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In The High Court Of Justice Of Benue State Of Nigeria In Benue State Judicial - Literature - Nairaland

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In The High Court Of Justice Of Benue State Of Nigeria In Benue State Judicial by ekwarkar: 6:43pm On Jan 15, 2015
IN THE HIGH COURT OF JUSTICE OF BENUE STATE OF NIGERIA IN THE BENUE STATE JUDICIAL DIVISION
HOLDEN AT KATSINA ALA
BEFORE HIS LORDSHIP:
HON. JUSTICE T.A. KUME - JUDGE
BETWEEN:
AONDONA CHIA
(Suing for himself and on behalf of the
Pa Chia Abur family/Dependents of
Late Akpenwuan Chia)

AND

1. POWER HOLDING COMPANY OF
NIGERIA (PHCN) PLC
2. JOS ELECTRICITY DISTRIBUTION
COMPANY PLC.

JUDGEMENT
The plaintiff, in paragraph 40 of his statement of claim, has sought against the defendants, the reliefs couched in the following words:
“40. WHEREOF the plaintiff claims from the 1st and 2nd Defendants on behalf of the dependants of the late Akpenwuan Chia both jointly and/severally as follows:
a) The sum of One Billion Naira (N1,000,000,000.00) only as general damages for negligence.
b) Post Judgment interest of 10% monthly until the Judgment sum is liquidated.”
The plaintiff testified as Pw1 and his witnesses testified as Pw2, Pw3 and Pw4. Exhibits 1, 2 and 3 were tendered and admitted in evidence. The Plaintiff filed a reply to the defendants Joint Statement of Defense.
The evidence of the plaintiff is to the effect that he is a younger brother of one Akpenwuan Chia, who was electrocuted by the high tension cable of the Defendants while returning to his compound around 8.20pm on 8/2/2013 from the compound of Zaki Imojime Chia. The high tension cable of the Defendants lie in between the compound of Late Akpenwuan Chia and that of Zaki Imojime Chia. According to the Plaintiff, the wood holding the cable had ripped off causing one of the cables to drop and instead of landing on the ground, the cable was suspended mid air by some of the short trees along the foot path.
By 8.20am of 8/2/2013, it was dark and Late Akpenwuan Chia was unaware that the cable of the defendants was suspended mid air and walked his neck into the cable leading to his death by electrocution.
Late Akpenwuan Chia, according to the Plaintiff was a young man of 40 years old who engaged in profitable farming and business activities from which he took care of his nuclear and extended family by way of feeding, medical care, accommodation, school fees, clothing, uniforms, textbook and the general welfare of the family and other defendants. Pw2, Pw3 and Pw 4 are said to amongst the several dependants of Late Akpenwuan Chia.
The evidence of the Plaintiff further states that the Defendant were negligent and had not maintained and taken proper care of their installation which caused the death of Late Akpenwuan Chia, and that the death of the Akpenwuan Chia speaks for itself.
The Plaintiff therefore seeks the reliefs of Defense where in they admitted that the cable that electrocuted Late Akpenwuan Chia is owned and controlled by them. The defendants also admitted that the cable that caused the death of Late Akpenwuan Chia has been repaired on the 9/2/2013 after the death of the said Akpenwuan Chia. The Joint Statement of Defense, however, denies in material particular all the averments of the Plaintiff in respect of negligence on the part of the Defendants regarding the maintenance of the high tension cables. They called witnesses who testified as Dw1 and Dw2. They tendered and exhibits D1 and D2 were admitted in evidence.
At the conclusion of the evidence of the parties. Learned counsel on their behalf filed written addresses. Learned counsel for the Defendants, Mr. Luga formulated two (2) issues as arising for determination in the suit. The said issues read thus:
“i. whether or not the Plaintiff has established a case of negligence against the defendants.
ii. whether or not the Plaintiff is entitled to the reliefs claimed herein.”
Learned Counsel for the Plaintiff, Mr. Iyoive has formulated a single issue for determination. The said issue read thus:
“3.01 the sole issue for determination in this case is: whether or not the Plaintiff has established a case of Negligence against the Defendants.”
Issue 1 in the Defendants’ written address is similar to issue 1 in the Plaintiffs’ written address. A determination of the said issue would necessarily involve a consequential order of whether the Plaintiff has proved his case to be entitled to judgment or whether the Defendants have proved their defense for an order of dismissal of the case of the Plaintiff.
Accordingly, issue 1 of the Defendants written address would be adopted in the resolution of the claims of the Plaintiff in this suit.
