IN THE HIGH COURT OF JUSTICE OF BENUE STATE OF

NIGERIA IN THE BENUE STATE JUDICIAL DIVISION

HOLDEN AT KATSINA ALA
BEFORE HIS LORDSHIP:
HON. JUSTICE T.A. KUME

JUDGE

BETWEEN:
AONDONA CHIA
(Suing for himself and on behalf of the
Pa Chia Abur family/Dependents of
Late Akpenwuan Chia)
AND
1. POWER HOLDING COMPANY OF
NIGERIA (PHCN) PLC
2. JOS ELECTRICITY DISTRIBUTION
COMPANY PLC.
JUDGEMENT
The plaintiff, in paragraph 40 of his statement of claim, has
sought against the defendants, the reliefs couched in the
following words:
40. WHEREOF the plaintiff claims from the 1st and 2nd
Defendants on behalf of the dependants of the late
Akpenwuan Chia both jointly and/severally as follows:
a) The sum of One Billion Naira (N1,000,000,000.00) only as
general damages for negligence.
b) Post Judgment interest of 10% monthly until the Judgment
sum is liquidated.

The plaintiff testified as Pw1 and his witnesses testified as

Pw2, Pw3 and Pw4. Exhibits 1, 2 and 3 were tendered and
admitted in evidence. The Plaintiff filed a reply to the defendants
Joint Statement of Defense.
The evidence of the plaintiff is to the effect that he is a
younger brother of one Akpenwuan Chia, who was electrocuted by
the high tension cable of the Defendants while returning to his
compound around 8.20pm on 8/2/2013 from the compound of
Zaki Imojime Chia. The high tension cable of the Defendants lie in
between the compound of Late Akpenwuan Chia and that of Zaki
Imojime Chia. According to the Plaintiff, the wood holding the
cable had ripped off causing one of the cables to drop and instead
of landing on the ground, the cable was suspended mid air by
some of the short trees along the foot path.
By 8.20am of 8/2/2013, it was dark and Late Akpenwuan
Chia was unaware that the cable of the defendants was
suspended mid air and walked his neck into the cable leading to
his death by electrocution.
Late Akpenwuan Chia, according to the Plaintiff was a young
man of 40 years old who engaged in profitable farming and
business activities from which he took care of his nuclear and
extended
family
by
way
of
feeding,
medical
care,
accommodation, school fees, clothing, uniforms, textbook and the
general welfare of the family and other defendants. Pw2, Pw3 and
Pw 4 are said to amongst the several dependants of Late
Akpenwuan Chia.
The evidence of the Plaintiff further states that the
Defendant were negligent and had not maintained and taken
proper care of their installation which caused the death of Late
Akpenwuan Chia, and that the death of the Akpenwuan Chia
speaks for itself.
The Plaintiff therefore seeks the reliefs of Defense where in
they admitted that the cable that electrocuted Late Akpenwuan
Chia is owned and controlled by them. The defendants also
admitted that the cable that caused the death of Late Akpenwuan

Chia has been repaired on the 9/2/2013 after the death of the said
Akpenwuan Chia. The Joint Statement of Defense, however,
denies in material particular all the averments of the Plaintiff in
respect of negligence on the part of the Defendants regarding the
maintenance of the high tension cables. They called witnesses
who testified as Dw1 and Dw2. They tendered and exhibits D1
and D2 were admitted in evidence.
At the conclusion of the evidence of the parties. Learned
counsel on their behalf filed written addresses. Learned counsel
for the Defendants, Mr. Luga formulated two (2) issues as arising
for determination in the suit. The said issues read thus:
i.

whether or not the Plaintiff has established a case of

negligence against the defendants.

ii.

whether or not the Plaintiff is entitled to the reliefs

claimed herein.

Learned Counsel for the Plaintiff, Mr. Iyoive has formulated a

single issue for determination. The said issue read thus:
3.01
the sole issue for determination in this case is:
whether or not the Plaintiff has established a case of
Negligence against the Defendants.
Issue 1 in the Defendants written address is similar to issue
1 in the Plaintiffs written address. A determination of the said
issue would necessarily involve a consequential order of whether
the Plaintiff has proved his case to be entitled to judgment or
whether the Defendants have proved their defense for an order of
dismissal of the case of the Plaintiff.
Accordingly, issue 1 of the Defendants written address would
be adopted in the resolution of the claims of the Plaintiff in this
suit.
By a clear reading of the pleading of the parties, and the
evidence in this suit, it is not disputed that the Plaintiff, along with
Pw2 and Pw3 and Pw4 are dependants of Late Akpenwuan Chia. It
is also not in doubt that Late Akpewuan Chia died by electrocution

