HON. (NZE) HYGINUS J.C. OGBIRI & ANOR v. NIGERIA AGIP OIL COMPANY LIMITED (2010)

HON. (NZE) HYGINUS J.C. OGBIRI & ANOR v. NIGERIA AGIP OIL COMPANY LIMITED

(2010)LCN/3621(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of March, 2010

CA/PH/194/2008

RATIO

WORDS AND PHRASES: MEANING OF NEGLIGENCE

Negligence is a matter of fact. Generally, negligence is an omission or failure to do something which a reasonable man, under similar circumstances, would do, or doing of something which a reasonable and prudent man would not do. See OJO v. GHARORO (2006) 138 LRCN 1652 @ 1713 – 1714; ODINAKA & ANOR v. MOGHALU (1992) 4 NWLR [pt.233] 1 at 15. PER EJEMBI EKO, J.C.A

TORT: WHEN WILL A TORT OF NEGLIGENCE ARISE

The defendant owes him a duty of care
Which duty the defendant breached

III. And as result he, the plaintiff, has suffered damage.

See DARE v. FAGBAMILA (2009) ALL FWLR [pt.489] 568 at pages 585 – 588.

The three factual situations must exist conjunctively to ground the defendant’s liability in negligence. Thus it is not enough to prove damage, or that the plaintiff suffered damage, without proof of the corresponding duty of care and its breach on the part of the defendant. PER EJEMBI EKO, J.C.A

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH FINDINGS OF FACTS OF THE LOWER COURT

EVIDENCE: WHETHER SUSPICION CAN SUBSTITUTE FOR LEGAL EVIDENCE

It is trite that sentiments command no place in judicial deliberations. See OMOZEGHAN v. ADJARHO (2006) 4 NWLR [pt.969] 33 at 59. Therefore, suspicion no matter how strong cannot be substitute for legal evidence at the law court. PER EJEMBI EKO, J.C.A

JUSTICES

SULEIMAN GALADIMA (OFR) Justice of The Court of Appeal of Nigeria

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

Between

HON. (NZE) HYGINUS J.C. OGBIRI & ANOR Appellant(s)

AND

NIGERIA AGIP OIL COMPANY LIMITED Respondent(s)

