CASE SUMMARY OF:
Samson Ugochukwu v. Unipetrol (NIG.) Plc (2002) - SC
by NSA PaulPipAr
This appeal was dismissed. The Appellant could not prove that he was present at the Marina filing station at the time of the explosion, and hence no duty of care was owed him. He could not show that he was a either an invitee, or licensee, or a visitor.
AREA OF LAW
- Law of Torts.
- Duty of care.
- Occupiers liability.
Unipetrol (NIG.) Plc
(2002) 7 NWLR (Pt.765) 1;
(2002) 3 S.C 80;
LEAD JUDGEMENT DELIVERED BY:
U. Mohammed, J.S.C.
* FOR THE APPELLANT
- Olusina Sofola, Esq.
* FOR THE RESPONDENT
- Omotayo Olajide.
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FACT (as relating to the issues)
This is an appeal from the decision of the Court of Appeal, Lagos Division. From the pleadings, the appellant who was plaintiff at the trial court claimed that on the 2nd day of June, 1993 he went to buy fuel at Marina filling station Lagos, belonging to the respondent. While he was at the filling station awaiting to buy fuel, explosion erupted and he was severely burnt in the face, neck, legs and upper limb.
He was rushed to Oscar Clinic Lagos and due to severity of the burns he was transferred to Moria Clinic, Lagos. The appellant averred that the burns caused him permanent disability and was no longer able to take part in any sports as he used to do. He incurred substantial costs for his treatment both at Oscar and Moria Clinics. He gave particulars of the injuries he suffered and negligence of the respondent. He also relied on the doctrine of res ipsa loquitur. For the reasons disclosed in the Statement of claim the appellant claimed N500,000.00 damages.
The respondent, in the statement of defence admitted that there was a fire at their Marina filling station on the 2nd day of June, 1993 but had no evidence whatsoever that the appellant was one of the fire victims. The trial opened.
The appellant gave evidence-in-chief and called a doctor who specialised in skin diseases. The doctor testified that he examined the appellant on 5/1/94, six months after the incident and observed that he had severe burns involving legs, the right upper arm and the left forearm. He issued a report when the appellant asked for it. The defence also called witnesses. Both parties tendered documents, including a police report during the hearing.
At the conclusion of the trial the learned trial judge considered all the evidence adduced and held that the respondent was not responsible for the injuries suffered by the appellant. The court thereafter dismissed the case.
The appellant was dissatisfied with the decision of the High Court. He filed an appeal to the Court of Appeal. The Court of Appeal considered all the submissions and the briefs filed by the parties and, in a considered judgment, dismissed the appeal being lacking in merit.
This is a further appeal by the plaintiff to the Supreme Court.
1. Whether the appellant was a trespasser in the business premises of the respondents and thus not owed a duty of care by the respondents?
RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, WITH N10,000 COST AGAINST THE APPELLANT]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. From the averments in the above paragraphs the appellant was at the Marina petrol filling station in order to buy fuel. He was waiting to buy fuel when the explosion occurred, resulting in what the appellant averred in the pleadings that he sustained severe burns, When the appellant gave evidence he testified, inter alia, thus: "Mr. Samson Ugochukwu, I live at 21, Coker Lane, Orile Iganmu, Lagos, I am a trader, I am 25 years old, I trade at Market Street, Lagos, I know 1st defendant. On 21/6/93 when I went to buy fuel at Unipetrol. The salesman was selling into jerry can, My car was at a distance, some people were struggling to get fuel the petrol attendant threw the nuzzle which hit an iron and fire erupted. The fire spread and touched my skin - hand and chest. I ran into Leventis to get water but people advised against it as incompatible with burns so I was taken to the hospital my body was on fire".
This evidence would seem to relate to the facts pleaded. However, when the appellant was cross examined, his testimony changed and the answers he gave to questions put to him were clearly at variance with his pleading. I will reproduce the answers the appellant gave during crossexamination. He said as follows:
Mrs. Adegbomire: Crossexams the plaintiff Witness:
"I am not a driver. I have been to petrol station and (sic) the risk of fire at petrol station. I accompanied a friend who wanted to buy petrol, it was during the fuel scarcity and we queued up, Our vehicle was about the 4th in line. I was standing by my own car ordinarily I am a trader. I work on Monday - Saturday, I do not trade on Sunday."
It is very clear from the evidence reproduced above that the appellant had given two conflicting testimonies on his visit to the respondent's petrol station.
ii. The learned trial Judge observed, quite correctly, that anyone reading the pleadings would think that the appellant was the motorist wishing to buy petrol but his evidence showed the contrary. The appellant failed to call his friend who he accompanied to the petrol station to testify to the fact that he was with him at the petrol station on the fateful day. The police investigated the incident and so did the Fire Brigade. The reports of both the Police and Fire Brigade were admitted in evidence. None of the reports identified the appellant as one of the victims of the explosion. In fact no witness identified the appellant at the scene when the explosion occurred. The car of his friend, if there was such a car in existence, was not one of the cars burnt in the premises. It should be pointed out that the appellant had to prove his case as pleaded. It is a settled principle of law, that where a trial is conducted on the basis of pleadings matters alleged must be proved by evidence and such evidence must not derogate from the pleadings.
Sections 7 and 8 of Law Reform (Torts) Law, the Laws of Lagos State of Nigeria, 1994.
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I do agree that allegations of fact in a statement of claim if not denied expressly or by implication by the defence, shall be deemed to be indirectly admitted. However, a general traverse in the sense of a general denial is effective to cast on the plaintiff the burden of proving the allegations denied. - U. Mohammed, J.S.C. Ugochukwu v. Unipetrol (2002)
In the case in hand the respondents specifically denied paragraphs 4 and 5 and it was for the appellant to prove them. - U. Mohammed, J.S.C. Ugochukwu v. Unipetrol (2002)
It is evidently clear that the appellant failed to prove that he was physically present at the Marina filling station when the explosion occurred. He pleaded that he was there and when he came to give evidence he gave two inconsistent testimonies. I agree that the court below was right in affirming the holding of the trial court that he had failed to prove that he was either an invitee or a Iicencee. - U. Mohammed, J.S.C. Ugochukwu v. Unipetrol (2002)
If a visitor fails to prove that he is a licensee or invitee he is a trespasser. Having agreed that the appellant was neither a licensee nor an invitee at the filling station when the accident occurred it goes without saying that the respondent did not owe a duty of care to the appellant at the Marina filling station. - U. Mohammed, J.S.C. Ugochukwu v. Unipetrol (2002)
I find it curious that the appellant did not call the friend he accompanied to the filling station as a witness at least to show that he was at the 2nd defendant's filling station on the 2nd of June, 1993 and at the material time when the fire broke out. As it stands there is no evidence that he was at the filling station as an invitee, or licensee or visitor. I think the omission is fatal to his case. - A. I. KATSINA-ALU, J.S.C. Ugochukwu v. Unipetrol (2002)
The end of this brief.
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