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2ND OCTOBER, 1992
NWLR (Pt. 259) 279
BEFORE THEIR LORDSHIPS
NATIONAL ELECTRIC POWER AUTHORITY
Mr. G. N. Uwechue – for appellant
Mr. Oluwole Aina (with him, Mr. O. Akinbi) – for respondents
TORT AND PERSONAL INJURIES LAW:- Doctrine of res ipsa loquitor – When applicable – Negligence – Strict liability – Rule in Rylands v Fletcher – Degree of care required – What is – When not applicable
TORT AND PERSONAL INJURIES LAW:- Basis of defendant’s liability – Rule in Rylands v. Fletcher (1866) L.R. 1 Ex. 256, – Limits – Requirements – Whether not dependent upon plaintiffs proof of negligence or defendant’s proof that he had taken all necessary steps to prevent the damage which is called in question – Whether attaches once the defendant has made an unnatural use of his land
TORT AND PERSONAL INJURIES LAW:- Principle of res ipsa loquitur – When applicable – Conditions precedent – Where plaintiffs relied upon and gave positive evidence of negligence – Effect
TORT AND PERSONAL INJURIES LAW – DAMAGES:- Award of damages – Object of special damages – Burden of proof of – Whether strict proof required – Special damages – Whether burden of proof shifts – Principle of restitudo in integrum – When applicable.
TORT AND PERSONAL INJURIES LAW – DAMAGES:- Award of damages where there is a total destruction of a chattel – Cases where damages to be awarded need not be based on the value of the chattels at the time of destruction – When used equipments could be sold for more than their purchase price
ENERGY LAW – ELECTRICITY DISTRIBUTION:- Breach of statutory duty – Liability for damages to property arising from sudden upsurge of electricity due to alleged unrepaired fault in the transformer – Where the facts are equally consistent with accident as with negligence – Basis of liability – Whether negligence, Rules in Ryland v. Fletcher or Principle of Res lpsa Loquilor
ENERGY LAW – ELECTRICITY DISTRIBUTION:- Generating and distributing electricity under regulatory authority – Alleged Breach of statutory duty – Proof of liability arising from upsurge in electricity – Allegation of unrepaired fault in transformer – How proved – Burden of proof – On whom lies – How discharged – Circumstances which may entitle court to presume negligence on part of electricity company – How rebutted – Defence of accident – Duty to lead evidence in proof – Effect of failure thereto
ENERGY LAW – ELECTRICITY DISTRIBUTION:- Breach of statutory duty – Basis of for an electricity generating and distribution company – Duty of managing, maintaining and working the electricity undertaking efficiently – Duty of care owed by electricity company to exercise reasonable care and skill to ensure that the consumers should not be damaged – Whether the degree of care which that duty involved must be proportioned to the degree of risk involved – Effect
ADMINISTRATIVE LAW AND GOVERNMENT – STATUTORY CORPORATION – ELECTRICITY DISTRIBUTION COMPANY:- Nature of duty conferred on the National Electric Power Authority pursuant to Act No. 24 of 1972 – Acts done pursuant thereto – When will result in presumption of negligence for liability arising therefrom
EDUCATION AND LAW:- Judicial proceedings – Appellate determinations – Matter of mere arithmetic calculation – Whether should be remitted to the trial court for its determination – Implication for justice administration
PRACTICE AND PROCEDURE – APPEAL:- Damages – Award of damages by trial Court –Power of Appellate court to interfere – Limits of such power
PRACTICE AND PROCEDURE – APPEAL:- Grounds of appeal – Where appellant did not formulate any issues but argued his appeal on the grounds of appeal – Effect – Non-compliance with the provisions of Order 6 rule 5 of the Supreme Court Rules, 1985 – Whether failure thereto can be waived by respondent not taking any objection on it but rather taking other steps pursuant to the appeal – Attitude of court thereto
PRACTICE AND PROCEDURE – APPEAL:- Grounds of appeal – Success of some points of an appeal – When will not result in an appeal being allowed – Blue pencil rule – When will be used to ascertain whether the other grounds which have not been successfully attacked can sustain the decision appealed from – Duty of court thereto
PRACTICE AND PROCEDURE – APPEAL:- Findings of fact – Power of trial court – Attitude of appellate court to invitation to disturb a finding as to damages particularly which turns on credibility of a particular witness –
PRACTICE AND PROCEDURE – APPEAL:- Concurrent findings of two lower courts – Attitude of Supreme Court to invitation to interfere therewith
PRACTICE AND PROCEDURE – APPEAL:- Remittance of matter back to trial Court – When proper – Matter of mere arithmetical calculation – Whether matter an appeal court may handle – Proper treatment of
PRACTICE AND PROCEDURE – COURT:- Blue pencil rule – Whether every point successfully taken can result in upholding an entire appeal – Duty of court thereto
PRACTICE AND PROCEDURE – COURT:- Duty of court in the valuation of damages – Treatment of uncontradicted valuation on oath by an expert as to value of second hand chattel – When court may deem it necessary to take depreciation into account
PRACTICE AND PROCEDURE – COURT:- Judicial Notice – Severe inflationary pressure – When court may take judicial notice of in arriving at a just valuation of damages
PRACTICE AND PROCEDURE – DAMAGES:- Award of damages – Object of special damages – Burden of proof of – Whether strict proof required – Special damages – Whether burden of proof shifts – Principle of restitudo in integrum – When applicable.
