Igbinovia Orhue v. National Electric Power Authority

I have had the opportunity of reading in draft the judgment read by my learned brother Mohammed, J.S.C., I entirely agree with the reasoning and conclusion therein. I have nothing more to add.

Accordingly. I too hereby dismiss the appeal with N10,000.00 costs to the respondent.

I have read in advance the lead judgment of my learned brother Uthman Mohammed, J.S.C., and I agree with the reasons given therein for dismissing the appeal.

The appellant had woefully failed to prove his case and both the trial court and the Court of Appeal were right in dismissing his claim. And for the reasons stated in the lead judgment, I also hereby dismiss the appeal with N10,000.00 costs to the respondent.

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I have had the privilege of a preview of the lead judgment just delivered by my learned brother Mohammed, J.S.C., I agree with him that the appeal should be dismissed and I therefore adopt his arguments and conclusions as mine.

The gist of the appellant’s complaint was the injurious effect of the high tension lines on himself, members of his family and property. The issue as rightly found by the courts below became that of damages for negligence. The Court of Appeal rightly observed as follows in its judgment:

“Before discussing the issues raised, it is proper to consider whether in any event the respondent owes the appellant a duty of care and whether the respondent was in breach of that duty. This question is pertinent as it seems clear from the pleadings that the appellant’s claim before the trial court is one for an action for damages for negligence……..

It is therefore clear that for the appellant to succeed, he has to prove the alleged negligence and also the injuries that he claimed and that his family and himself suffered in his house and which caused him to move himself and his family out of the said house.”

The conclusion reached by the learned trial Judge cannot be faulted having regard to the evidence before him. He said:

“I do not believe the evidence of the plaintiff that he received electrical shock from his building at No. 6, Umelu Village, or from any metallic items in the said building as there is no evidence, direct or indirect, led to establish thus (sic). P. W.1 and P. W. 5 who said that they were

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experts in the field of electricity only gave evidence about possible effect on human body of high tension electric power lines when carried over and above buildings. That the plaintiff really suffered as a result of the current passing through these transmission wires, no medical evidence of that was given. Possibilities of these hazards are there, no doubt, but provisions for clearance had been laid down by law as to minimum and maximum clearance to be given to such transmission lines. I also believe that, even if for one moment the plaintiff believed that he was living underneath such a danger, from the evidence of the P. W. 5, there will be no basis for such apprehension.”

Electricity is a dangerous thing in itself and the totality of the evidence adduced at the trial showed that the appellant’s house was not adversely affected by the transmission lines passing over it. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of the breach of that duty. There is no such thing as negligence in the abstract. The appellant failed to prove that the respondent did not attain the standard of care prescribed by the law in the construction of the high-pressure electric lines over the building of the appellant. He did not also establish by evidence the damage which he alleged he and members of his family suffered. The averments contained in paragraphs 6(a), 7(a), 7(c), 7(d), 7(e) and 7(1) of the amended statement of claim not having been proved, the appellant’s claim was rightly dismissed by the learned trial Judge. The court below came to a correct decision when

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it affirmed that judgment of the learned trial Judge.

I will also dismiss the appeal and endorse the order as to costs contained in the lead judgment of my learned brother, Mohammed J.S.C.

I had the privilege to read before now the judgment just delivered by my learned brother Mohammed, J.S.C., I unhesitatingly agree to dismiss it as lacking in merit.

The facts of the case which admit of no controversy as well as the law applicable thereto have been so elaborately considered by my learned brother in this appeal as to preclude me from repeating a review of same here.

Suffice it to say, that at the end of the day, the two of three issues, namely issues 1 and 3 which arose for our determination at the appellant’s instance ‘are:

1. Whether the Court of Appeal Justices were right in holding that the plaintiff failed to discharge the onus of proof on him on the issue of negligence.
2. Whether upon proper construction, the Court of Appeal Justices were right in holding that the provisions of the Electricity (Supply) Regulations Cap. 57 Laws of the Federation were applicable.

Considering the two issues together, it is appellant’s contention firstly, that the learned Justices of the Court of Appeal (hereinafter referred to as the court below) misconceived the facts when they held that there was no evidence to show that the overhead wires were negligently filled over the appellant’s house. Secondly, that the issues before the trial court were not that of

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negligence in the fitting of the wires over appellant’s house but that of the effect of the energized wires passing over the appellant’s house.

I am of the firm view that these contentions are misconceived having regard to the facts on the record. Under the enabling statute, the Electricity (Supply) Regulations, Cap. 57, Laws of the Federation, 1958, section 126(1) and 127 provide as follows:

Section 126(1)-

“Where high-pressure electric lines cross over buildings they shall have a vertical clearance of not less than eight feet above the highest part of the building, immediately under the lines, and a horizontal clearance of not less than four feet between the lines and any part of the building.”