when he walked his neck and body into the cable of the
Defendants. It is equally a notorious fact that high tension cables
are fixed about 30 feet from the foot of the pole conveying them.
In Exhibit 3, especially, the negative and the photograph printed
from the negative, the cable on which the lifeless body of
Akpewuan Chia hangs on is not about 30 feed from the foot of the
pole conveying the cable. Undisputed also is the fact that nobody
was present when Late Akpenwuan Chia was electrocuted by the
cable of the Defendants. I find these pieces of evidence
unchallenged and therefore proved.
What is in dispute is whether the Defendants were negligent
in the maintenance of their high tension poles and cables.
The Plaintiff testified that the poles and cable are over 30
years old such that the woods holding the cables have gone bad
and have been falling to the ground with oral reports of the said
incidents made to the Defendants.
The Defendants denied the assertion of the Plaintiff and
contends that routine work is done by them on their installation
and that at no time did the Plaintiff or any member of the
Plaintiffs family lodge any report of the lack of maintenance of
their installations to them.
The Plaintiff has not shown to this court when oral report of
the fault noticed by him or any member of his family on the
installations of the Defendants in his or their vicinity were made. I
therefore do not believe the Plaintiff that reports of the fault of
installation of the Defendants were made before death of their
breadwinner, Akpenwuan Chia.
The Plaintiff in paragraph 23 of the Statement of Claim
pleaded Res Ipsa Loquitur.
The Defendants in paragraphs 6 and 7 of their Joint
Statement of Defense denied the pleas of Res Ipsa Loquitur and in
paragraph 8 of the said Joint Statement of Defense avers as
follows:

8.

The Defendants shall contend at the trial that the

broken wooden cross arm and the suspension of one of
the 33kv High Tension lines mid-air at the scene of the
alleged electrocution could result from acts of
vandalization or attempted vandalization.

Res Ipsa Loquitur simply means, the thing speaks for itself.
See IBEKANDU
VS IKE (1993) 6 N.W.L.R (Pt 299) 287 at 297 cited by learned
counsel for the Plaintiff in his written address. See also
paragraphs 975 976 page 596 OF CLERK AND LINDSELL ON
TORTS 14 Edition, Sweet and Maxwell 1975.
In this suit, and as earlier found by me, the death of
Akpenwuan Chia speaks for itself.
The Plaintiff, as rightly submitted by learned counsel for the
Defendants in his written address bears the burden to prove
negligence against the Defendants to be entitled to judgment.
See FBN VS. ASSOCIATED MOTORS CO. LTD (1998) 10 N.W.L.R.(PT
570) 441, A.G. LEVENTIS (NIG) PLC VS AKPU (2007) 17 N.W.L.R
(PT. 1063) 416 at 420. See also SBN VS MOTOR PARTS
INSTALLATION LTD (2005) ALL F.W.L.R. (PT 260) 103 AT 105 cited
by learned counsel for the Plaintiff in his written address.
Where, however, as in the instant suit, the pleas of res Ipsa
Loguitur is pleaded, the Defendants bears the burden to call
rebuttal evidence in order to negative the operation of the plea of
res ipsa loquitur. See IBEKANDU VS IKE (Supra) at 299 300. See
also paras 975 976 CLERK AND LINDSELL ON TORTS (Supra).
The Defendants, in the circumstances, bears the burden to
disprove the claims of the Plaintiff.
The Defendants in Exhibit D1 and D2 have shown that their
installation was repaired on 9/2/2013 after a report of the
electrocution of Akpenwuan Chia was made to them.
The Defendants, it should be noted did not witness any
vandalization or attempt to vandalize their installation by Late

Akpenwuan Chia leading to his death. The Defendants did not

therefore prove that it was act of vadalization by Late Akpewuan
Chia of the installation caused their cable to rip off from the
position where it is normally fixed on their poles. Contributory
negligence on the part of Akpenwuan Chia is not established by
the Defendants, and I hereby so hold.
D2 under cross-examination testified, inter alia as follows:
..Exhibit does not deal with maintenance. We do
not have any document that deals with maintenance. We
have no evidence to prove that maintenance has been
carried out on the high tension pole which has been in use
for well over 30 years..
The question in every case, where the plea of res ipsa
loquitur is raised is, what is the reasonable inference to be drawn
from known facts. See para 974 page 594 of CLERK AND
LINDSELL ON TORTS (Supra). See also IKENTA VS A.G. RIVERS
STATE (2008) 2 S.C.N.J. 152 at 171 172 where appears these
words:
A judge, by the nature of his adjudicatory functions, can
draw inference from stated facts in a case and by such
inferences, the judge can arrive at conclusions. It will be
wrong to say that inference legitimately drawn from facts in
the case is introduced suo motu
In the instant case, it is manifestly clear as earlier found by
this court that Akpenwuan Chie died by electrocution from the
cable under the care, manage and control by the Defendants. The
Plaintiff did not witness the electrocution of Akpenwuan Chia.
High tension cables are normally high up and away from the reach
of humans in the ordinary course of human conduct. The cable
that electrocuted Akpenwuan was not in the normal place where
such cables are fixed by the Defendants. The death of Akpenwuan
Chia would not have happened had the cable been at the place
where it normally would have been. See BUCKLAND VS.
GUILFORD GAD LIGHT AND COKE CO. (1949) 1 K.B. 410 which is