EJEMBI EKO, J.C.A (Delivering the Leading Judgment): The Appellants were the Claimants at the High Court of Rivers State in the suit no. OHC/5/98. The Respond was the defendant in the said suit. In the judgment of the trial court delivered on 5th June, 2007 by Hon. E. Teetito J., the suit of the claimants was dismissed in its entirety. On 11th June, 2007 the Appellants lodged their appeal against the said judgment on four (4) grounds or appeal.
1. The learned trial Judge erred in law when he wrongly held that the plaintiffs did not plead and Prove particulars of negligence in their statement of claim and thereupon proceeded to dismiss the claims against the defendant for destruction of their crops at Kowu-Owuru farmland.
2. The learned trial Judge erred in law in refusing to award special damages to the plaintiffs having already held that the evidence of PW.2 and PW.3 who were expert witnesses were not contradicted or shaken under cross-examination by the defendant.
3. The learned trial Judge erred in law in refusing to award general damages to the plaintiffs having held that the plaintiff’s crops were flooded and damaged.
4. The judgment is against the weight of evidence.
The parties are ad idem those two issues arise for determination in this appeal from the foregoing four (4) issues. That is:
1. Whether the lower court was right in dismissing the Plaintiffs/Appellants suit on the ground of failure of the Appellants to prove negligence an the part of the Defendant/Respondent? (Grounds 1, 2 and 4)
2. Whether the lower court was right in refusing to award damages to the Plaintiffs/Appellants having earlier assessed damages in plaintiffs’ favour to the tune of N19,369,700.00? [Ground 3].
I will come to the issues shortly after the summary of the facts of the case. The Appellants, a husband and wife, are farmers. In 1996, their farm, known as Okwu-Owuru was allegedly flooded and the crops thereon destroyed. They claimed against the Respondent, a petroleum oil prospecting company, the sum of N14,369,700.00 as special damages and the sum of N20,000,000.00 as general damages for the damage to the farm at Okwu-Owuru farmland situated at Aggah Town, Egbema and for an order directing the Respondent to rectify the defect in the access road that they say caused the flooding. The damages are for negligence allegedly committed by the Respondent.
The parties exchanged pleadings at the lower court. Paragraphs 7, 8 and 17 (a) of the Statement of Claim summaries the grievance of the Appellants thus:
7. In 1996, the Defendant Company after constructing several access roads leading to their several locations in Aggah land, constructed culverts which channeled water from various streams and ponds in the area, and the Defendants burrow pits, into the OKWU-OWURU farmland of the Plaintiffs causing completed destruction of the crops.
8. About 4 (four) culverts installed by the Defendant’s Company created artificial channels through which water (from the streams, ponds and burrow pits) empty into the farmland. It was after the construction of the said 4 (Four) culverts that the farmland began to experience annual flooding.
15. It shall be contended for the Plaintiffs and evidences shall be led in that regard to show that:
a. The Defendant’s construction of their access roads (also called AGGAH/ETEKWURU ROADS) leading to MGBEDE “w” 24 LOCATION tampered with the Natural waterways which resulted in the flooding.
These assertions of the Appellants were fiercely contested and denied by the Respondent. In the amended statement of Defence, the Respondent avers particularly in paragraphs 3, 4, 8 and 9 thereof that –
3. The Defendant denies paragraphs 7 and 8 of the statement of claim and puts the plaintiffs to the strictest proof of the same.
4. In further reply to the said paragraphs, the Defendant states-
a) that the initial survey carried out by the Defendant prior to the construction on the Mgbede 25 Access Road, declared the area (including the area claimed by the Plaintiffs) to be a swampy zone.
b) That in order to allow for free flow of water, the Defendant had to construct sixteen (if) double/single culverts across the Access Road.
The Defendant hereby pleads and shall rely on its report and survey at the trial if this: suit and all relevant documents not specifically pleaded:
8. The Defendant denies paragraphs 15 and 16 of the statement of claim and puts the plaintiffs to the strictest proof of the same.
9. That in further reply to the said paragraphs the Defendant states as follows:
a) That the Defendant’s construction of the Mgbede 25 Access Road and culverts across the access road did not in anyway howsoever adversely affect the natural waterways in the area.
b) That the construction of the 16 double/single culverts across the Access Road was done in accordance and in full compliance with standard practice.
c) That the Defendant’s activities in the area did not result into any blockade, destruction or obstruction howsoever.
d) That the Defendant’s activities in the area did not in any way howsoever or whatsoever give rise to annual flooding in the area.
e) The plaintiffs have not suffered any loss of means of livelihood, deprivation or damages as alleged.
f) The value or prices given to the purported damaged crops by the plaintiffs are incorrect. The Defendant will at the trial call in evidence prices of such crops at the market.
It is thus clear from the pleadings that the Respondent, as the defendant, had constructed access roads in the area and that across the roads them also constructed culverts. The fact that the Appellants’ farm was flooded and their crops destroyed is not also disputed. The dispute at the trial Court was whether, as the Appellants averred, the Respondent’s construction of the four (4) culverts caused the flooding of OKWU-OWURU farmland and the destruction of the Appellant’s crops. On their part the Respondent averred that the area of OKWU-OWURU farmland was swampy and prone to natural flooding and that the destruction of the Appellants’ farm by flood was not caused by the four (4) culverts they had constructed across the access road to allow free flow of waters in the area. They further averred in the amended statement of Defence that the four (4) culverts were 300 meters away from the Appellant’s farm and those other farms in between were not flooded and destroyed. The case of the Appellants, as pleaded, is that the Respondent’s construction of the four (4) culverts “tampered with the natural waterways” in the area and that in the process the Respondent “‘created artificial water channels through which water from the streams, ponds .and burrow pits empty into [their] farmland”.
Testifying on the cause of the flooding, which is the core of Issue 1 in this appeal, the PW.1 at page 54 of tile Record says –
The construction of about 4 curvets the Defendant across two access road leading to Mgbede 24 tampered with natural waterways which now channel water from ponds, swamps and streams around the area including water from the defendant’s borough (sic) pit to my farm thereby flooding my farms and damages (sic) the crops.
And at page 55, the PW.1 adds, without more, that the culverts were not perfectly done “but done negligently”. He did not say how they were done negligently. At page 57 of the Record the PW.2, a member of Nigeria Institute of Estate Valuers and Surveyors says –
We found the farmland flooded. We went there, we saw a culvert constructed, about four of the culverts. We saw from the flow of water the culverts collect water from the swamp into the farmland.
The PW.3, also a Chartered Surveyor and Valuer, at page 59 of the Record testifies that:
The defendant constructed 4 culverts on Etekwuru Road which tampered with the natural water ways. – At the site, we saw the culverts, the swamp area, the borough pit and the damaged plants -The water passed from the swampy area into the culverts on the road and then lands (sic) to the crops farm and the borough pit. The crops land is a dry land if not for the flooding.
He maintained under cross-examination at page 61 that the flood water “was coming from the swamp through the culverts into the plaintiffs’ farm”. The PW.2 and PW.3, accredited Estate Valuers and Surveyors did not pretend to be knowledgeable or experts, in the field of hydrology or irrigation.
The question under issue 1 is: how was the Respondent, as the defendant, negligent in the construction of the four (4) culverts which the Appellants say caused the flooding of their farm?

