• Anyah v. Imo Concorde Hotels Ltd
  • 138
  • 2003-01-20
  • ₦ 200
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Anyah v. Imo Concorde Hotels Ltd










UMARU ATU KALGO, JSC ( Read the Lead Judgment )




ACTION - Action for tort in negligence - Whether arise de hors contract of the parties

APPEAL  - Cross-appeal - When amounts to an academic exercise - Attitude of Supreme Court thereto

APPEAL  - Cross-appeal - When incompetent and unnecessary

CONTRACT - Action for tort in negligence - Whether arise de hors contract of the parties

COURT - Academic issues - Attitude of court thereto

PLEADINGS - Pleaded facts - Where not admitted  by defendant and unproved by plaintiff - Effect

TORT - Action for tort in negligence - Whether arise de hors contract of the parties

TORT - Duty of care - Neighbour principle - Whether plaintiff is a neighbour that the respondents in the instant case must reasonably have in contemplation when directing their minds to their acts or omissions

TORT - Duty of care - Whether owed by defendant to plaintiff in instant case

TORT - Liability of owners of hotels, eating houses and other places of leisure with regard to the liability of the owners of cars and other personal effects brought by a visitor to such premises - Scope of

TORT - Negligence - Action for - Proof of - Requirements for an action for negligence

TORT - Negligence - Breach of duty of care as fundamental ingredient of

TORT - Negligence - Duty of care - Doctrine of proximity as foundation thereof

TORT - Negligence - Duty of care in an action for negligence - What it presupposes

TORT - Negligence - When arises

TORT - Negligence - When defendant liable therefor - What is required to be proved by plaintiff to succeed in an action for negligence

TORT - Neighbour principle in Donoghue vs. Stevenson - Whether plaintiff is a neighbour that the respondents in the instant case must reasonably have in contemplation when directing their minds to their acts or omissions

WORDS AND PHRASES - Duty of care - What it presupposes


1 Was the Court of Appeal right in holding that the respondent did not owe the appellant a duty of care especially in the light of the facts of this case?

2. Was the Court of Appeal right in asserting that such duty of care could only be founded on contract?


 On the 19th day of December, 1986, the appellant who lived at No.34 Hospital Road, Amaekpu-Ohafia in Arochukwu/Ohafia Local Government of Imo State, came to Owerri to attend a book launching ceremony. He drove his car a 505 Peugeot SR/AC Saloon car registration No. IM 6583 AF into the Concord Hotel (the 1st respondent) and booked accommodation for one night. At the gate of the Hotel, the 2nd   and 3rd respondents, who were the hotel security men on duty on that day, registered the number of the appellant’s car and issued him with a plastic disc No.102. Then they lifted the bar across the gate and the appellant drove his said car into the hotel and parked it in a parking space therein. He then locked the car, pocketed the keys and checked into the room allocated to him where he slept for the night. The following morning the appellant checked out of the hotel, went to pick his car where he kept it but the car was no where to be seen.  He immediately reported the matter to the hotel management who expressed dismay at what had happened and immediately ordered investigation into the matter. They later provided a vehicle which conveyed the appellant to his home at Ohafia. Thereafter the appellant filed this action claiming a total of N150,000.00 (one hundred and fifty thousand naira) for the value of his stolen car, expenses incurred by him as a result thereof and general damages, on the grounds that the respondents were negligent in allowing his car to be stolen on 20th December 1986, in the hotel.

The particulars of negligence identified by the appellant are that the respondent ‘failed to be at the security gate at the time an unauthorized person drove the plaintiff’s car out of the hotel premises,’ that the respondents performed  â€˜the duty of passing out cars so carelessly that it was possible for unknown person to pass through the security gate without surrendering the metal disc’, and that ‘by failing to  take adequate measures to ensure that all cars passing through the gate did so in an orderly manner that makes for proper checking of metal disc and registration number of vehicles.’

The appellant had further pleaded that by allowing the plaintiff’s said car to be driven out of the premises of the hotel without the metal disc being surrendered at the security gate the defendants are in breach of duty of care which they owed to the plaintiff and consequently are liable to the plaintiff for the loss of his car and for transportation  expenses incurred by the plaintiff’.

Contrariwise, the respondents pleaded that there was no guarantee of security for owners who park their was at the hotel premises. They further pleaded that there was a conspicuous notice at the hotel familiar to users of the car park on which it is stated. “Owners park at the own risk”.  The parking facility is a gratuitous service given to hotel users and in the absence of express agreement the onus is on them to secure their cars against theft.

The 2nd and 3rd respondents who were security officers of the 1st respondent testified. According to DW2, 2nd respondent, on 20th December 1986 , when he was ready to go home at 6am, two cars a 504 and  505

Peugeot cars were going out of the hotel through a wrong route. He directed them to take the correct route which they did and when the driver of the 504 came to the gate DW2 collected the disc from him and lifted the iron barrier for him to pass. But whilst he was holding the barrier for the 504 to pass, the driver of the 505 drove through the gate with speed and both vehicles moved out of the hotel almost at the same time. In cross-examination he said:-

“the two cars came out at the same time - 504 in front followed by the 505. Immediately I held up the barrier for the 504 to pass, the 505 driver immediately drove through without the necessary checks”.

Both DW3 and DW4 who were co-workers of the 2nd DW, on the day in question, also confirmed in substance the evidence of DW2. That was all the evidence narrated in court with regard to the loss of the appellant’s car on the 20th of December 1986.

The trial Judge reviewed the evidence and held that by adopting the “measures” of employing security men and engaging policemen in the hotel premises, the 1st respondent ‘gave the plaintiff an impression that his car was very well protected from being stolen or damaged and that the plaintiff rested on that impression by the security they provided by posting their security men in and around the hotel to take care of the cars’. The trial court then granted the appellant’s reliefs.

Dissatisfied, the respondents appealed to the Court of Appeal which allowed the appeal by holding that ‘the appeal on liability being the dominant issue and having succeeded, this appeal is allowed. The judgment of the lower court is reversed’. The appellant’s claim was thus dismissed. The appellant then appealed to the Supreme Court.