contained in para 1535, page 889 of CLERK AND LINDSELL ON

TORTS. Therein, it is stated thus: where an electricity
undertaking erected wires carrying electricity of high voltage
across a field just over the top of a tree which was easily
climbable, they were held liable for the death of a girl of 13 who
climbed the tree when it was in full leas so that the wires were
obscured and came in contact with the wires.
The facts in the case of BUCKLAND VS GUILFORD GAS LIGHT
AND COKE CO. (Supra) are opposite to the facts and
circumstances of this case. Accordingly, I adopt the reasoning and
conclusion in the said case to the facts herein. Consequently, I
hereby hold that the Defendants were negligent in maintaining
their installations leading to the electrocution of Akpenwuan Chia.
Learned counsel for the Plaintiff in his written address has
however, submitted that there are material contradictions in the
evidence of the Plaintiff as to when Akpenwuan Chia died and for
his age thereby showing lack of proof of his claim, and that the
Plaintiff has not proved loss as to be entitled to damages. Learned
counsel for the Plaintiff therefore urged on the court to dismiss
the case as lacking in proof.
It is important to note that the material in dispute between
the parties in this suit is not the date of the electrocution of
Akpenwaun Chia by the cable of the Defendants or even his age.
The live issue in dispute is whether Akpenwua Chia would have
been electrocuted had the cables of the Defendants been at the
height they were normally positioned on poles conveying them.
Accordingly, the conflict in the date of the death of
Akpenwuan Chia and of his age are minor and trivial issues
unrelated to the live issue in dispute, and I hereby so hold. See
OSETOLA VS. STATE (2012) 6. S.C.N.J (Pt 11) 329 at 356 where
appears these words:
It is basic that contradiction in the evidence that will
be fatal must be substantial. Such must deal with the real
substance of the case. Minor contradictions which did not
affect the credibility of witnesses may not be fatal. Trivial

contradictions like those raked up by the appellants should

not vitiate the trial.
Consequently, I hereby hold that the Defendants have failed
to prove any defense to the claims of the Plaintiff. The Plaintiff, I
hold has proved his case. The Defendants are therefore liable for
the death of Akpenwuan Chia. The submissions of learned counsel
to the Defendants to the contrary in his written address are
hereby dismisses.
In paragraphs 25, 26, 27, 28, 29, 30 and 31
of the
Statement of Claim, the Plaintiff pleaded the number of
Dependants who have been deprived of the care and attention of
the death of Akpenwuan Chia. The Plaintiff along with Pw2, Pw3
and Pw4 in the evidence maintained that they have suffered
damage by the death of Akpenwuan Chia. Learned counsel for the
Defendants did not challenge the evidence of the Plaintiff and
that of his witnesses on the said fact. The Defendants did not lead
contrary evidence to that of the Plaintiff on the issue. I find the
evidence of the Plaintiff on the deprivation occasioned him and
the dependants of Akpenwuan Chia credible and unchallenged.
See HEALTH CAFRE PRODUCTS (NIG) LTD VS BAZZA (2003)
F.W.L.R. Pt. 162) 1937 at 1944 cited by learned counsel for the
Defendants.
I therefore believe the said evidence and hold that the
Plaintiff is entitled to damages for the death of Akpenwuan Chia.
In assessing damages, I shall take into account the necessity
of the children of Late Akpenwuan Chia in attending school up to
the University level along with the educational pursuit of the
Plaintiff which has been hampered by the death of their
breadwinner. The up keep of the wife of Late Akpenwuan Chia
with the aged father and parents in law of the deceased along
with the declining value of the naira in an inflationary economy in
Nigeria at the moment will also be considered. See IGHRERINIOVO
VS S.C.C. NIG LTD (2013) 54 N.S.C.Q.R. (Pt. 111) 1547 at 1562
1563.

Life itself is priceless. No amount of money can assuage the

value of life that has been lost by reason of the careless conduct
of an entity who has responsibility to take necessary care to avert
a damage that would otherwise have been averted. In the
circumstances, I hereby award N25,000,000.00 general damages
in favor of the Plaintiff against the Defendants jointly and
severally. The said judgment shall attract 10% post judgment
interest thereon with effect from today.
Hon. Justice T.A. Kume
Judge

CERTIFIED

TRUE

REGISTRAR

COPY