By a clear reading of the pleading of the parties, and the evidence in this suit, it is not disputed that the Plaintiff, along with Pw2 and Pw3 and Pw4 are dependants of Late Akpenwuan Chia. It is also not in doubt that Late Akpewuan Chia died by electrocution when he walked his neck and body into the cable of the Defendants. It is equally a notorious fact that high tension cables are fixed about 30 feet from the foot of the pole conveying them. In Exhibit 3, especially, the negative and the photograph printed from the negative, the cable on which the lifeless body of Akpewuan Chia hangs on is not about 30 feed from the foot of the pole conveying the cable. Undisputed also is the fact that nobody was present when Late Akpenwuan Chia was electrocuted by the cable of the Defendants. I find these pieces of evidence unchallenged and therefore proved.
What is in dispute is whether the Defendants were negligent in the maintenance of their high tension poles and cables.
The Plaintiff testified that the poles and cable are over 30 years old such that the woods holding the cables have gone bad and have been falling to the ground with oral reports of the said incidents made to the Defendants.
The Defendants denied the assertion of the Plaintiff and contends that routine work is done by them on their installation and that at no time did the Plaintiff or any member of the Plaintiff’s family lodge any report of the lack of maintenance of their installations to them.
The Plaintiff has not shown to this court when oral report of the fault noticed by him or any member of his family on the installations of the Defendants in his or their vicinity were made. I therefore do not believe the Plaintiff that reports of the fault of installation of the Defendants were made before death of their breadwinner, Akpenwuan Chia.
The Plaintiff in paragraph 23 of the Statement of Claim pleaded Res Ipsa Loquitur.
The Defendants in paragraphs 6 and 7 of their Joint Statement of Defense denied the pleas of Res Ipsa Loquitur and in paragraph 8 of the said Joint Statement of Defense avers as follows:
“8. The Defendants shall contend at the trial that the broken wooden cross arm and the suspension of one of the 33kv High Tension lines mid-air at the scene of the alleged electrocution could result from acts of vandalization or attempted vandalization.
Res Ipsa Loquitur simply means, “the thing speaks for itself”. See IBEKANDU
VS IKE (1993) 6 N.W.L.R (Pt 299) 287 at 297 cited by learned counsel for the Plaintiff in his written address. See also paragraphs 975 – 976 page 596 OF CLERK AND LINDSELL ON TORTS 14 Edition, Sweet and Maxwell 1975.
In this suit, and as earlier found by me, the death of Akpenwuan Chia speaks for itself.
The Plaintiff, as rightly submitted by learned counsel for the Defendants in his written address bears the burden to prove negligence against the Defendants to be entitled to judgment. See FBN VS. ASSOCIATED MOTORS CO. LTD (1998) 10 N.W.L.R.(PT 570) 441, A.G. LEVENTIS (NIG) PLC VS AKPU (2007) 17 N.W.L.R (PT. 1063) 416 at 420. See also SBN VS MOTOR PARTS INSTALLATION LTD (2005) ALL F.W.L.R. (PT 260) 103 AT 105 cited by learned counsel for the Plaintiff in his written address.
Where, however, as in the instant suit, the pleas of res Ipsa Loguitur is pleaded, the Defendants bears the burden to call rebuttal evidence in order to negative the operation of the plea of res ipsa loquitur. See IBEKANDU VS IKE (Supra) at 299 – 300. See also paras 975 – 976 CLERK AND LINDSELL ON TORTS (Supra).
The Defendants, in the circumstances, bears the burden to disprove the claims of the Plaintiff.
The Defendants in Exhibit D1 and D2 have shown that their installation was repaired on 9/2/2013 after a report of the electrocution of Akpenwuan Chia was made to them.
The Defendants, it should be noted did not witness any vandalization or attempt to vandalize their installation by Late Akpenwuan Chia leading to his death. The Defendants did not therefore prove that it was act of vadalization by Late Akpewuan Chia of the installation caused their cable to rip off from the position where it is normally fixed on their poles. Contributory negligence on the part of Akpenwuan Chia is not established by the Defendants, and I hereby so hold.
D2 under cross-examination testified, inter alia as follows:
“…………..Exhibit does not deal with maintenance. We do not have any document that deals with maintenance. We have no evidence to prove that maintenance has been carried out on the high tension pole which has been in use for well over 30 years…………..”
The question in every case, where the plea of res ipsa loquitur is raised is, what is the reasonable inference to be drawn from known facts. See para 974 page 594 of CLERK AND LINDSELL ON TORTS (Supra). See also IKENTA VS A.G. RIVERS STATE (2008) 2 S.C.N.J. 152 at 171 – 172 where appears these words:

