BAYTIDE NIGERIA LIMITED v. MR. KAYODE ADERINOKUN & ORS.
(2013)LCN/5881(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2013
CA/L/730/2010
RATIO
COURT: DUTY OF THE COURT: THE COURT HAS THE DUTY TO CONSIDER ALL MATERIAL EVIDENCE AND ISSUES RAISED DURING TRIAL
It is trite law that a court has a duty to consider all material evidence and issues raised during the trial. This point has frequently been emphasized in many judicial authorities of the apex court. See Samba Petroleum Ltd & Ors v U.B.A. PLC & Ors (2010) 6 NWLR 530 @531; BRAWAL SHIPPING V. ONWUDIKOKO (2000) 6 SCNJ 508 @ 522 where Uwaifo JSC observed:-
“It is no longer in doubt that this Court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial.”
See also ORJI v PDP (2009) 14 NWLR (Pt 1161) 310 @ 408; KARIBO V. GREND (1992) 3 NWLR (PT.230) 426 @ 441; OSOSANA V. AJAYI (2004) 14 NWLR (PT.894) 527 @ 549; OKONKWO V. UDO (1997) 9 NWLR (PT.579) 16 @ 20.PER CHINWE EUGENIA IYIZOBA, J.C.A.
COURT: DUTY OF THE COURT: WHEN TRIAL COURT FAILS TO CARRY OUT ITS DUTY OF CONSIDERING AND EVALUATING MATERIAL EVIDENCE ESSENTIAL TO A PROPER AND JUST DETERMINATION OF A CASE, THE COURT OF APPEAL CAN CARRY OUT THE SAME DUTY
The law is that where a trial court fails to consider and evaluate material evidence essential to a proper and just determination of the case, the Court of appeal is in as much a good position as the trial court to consider and evaluate such evidence and make proper findings. See Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35; Christopher Okofo v. Eunice Uzoka (1978) 4 SC 77 @ 86; Abusomwan v. Mercantile Bank (Nig) Ltd. (1987) 3 NWLR (Pt. 60) 196 @ 207; Fatuade v. Onwoamanam (1990) NWLR (Pt. 132) 322.PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
BAYTIDE (NIG) LIMITED Appellant(s)
AND
1. MR. KAYODE ADERINOKUN
2. MR. VICTOR AKINBAYO
3. MRS. THEODORA ANNAH
(For and on behalf of Lekki Phase 1 Residents Association) Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State in Suit No. LD/162/2004 delivered on the 18th day of March 2010. The appellant was the claimant at the lower court and the respondents the defendants. The appellant purchased a piece of land known as Block 15, Lekki Peninsula, Phase 1 Lagos and wanted to construct a petrol station on it. The residents of the area were opposed to the construction and expressed their objection to the appellant. The appellant maintained that the land was allocated in its Certificate of Occupancy for the construction of a petrol station and that all the approvals necessary for the construction of the station had been obtained. All attempts to reach a compromise failed. The appellant began construction of the petrol station and construction had reached 95% completion before the filing of this suit. On 20/10/03, members of the residents association staged a protest on the Appellant’s site against the continued construction of the petrol station. The appellant then filed this action and by his further amended statement of claim dated 9th December 2005 claimed against the respondents the following reliefs:
1. A declaration that the parcel of land known as Block 15 Lekki Peninsula Petrol Filling Station as set out in Certificate of Occupancy No. 23/23/1991L and the master plan of the Lekki Peninsula Phase 1 Scheme is designated and set apart for the purposes of the construction of petrol filling station.
2. A declaration that the plaintiff’s construction of a petrol filling station on the said parcel of land is legal and valid and in conformity with the terms of the certificate of occupancy no. 23/23/1991L.
3. A declaration that the defendants’ constant harassment of the plaintiff’s staff on site is wrongful and amounts to trespass on the part of the defendants and also conspiracy to injure the plaintiff by way of its business.
4. An order of perpetual injunction restraining the defendant, from further harassing the plaintiff and its staff and from further trespassing on the parcel of land set out in paragraph 1 above.
5. Damages as may be assessed by the Court for trespass on the plaintiff’s land by the defendant and also for injuring the plaintiff by way of its business.
