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PARTICULARS OF NEGLIGENCE AND FRAUD MUST BE PROVIDED

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It is settled law that in an action on negligence, the party suing must give particulars of the alleged negligence and to recover on the negligence pleaded in those particulars, see Spasco Vehicle v. Alraine (supra); Koya v.UBA Ltd. (1997) 1 NWLR (Pt. 481) 251; Machine Umudje v. SPDC(Nig.) Ltd. (1975) 9-11 SC 155; Diamond Bank Ltd. v. P.I.C. Ltd.(2009) 18 NWLR (Pt. 1172) 67; First Bank Nigeria Plc. v. Excel Plastic Industries Ltd. (supra). By the same token, a party who predicates his case on fraud must supply particulars of the fraud in his pleading, see Usen v.Bank Of W/A Ltd. (supra); Ntuks v. NPA (2007) 13 NWLR (Pt.1051) 392; Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR(Pt. 1053) 37; Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610; Eyav. Olopade (2011) 11 NWLR (Pt. 1259) 505; Otukpo v. John (2012)7 NWLR (Pt. 1299) 357; Belgore v. Ahmed (2013) 8 NWLR (Pt.1355) 60; Order 15 rule 3(1) of the Benue State High Court (CivilProcedure) Rules, 2007. Fraud connotes crime and when alleged in civil proceedings, it behoves the party alleging it to prove it beyond reasonable doubt, not on the balance of probability, see Otukpo v.John (supra); section 138(1) of the Evidence Act, 2004 (section135(1) of the Evidence Act, 2011).

— Ogbuinya JCA. Benjamin Agi V. Access Bank Plc (formerly known and called Intercontinental Bank Plc (CA/MK/86/2012, 28 Nov 2013)

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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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THREE INGREDIENT TO PROVE NEGLIGENCE

In the case of Donoghue v. Stevenson (1932) AC 562/(2002)12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage. These three ingredients have since been accepted and assimilated in the corpus of Nigerian jurisprudence, see Agbomagbe Bank Ltd. v. CFAO (1967) NMLR 173, (1966) 1SCNLR 367; FBN Plc. v. Associated Motors Co. Ltd. (1998) 10NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra).

— Ogbuinya JCA. Benjamin Agi V. Access Bank Plc (formerly known and called Intercontinental Bank Plc (CA/MK/86/2012, 28 Nov 2013)

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NEGLIGENCE INGREDIENT

In AGBONMAGBE BANK LTD. v. C.F.A.O 1966 ANLR S.C. 130, the Supreme Court on what a plaintiff suing for Negligence must establish held that plaintiff must show that the Defendant owed him a duty of care and that he suffered damage in consequence of the Defendant’s failure to take care.

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MEANING OF NEGLIGENCE

Negligence is the omission or failure to do something which a reasonable man under similar circumstances can do, or the doing of something which a reasonable or prudent man would not do. More often than not, Negligence in civil matters occur in form of a breach of duty to take care.

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

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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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NEGLIGENCE IS A MATTER OF FACT

In all cases in which damages is being claimed for negligence the Court is to bear it in mind that negligence is a matter of or question of fact and not law and thus a finding as of fact of the act of omission or commission of the defendant must first be made before damages could be assessed. See also M. O. Kanu & Sons Co. Ltd v. First Bank of Nigeria Plc (2006) LPELR 1797 (SC).

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

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