RES IPSA LOQUITUR

• Date: 06 February 2019

(1) "Kennedy, L.J. explained in Russel v. L. & SW RY (1908) 24 T.L.R. 548 at 551, the meaning of res ispa loquitur as follows: - "The meaning as I understand of that phrase res ipsa loquitur is this, that there is, in the circumstances of the particular case, some evidence which, viewed not as a matter of conjecture, but of reasonable argument makes it more probable that there was some negligence upon the facts as shown and undisputed, than that the occurrence took place without negligence. The res speaks because the facts stand unexplained and therefore the natural and reasonable not conjectural interference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody." - Per Onalaja, J.C.A., in Aliyuv. Aturu Suit No. CA/I/80/93; (1999) 7 N.W.L.R. (Pt. 612) 536 at 554.

(2) "Res ipsa loquitur literally means that "the thing speaks for itself". It is applicable to actions for injury by negligence where no proof of such negligence is required beyond the accident itself, which is such as necessarily involves negligence. In Management Enterprises Ltd. v. Otusanya (1987) 2 N.W.L.R. (Pt. 55) 179 at p. 191. Oputa, J.S.C., states the essence of the maxim to be "that an event which in the ordinary course of things, was more likely than not to be caused by negligence, was by itself evidence of negligence, depending of course on the absence of explanation." - Per Omo, J.S.C., in Ibekendu v. Ike Suit No. S.C. 281/1989; (1993) 6 N.W.L.R. (Pt. 299) 287 at 297.

(3) "In considering the applicability of the doctrine to the facts of this case the first step is to decide whether how the accident took place raises a prima facie presumption of negligence. To show that this must be the case, respondent has cited and relied on the case of (1) Aurie v. Raglan Building Co. (supra), where it was held (in England) that if a car being driven on the road mounts the pavement of a street (which is the equivalent of our sand verge) it is prima facie evidence of negligence on the part of the driver (2) Joseph Ashiru v. Benson & Or. (1965) L.L.R. 24, where a vehicle swerving across and off the road was held to raise a presumption of negligence. In the case on appeal, it is the evidence before the trial Court, that the appellant’s vehicle (Bus) swerved from its own side of the road, to the other side, ending in a ditch beyond the road. I agree with respondent’s counsel that these facts clearly raise a prima facie case of negligence which automatically brings into play the doctrine of res ipsa loquitur. The next step is that the onus shifts on the appellant (defendant) to provide an acceptable/credible explanation to show why it happened. It is agreed by the trial Court and the Court below that the appellant gave two separate and contradictory explanations of the accident. At his trial, his explanation is that the accident was caused by the respondent and his friend (P.W.2) behaving as jay walkers by attempting to cross the highway when his vehicle was too close to them for it to be safe to do so. His swerving action would have resulted in the safety of the respondent but for the fact that he suddenly decided to return to his side of the road. P.W.2 who continued on his jay-walking was safe. But earlier, the appellant had testified in the Magistrate Court, in the course of a trial of the criminal aspect of this case, that the accident was caused by his tyre getting burst, as a result of which his "steering deflected to the right side of the road". The situation was compounded by the rain and the fact that he was descending a hill. This earlier version was put to him, along with other incriminating admission. His reply was a complete denial on the one, and an attempted evasion in the other. It is the submission of the respondent that instead of drawing the necessary legal conclusion from these contradictory versions, the trial Judge attempted, suo motu, to reconcile them. After finding that his denials under cross-examination, and being confronted with his earlier testimony "at the worst render his credibility extremely unreliable", he proceeded to hold that "He may well be telling the truth now. Unreliable as his evidence may seem, there are facts as above indicated, which tend to show that his present story could be reasonably true". With due respect to the learned trial Judge the need for such speculative finding or reconciliation does not arise. The legal effect of such contradiction, once it makes the appellant’s evidence extremely unreliable, is that such evidence cannot be relied upon and/or acted upon." - Per Omo, J.S.C., in Ibekendu v. Ike Suit No. S.C. 281/1989; (1993) 6 N.W.L.R. (Pt. 299) 287 at 299 - 300.

(4) "The doctrine of res ipsa loquitur was considered by the Supreme Court in Mrs Felicia Odebunmi (For herself and on behalf of dependants of the deceased and Anor). v. Alhaji Isa Abdullahi (1997) 2 N.W.L.R. (Pt. 489) p. 526 at 541; Alphonsus Ibeanu (carrying on business under the name and style of De Royal Transport Services) and Anor. v. Peter A. Ogbeide & Anor. (1998) 12 N.W.L.R. (Pt. 576) p.1 wherein it was held that: - "Res Ipsa loquitur is a rule of practice and not a rule of law. It is to assert the legal right of a party claiming injury and damages due to negligence. There must be evidence of negligence in a reasonable way. Thus, where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process and that accident is such as does not occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the aforementioned management as to how the accident occurred, the accident is presumed to occur due to lack of care. Thus, negligence is presumed in such cases, for in such cases, negligence is inferred to have resulted from the want of care by the persons in the management of their agents or servants. The maxim res ipsa loquitur means ‘things speak for themselves’. It is a convenient way to explain an unusual accident and it is entirely a rule of evidence not of law. In the instant case in the absence of any defence to this principle, the appellants’ case was not controverted. In this regard, the principle is basic that if a defendant’s vehicle leaves the road and falls into an embankment, in this case into a river, and this without more is proved, than res ipsa loquitur there is a presumption of negligence and the plaintiff succeeds unless the defendant rebuts this presumption. Barkway v. South Wales Transport Co. (1948) 2 All E.R 460. The defendant in this case has failed to rebut this presumption. See also Nigerian Bottling Co. Plc. and Anor. v. Pius Akor Borgundu (1999)...