesses and only the PW3 said something about the accident. His admissible evidence goes thus On 31/10/98, I was travelling back to Ilaro from Abeokuta around 8.pm. I got the WAPCO factory; I met a huge crowd at an accident scene. An accident had just occurred, the vehicles were still there, the people were still there. A police constable flagged me down and requested me to convey one of the passengers who was lying critically in pool of blood in the main road, unconscious to General Hospital, Ilaro for medical attention...in the course of conveying the man to the hospital, the constable had told me that the victim was in a commercial bus with Lagos colour. I saw the bus, that the bus had accident with a caterpillar belonging to the 1st defendant...i saw the commercial bus facing Lagos direction. I saw the caterpillar in front of the bus, across the road, the accident had just occurred when I got there. It was about 8.00p.m, there was darkness...at the 21

25 scene of the accident, I noticed that the victim was in a pool of blood on the ground. Under cross-examination the witness said:...i did not see the accident occurring. I am not in a position to say how it occurred. I am also not in a position to say who was right or wrong. I hold the view that the pieces of evidence above prove neither the negligence alleged nor any of the particulars as set out in paragraph 4 of the plaintiff s amended pleadings. If the evidence is worth anything at all, it only proves that an accident occurred... I entirely agree with the learned trial Judge. None of the witnesses called by the Appellant gave evidence of negligence as pleaded above. The appellant ought to have, for example, called the driver of the commercial bus in which the deceased was travelling. He would have been able to give first hand testimony of what actually transpired or any other eye witness to the accident. Rather, surprisingly, Dr. Olowolafe thought he could achieve his purpose by tendering through PW2, the appellant Exhibit K the certified true copy of legal advice 22

26 dated 07/09/99 issued in charge no. MOT/576/MT/1998 stating that the road accident occurred as a result of the negligent driving of the 2nd Respondent when he drove the 1st Respondent's vehicle across the road at 8.00pm in the night without headlights and brake lights; that he was not licensed to drive any vehicle at all; and that he obstructed the lane of oncoming vehicles. Dr. Olowolafe by this Exhibit K came to the conclusion and indeed invited the Court to join him in concluding that the 2nd Respondent was responsible for the accident and the loss of lives. There are so many stories behind this Exhibit K and its reversal by another legal advice by the Ministry Exhibit K1 and the subsequent withdrawal of the charges in the magistrate Court. These stories are of no relevance in this appeal as the concern here is to determine whether the learned trial Judge was right in holding that the Appellant failed to discharge the burden of proving negligence of the Respondents in order to be entitled to the damages claimed. On Exhibit K, the lower Court held thus: In relation to Exhibit K on which Mr. Olowolafe placed heavy reliance, it suffices to say that the 23

27 exhibit is not more than what it says an advice. It is not conclusive of the allegations contained therein. The allegations will still need to be proved and tested at the trial. Apart from the fact that the exhibit was not tendered by the maker to afford the defence of opportunity of cross-examining on it, it is clear on the face of the exhibit that the recommendation that the second defendant be charged for causing death by dangerous driving and dangerous driving was based on facts extracted from the Police case file...in the circumstances of the above, exhibit K in my view is nothing but documentary hearsay and consequently of no probative value. I so hold. I therefore hold that the plaintiff failed to prove paragraph 4 of her pleadings. I agree with the views of the lower Court. Contrary to the view of learned counsel for the Respondent, the learned trial judge was right in referring to Exhibit K as documentary hearsay based on the purpose for which the Appellant tendered it to prove that the contents are true and that the 2nd respondent was indeed negligent. With all due respect to Dr Olowolafe, he completely misconceived 24

28 the law to have imagined that Exhibit K could be admissible in proof of the negligence of the Respondents. Exhibit K was as found by the learned trial judge mere legal advice given by the Ministry of Justice that the 2nd Respondent be charged with a criminal offence based on preliminary investigations and proofs of evidence garnered from the Police case file. Exhibit K does not constitute proof of the allegations contained therein. It is still for the Prosecution at the Magistrate Court to adduce satisfactory evidence of the allegations by calling as witnesses the investigating police officer and the witnesses whose proofs of evidence are in the Police case file. The witnesses must be subjected to cross-examination; and proper evaluation of the evidence carried out by the Magistrate before any credibility can be accorded to the allegations in Exhibit K. They are mere allegations. It is quite ridiculous that Dr. Olowolafe wasted so much time on these exhibits and indeed expected the Court to accept Exhibit K as evidence of the negligence of the Respondents in the circumstances. Learned counsel actually believed he could do this, hence 25