the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached. The plaintiff, by virtue of section 135, 136 and 137 of the Evidence Act, has the bounden duty to establish that the defendant is negligent towards him. To succeed in negligence the plaintiff has to prove three vital ingredients namely –
I. The defendant owes him a duty of care
II. Which duty the defendant breached
III. And as result he, the plaintiff, has suffered damage.
See DARE v. FAGBAMILA (2009) ALL FWLR [pt.489] 568 at pages 585 – 588.
The three factual situations must exist conjunctively to ground the defendant’s liability in negligence. Thus it is not enough to prove damage, or that the plaintiff suffered damage, without proof of the corresponding duty of care and its breach on the part of the defendant. The Appellants forcefully submit, on authority of NWAKWE v. NKWUKOR (2001) FWLR [pt.63] 1 at page 16, and INTERNATIONAL MESSENGERS NIG LTD v. NWACHUKWU (2004) 119 LRCN 4331 at 4350, that there can be no action in negligence unless there is damage and that the gist of the tort of negligence is the proof of actual damage. That is true but in a limited sense. The plaintiff can only succeed in action for negligence if he proves that the defendant owed him a duty of care which he had breached and that as a result he suffered actual camage. The mere fact that the plaintiff suffered actual damage does not ipso facto establish the defendant’s negligence, or that he caused the damage.
The learned trial Judge held at page 116 of the Record that the plaintiff must allege in his” pleading the exact duty of care the defendant owes him. And that the particulars of such breach of duty must also be stated in the statement of claim in clear terms and in what respect the defendant was in breach of the duty of care. The authorities of NWAKWE v. NWUKOR (supra); UNIPETROL (NIG) PLC v. ADIREJE W.A LTD (2004) ALL FWLR [pt.231] 1238 at 1280 B-C F.A.R.I v. FEDERAL MORTGAGE FINANCE LTD (2004) ALL FWLR [pt.235] 27; SCC NIG LTD v. IGUERINIOVO (2004) FWLR [pt.189] 1133 at 1148 D – E support the position. The particulars of the negligence are intended to appraise the defendant of what he did, or failed to do, in breach of his duty of care to the plaintiff and to demonstrate that a reasonable person in his position ought not to ” have committed the breach, or ought not to have done that which he did or did not do. SEISIMOGRAPH SERVICES v. MARK (1993) NWLR [pt.304] 203 at 214. Pleading of particulars of negligence serves the purpose of audi alteram partem or fair hearing. See BUNGE v. GOVERNOR RIVERS STATE (2006) ALL FWLR [pt.325] 1 at 21; EMEGOKWU v. OKADIGBO (1973) 4 SC 115. The essence is that the defendant will not be taken by surprise.