The Respondents filed a defence alleging that the Appellant had not obtained the approval or permission required under the Environmental Impact Assessment Act 2004 (the EIA Act) and the Lagos State Environmental Agency Law 1996; alternatively that if the Appellant had the approval or permission that a proper environmental impact assessment study had not been made or carried out before the approval or permission was given; in particular that the views of the public and the residents of the area as to the possible impact of the project on the area was never sought. The Respondents denied that the Appellant had a valid deed of assignment or certificate of occupancy in respect of the land on which it was constructing the petrol filling station. The Respondents also denied the Appellant’s allegation that they or their servants at anytime disrupted the Appellant’s construction works. The Appellant during the hearing called three witnesses and tendered several documents. The Respondents called one witness. The parties filed written addresses. The Appellant in his written address raised only one issue for determination, to wit “whether the claimant is entitled to any or all of the reliefs in his statement of claim” while the Respondents raised altogether 7 issues in their final written and reply addresses. The Respondents’ issues are:
1. Whether the Claimant complied with the law particularly the Environmental Impact Assessment Act, 1992 (now Cap. E12 Laws of the Federation of Nigeria, 2004) in obtaining its approval(s) to build the petrol station.
2. Whether the Defendants’ constitutional right to free assembly and association with others has in any way infringed the Claimant’s right.
3. Whether the Claimant suffered any damage from the exercise of the defendants’ right as in issue 2 above.
4. Whether the Claimant is entitled to damages in the sum claimed or to any sum at all.
5. Whether the Defendants’ failure to lead evidence on any position of its statement of defence exonerates the Claimant in proving its case.
6. Whether the agency complied with the excerpts provision of section 7 of the EIA, 1992?
7. Whether the Claimant is entitled to damages for trespass?
In his judgment at page 462 of the record of appeal, the learned trial judge after setting out the evidence led by the parties at the hearing observed:
“I have examined the testimonies of all the witnesses and the exhibits tendered in the course of hearing this suit, and I have come to the irresistible conclusion that this is a matter where this Honourable court may identify and formulate issues for the determination of the case……..The sole issue formulated therefore is, whether or not the Agency complied with the express provisions of Section 7 of the Environmental Impact assessment Act 1992 now Cap E12 Laws of the Federation of Nigeria 2004.”
Based on the above issue, the learned trial Judge, B.O. Shitta-Bey J. on 18/3/10 granted the Appellant’s claims in part and awarded the sum of N100,000.00 (one hundred thousand naira) damages for the trespass committed on the appellant’s land by the Respondents on 20/12/03. The Court also granted the Appellant perpetual injunction restraining the Respondents from further acts of trespass on the Appellant’s land. The Court however found that the failure to give the Respondents or any other interest groups the opportunity to comment on the EIA Report prepared by the Appellant in respect of the construction of the petrol Station rendered invalid and ineffectual any approval given by any authority to construct the petrol station on the said parcel of land.
The Appellant being dissatisfied with the dismissal of parts of his claims filed an appeal before this court vide Notice of Appeal dated 18th day of May 2010 containing five grounds of appeal.
Briefs of argument were filed and exchanged by the parties. In his brief, the Appellant out of his five grounds of appeal formulated three issues for determination to wit:
i. Whether the sole issue formulated by the trial court sufficiently encapsulated all the issues joined by the parties on their pleadings and the evidence adduced at the trial and whether this did not occasion serious miscarriage of justice. (Ground 1 of the Notice of Appeal)
ii. Whether the provision of section 7 of the Environmental Impact Assessment Act is applicable and relevant and is a mandatory condition precedent to the grant of approval to construct a petrol station (Grounds 2 & 3 of the Notice of Appeal)
iii. Whether upon a proper evaluation of the evidence, the trial court ought not to have entered Judgment in favour of the Appellant in respect of all the reliefs sought, particularly, the declaratory reliefs (Grounds 4 and 5 of the Notice of Appeal)
The Respondents in their brief of argument also formulated three issues for determination, to wit;
i. Whether the issue formulated by the trial court did not encapsulate all the primary issue in dispute between the parties and whether the determination of the said issue did not effectively and sufficiently determine the competing rights of the parties to the suit?
ii. Whether the court was right in holding that non compliance with section 7 of the Environmental Impact Assessment Act in the process leading to the approval of the construction of the petrol station rendered ineffectual the approvals given to the Appellant to construct the petrol station?
iii. Whether the trial court was right in granting a part of the Appellant’s claim and dismissing the rest?
The appeal came up for hearing on the 28th day of November 2012 during which the parties adopted and relied on their respective briefs.