Section 127 –

“Where high or extra-high pressure electric lines cross over a building with metal sides and metal roof, the roof shall be effectively bonded to the sides of the building, and such sides shall be effectively earthed to ensure the operation of the protective devices in the event of contact being made between the electric lines and any metal part of the building.”

Thus, as there is no law prohibiting the passage of energized electric lines over a building, the effect of such electric lines depends on how they are fitted or installed.

Where they are fitted or installed in breach of the provisions of the Regulations, the effect will be injurious but where they are not, as in appellant’s case, the effect will not be adverse to the building or to those who will come within the proximity. As the gravamen of appellant’s

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complaint in this case is that of the injurious effect on his property and himself, the issue boils down to that of negligence whose particulars are as alleged by him in particulars of negligence at paragraphs 6(a), 7(a), (b), (c), (d), (e) and 14cfthe amended statement of claim. Hence, the learned Justices of the court below held rightly, in my view, as follows:

“Before discussing the issues raised, I think it is proper to consider whether in any event the respondent owed the appellant a duty of care and whether the respondent was in breach of that duty. This question, is in my view, pertinent as it seems clear from the pleadings that the appellant’s claim before the trial court is one for an action for damages for negligence. The appellant’s amended statement of claim in support of the writ of summons distinctly at paragraphs 6(a), 7(a), (b), (c), (d), (e) and 14pleaded the particulars of alleged negligence. The respondent at paragraphs 7, 8, 9, 10, and 31 of its statement of defence denied the allegations of negligence. It is therefore clear that for the appellant to succeed, he has to prove the alleged negligence, and also the injuries that he claimed and that his family and himself suffered in his house and which caused him to move himself and his family out of the said house.”

It was the further contention of the appellant that the Justices of Appeal were in error in adopting the ordinary principle of law on negligence as laid down in the case of Donoghue v. Stevenson (1932) AC. 562. He cited other cases and argued that electricity falls within the categories of things dangerous in themselves and demands a peculiar duty to take precaution imposed on

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those who install them when it is necessarily the case that other parties will come within their proximity.

With due respect, while it is conceded that electricity falls within the category of things dangerous in themselves, it is clear that the learned Justices of the court below did not confine themselves to the ordinary principles of law enunciated in Donoghue v. Stevenson (supra). They indeed ably referred to a long list of authorities and after highlighting the principles enunciated therein vis-a-vis the facts, held as follows:

“In this case it is not disputed that energized transmission lines that pass over the appellant’s house is a potential source of danger but whether the respondent failed to make (sic) step to protect those who like the appellant would come within the proximity of these lines is the issue that has to be resolved.”

I cannot agree more. Consequently, the appellant, in my view, is wrong by contending that the learned Justices of the court below adopted the ordinary principles of law on negligence. Thus, it is equally untrue that the learned trial Judge whose decision the court below affirmed, believed the two purported experts, PW1 and PW5. In fact the learned trial Judge had found:

“The mere fact that high tension transmission lines are inherent with danger does not mean that the plaintiff and members of his family have become emaciated by reason of the transmission wires being energized and the house became hot and uninhabitable or by that reason the house was producing electric shock whenever metallic objects or the house itself are touched.”

(Italics is mine for emphasis).

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From the foregoing, I take the firm view that since the appellant conceded firstly, that the claim is one for damages for negligence in the fitting of energized wires over his house by the respondent and secondly, that in negligence cases, proof of injury is the basis of assessment of damages to be awarded but argued that proof of electric shock cannot be measured medically except in severe cases where death occurs, cannot be tenable. The contention therefore that medical evidence is not necessary to prove injury cannot, in my opinion, be sustained on the grounds that:

(a) The appellant having found himself in the hands of a medical doctor who treated him for the degree of injury he claimed he suffered as a result, the medical evidence became necessary to prove the injury moreso, when it was pleaded by him.

(b) P. W.1 and P. W.5, two experts (the latter an electrical engineer) both of whom testified that they did not experience electric shock during their inspection of the appellant’s building did not help to prove appellant’s case on the balance of probabilities.