PRACTICE AND PROCEDURE – DAMAGES:- Award of damages where there is a total destruction of a chattel – Cases where damages to be awarded need not be based on the value of the chattels at the time of destruction – When used equipments could be sold for more than their purchase price
PRACTICE AND PROCEDURE – PLEADINGS: Indication via brief to seek leave of court to raise the issue an issue on appeal involving a substantial issue of law requiring no fresh evidence to consider it – Where leave not sought or obtained – Implication for arguments in the brief in respect of the issue – Duty of court thereto
PRACTICE AND PROCEDURE – EVIDENCE – PLEADINGS: Traverse or denial on pleading – Where evidence in support of assertions in pleadings are not controverted with evidence by party denying or traversing same – Duty of court thereto – Implication for the burden of proof – When would be discharged on minimal proof
PRACTICE AND PROCEDURE – EVIDENCE:- Admissions – Letters admitting liability for act complained of – When can be deemed sufficient proof of facts alleged
PRACTICE AND PROCEDURE – JUDGMENT:- Perverse finding – Meaning of – Whether needs to be both against the weight of evidence and altogether against the evidence
OGWUEGBU J.S.C. (Delivering the Lead Judgment):
The plaintiffs claim against the defendant is as follows:-
“The 2nd plaintiff by an agreement dated 6th September, 1977, sold the machines and machinery listed in paragraph 6 above to the 1st plaintiff upon terms that the 1st plaintiff having paid N15,000.00 to the 2nd plaintiff the aforesaid machines were assigned and delivered to the 1st plaintiff subject to the 1st plaintiff paying to the 2nd plaintiff the balance of N45,000.00 plus interest thereon at the rate of 12% from 6th September, 1977.
The machines supplied and delivered to the 1st plaintiff by the 2nd plaintiff listed in paragraph 6 of the further amended statement of claim were:
After the purchase and delivery of the above machines, the 1st plaintiff established and installed an ultra modem Sawmill Factory at the Industrial Area, Irewon Road, Ijebu-Ode in Ogun State.
The defendant is a statutory authority set up under and by virtue of the National Electricity Act for the following purposes:
(a) to generate or acquire supply of electricity.
(b) to provide bulk supply of electricity for distribution, within and outside Nigeria and
(c) to provide supply of electricity for consumers in Nigeria It supplied electricity to the factory of the 1st plaintiff.
On 12th February, 1980, the defendant’s transformer at Ijebu-Ode due to its negligence went into flames. The fire from the transformer spread to the 1st plaintiff’s factory and destroyed all the machines and machinery.
Wherefore the plaintiffs jointly and severally claim from the defendant as follows:-
“A Special Damages
(i) Damages being cost of replacing the machine listed above which were completely destroyed…………………………………….. N80,000.00
(ii) Damages for payment of rent on lease of factory site at N1,600.00 per annum from 12/2/80-11/2/83 …………………. N4,800.00
(iii) Damages for payment of wages for skilled staff who could not(sic) laid (sic) at N9,360.00 per annum from 12/2/81)-11/2/83 ………………………….. N28,000.00
(iv) Lost of income from 12/2/80 up to 11/2/83 ……………………………… .N201.600.00
From the award of damages that may be adjudged due to the 1st plaintiff, the 2nd plaintiff claims N45,000.00 plus interest at the 12% from February, 1981 until payment of it.
In the alternative the 1st and 2nd plaintiffs claim that the defendant, its agents or servants are liable in the sum of N314,480 for breach of its statutory duty on 12th February, 1980, by not complying with section 7 of Electrical Supply Regulations Cap 37 of 1958.
Interest at the rate of 5% on N314,480.00 from 3/8/82 till the date of judgment. Interest at the rate of 10% on the judgment debt from the date of judgment until payment of the judgment debt.”
Pleadings were filed and exchanged and trial started on the further amended statements of claim and defence. At the conclusion of the hearing and the addresses of both learned counsel, the learned trial judge, Delano, J., in a reserved judgment found as follows at page 94 lines 1 to 23 of the record:
“From above, all the items of claim fail except the following: –
(i) Item A(i) where the claims of N80,000.00 special damage succeeds”
(ii) Item A(iv) where the 1st plaintiff is awarded the following general damage:
(a) N2,400.00 for salaries paid to his workers;
(b) N12,000.00 for profit he could have earned
(iii) item B, D and E partially succeed.
In respect of item D, interest will be at the rate of 5% on N94,400.00 from August 3rd 1982 to January 10th 1985 which is two years, 5 months and eight days. On calculation, the Interest is N11,439.34. The total damage therefore becomes N1 05,839.34. In respect of item E, it is ordered that interest should be calculated at the rate of 10% on the day of payment of judgment debt.
Finally, judgment is given in favour of the plaintiffs in the sum of one hundred and five thousand, eight hundred and thirty naira, thirty four kobo (N105,839.34) as against the defendant. The 2nd plaintiff is entitled to 12% of N45,000.00 from February, 1980 to January 10th 1985 which is about N72,000.00 out of N105,839.34 the 2nd plaintiff is entitled to N72,000.00.”
Both parties were dissatisfied with the decision and each appealed to the Court of Appeal against the parts of the judgment.