ISSUE NO. 1
Whether the sole issue formulated by the trial court sufficiently encapsulated all the issues joined by the parties on their pleadings and the evidence adduced at the trial and whether this did not occasion serious miscarriage of justice. (Ground 1 of the Notice of Appeal)
APPELLANT’S ARGUMENT
Learned counsel for the Appellant in his brief submitted that the sole issue for determination formulated by the trial court did not sufficiently encapsulate all the issues joined by the parties in their pleadings and the evidence adduced before the trial court. Learned Counsel contended that although the trial court has the right to formulate issues for determination, such issues formulated by the trial court must sufficiently encompass and cover all the issues joined by the parties in the pleadings and the evidence. He submitted that in the instant case, the sole issue formulated by the trial court upon which the trial court based its judgment fell grossly short of encompassing the issues joined by the parties. Counsel referred the Court to the appellant’s specific claims as contained in its further amended statement of claim and submitted that the restriction of the trial court to the sole issue formulated by it indeed hampered it in evaluating the evidence led by the parties as well as considering the entitlement of the Appellant to the reliefs sought.
Learned counsel insisted that the sole issue formulated by the court was irrelevant to the determination of the case of the appellant. He submitted that in view of the many issues raised before the lower court by both parties that it was manifestly clear the trial court failed in its duty to pronounce on the crucial issues raised by parties. Counsel further submitted that a trial court has the duty to pronounce on all issues raised or brought to its notice by parties and not to restrict itself to one or more of the issues which in its opinion disposes of the case. He relied on Ayisa v Akani (1995) 7 NWLR (pt.406) pg 129 at 143 paragraph H; Brawal shipping (Nig.) ltd v F.I Onwudike Co. Ltd (2000) 11 NWLR (pt.678) 387 @403; Ugochukwu v Unipetrol (Nig) plc (2002) 7 NWLR (pt. 765) 1 at 16 paras G-H, Counsel argued that the failure of the trial Judge to pronounce on all the issues raised in the case led to a miscarriage of justice and urged the court to resolve issue 1 in favour of the Appellant.
Respondent’s argument
In reply, learned counsel for the respondents submitted that the only issue for the trial court to determine was the issue of compliance with the Environmental Impact Assessment Act by the Appellants. Counsel submitted that the trial court had determined that title to the piece of land was not the primary issue before it. He submitted that the respondents did not contest and or challenge the appellant’s title to the said piece of land; neither did they challenge the purpose for which the Certificate of Occupancy was granted. Counsel further submitted that there was no need for the trial court to make pronouncements on issues that had been either admitted or not in dispute. Counsel argued that it is not every point raised by a claimant that becomes an issue for a trial court to determine. He contended that the appellant did not raise any specific issue before the lower court and as such should not be arguing that the trial court failed to determine all issues raised before it.
Relying on the case of John Ogbu v the state (2007) 5 NWLR (pt. 1028) 636 paragraphs G-A on pg 655-656, Counsel submitted that the Appellant did not argue section 12 of the Environmental impact Assessment Act at the lower court and cannot at this stage complain that the lower court did not consider the same section 12 of the EIA Act.
RESOLUTION
It is trite law that a court has a duty to consider all material evidence and issues raised during the trial. This point has frequently been emphasized in many judicial authorities of the apex court. See Samba Petroleum Ltd & Ors v U.B.A. PLC & Ors (2010) 6 NWLR 530 @531; BRAWAL SHIPPING V. ONWUDIKOKO (2000) 6 SCNJ 508 @ 522 where Uwaifo JSC observed:-
“It is no longer in doubt that this Court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial.”
See also ORJI v PDP (2009) 14 NWLR (Pt 1161) 310 @ 408; KARIBO V. GREND (1992) 3 NWLR (PT.230) 426 @ 441; OSOSANA V. AJAYI (2004) 14 NWLR (PT.894) 527 @ 549; OKONKWO V. UDO (1997) 9 NWLR (PT.579) 16 @ 20.
The question now is whether it is correct as argued by the Appellant in the instant case that the lower court failed in its duty to pronounce on the crucial issues raised by the parties by restricting itself to the sole issue it formulated in determining the case. The Appellant had identified three issues as relevant which he claimed were not considered by the trial judge because they were not encompassed in the above sole issue formulated by the court. They are as follows:
1. Whether the piece of land known as Block 15 Lekki Peninsula Petrol Filling Station as set out in Certificate of occupancy No. 23/23/1991/L and the master Plan of the Lekki Peninsula Phase 1 Scheme is designed and set apart for the purposes of the construction of Petrol Filling Station.
