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NEGLIGENCE IS A QUESTION OF FACT

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Dictum

The learned trial Judge on issue of Negligence rightly stated that Negligence is a question of fact and not law. Therefore each case must be decided in the light of its own facts. – Nwodo, JCA. OLAM v. Intercontinental Bank (2009)

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BURDEN OF PROOF OF NEGLIGENCE

Furthermore, the burden of proof of negligence falls on the appellant who alleges negligence. This is because negligence is a question of fact, and it is the duty of the party who asserts it to prove it. Thus, the failure to prove particulars of negligence pleaded is fatal to the case of the appellant.

– M.L. Shuaibu, J.C.A. Dekan Nig. Ltd. v. Zenith Bank Plc – CA/C/12/2020

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PROOF OF DUTY OF CARE IS REQUISITE FOR NEGLIGENCE TO SUCCEED

The authorities are replete that a successful plea of negligence consists of proving the trivet issues of duty, breach and subsequent damages. In the case of GKF Investment Nigeria Ltd v. Nigerian Telecommunications Plc [2009] 15 NWLR (Pt 1164) 34, it is settled that the particulars of the pleading the breach of a duty of care is required as stated supra and it can neither be assumed or indirect; where there is no real duty to be exercised by the defendants, negligence will have no limbs to stand and any claim articulated thereon will fail.

— O. Oyewumi, J. Aseidu v Japaul (2019) – NICN/AK/01/2016

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WHAT IS NEGLIGENCE?

The Supreme Court in the case of HAMZA V. KURE (2010) LPELR-1351(SC) (P. 14, paras. E-G) Per Mohammad J.S.C., defined negligence thus: “As far back as 1856, Lord Alderson B., defined negligence to be the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. See: BLYTH V. BIRMINGHAM WATERWORKS COMPANY. [1856] 11 Exch. 781 at 784. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.”

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NEGLIGENCE ARISE WHEN A LEGAL DUTY OWED BY TO THE PLAINTIFF IS BREACHED

LUFTHANSA GERMAN AIRLINES v. BALLANYE, 2013 1 NWLR (PT. 1336) 527, The Supreme Court Per Kalgo J.S.C. had this to say: “The general principle is that the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and to succeed in an action for negligence the plaintiff must proof by the preponderance of evidence or the balance of probabilities that: “(a) the defendant owed him a duty of care; (b) the duty of care was breached; (c) the defendant suffered damages arising from the breach.” NIGERIAN AIRWAYS LTD. v. ABE (1988) 4 NWLR (PT. 90) 524; ANYAH V. IMO CONCORDE HOTELS LTD. (2002) 18 NWLR (PT. 799) 377; AGBONMAGBE BANK LTD. V. C.F.A.O. (1966) 1 ALL NLR 140 AT 145; UNIVERSAL TRUST BANK OF NIGERIA V. FIDELIA OZOEMENA (2007) 3 NWLR (PT. 1022) 448; (2007) 1-2 SC (PT. 11) 211.

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TORT OF NEGLIGENCE AND THE ISSUE OF DAMAGES

The tort of negligence is a civil wrong consisting of breach of a legal duty to care which results in damage. Thus, three things must be proved before the liability to pay damages for tort of negligence and these are:- (a) That the defendant owned the plaintiff a duty to exercise due care. (b) That the defendant failed to exercise due care, and (c) That the defendant’s failure was the cause of the injury in the proper sense of that term.

– Shuaibu JCA. Diamond Bank v. Mocok (2019)

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PLAINTIFF MUST PLEAD THE PARTICULARS OF NEGLIGENCE TO SUCCEED

To succeed in an action for negligence, the law is settled as to the standard of pleading and proof required. As a matter of law therefore; a plaintiff who intends to be victorious in negligence action must plead the particulars of negligence alleged and give cogent and credible evidence at the trial in line with the detailed pleadings. lt is not sufficient pleading for a plaintiff to make a blanket allegation of negligence against the defendant without giving detailed particulars of the items of negligence relied on as well as the duty of care the defendant owes him. See: DIAMOND BANK LTD. V. PARTNERSHIP INVESTMENT CO. LTD. & ANOR (2009) 18 NWLR (PT. 1172) 67; UNIVERSAL TRUST BANK OF NIGERIA V. FIDELIA OZOEMENA (2007) 3 NWLR (PT. 1022) 448; 1-2 SC (PT. 11) 211 KOYA V. UNITED BANK FOR AFRICA LTD (1997) LPELR 1711; (1997) 1 NWLR (PT. 481) 251; MTN NIGERIA COMMUNICATIONS LTD V. MR. GANIYU SADIKU (2013) LPELR 27705 CA.

— U. Onyemenam, JCA. P.W. Ltd. v. Mansel Motors (2017) – CA/J/240/2016

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