The defendant complained about the findings on its liability and damages. The 1st plaintiff cross-appealed and his complaint was that the learned trial judge failed to award him the claim for loss of income.
The Court of Appeal, Ibadan Division in its judgment dated 3rd March, 1987 dismissed the defendant’s appeal and allowed the plaintiff’s cross-appeal. That court found as follows at page 174 lines 17 to 29 of the record of appeal:
“As the learned trial judge has failed to consider the evidence on loss of income before him and to evaluate it, this court is in as much the same position as the High Court to do so. In so doing, I consider that taking the lowest figure of N240.00 a calculation of the figure (on a monthly rate for 30 days (apart from Sundays) to be arrived at) will slightly exceed N5,600.00. An award of the amount of N5,600.00 would therefore have met the ends of justice. On the item, I award N5,600.00.
In sum and for the foregoing reasons, the appeal fails in its entirety and is dismissed. The cross-appeal is allowed.
The judgment of the High Court is hereby varied by the addition of N5,600.00 for loss of income to the sum of N105,839.34 awarded by the High Court to make a total of N111,439.34k”
Both parties were again not satisfied with the decision of the Court of Appeal. The defendant on 2nd June, 1987 obtained the leave of the Court to Appeal to appeal on grounds of fact, mixed law and facts.
The grounds of appeal are:-
“1. The learned Justices of the Court of Appeal erred in fact and therefore wrongly dismissed the appeal when on the record the learned trial judge had no credible, consistent evidence to base his conclusion as to the market value of the machines and himself noted that there were contradictions in this aspect of the matter.
ERROR IN LAW
The Court of Appeal in the judgment of Omololu-Thomas, J.C.A., erred in holding that once the burden of proving the worth of the machines is established the onus shifts on the defendants when-
ERROR IN LAW
(a) The Court of Appeal erred in law in holding that it is not in every case that depreciation should be accounted for in quantifying the Pre-accident value or the market value of a lost or destroyed item. Their Lordships also erred in fact in holding that when the trial judge accepted the evidence of p.w. 4 that the machine was worth N80,000.00 he was not only returning to its market value but also the lowest worth of such value machine, when PW4 had given no such indication in his evidence so that their lordships’ conclusion that the trial judge did not award the value of the machine as new was wrong.”
The 1st plaintiff cross-appealed against the part of the decision dealing with the assessment of damages for loss of income to the appellant.
The ground of appeal reads:-
The defendant/appellant identified six issues for determination by this court
“1. Whether the principle of Res lpsa Loquilor was applicable in this case when the cause of the res, a sudden upsurge of electricity, has been identified as due to a fault in the N.E.RA. transformer and the facts are equally consistent with accident as with negligence.
The only issue submitted by the 1st plaintiff/cross-appellant for determination in the appeal by the defendant is:-.
“in a case of special damages requiring strict proof, is it the law that the burden of proof never shifts to the defendant”?
In his cross-appeal, the plaintiff identified one issue for determination, namely!
“Whether having regard to the evidence and upon a proper application of the principle of restitutio in integrum, N5,600.00 was an adequate compensation in the circumstances for loss of income.”
On its part the defendant/respondent in the cross-appeal identified one single issue as arising for determination:
‘Whether the Court of Appeal applied correctly or at all the principle of restitutio in integrum in the award of the sum of N5.600.00 as special damages for loss of income to the plaintiff having regard to the proved and established facts”
In this judgment, the defendant will be referred to as the appellant while the 1st plaintiff will be referred to as the appellant.
The appellant filed his brief of argument and the respondent’s brief to the cross-appeal on 14th May and 26th October, 1990 respectively. The cross-appellant filed the respondent’s brief to the appellant’s appeal and the brief to his cross-appeal on 22/2/91 and 27/8/90.
The appellant at page 7 of his brief of argument indicated that he would seek leave of this court to raise the issue of the applicability of the principle of res ipsa loquitur as it involved a substantial issue of law and no fresh evidence would be needed to consider it. True enough, though the appellant indicated his intention to seek leave to raise the point, he did not ask for the said leave at the hearing of the appeal and none was granted. In the circumstances, all arguments in the brief in respect of the principle of res ipsa loquitur raised in issue (1) go to no issue and will not be considered by me in this judgment.
On issue two, the learned counsel for the appellant submitted that through the cross-examination of PW2 (Dele Otukoya), the appellant had led sufficient evidence to rebut the presumption of negligence. He referred to the evidence of PW2 at page 589 of the record of appeal (third paragraph) where the witness stated.
‘What NEPA requires in any industrial premises is to install a protective device which in this case is a fuse whose function is (to) disconnect electricity (to) in the installation of the customer if there is electrical fault. It is NEPA which installs the device that disconnect (sic) NEPA supply from consumer installation when there is an abnormal voltage or current …… The plaintiffs’ saw-mill has a circuit breaker.”
Counsel submitted that on the above evidence taken along with an earlier evidence of the same witness to the effect that the fault must be from the source of electricity, in this case the transformer, the learned trial judge should have found that the appellant had taken sufficient care to prevent even damage due to the alleged sudden upsurge of electricity by installing a circuit breaker in the factory. In paragraph 7(a) of the further amended statement of claim, the appellant averred:
“On the said 12th February, 1980, Ijebu Ode township experienced an upsurge of excessive power supply when more than the required amount of voltage for domestic and industrial consumption penetrated into houses and industrial projects in Ijebu-Ode, Ikenne, Iperu, Ijebu-Igbo and caused considerable damage to electrical projects at Ijebu-Ode and the other towns”
The appellant in paragraph 1 of its further amended statement of defence merely denied paragraph 7(a) along with some other paragraphs and put the cross-appellant to the strictest proof. It further denied any negligence, breach of any statutory duty and that it was an accident over which it had no control.
