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ROBERT UDE
V.
BONJUT
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
25TH DAY OF MAY, 1954
W.A.C.A. NO. 195/1953
LEX (1954) – XIV WACA 533-534
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OTHER CITATION(S)
2PLR/1954/87 (WACA)
(1954) XIV WACA PP. 533-534
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
ROBERT UDE – Appellant
AND
BONJUT – Respondent
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ORIGINATING COURT(S)
Appeal by plaintiff against decision of the Supreme Court
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REPRESENTATION
Wilcox — for the Appellant
Respondent not represented by counsel
ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY:- Negligence presumable from accident caused by servants of his defendant — Overflow of water from floor above to shop below – Plaintiff suffering injury — Onus of proof – How resolved
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CASE SUMMARY
The defendant, who occupied the floor above the plaintiff’s shop and store, went away leaving his servants behind and the premises in the charge of a friend. Water seeped through from the floor above; the tap was not defective, but someone had let it run and cause an overflow. The plaintiff sued for damage to his goods, but the trial Judge was of the view that he had the duty to show it had been due to the fault of one of the defendant’s servants in the course of employment. The plaintiff appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
The plaintiff had no means but the defendant had the means of telling how the accident had been caused, and the onus was therefore on the defendant to prove facts inconsistent with liability, there being a presumption in the circumstances that the accident had been caused by negligence on the part of someone left by him in occupation for which he was responsible.
Case cited:-
(1) Byrne v. Boodle, 2 Hurlstone and Coltman Reports, alp. 727.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This was an action by the plaintiff claiming damages from the defendant for injury caused to the plaintiff’s goods by water which he alleged had escaped from the defendant’s premises into a shop and store occupied by him. The plaintiff occupies the ground floor of No. 1 Aggrey Road, Port Harcourt, in which he carries on his business as a shopkeeper, and the defendant resides on the upper floor of the same building.
At about noon on Saturday, the 19th July, 1952, the plaintiff closed his shop for the week-end. On the following Monday morning when the shop was opened the floors of both the shop and his store were found to be flooded with water which caused damage to some of his goods. Upon examination there were clear indications that the water had come from a tap situate in a room of the defendant immediately above the plaintiff’s premises.
The defendant gave evidence that he was away when the flooding occurred, having left Port Harcourt on 19th July, and that he only returned on Thursday, the 24th July. He admitted that while he was away his premises had been occupied by his girl-friend, a steward and a clerk and that he left the former in charge of the premises during his absence.
The learned trial Judge found as a fact that the flooding was caused by water seeping through the ceiling of the plaintiff’s store from the defendant’s premises, and there cannot, I think be any doubt as to the correctness of this finding. He, however, went on in his judgment to say:
“Defendant was away from his premises when the accident happened. The test made by the police sergeant proved there was no defect in the system of water supply on the premises. This absolves defendant from personal liability and shows that the accident was due to the carelessness of some other person. That person may be one for whom defendant is responsible and vicariously liable. But I think the onus of proof at this stage reverts to plaintiff and be must show who was responsible and if that person is a servant of defendant go further and show that the act was-done in the course of employment.”
The trial Judge concluded his judgment by holding that the plaintiff having failed to prove that the damage was due to the negligence of the defendant or his servants in the course of their employment the defendant was not liable, and he accordingly dismissed the plaintiff’s claim.
Mr. Wilcox, on behalf of the plaintiff-appellant, submitted that in the circumstances of this case the learned trial Judge erred in holding that the onus was upon the plaintiff to prove who was responsible and that if it was one of the defendant’s servants it was done in the course of employment.
The defendant admitted that he occupied the upstairs premises and that while he was away be left the lady he lived with in charge of them, and that the other two occupants were his servants.
In the circumstances here I am of the opinion that the fact of the accident raises a presumption of negligence for which the defendant is responsible, and that if there were any facts inconsistent with negligence, or negligence for which he could be held responsible, it was for the defendant to prove them. Bramwell, B., said in Byrne v. Boadle (1):
“Looking at the matter in a reasonable way it comes to this-an injury is done to the plaintiff who has no means of knowing whether it was the result of negligence; the defendant who knows how it was caused, does not think fit to tell the jury.”
It seems to me that this reasoning is applicable to the present case.
As the learned trial Judge said, the only reasonable explanation of the flooding was that someone in the defendant’s premises had left the tap on and allowed the water to overflow. The persons who could have told how it happened are the lady the defendant left in charge of his premises, his steward or clerk, and I think it reasonable to draw the inference that the act of one of them caused the flooding and consequent damage to the plaintiff’s goods. That being so, in the absence of any evidence inconsistent with his liability, I am of the opinion that the defendant must be held responsible for the damage.
I would accordingly allow this appeal, set aside the judgment of the Court below and enter judgment for the plaintiff for the special damages proved, that is to say the sum of £223 3s. 6d.
The plaintiff to have his costs in the Court below to be taxed and the costs of this appeal fixed at £30 15s. 0d.
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DE COMARMOND, AG. C. J.
I concur.
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COUSSEY, J. A.
I concur.
Appeal allowed.
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