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THE APPROACH TO A CLAIM IN NEGLIGENCE

Dictum

The approach to a claim in negligence comes into operation in the following circumstances: (a) On proof of the happening of an unexplained occurrence; (b) When the occurrence is one which would not have happened in the ordinary course of things without the negligence on the part of somebody other than the plaintiff and (c) The circumstances point to the negligence in question being that of the defendant rather than that of any other person.

– 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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WHEN DOES NEGLIGENCE ARISE

Negligence is the tort that protects a person from careless action from another, that can injure or harm him. The law places a duty of care on various persons in various circumstances, where such a person breaches the duty of care placed upon him by law and that breach resulted in injury to the person to whom such duty is owed, the bearer of the duty is said to have been negligent and will be liable in damages to repair the injury caused.

– Tukur JCA. Odulate v. FBN (2019)

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ONUS OF PROVING NEGLIGENCE IS ON THE CLAIMANT

The onus of proving negligence is on the claimant who alleges it and unless and until that is proved, the onus of proof does not shift. In other words, where a claimant pleads and relies on negligence by conduct or action of a defendant, the claimant must prove by evidence the conduct or action and the circumstance of its occurrence which gave rise to the breach of the duty of care owed the claimant. It is only after this that the burden shifts to the defendant to adduce evidence to challenge the negligence on his part Universal Trust Bank of Nigeria Plc Vs Ozoemena supra.

— H.A.O. Abiru, JCA. P.W. Ltd. v. Mansel Motors (2017) – CA/J/240/2016

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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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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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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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