Furnishing of particulars of negligence is not a mere formality. In KOYA v. U.B.A. (1997) 1 NWLR [pt.481] 251 at 291 the Supreme Court clearly makes it mandatory for the plaintiff to furnish particulars of negligence as follows:-
It is not sufficient for the plaintiff to make a blanket allegation of negligence against a defendant without giving full particulars of the items of negligence relied upon as well as the duty of care owed to him by the defendant: UMUDFE & ANOTHER v. SHELL BP PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD (1975) 9 – 11 SC 155 at page 166 – 167.
The burden of proving that the defendant was negligent towards him falls on the plaintiff who, in claim of damages for negligence, alleges that the defendant breached the duty of care he owes him, the plaintiff. [Sections 135 – 137 Evidence, act]. He must prove that it was the fault of the defendant that caused him the actual damage. In the instant case, the Appellants pleaded and in evidence stated that the four (4) culverts tampered with the natural water course or ways. They however did not plead nor state in evidence, how the culverts tampered with the natural water ways and thereby caused water or flood to enter into their farm. Both the pleading and the evidence of the Appellants are very deficient in this regard. They did not plead nor give evidence of the particulars of the negligent conduct or act of the defendant that allegedly caused the flooding and the destruction of their crops. It is difficult to fault the learned trial Judge, as he found on facts in his judgment at page 116 of the Record to wit:

The questions left unanswered in the statement of claim and the evidence of PW.1, PW.2, and PW.3 are: In what ways were the construction of the culverts done negligently; how would they have been done perfectly; how were the natural waterways before the construction and how were the waterways tampered with after the construction of the culverts? These would have been highlighted as particulars of negligence in the pleading but the pleading suffered this defect and evidence was thus not led on them. Moreso, when the defendant denied its negligence copiously in paragraphs 3, 4(a), Sea), 8 and 9 of the Amended Statement of Defence and introduced the issue of the area being a swampy land to which the plaintiffs filed no reply. I therefore agree with the learned counsel for the defendant that the plaintiffs did not discharge the onus on them to prove that the defendant constructed the four culverts negligently. Having failed to first plead and lead evidence to prove the particulars of negligence, a visit of the court to the locus does not arise in this case. This issue is thus resolved in favour of defendant.

The above are findings of facts which this court, as a policy, does not readily disturb unless they are shown to be perverse and unreasonable having regard to the circumstances of the case; or where the findings are not supported by the evidence on the record. See AJIBULU v. AJAVI (2004) 11 NWLR [pt.885]; OGIDI v. THE STATE (2003) 9 NWLR [pt.824] 1. In other words, the Court of Appeal will not interfere with Findings of fact where there is evidence to support the trial Judge’s Findings either way. See S.P.D.C. NIG LTD v. EDAMKUE (2009) ALL FWLR (489) 407 at 434.
Against the Appellant’s averment that it was after the construction of the access roads and the “culverts that the farmland began to experience annual flooding” the Respondent, as the ‘defendant’, averred in the amended statement of defence that the area of the farmland, before the construction of the access roads and the culverts, was swampy and prone to flooding. The Appellants, as plaintiffs, did not file any reply in response to or refusal of this. It is trite that pleading and evidence that are not challenged or controverted by the party against whom they are pleaded or averred are deemed to have been admitted. See OKELOLA v. ADELEKE (1999) 1 NWLR [pt, 585] 55; TOTAL NIG PLC v. MORKAH (2003) FWLR [pt. 48] 1343 at 1358. Facts admitted need no further proof. They are taken as established by virtue of section the Evidence Act., See DIN v. AFRICAN NEWSPAPERS’ OF NIGERIA LTD, (1990) ANLR 489 at 498. Admitted facts are the strongest evidence available at the trial. See IGWE v. ACB PLC (1999) 6 NWLR [pt.605] 1 at 11 C. This apart, I observe that the Appellants did not appeal against this finding, as damaging as it is against them. The finding not only subsists, it is deemed to have been accepted by the Appellants. See SPDC NIG LTD v. EDAMKUE (supra) at 438; CALABAR CENTRAL CO-OP THRIFT AND CREDIT SOCIETY LTD v. EKPO (2008) 6 NWLR [pt. 083] 362 at 388.
A case of the Appellants at the trial court seemed to have been founded on a very strong suspicion that it was the Respondent’s activities that caused the flooding of their farm. They did not go beyond the suspicion or assumption. But the indubitable fact is that the trial of the Respondent as the defendant at the trial court, for negligence was conducted before a court of law. By dint of sections 135 – 137 of Evidence Act, it is only by cold facts presented to the law court that the civil rights and obligations of the parties before it are determined and nothing more.