“A judge, by the nature of his adjudicatory functions, can draw inference from stated facts in a case and by such inferences, the judge can arrive at conclusions. It will be wrong to say that inference legitimately drawn from facts in the case is introduced suo motu”
In the instant case, it is manifestly clear as earlier found by this court that Akpenwuan Chie died by electrocution from the cable under the care, manage and control by the Defendants. The Plaintiff did not witness the electrocution of Akpenwuan Chia. High tension cables are normally high up and away from the reach of humans in the ordinary course of human conduct. The cable that electrocuted Akpenwuan was not in the normal place where such cables are fixed by the Defendants. The death of Akpenwuan Chia would not have happened had the cable been at the place where it normally would have been. See BUCKLAND VS. GUILFORD GAD LIGHT AND COKE CO. (1949) 1 K.B. 410 which is contained in para 1535, page 889 of CLERK AND LINDSELL ON TORTS. Therein, it is stated thus: “where an electricity undertaking erected wires carrying electricity of high voltage across a field just over the top of a tree which was easily climbable, they were held liable for the death of a girl of 13 who climbed the tree when it was in full leas so that the wires were obscured and came in contact with the wires.”
The facts in the case of BUCKLAND VS GUILFORD GAS LIGHT AND COKE CO. (Supra) are opposite to the facts and circumstances of this case. Accordingly, I adopt the reasoning and conclusion in the said case to the facts herein. Consequently, I hereby hold that the Defendants were negligent in maintaining their installations leading to the electrocution of Akpenwuan Chia.
Learned counsel for the Plaintiff in his written address has however, submitted that there are material contradictions in the evidence of the Plaintiff as to when Akpenwuan Chia died and for his age thereby showing lack of proof of his claim, and that the Plaintiff has not proved loss as to be entitled to damages. Learned counsel for the Plaintiff therefore urged on the court to dismiss the case as lacking in proof.
It is important to note that the material in dispute between the parties in this suit is not the date of the electrocution of Akpenwaun Chia by the cable of the Defendants or even his age. The live issue in dispute is whether Akpenwua Chia would have been electrocuted had the cables of the Defendants been at the height they were normally positioned on poles conveying them.
Accordingly, the conflict in the date of the death of Akpenwuan Chia and of his age are minor and trivial issues unrelated to the live issue in dispute, and I hereby so hold. See OSETOLA VS. STATE (2012) 6. S.C.N.J (Pt 11) 329 at 356 where appears these words:
“It is basic that contradiction in the evidence …… that will be fatal must be substantial. Such must deal with the real substance of the case. Minor contradictions which did not affect the credibility of witnesses may not be fatal. Trivial contradictions like those raked up by the appellants should not vitiate the trial.
Consequently, I hereby hold that the Defendants have failed to prove any defense to the claims of the Plaintiff. The Plaintiff, I hold has proved his case. The Defendants are therefore liable for the death of Akpenwuan Chia. The submissions of learned counsel to the Defendants to the contrary in his written address are hereby dismisses.
In paragraphs 25, 26, 27, 28, 29, 30 and 31 of the Statement of Claim, the Plaintiff pleaded the number of Dependants who have been deprived of the care and attention of the death of Akpenwuan Chia. The Plaintiff along with Pw2, Pw3 and Pw4 in the evidence maintained that they have suffered damage by the death of Akpenwuan Chia. Learned counsel for the Defendants did not challenge the evidence of the Plaintiff and that of his witnesses on the said fact. The Defendants did not lead contrary evidence to that of the Plaintiff on the issue. I find the evidence of the Plaintiff on the deprivation occasioned him and the dependants of Akpenwuan Chia credible and unchallenged. See HEALTH CAFRE PRODUCTS (NIG) LTD VS BAZZA (2003) F.W.L.R. Pt. 162) 1937 at 1944 cited by learned counsel for the Defendants.
I therefore believe the said evidence and hold that the Plaintiff is entitled to damages for the death of Akpenwuan Chia.
In assessing damages, I shall take into account the necessity of the children of Late Akpenwuan Chia in attending school up to the University level along with the educational pursuit of the Plaintiff which has been hampered by the death of their breadwinner. The up keep of the wife of Late Akpenwuan Chia with the aged father and parents in law of the deceased along with the declining value of the naira in an inflationary economy in Nigeria at the moment will also be considered. See IGHRERINIOVO VS S.C.C. NIG LTD (2013) 54 N.S.C.Q.R. (Pt. 111) 1547 at 1562 – 1563.
Life itself is priceless. No amount of money can assuage the value of life that has been lost by reason of the careless conduct of an entity who has responsibility to take necessary care to avert a damage that would otherwise have been averted. In the circumstances, I hereby award N25,000,000.00 general damages in favor of the Plaintiff against the Defendants jointly and severally. The said judgment shall attract 10% post judgment interest thereon with effect from today.

Hon. Justice T.A. Kume
Judge


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