ADETOUN v. LAFARGE AFRICA PLC & ANOR (2018)
PRACTICE AREA: TORT
Typically, when accidents occur, they are presumed to have arisen due to the negligence of one or more of the parties involved. However, does the fact that a party has suffered (more) injury proof negligence on the part of the other party?
The Court of Appeal per IYIZOBA, J.C.A. while delivering the Leading Judgment in Adetoun V. LAFARGE Africa Plc & anor (2018) LPELR-44733(CA) has held that “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.”
According to the Honourable Justice, “Negligence is a question of fact and each case must be determined in accordance with its peculiar facts” and “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.”
FACTS OF THE CASE
The Appellant’s case is that 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 at about 8.00pm at Ewekoro when the 2nd Respondent, an employee of the 1st Respondent, negligently drove a forklift caterpillar across the road and caused the forklift to collide with the commercial bus in which her husband was commuting. As a result of this collision, the deceased sustained severe injuries which resulted to his death two days later.
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. The suit leading to thisappeal, being the civil part, was then commenced by the Appellant as Plaintiff, at the High Court of Ogun State, Ilaro Judicial Division by way of writ of summons against the Respondents (the company owning the forklift tractor and the driver of the forklift contractor) as Defendants jointly and severally for special and general damages under the Torts Law Cap. 126 Laws of Ogun State 1978; 10% interest per annum on sum assessed by the Court from the date of judgment until payment is made; and N50, 000.00 as cost of this suit.
During trial, 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 Respondents, on their own part 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.
At the end of the trial, 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 has filed this appeal to the Court of Appeal.
ISSUE(S) FOR DETERMINATION
The Appellant raised two issues for determination as follows:
- 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)
- 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 Court of Appeal affirmed the decision of the trial Court, holding that no prima facie case was made by the Appellant. The appeal was thereby dismissed as lacking in merit. No order was made as to costs.
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) 185 @ 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.’ Per IYIZOBA, J.C.A. (Pp. 16-28, Paras. F-D)
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 – 1390 (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. 30-31, Paras. B-A) – read in context