2. Whether the Claimant’s construction of a Petrol Filling Station on the said parcel of land is legal and valid and in conformity with the terms of the Certificate of occupancy No. 23/23/1991/L.
3. Whether there was constant harassment of the claimant and trespass on claimant’s land and whether the claimant is entitled to damages and injunctive relief sought.
The usual method of determining the issues at stake in a case is to take a careful look at the pleadings to identify the facts admitted which require no further proof and the facts denied of which evidence must be led in proof. The appellant had averred in paragraph 15 of its further amended statement of claim that the use of the land as a petrol filling station is designed as such both in the Certificate of Occupancy and also in the master plan for the Lekki Peninsula Phase 1 Scheme. This paragraph was denied by the defendants/Respondents in paragraph 2 of their further amended Statement of Defence. The Respondents further averred in their paragraphs 3 and 4 as follows:
“3. With reference to paragraphs 5, 8 and 15 of the further amended statement of claim, the defendants deny that the claimant has a valid deed of assignment or certificate of occupancy in respect of the piece of land on which he has been constructing a petrol filling station, and the defendants will raise a point of law that the claimant’s unregistered deed of assignment cannot be pleaded or otherwise used in this suit”
“4. Further to paragraph 3 above, the defendants aver that the certificate of occupancy issued in respect of the property the subject matter of this action has been revoked. The defendants shall at the trial rely on a certified true copy of the Lagos State Government’s New Town Development Authority’s publication in the Punch Newspaper of 21st March 2006 at pages 33, 34 & 35 thereof.”
It is consequently not correct as asserted by the respondents in their brief that they did not contest and or challenge the appellant’s title to the said piece of land; neither did they challenge the purpose for which the Certificate of Occupancy was granted. The appellant had filed a reply to the Respondents’ averments insisting that it has a valid deed of assignment and that there has been no revocation of its assignor’s certificate of occupancy, and that it had paid the final approval fees for the grant of the Governor’s consent in respect of the deed of assignment. During the hearing, the Appellant tendered various documents in support of their averments such as the Certificate of occupancy and a registered Deed of Assignment. The Respondents failed to lead evidence or tender any document in support of their averment that the Certificate of occupancy had been revoked. These issues were raised which needed to be pronounced on by the trial Judge.
There are indeed much more involved in the case than the sole issue formulated by the learned trial Judge. There were also claims, denials and counterclaims as to harassment of the Appellant’s workers in the site, prevention of its supply vehicles from gaining entry into the estate and trespass on the site. These are also not part of the sole issue formulated by the trial Judge ‘whether or not the Agency complied with the express provisions of Section 7 of the Environmental Impact Assessment Act’. This case obviously involves much more than just that sole issue. The fact that the trial judge did consider and rule on the issues of trespass and damages which were not part of the sole issue he formulated support the contention of the appellant that the sole issue did not adequately encapsulate all the issues joined by the parties in their pleadings and the evidence adduced. The Respondents had also submitted in their brief that there was no need for the trial court to make pronouncements on issues that had been either admitted or not in dispute. I think it is better and indeed represents the law that the trial court should make pronouncements on all material issues in the case, whether admitted or traversed. For example, the Respondents had asserted that there was no dispute in respect of relief 1 claimed by the appellant to wit; “A declaration that the parcel of land known as Block 15, Lekki Peninsula Petrol station as set out in Certificate of Occupancy 23/23/1991L and the master plan of the Lekki peninsula Phase 1 Scheme is designated and set apart for the purposes of the construction of a petrol filling station.” If indeed there was no dispute as regards this relief and the appellants adduced adequate evidence in proof, what stops the trial court from granting the declaration? I agree with learned counsel for the appellant that the trial court failed in its duty to pronounce on all the crucial issues raised by the parties. I also agree with counsel that a trial court has the duty to pronounce on all issues raised or brought to its notice and not to restrict itself to one or more of the issues which in its opinion disposes of the case. Indeed the single issue formulated by the appellant at the lower court to wit ‘whether the claimant is entitled to any or all of the reliefs in his statement of claim’ called into question all the issues raised in the pleadings and the evidence adduced in support. Likewise the seven issues formulated by the Respondents. I agree that the sole issue formulated by the trial Judge hampered his lordship in evaluating the evidence led by the parties as well as in considering the entitlement of the Appellant to the reliefs sought and consequently led to a miscarriage of justice. Issue 1 is resolved in favour of the Appellant.