In view of the foregoing I hereby resolve Issue 1 in this appeal against the Appellants and in favour of the Respondent. The appeal on this issue is hereby” dismissed.
Under Issue 2, it was submitted for the Appellants that the learned trial Judge should have awarded the special damages assessed at N19,369, 700.00 plus general damages to the Appellants. The question not answered by the Appellants is – on what basis? The learned trial Judge found, and I agree with him, that the Appellants did not prove negligence against the Respondent for the cause of the flooding of their farm.
It is not in dispute that the flooding of the Appellant’s farm caused the destruction of their crops. The Appellants proved the actual damage and the causation. The Respondent’s counsel, in line with the judgment of the trial court, submitted correctly in my view that in an action founded on negligence, the decision must not turn on causation alone but also no responsibility for- the causation. In other words, the person liable for damages in negligence is the person responsible for what caused the actual damage to the plaintiff. I had resolved that under Issue 1 against the Appellants.
Where actual damages are proved without credible evidence of who caused the damages the defendant is entitled to order of dismissal of the suit in his favour.

The law is settled that where there is no evidence to support the claim of damages- the claim ought to be dismissed. Appellant’s counsel cited DUMEZ v. OGBOLI (1972) SC 196 and WAEC v. KOROYE (1977) SC 45 to buttress this position of the law. Damages are not awarded on sentimental grounds. The award of damages is discretionary and it has to be exercised judiciously and judicially. Damages are only awarded against those who actually caused them. That is the law.
The appeal on this issue is frivolous and, vexatious. It has no substance. The appeal on this issue is also hereby dismissed.
On the whole, the appeal lacks substance and it is hereby dismissed in its entirety. The decision of the learned trial Judge dismissing the suit of the Appellants, as plaintiffs before him, in its entirety including the order refusing to award damages to the plaintiffs is hereby affirmed. I make no order as to costs.

SULEIMAN GALADIMA, J.C.A (OFR): I have had the advantage of reading in advance the lead Judgment just delivered by my Learned Brother EKO, JCA. I agree with the reasoning and conclusion therein that this appeal lacks merit.
The Appellants averment was that it was after the construction of the access roads and the culverts by the Respondent that they started to experience serious flooding resulting in destruction of their crops and farmland. They claimed against the Respondent the sum of N14,369,700 as special damages and the sum of N20,000,000 as general damages. As correctly found by the learned trial Judge, the appellants failed to plead particulars of negligence and did not lead any evidence on their claim. In paragraphs 3, 4(a) 5(a), 8 and 9 of their Amended Statement of Defence, the Respondent denied the assertions of the Appellants and put them on the strictest proof of the same.
The Appellants did not discharge the burden on them to prove that the Respondent negligently constructed the four culverts.
These are findings of the court below which I have no reason to disturb as they are not shown to be perverse and unsupportable having regard to the circumstance of the case and the evidence on the record.
It is trite law that pleadings and evidence that are not challenged or controverted by the party against whom they are pleaded or averred are deemed to have been admitted. For the facts that are admitted need no further proof. They are taken as established as provided in S.75 of the Evidence Act. See IGWE V. ACB PLC (1999) 6 NWLR (Pt. 605) p.1 at 11, DIN V. AFRICAN NEWSPAPERS of NIGERIA LTD (1990) ANLR 489 at 498 and TOTAL (NIG) PLC V. MORKAH (2003) All FWLR (Pt.148) 1343 at 1358.
The case of the Appellants at the court below was weak, not strong enough to support their claim that the activities of the Respondent caused the flooding of their farmland and crops. Civil rights and obligations of the parties are determined only by facts presented before the low court, see S.135- 137 of the Evidence Act.
On the question of damages claimed by the Appellants, it is long settled principle of law that where there is no evidence to support the claim of damages the claim ought to be dismissed. The Appellants have failed to prove by leading, credible evidence showing that the Respondent caused the damages for which such huge sum of money is being claimed from the Respondent. This Appeal lacks merit and I also dismissed it without costs.

TIJJANI ABDULLAHI, J.C.A: I have had the privilege of reading in draft the lead judgment of my learned brother, Eko, JCA, just delivered. His lordship has extensively and meticulously dealt with all the live Issues that call for determination in this appeal. I have no cause to disagree with his Lordships reasoning and conclusion. I with respect adopt them as mine.
The appeal is devoid of any merit and is hereby dismissed. I abide by the no cost Order contained therein.

Appearances

S.U. ONONUGBO, ESQ.For Appellant

AND

UCHE F, EWULE, ESQ. with E.A, ESSIEN, ESQ.For Respondent