CaseLaw
SPDC V. Nwolu (2000) CLR 4(zg) (CA)
Judgement delivered on April 20th 2000
Brief
Facts
This is a case built around the tort of negligence in which the Plaintiff/Respondent alleged a breach of duty of care by the Appellant which resulted in the death of the Respondent’s son one Master Emmanuel Olaka Nwolu on the 12th of April, 1985 and for which the alleged breach he claimed a sum of N100,000.00. The Plaintiff’s case as can be made out from the evidence in Court is that the Defendant/Appellant who has an oil location at Ajakpori Ipen Agbeta Ebubu dug a burrow pit in a farmland in which chemical wastes were deposited. On 12/4/85 the Plaintiff went with his son Emmanuel, an elementary school boy to the farm. Not long after, the boy could not be located and search which included looking into the burrow pit showed that he had fallen inside it. He said the location of the burrow pit amongst bush and grasses made it a trap. The boy was confirmed dead in a hospital. He said that because his wife had left him it was the young boy who was helping in keeping the house and with the death of the boy he could no longer get the type of services he was giving him. He said that from his farm to the burrow pit is about 100 yards and he had not seen the burrow pit before and that three farms separated his farm from the burrow pit. It was under cross-examination that he admitted of seeing a road that leads to the pit for the first time. A Police Officer who initially investigated the incident noticed that the pit was not fenced and there was no warning sign. He said that the burrow pit was about the size of a Court Hall. He admitted that there is a pipe that is discharging waste that leads to the pit.
The defence case as made out by the one witness was that the burrow pit was dug in a land bought by the Defendant/Appellant in 1960 and that the burrow pit can be seen from a distance of 20 metres. He said no chemical is normally dumped there and is equally not oil silver pit. He said from the burrow pit to the nearest village Agbeta is about 7.5 kilometres. The burrow pit was not fenced because it contained only rain water as the villagers have nothing to do with it. The Defendant denied that the boy died of chemical poisoning or there was a pipe which carries chemical waste to the pit.
After the parties case has been made out and counsel addressed the Court, the Court below gave judgment to the Plaintiff/Respondent in these words:“In the present case, the liability of the Defendants depends on whether in the circumstances, a conscientious human man with his knowledge, skill and resources, could reasonably have been expected to do or refrain from doing before the accident, something which would have avoided it.
The Plaintiff adduced evidence in support of his pleadings that the burrow pit is a death trap, that it is uncovered and unfenced and without any warning notice and that it is covered with grasses and bush making it difficult for people around to recognise its presence.
Besides the evidence of PW1 and PW2, PW3 the Police Investigating Officer gave evidence in support of the Plaintiff’s case and also tender Exhibit 1 which was requested for by the Defendants which also supports the Plaintiff’s case.The Defendant averred in paragraph 10 of the Statement of Defence that the Defendant having learnt that people get into contact with these pits irrespective of their remoteness, had to arrange for their fencing.
This is what the Defence would have done in the first instance before this accident and this would have avoided it. I believe the Plaintiff that the burrow pit was a death trap, that it was uncovered and unfenced, that it was covered with grasses and bush making it difficult for people around to recognise the presence of the burrow pit.
I am of the view that the defendants are negligent in leaving the burrow pit uncovered and unfenced and also covered with grasses and bush so that any one coming near it will not be aware that there is a burrow pit in that area, knowing fully well that there are many farms surrounding the area and that people move about in that area. The Defendant’s fencing the burrow pit now is what they would have done earlier and avoid this accident. The Defendant acted in a total disregard of the deceased’s safety and they are in breach of their duty to the Plaintiff’s son.”
Dissatisfied with the judgment of the lower Court, an appeal was lodged.