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PROOF OF DUTY OF CARE IS REQUISITE FOR NEGLIGENCE TO SUCCEED

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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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duty of care, negligence

NEGLIGENCE IS A MATTER OF FACT, NOT LAW

This position of the law is inevitable because what amounts to negligence is not law but a question of fact which must be decided according to the facts and circumstances of a particular case. See: KALLZA v. JAMAKANI TRANSPORT LTD. (1961) ALL NLR 747; NGILARI V. MOTHERCAT LIMITED (1999) LPELR SC; (1999) 13 NWLR (PT....

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PRACTICE AND DUTY IS DIFFERENT

The learned trial Judge from the above quoted finding, viewed “practice of construction companies” as the same with “duty of care of construction companies”. Practice and duty in ordinary English language do not stand for the same thing. The trial Court inferred duty of care from practice of construction companies. Inferring the circumstances upon which...

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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. –...

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PARTICULARS OF NEGLIGENCE AND FRAUD MUST BE PROVIDED

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...

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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. Was this dictum helpful? Yes...

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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,...

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