29 his proliferation of grounds of appeal based on Exhibits K and K1! Such precious waste of time and resources! There just was no evidence to support the Appellants pleadings on negligence. The lower Court is right in its conclusion that the Appellant failed to call evidence to support her pleadings. In the case of NATIONAL INVESTMENT & PROPERTIES LTD V. THOMPSON ORGANIZATION LTD & ORS (1969) NMLR 104 the Court observed: A plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It is trite law that parties are bound by their pleadings. Their case stands or falls by the averments in the pleadings and the evidence adduced in support thereof. See OMOBORIOWO & ORS V AJASIN (1984) LPELR-2643 (SC); ALAHASSAN & ANOR V ISHAKU & ORS (2016) LPELR (SC). The learned trial judge was right that the Appellant failed to prove its case. On the doctrine of res ipsa loquitor pleaded in paragraph 5 of the Amended Statement of Claim the lower Court rightly held that the Appellant having failed to lead evidence of negligence or even evidence of the nature of the 26

30 accident from which the inference of negligence can be drawn, the plea of res ipsa loquitor was dead on arrival. The Court concluded: In any event, since no proof of negligence is required beyond the accident itself for the maxim to apply, the question now is was there any evidence of the accident? I answer in the negative. The only evidence on record is that of PW3 who arrived at the scene after the accident had happened. Even his evidence of what he saw i.e. I saw the commercial bus facing Lagos direction. I saw the caterpillar in front of the bus, across the road... is not only unreliable; it is insufficient as proof of the accident or happening of any unexplained occurrence or circumstance from which the negligence of the 2nd defendant can be inferred. In the entire circumstance of this case I hold the view that the plea of res ipsa loquitor cannot avail the plaintiff. It is regrettable that the much the plaintiff was able to prove in this case was that an accident in which the deceased sustained injuries from which he died happened. There is no evidence of how the accident happened. Save to speculate, not 27

31 even was there any evidence that the commercial bus in which the deceased was travelling ran into the caterpillar, at least to explain how the injuries which led to death of the deceased was sustained. Since the PW3 did not say that, it means he did not see the vehicles in that position. The corollary is that the plaintiff failed woefully to even make out a prima facie case of the allegation of negligence against the defendants to warrant any explanation from the defendants. I so hold. The claim must in the circumstances fail. It fails and is dismissed. I am in agreement with the views of the learned trial judge. The judgment is sound and we see no reason to interfere with it. It is needless going into the merits of the rather watery defence of the Respondents as no prima facie case was made by the Appellant. It is indeed regrettable that the Appellant would go uncompensated for the death of her husband which occurred as a result of the fault of either or both the 2nd respondent and the driver of the commercial bus. Both from all indication have absconded. Dr. Olowolafe tried to sell this in his concept of the application of the presumption of equal proportionate 28

32 fault. The point is a moot one as the Appellant failed to make a prima facie case. This appeal is hereby dismissed as lacking in merit. The judgment of the lower Court is affirmed. I make no order as to costs. HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, C. E. lyizoba, JCA has comprehensively and with clarity resolved the relevant issues that needed be determined in this appeal. I agree with the decision arrived at by my learned brother. I only wish to reiterate that the pleadings or the facts constituting negligence were stated and particularized in paragraphs 4 and 5 of the Appellant s Amended Statement of Claim. It is trite law that pleadings are bare statements of the facts a party puts forward as the case he will present at the trial. Those facts or averments need be substantiated by oral or documentary evidence through witnesses at the trial. See Eyigebe v. lyaji (2013) 11 NWLR (pt.1365) 407; Olubodun & Ors v. Lawal & Ors (2008) 17 NWLR (pt.1115) 1 and Omisore & Anor v. Aregbesola & Ors (2015) LPELR (SC). 29