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What plaintiff must prove to succeed in negligence action

EJEMBI EKO JCA (Read the Lead Judgment)
Issues: .

1. Whether the lower court was right in dismissing the plaintiffs/appellants’ suit on the ground of failure to prove negligence on the part of the defendant/respondent.

2. Whether the lower court was right in refusing to award damages to the plaintiffs/appellants having earlier assessed damages in plaintiffs’ favour to the tune of N19,369,700.00 (nineteen million, three hundred and sixty-nine thousand, seven hundred naira).


The plaintiffs’ claimed in the High Court of Rivers State that their farmland was flooded and their crops were destroyed due to the negligence of the defendant while the latter was constructing some culverts. They claimed general and special damages. The trial court dismissed their claims. Aggrieved, the plaintiffs appealed to the Court of Appeal

Held.     (Dismissing the appeal)

Attitude of appellate court to findings of fact by trial court –

.The appellate court does not readily disturb findings of fact unless they .are shown to be perverse and unreasonable having regard to the circumstances of the case or where the findings are not supported by the evidence on the record.

In other words, the Court of Appeal will not interfere with findings of fact where there is evidence to support the trial court’s findings either way.

Findings of fact

In the instant case, the findings of fact by the trial court are not perverse, therefore, there was no basis for interference by the trial court. [Ajibulu V. Ajayi (2004) 11 NWLR (Pt. 885) 458; Ogidi v. State (2003) 9 NWLR (Pt. 824) 1; S.P.D.C. (Nig.) Ltd v. Edamkue (2009) All FWLR (Pt. 489) 407 referred to] [P 822 paras. A- B] Subsistence and bindingness of findings not appealed against –

Where an appellant does  not appeal against a finding, the finding not only subsists, it is deemed to have been accepted by the appellant. [SP.D.C. (Nig.) Ltd v. Edamkue (2009) All FWLR (Pt. 489) 407; Calabar Central Co­operative Thrift and Credit Society Ltd v. Ekpo (2008) All FWLR (Pt. 418) 198, (2008) 6 NWLR (Pt. 1083) 362 referred to] [Pt  paras. E – F]

Admitted facts as strongest evidence available at trial- Admitted facts are the strongest evidence available at a trial. [Igwe v. ACB Plc (1999) 6 NWLR (Pt. 605) 1 referred to] [P.822 paras. D – E]

Effect of unchallenged and uncontroverted evidence and needlessness of proof of admitted fact, Evidence Act, section considered –

By the provisions of section 75 of the Evidence Act, pleadings and evidence that are not challenged or controverted by the party against whom they are pleaded or averred are deemed to have been admitted. Facts admitted need no further proof. [P.822 paras. C – D]

Meaning of negligence, nature of and when arises -Negligence is a matter of fact. Generally, it is an omission or failure to do something which a reasonable man, under similar circumstances would do, or doing of something which a reasonable and prudent man would not do.

The tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached. [0J0 v. Gharoro (2006) All FWLR (Pt. 316) 19, (2006) 138 LRCN 1652; Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1 referred  to ] [Pp.819-  820, paras G- A]

What plaintiff in action for negligence must prove to succeed, Evidence Act, sections 135 – 1 37 considered- By the provisions of sections 135 – 137 of the Evidence Act, the plaintiff has the bounden duty to establish that the defendant is negligent towards him. To succeed in negligence, the plaintiff has to prove three vital ingredients, namely

(a)     The defendant owes him a duty of care,

(b) Which duty the defendant breached,

(c)     And as a result he, the plaintiff has suffered damages.

The three factual situations must exist conjunctively to ground the defendant’s liability in negligence. Thus, it is not enough to prove damage or that the plaintiff suffered damage, without proof of the corresponding duty of care and its breach on the part of the defendant.

In the instant case, the plaintiffs failed to prove that the defendant owed them a duty of care and that the damage done to their farmland was as a result of the breach of that duty of care, therefore, their claims for damages were dismissed. [Dare v. Fagbamila (2009) All FWLR (Pt. 489) 568; Nwakwe v. Nkwukor (2001) FWLR (Pt. 63) 1 referred to] [P. 820, paras. A – C]

Purport of pleading particulars of negligence and duty of plaintiff to furnish – The particulars of negligence are intended to appraise the defendant of what he did, or failed to do, in breach of his duty of care to the plaintiff and to demonstrate that a reasonable person in his position ought not to have committed the breach, or ought not to have done that which he did or did. ‘not do.

Pleading of particulars of negligence serves the purpose of audi alteram partem or fair hearing. The essence is that the defendant will not be taken by surprise. Furnishing of particulars of negligence is not a mere formality, it is mandatory for the plaintiff to furnish particulars of negligence.

In the instant case, the plaintiffs failed to furnish particulars of the alleged negligence of the defendant, therefore, their claims for damages were dismissed.

[Seisimograph Services v. Mark (1993) NWLR (Pt. 304) 203; Bunge v. Governor Rivers State (2006) All FWLR (Pt. 325) 1; Emegokwue v. Okadigbo (1973) 4 SC 115; Koya v. U.B.A.
(1997) 1 NWLR (Pt. 481) 251; Umudfe v. Shell BP Petroleum Development Company Nigeria Ltd (1975) 9-11 SC 155 referred to] [Pp. 820 – 821, paras. F – B]

Basis of determination of civil rights and obligations, irrelevance of sentiments thereto and impossibility of suspicion substituting for evidence, Evidence Act, sections 135 – 137 considered – By the provisions of sections 135 – 1370f the Evidence Act, it is only by cold facts presented to the law courts that the civil rights and obligations of the parties before it are determined and nothing more.

Sentiments command no place in judicial deliberations. Suspicion no matter how strong cannot substitute for legal evidence at the law court. [Omozeghan v. Adjarho (2006) 4 NWLR (Pt. 969) 33 referred to] [P. 822, paras. G – H}

Discretionary powers of court to award damages, how must be exercised, proper approach of where claim for is not established by credible evidence or where liability of defendant is not established –

Where actual damages are proved without credible evidence of who caused the damages, the defendant is entitled to order of dismissal of the suit in his favour. Where there is no evidence to support the claim of damages, the claim ought to be dismissed~.

Damages are not awarded on sentimental grounds. T~ award of damages is discretionary and it has to be exercised judiciously and judicially. They are only awarded against those who actually caused them.

In the instant case, the plaintiffs’ failed to establish that the defendant was liable for the damages done to their farmland, therefore, their claim for damages was rightly dismissed. [Dumez v. Ogboli (1972) SC 196 referred to] [P. 823, paras. D – E]


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