In his evidence, the 1st plaintiff who testified as PW.1 at page 45 lines 17 to 29 stated:
“I know the defendant. NEPA supplied electricity to the Industry. Before the supply, they tested the electrical installation on the site to make sure they are not faulty.
On February, 12th 1980, at about 4.30 p.m. after the close of business for the day, I and Sued were on the site. We were sitting (sic) in the store. As we got down, we saw the fluorescent light in the Sawmill on very bright and they started to explode. There was a sudden upsurge of current in the sawmill. We ran out to the Street. As I looked back at the sawmill, I saw that [it] was on fire. Then I was on the street. Also, I saw an explosion in the NEPA office. People started to run here and there. The NEPA office with everything inside including the electric wire were burnt…………. After then I went to the NEPA office. I reported the fault to NEPA.”
In answer to his cross-examination the witness at page 47 lines 5-9 said:
“N.E.PA. issued a certificate after inspection of the installation before connection of electricity to the house. I have a certificate from NEPA after inspection. I have no automatic switch off equipment attached to my switch”
In answer to cross-examination, PW.2 stated at page 56 lines 28-29 of the record:-
“I observed that the sawmill got burnt as a result of an electrical fault”
At page 57 lines 3-9 the witness stated:-
“From what the 1st plaintiff told me about the issue of the fire and my observation at the scene at (sic) my view is that an electrical fault of such magnitude could not be an external fault but an external fault. Such external fault could only be caused by lack of maintenance of electrical equipment owned by NEPA. The fault must be from the source of electricity, in this case from the NEPA transformer’.
This witness further stated under cross-examination that it is N.E.P.A. that installs protective device that disconnect NEPA supply from consumer installation when there is abnormal voltage or current and that the cross-appellant’s sawmill has a circuit breaker.
The trial judge among other things found that the source from which the “res” emanated was in the management of the defendant who must provide evidence that the high voltage was not due to want of care on its part. He further stated that the defendants did not lead any evidence to disprove negligence on their part.
The appellant led no evidence at all to show that the upsurge of electricity which caused the extensive damages to private and industrial premises in Ijebu-Ode and environs was as a result of an accident as it claimed in its statement of claim. The cross-examination by the appellant as to the cause of the fire incident was feeble, if at all.
The appellant generates electricity, provides bulky supply of same for distribution and provides supply of electricity to consumers In Nigeria…. (It is my view that electricity is a very dangerous thing being handled and carried by the appellant. If it should escape, it owed a duty to the consumers to exercise reasonable care and skill that the consumers should not be damaged. The degree of care which that duty involved must be proportioned to the degree of risk Involved. See Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. & Ors. (1936) A.C. 108 at 118 and Collinthwood v. Home and Colonial Stores (1936)3 All E.R. 200.
Having considered all the circumstances, I am satisfied that negligence on the pan of the appellant was proved and this is a proper case where the rule in Rylands v. Fletcher (1968) L. R. 1 Exch. 265 should apply fully.
On the issue of damages, it was the submission of the learned counsel for the appellant that there was no consistent and credible evidence as to (a) the market value at the relevant point in time (emphasis by counsel) and (b) The purchase price of the machines to justify the decision of the Court of Appeal that the figure of N80,000.00 could be said to be the market price of the machines destroyed.
Counsel referred to the evidence of R WA (Mr. Richard O. Odusote) who testified on 1/11/84 when the incident took place on 12/2/80. He submitted that the witness was clearly testifying as to the probable cost of the machines as at November, 1984. He further stated that neither this witness nor any other witness gave evidence as to the market value of the machines as at the time of the incident and that the Court of Appeal relied on the case of Shodipo v. Daily Times (1972) 11 S.C. 69 at 76 – 70 to uphold the decision of the learned trial judge in holding that the amount awarded was not shown to be inordinately high or low. He stated that the principle applicable in assessment of images in the circumstances of this case is founded on the principle of restitutio in integrum.
He said that in cases where chattels were destroyed by wrongful act of a defendant, the measure of damages is the value of the goods at the time of the destruction.
Learned counsel for the appellant also submitted that there was no evidence at all as to the value of the machines at the time of destruction and that the learned trial judge applied the wrong principle. He said that the court on appeal was in serious error in failing to set aside the judge’s acceptance of irrelevant evidence in determining the market value of the machines. In the circumstance, he argued, the findings of the Court of Appeal are wrong and the authorities relied upon by the court are inapplicable, namely: Imana.v. Robinson (1979) 3-4 S.C. 1, Odulaja v. Haddard (1975)11 S.C. 357 and Omoregbe v. Lawani (1980) 3-4 S.C. 108.
Learned appellant’s counsel also complained about the evidence of PW.4 being treated as that of an expert by the trial court and that the witness did not qualify as an expert on the evidence before the court within the meaning of section 56 of the Evidence Act.
