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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.
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.
ii.
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
Plaintiffs 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.
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
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