It is pertinent here to stress that as none of the people appellant mentioned as those injured testified and were indeed not called at all to do so in the trial court, it would certainly have been speculative to make any award or order compensation arising from any purported evidence in appellant’s favour. The law is settled that it is the duty of court to consider the evidence produced before it and never to proceed to indulge in speculation as to what might have happened; indeed a judge should not substitute his own supposition for the testimony of

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witnesses given on oath before him. See: Fawehinmi v. N. B. A. (No.1) (1989) 2 NWLR (Pt.105)494; Adelanwa v. The State (1972) 10 SC. 13 at 19. It has also been held that a mere speculative possibility of pecuniary benefit in an action for damages for the tort of negligence will be dismissed. See Barnet v. Cohen & Ors. (1921) 2 K. B. 461 and Ihewuezi v. Ekeanya (1989) 1 NWLR (Part 96)239 at 248. Court will thus interfere to set speculation aside. What is more, the court not being a charitable organisation, will not, in the instant case, make any award or compensation gratuitously in the appellant’s favour. See Etim Ekpenyong & Ors. v. Inyang Effiong Nyong & Ors. (1975) 2 SC. 71 and Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Part 68) 128.

Secondly, the appellant at page 11 in his brief has contended in one breath that the respondent was in breach of the provisions of the Electricity (Supply) Regulations Cap. 57 Laws of the Federation 1958 by installing the transmission wires over his house. Yet in another breath he argued that the provisions of the same Regulations were no longer applicable to his own case and that the Justices of the court below were wrong in holding that the said Regulations applied to his case. Thus, when at the same page 11 at the last but one paragraph of his brief, the appellant argued as follows:

“We respectfully submit further that on a proper interpretation of the Electricity Supply Regulation, 1958, the respondent was clearly negligent in installing the said lines over the appellant’s house without taking adequate precautions to remove or substantially reduce the dangers inherent in transmitting electricity current of that

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magnitude over the appellant {sic} house through naked and exposed wire.”

the issue of negligence no longer arose in as much as the respondent had effectively earthed the wires alleged to constitute the danger. See the evidence of PW5 in which he admitted under cross-examination that the appellant’s house was adequately and effectively earthed by the respondent and that there would be no electrification of any part of the building and no such part would produce shock when touched by any person. See also the evidence of DW2 to the effect that the clearance between the conductors and the highest pan of the appellant’s house was more than that prescribed under the Regulations. The appellant’s contention that electricity demand situation in 1958 could not be equated to the current demand position having regard to the rapid post-independence in detribalization and oil wealth or that the minimum clearance that could render a house safe in respect of an overhead line carrying 330 KV should be several times higher than that required in respect of a line carrying 6,600 volts of electricity, are all but speculative in nature and lack merit.

The learned Justices of the court below, in my firm view, were perfectly right when they held from the facts, as did the trial court, that the provisions of the Electricity (Supply) Regulations Cap. 57 Laws of the Federation, 1958 applied to the appellant’s case. They were also, in my view, perfectly right when they found as a fact, as did the trial court, that the respondent was not in breach of its duty of care to the appellant having regard to the provisions of the Regulation.

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It is trite law that in order to justify the interference with concurrent findings of the two lower courts by the Supreme Court such as these, the appellant must show special circumstances such as the violation of some principle of law or procedure arising from erroneous proposition of law that if that proposition be corrected, the finding cannot stand. See Iroeghu v. Okwordu (1990) 6 NWLR (Part 159) 643 at 659; Are v. Ipaye (1990) 2 NWLR (Part 132) 298 at 308; 316 – 320; Ajuwon v. Adeoti (1990) 2 NWLR (Part 132) 271; Buraimoh v. Esa (1990) 2 NWLR (Part 133) 406 at 419; Olaloye v. Balogun (1990) 5 NWLR (Part 148) 24 and Animashaun v. Olojo (1990) 6 NWLR (Part 154) 111 at 121 – 122. In the instant case, the appellant has not been able to show that the two lower courts’ decisions are perverse on the totality of evidence adduced before them in the interpretation of the provisions of the Electricity (Supply) Regulations Cap. 57 Laws of the Federation 1958. In fact, the only point the appellant has been able to show is having regard to the current demand position as a result of rapid industrialization, the minimum clearance that could render a house safe in respect of an overhead wire carrying 330 KV should be several times higher than that prescribed under the Regulations. This argument, as earlier pointed out, is speculative and sentimental and overlooks the factual situation on the ground. It has been held that sentiment has no place in judicial deliberations since cases must be decided on law and facts and not on sentiment. See: Victor Emekoma Ukachukwu Ezeugo v. Nelson Commander Ohanyere (1978) 6 & 7 Sc. 171 at 184.

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For the reasons given by me and the fuller ones contained in the leading judgment of my learned brother Mohammed, J.S.C., I too dismiss this appeal. I abide by the consequential orders made therein.

Appeal dismissed.