Learned counsel for the cross-appellant contended that the decision of the Court of Appeal cannot be faulted and that it is supported by authorities. He disagreed with the contention of the learned counsel for the appellant that in cases involving special damages, the burden never shifts and that this runs counter to the provisions of section 136(1) and (2) of the Evidence Act.
The claims for the machines destroyed were items of special damage which are required to be proved strictly but strict proof of special damage means no more than such proof as would readily lend itself to quantification. The nature of proof in a given case must be dictated by the peculiar circumstances of the available evidence. See Odulala v. Haddad (1973) 1 All N.L.R. (part If) 191 at 196 and Incar Nigeria Ltd. v. Adegboye (1985) 2 N.WL.R. (part 8) 453.
In addition, the character of the acts themselves which produce the special damage and the circumstances under which these acts are done, regulate the degree of certainty and particularly with which the damage ought to be proved. See Radcliffe v. Evans (1892)2 Q. B. 524.
In the appeal before us, the cross-appellant in his further amended statement claim averred that he paid N15,000.00 to the 2nd plaintiff for the machines subject to his paying the balance per annum with effect from 6/9/77. In answer to cross-examination, the cross-appellant stated:-
‘The cost of replacing the machines now is N80,000.00″ PW4 stated in examination-in-chief at page 55 lines 20-22 and 30-33:
‘We still sell sawmill and services of the machines. The machines sold to the plaintiff will not cost less than N80.000.00 (eighty naira) now…………… Even after using the machines for about one year, the price would be worth N80.000.00 because when we sold it we sold to advertise but by 1980, the second-hand value of the machine was worth N80,000.00″ (italics for emphasis only).
At pages 73 and 74 of the record of appeal, the purchase price of the machines was given as M48,077.7 and N58,777.77 in Exhibits “G” and “H.”
In the famous case of Liesbosch Dredger v. S.S. Edison (1933) A.C. 449, the plaintiffs’ dredger which was sunk by the defendant was employed by the owners in the normal course of their business as civil engineers. While the dredger Liesbosch was long moored alongside the breakwater at Patras Harbour in the Hellenic Republic, the steamship Eddison fouls the dredger’s moorings and carried her out to sea, where she sank and was lost. The owners of the Edison admitted liability.
In an action brought by the owners of the Liesbosch, the House of Lords held that the measure of damages was the value of the Liesbosch to her owners as a profit-earning dredger at the time and place of her loss; and that it should include:-
(1) A capital sum made up of (a) the market price on November 26, 1928 when it was sunk, of a dredger comparable to Liesbosch; (b) the cost of adapting the new dredger and of transporting and insuring her moorings to Pairs; and (c) compensation for disturbance and loss suffered by the owners of the Liesbosch in carrying out their contract …………………. including in that loss such items as overhead charges and expenses of staff and equipment and the like thrown away but neglecting any special loss or extra expense due to the financial position of the parties.
(2) Interest upon the capital sum from November 26, 1928.
The above statement of the law should apply here. The machines of the cross-appellant were totally destroyed. The measure of damage therefore is the value of the machines at the time of the accident plus such further sum as would compensate the cross- appellant for the loss of earnings or Income together with Interest upon the capital sum from the date of destruction.
The cross-appellant is entitled to what is called restitutio in integrum, which means that he should recover such sum as will replace him so far as can be done by compensation in money, in the same position as if the loss had not been Inflicted on him.
Where there is a total destruction of a chattel as in this case, damages to be awarded need not be based on the value of the chattels at the time of destruction. Used equipments could be sold for more than their purchase price. See Moore v. Dee Ltd. (1971)1 W.L.R. 1476.
However, the courts below not having based their award on the value of the machines at the time of destruction, the appeal partially succeeds.
It is therefore order that the case be remitted to the trial court with a direction to assess the appropriate damages in respect of the machines based on the evidence before it.
As to the cross-appeal, the cross-appellant testified that his daily income is between N310.00 and, N240.00 excluding Sundays. Under cross-examination, he said:-
“I am not sure of N1,000.00 monthly. This is so because I am an illiterate.”
There is no doubt that the cross-appellant suffered loss of income. The court of Appeal was clearly in error to have awarded the sum of N5,600.00 as damages for one month. The cross-appellant supplied the evidence of his daily income. This evidence was not controverted. One wonders why the trial judge disallowed this item of special damage and the Court of Appeal awarding damages for one month only. No reasons were given by the Court of Appeal for doing this.
I therefore allow the cross-appeal and also remit the case to the trial court to assess the loss of income at the rate of N240.00 per annum from 12/2/80 to 11/2/83. I assess the costs of both appeals at N1,000.00 in favour of the appellant against the plaintiff/cross-appellant and N1,000.00 in favour of the cross-appellant and against the defendant/appellant/respondent.
KARIBI WHYTE, J.S.C.:
I have read the judgment of my learned brother, Ogwuegbu, J.S.C.
I agree with his reasoning and conclusions on both the appeal and cross-appeal. I also agree with the Order remitting the case to the trial court for the assessment of damages based on the evidence before it in respect of the machines.
I abide by the costs’ awarded in the leading judgment.
I have had the advantage of reading in draft the lead judgment of my learned brother, Ogwuegbu, J.S.C, which has just been delivered. With regard to the main appeal, I agree that the case should be remitted to the trial court to assess, on the evidence before it, the appropriate damages in respect of the damaged machines. For the reasons set out in the lead judgment, I also allow the cross-appeal and direct the trial court to assess the loss of income at the rate of N240.00 per annum from 12/2/80 to 11/2/83. I abide by the order as to costs made in the leads judgment.
I have had the benefit of reading in draft, the lead judgment of my learned brother, Ogwuegbu, J.S.C., just delivered. I agree with the conclusions reached therein and the reasons for them which I adopt as mine. I allow the appeal in part and remit the matter back to the trial court to ascertain the value of the machinery at the time of the damage. I also allow the respondents cross- appeal and remit the matter back to the trial court to assess lost, of income at N240.00 per day for 36 months less Sundays. I abide the order of costs.
NNAEMEKA-AGU, J.S.C. (Delivering dissenting judgment):-
I have read in advance the judgment just delivered by my learned brother, Ogwuegbu, J.S.C. I agree with him that the liability of the appellant was proved. On the issue of damages, I find it difficult to agree that this was a case that ought to be remitted for damages to be assessed for reasons contained in this judgment. He has set out the facts of the case fully, and I do not intend to repeat them, save to mention as few facts sufficient to give necessary foundation to the opinion I wish to express.
The defendant/appellant is a statutory corporation set up under the National Electric Power Authority Act No. 24 of 1972. Under section 1 of the Act, it has the duty to
“……develop and maintain an efficient, coordinated and economical system of electricity supply for all Parts of the Federation or as the Authority may direct, and for this purpose-
(a) to generate or acquire supply of electricity.
(b) to provide bulk supply of electricity for distribution within, and outside Nigeria; and
(c) to provide supply of electricity for consumers in Nigeria and as may, from time to time be authorized by the Authority.”
It was pursuant to the above statutory duty that the defendant installed the necessary fittings and equipment and supplied electricity, to the 1st plaintiffs sawmill factory at the Industrial Area, Irewon Road, Ijebu-Ode in Ogun State. But on the 12th of February, 1980, the defendant’s transformer supplying electricity to the factory went up in flames and the fire spread to and seriously destroyed the 1st plaintiff’s factory, the essential machinery and plant of which had been sold and supplied to him by the 2nd plaintiff. The plaintiffs’ case is that the blowup of the transformer and the consequential fire were as a result of the negligence and/or breach of the statutory duty of the defendant, its servants and/or agents. The particulars of negligence and/or breach of statutory duly were given in paragraph 12(a) of the Further Amended Statements of claim as follows:-
PARTICULARS OF NEGLIGENCE
They also pleaded res ipsa loquitur. The plaintiffs also pleaded that the defendant, after investigation of the accident wrote letters admitting liability and promised to pay compensation to the plaintiffs; and that it later referred the issue of adequate compensation to their insurers but the latter failed/refused to pay. Consequently, the plaintiffs instituted this suit. On the quantum of damages the plaintiffs claimed as follows:-
“A Special Damages:
(i) Damages being cost of replacing the machine listed above which were completely destroyed … N 80,000.00
(ii) Damages for payment of rent on lease of factory site at N1,600.00 per annum from 12/2/80-11/2/83.. N 4,800.00
(iii) Damages for payment of wages for skilled staff who could not (sic) laid (sic) at N9,360.00 per annum from 12/2/80-11/2183 ………………….. N 28,000.00
(iv) Loss of income from 12/2/80 up to 11/2/83 ………… N201,600.00
The defendant by its amended statement of defence joined issues with the plaintiffs on most of the issues of fact pleaded in the further amended statement of claim. In particular, it denied negligence, any breach of its statutory duty, and the applicability of res ipsa loquitur. Further, it pleaded accident, act of God (in the alternative) and that the incident was caused by technical fault in the 1st plaintiff’s machine owing to bad set up and bad management. It also pleaded that it was immune to liability.
At the trial, the plaintiffs gave and called evidence in support of their pleadings. The defendant called no evidence. In the circumstances, the court approached the case from the standpoint that in spite of the traverse or denial on the pleading, the defendant having failed to put anything on his own side of the imaginary balance, It is deemed to have accepted the facts adduced by and on behalf of the plaintiffs. On that basis, therefore, the court proceeded to consider whether the plaintiffs discharged the legal burden of proof incumbent on them, which, in that case would be discharged on minimal proof. See on these: J.O.O. Imana v. Robinson (1979) 3 – 4 S.C. 1, p. 8; Nwabuoku v. Ottih (1961) 2 S.C.N.L.R. 232 Adejumo v. Ayantegbe (1989) 3 N.W L. R.. (part 110) 417.
The learned trial judge came to the conclusion, that the plaintiffs proved their case and after consideration of the evidence on damages, entered judgment in the sum of N105,839.34 in favour of the 1st plaintiff out of which he awarded N72,000.00 in favour of the 2nd plaintiff. The defendant appealed and the plaintiffs cross-appealed on damages.
On appeal, the Court of Appeal while dismissing the appeal allowed the cross-appeal, and awarded the sum of N5,600.00 to the plaintiff as damages for loss of income.
The defendant has appealed further to this court. Unfortunately, the appellant did not formulate any issues but argued his appeal on the grounds of appeal. As this court has stated a number of times, an appellant who does not formulate issues for determination in his appeal has not complied with the provisions of Order 6 rule 5 of the Supreme Court Rules, 1985. That rule provides that the brief shall contain, inter alia “the issues arising in the appeal.” But as it is a case of non-compliance and the respondents have taken no objection on it but rather have taken other steps pursuant to the appeal, I shall say nothing more about it.
The appellant argued at length’ the issue of res ipsa loquitur. It was the submission on behalf of the appellants that the learned trial judge was wrong to have held that res ipsa loquitur applied and that the defendant/appellant failed to call evidence in rebuttal of negligence. It was the further submission of counsel on appellant’s behalf that although the defendant called no evidence he was still entitled to succeed if he could persuade the judge that although the facts raise a prima facie case against it, it would not be fair to infer that it was in fact negligent.
In my opinion, the principle of res ipsa loquitur has no application to this case. For the application of the doctrine of rot ipsa loquitur rests squarely on three conditions, namely: that the thing which caused the damage was under the care and control of the defendant; that the occurrence is such that it could not have happened in the absence of negligence; and that there is no evidence as to why or how the occurrence took place. See on this: Clerk A Lindsell: On Torts (14th Edn.) paragraph 975 – 980 at pp. 596-601. As in this case, the plaintiffs relied upon and gave positive evidence of negligence, if follows that res ipsa loquitur did not apply. See on this: Barkway v. South Wales Transport Co. (1950) A.C. 185; also Bolton v. Stone (1951) A.C. 850.
But the fact that this point was successfully urged in favour of the appellant does not necessarily mean that I shall allow the appeal. For, it is not every point successfully taken that will result in an appeal being allowed. The so-called blue pencil rule prescribes that if a point is successfully attacked the court should, as it were, run a blue pencil across it and see whether the other grounds which have not been successfully attacked can sustain the decision appealed from. If they are, the court will still dismiss the appeal. See on this: Balewa v. Doherty(1961)1 W.L.R. 949, at p. 960; Adeyemi v. A.G. Oyo State (1984) 402 S.C.N.L.R. 525,p. 575. So, the main issue in this case is whether, after disregarding the issue of res ipsa loquitur negligence or breach of statutory duty was proved.
Among plaintiffs’ witnesses was PW2, Dole Otukoya, a qualified engineer who gave evidence as an expert. His accepted evidence shows that an electrical fault of the magnitude that was involved in this case could not have been from internal but must have been from external fault; and that such a fault could only have been caused by lack of maintenance of the electrical equipment owned by the defendant, which in turn led to the malfunctioning of the protective equipment which would have prevented the explosion and the subsequent fire. Thus he eliminated the possibility of the incident resulting from the 1st plaintiff’s fault and proved negligence or breach of statutory duty on the part of the defendant. By this state of the facts, negligence and/or breach of the statutory duty imposed on the defendant under section 1 of the Act, set out above, was proved. Similarly the breach of its general duty as set out in section 7 of the Act was established.
For under section 7(a) and (b), it was vested with the duty of managing, maintaining and working the electricity undertaking efficiently. Furthermore by letters, particularly Exhibits B and C, the defendant admitted liability but later failed or refused to pay compensation to the 1st plaintiff. So, on the state of the oral evidence before the court supported by Exhibits B and C negligence, as pleaded in paragraph 12 of the further amended statement of claim, was clearly proved and shown to be the cause of the explosion of the transformer and the consequent fire which destroyed the 1st plaintiffs sawmill factory.
On my above conclusion on the facts, I find it difficult to agree that the basis of defendant’s liability in this case is the rule in Rylands v. Fletcher (1866) L.R. 1 Ex. 256, at p. 279 which was affirmed in (1868) L.R. 3 H.L. 330. This is because that rule is basically the liability of the insurer: it is not dependent upon plaintiffs proof of negligence Read v. Lyons (J.) & Co. Ltd. (1947) A.C. 156. Nor is it necessary for the defendant to prove that he had taken all necessary steps to prevent the damage which is called in question. As Lord Cairns pointed out in the House of Lords at page 334 of the report in that case, it is applicable to situations in which the defendant has made an unnatural use of his land. Above all, it is the law that when, as in this case, a dangerous thing such as electricity is used under statutory authority, it is necessary to prove negligence in order to establish liability: See Geddis v. Proprietors of Bann Reservoir (1878) 3 App. Cas 430; Dunne v. North Western Gas Board (1964) 2O.B.806. Although the rule in Rylands v. Fletcher (supra) applies to electricity (Eastern and South African Telephone Co. v. Cape Town Tramways (1902) A.C. 381), where, as in this case, electricity is used or generated under statutory authority, it is necessary to prove negligence on the part of the electricity authority before liability can attach to them unless the establishing statute expressly preserves their liability see National Telephone Co. v. Baker (1893) 2 Ch. 186. As on the accepted facts of this case the appellant failed to maintain the transformer and thereby prevent the explosion and the consequential fire, its negligence, and hence liability was duly proved. I, therefore, agree, though for slightly different reasons, that the liability of the appellant was clearly proved.
It is, however, on the issue of damages that I respectfully disagree with my learned brother. This derives from the fact that, on the only evidence before the court, contrary to the contention on behalf of the appellant, there was uncontradicted evidence of the value of the machine in 1980 when the incident occurred. In this respect, PW4 testified as follows:-
“We still sell sawmill and services of the machines. The machines sold to the plaintiff will not cost less than N80,000.00 (eighty thousand naira) now… Even after using the machines for about one year, the price would be worth N80, 000.00 because when we sold it, we sold to advertise but by 1980, the second-hand value of the machine was worth N80.000.00.”
In view of the words in italics, I do not see how it could be argued that the value of the machine at the time of the accident in 1980 was not given. For the words in italics clearly put the value in 1980 at least N80,000.00 (eighty thousand naira). Taken together with the evidence of purchase price which was given differently as N48,077.77 and N58,777.77 in Exhibit “G” and “H” all that one can say is that although it was bought at either N48,077.77 or N58,777.77 in 1977, its second-hand value was N80,000.00 in 1988 as well as 1980. Above all, it is clear from the decision of the learned trial judge on the issue which has been confirmed by the Court of Appeal that he believed this piece of evidence. In considering this state of the facts, I must bear in mind the fact that the power of an appellate court to disturb a finding as to damages is very much limited, particularly in a case like this which turns on credibility of a particular witness. This court will not interfere merely because h would be inclined to award a different figure, Mills v Stanway Coaches Ltd. (1940) 2 KB. 334 at p. 340. It can only interfere where there is an obvious over-estimate or under-estimate and such is perverse or appears to have been arrived at on wrong principle: See Owen v. Sykes (1936)1 K.B. 192; Phillips v. London & S.W. Railway (1879)5 0. & D. 78. A finding is said to be perverse when it is not only against the weight of evidence but is altogether against the evidence: See Moffett v. Cough, 1 L.R. Ir. 371, per Christian, L.J. As the finding was based on uncontradicted evidence before the court, it cannot be said to be against the weight of evidence nor against the evidence. Above all, it is a concurrent finding by the two lower courts. By a long line of decided cases, this court has always been reluctant to interfere with a concurrent finding by two lower courts unless special circumstances have been shown: See Enang v. Adu (1981)11-12 S.C. 25, p. 42; Akinsanya v. U.B.A. Ltd. (1986)4 N.WLR. (pan 35)273; Nwadike v. lbekwe (1987)4 N.W L.R. (pan 67) 718. It is necessary, I believe, to distinguish the instant case which depends upon an uncontradicted valuation on oath by an expert from the case of Leisbosch Drodger v. S.S. Edison (1933) A.C.449 in which there was no such evidence and the court was called upon to arrive at a value based on the initial purchase price. In such cases, it is necessary to take into account and discount the depreciation and then base the value on the depreciated value of the chattel. Such is not the case in this case which is based on the value of the machine at the time of the damage in an economy which is beset by severe inflationary pressure – a fact of which I feel entitled to take notice.
In order to reach a conclusion on the above state of the facts, I need to consider the law. The basic object of an award of damages is to compensate the plaintiff for the damage, loss, or injury he has suffered. The guiding principle is restitutio in integrum when a court is faced with the problem of assessing compensation for a tort, although it is sometimes applied in contract also. The principle envisages that a party which has been damnified by the act which is called in question must be put in the position in which he would have been if he had not suffered the wrong for which he is now being compensated: Livingstone v. Rawyards Coal Co. (1880)5. App. Cas. 25 p. 39. In the instant case that sum is the value of the machine at the time it was burnt in 1980. As the only available evidence of that came from p.w. 4 who put it at N80,000.00 and this was neither challenged nor contradicted and agreed with the particulars of special damages set out in paragraph 13 A(i) of the further amended statement of claim and had in fact been accepted concurrently by the two lower courts, it ought not be disturbed.
This raises the difficult but important question of what is the best evidence of value in the circumstances of this case? In the case of the Ironmaster (1859) Swab. 441 it was held that, in the absence of clear market value, the best evidence of value is the opinion of those who knew the vessel shortly before the incident or damage. The next best evidence is the opinion of those who are well conversant with the type of chattel destroyed generally, while the original cost, the cost of repairs due and the sum at which insurance had been taken out, though sometimes evidence of value, are of inferior weight. These principles were approved in The Harmonides (1903) p.1,5-6. See also The Clyde (1856) Swab. 23. These cases and others in the class show that the price of the goods less depreciation which was applied in Leisbosch Case (supra) is not the only method of proving the value of a chattel destroyed. They also show that the opinion of a person, such as PW4 who is well conversant with the chattel involved is also an acceptable evidence of value. it should have been accepted in this case, moreso in this country in which it is a matter of common knowledge that because of the rapid depreciation of the naira, a chattel could be sold for much higher price than it was bought after it has been used for a number of years. So, the value by PW4 should have been accepted; there is, therefore, nothing to refer to the court below for assessment.
As for the cross-appeal, I agree that there is no justifiable reason why the court below should have limited its award of N240.00 per day (exclusive of Sundays) to only one month. As we have come to the conclusion that the award by the court below of N5,600.00 per months as lose of profit was reasonable, but that there was no justification for limiting it to only one month, we should proceed to multiply it by the number of months we consider proved, that is, sixteen months. It is all a matter of arithmetic. This court should not remit a matter of mere arithmetical calculation to the High Court. I shall therefore award the sum of N5,600 x 36 months, i.e. N201,600.00 to the plaintiff under this head.
In the result, the appeal fails and is dismissed. The cross-appeal succeeds and is allowed. I award to the plaintiff a further sum of N201 600.00 as special damages for loss of profit.
The appellants shall pay the costs of this appeal which I assess at N1,000.00.
Appeal allowed by a majority of 4-1.