ISSUE No. 2
Whether the provision of section 7 of the Environmental Impact Assessment Act is applicable and relevant and is a mandatory condition precedent to the grant of approval to construct a petrol station (Grounds 2 & 3 of the Notice of Appeal)
APPELLANT’S ARGUMENT
On issue 2, Learned Counsel for the Appellant submitted that the finding of the trial court that there was non-compliance with Section 7 of the Environmental Impact Assessment (EIA) Act significantly influenced the trial court in granting only part of the claimant’s prayers. Counsel submitted that section 7 was not applicable to the subject matter of the case which is construction of petrol station. He argued that there was no need for compliance with section 7 since petrol stations are exempt from having environmental impact assessment conducted prior to their construction. He submitted that the trial court failed to consider all the relevant provisions of the EIA Act. Learned counsel further submitted that had the trial court considered the provision in Section 12 of the EIA Act, it would have found that the provisions of the Act were not applicable to petrol filling stations. Counsel set out all the paragraphs of Section 12 of the EIA Act and submitted that the conduct of environmental impact assessment is only applicable to projects in the mandatory study list as set out in the schedule to the Act. Counsel submitted that paragraph 12(e) of the Schedule to the EIA Act expressly excludes service stations from projects in the mandatory study list under the Act. Referring to several authorities, counsel submitted that it is trite law that where words in a Statute are clear, they will be given their ordinary meaning. He further submitted that the provisions of the EIA Act are not applicable to construction of filling stations and that the applicable provision is the Lagos State Town and Country Planning Regulations and Operational Guidelines for special (approval order) which had been complied with by the claimant as evidenced by the Environmental Impact Analysis Report tendered as an exhibit in court. Counsel urged the court to resolve the issue in favour of the Appellant.
RESPONDENTS’ ARGUMENT
In rely to the argument of learned counsel for the appellant and in expatiation of their issue 2 as formulated, learned counsel for the Respondents submitted that there is common ground between the parties that an environmental impact assessment was carried out for the construction of the petrol station. Counsel further submitted that the lower court found that the failure to comply with Section 7 of the EIA Act and give members of the public an opportunity to make comments rendered the approval process inchoate and any subsequent construction approval by any authority invalid. Counsel contended that the lower court interpreted only Section 7 of the Act and that the applicability of Section 12 of the EIA Act to the present situation was not urged by the Appellant before the lower Court and was not the basis of the Court’s findings. Counsel argued that there is nothing in the EIA Act to indicate that Section 7 is to be read subject to Section 12 and to assume otherwise would be contrary to the duty of the court to give words their clear and ordinary meaning. Counsel argued that the term Environmental Assessment and Mandatory study are not interchangeable under the EIA Act. That a mandatory study is a special kind of environmental assessment carried out pursuant to section 17 and includes a consideration of the factors set out in section 11 of the Act. He cited and relied on sections 61, 17, 11, 2(1) & (2) and section 13(d) of the EIA Act. He further submitted that the EIA Act provides that environmental assessment shall be required where a Federal, State or local government agency or authority established by the Federal, State or Local government council issues a permit or a license or grants an approval for the purpose of enabling a project to be carried out. He urged the court to discountenance the appellant’s submission on the ground that the appellant had in fact alleged before the lower court that an EIA had been carried out and that section 7 was complied with.
Finally, learned counsel for the respondent relying on sections 2(1) & (2) and 13 (d) of the EIA Act submitted that EIA as opposed to a mandatory study is required under the EIA Act before construction of the Appellant’s petrol filling station. He submitted that once an EIA is required that section 7 of the EIA Act must apply.
APPELLANT’S REPLY ON LAW
Learned Counsel for the Appellant in his reply brief contended that the submissions of the Respondents’ counsel that Environmental Impact Assessment and mandatory study are not interchangeable have no basis in law whatsoever.
He submitted that mandatory study encompasses area/projects in respect of which EIA must be carried out and that any project exempted from mandatory study is excluded from mandatory EIA. He further submitted that the Act should be read holistically and together. He relied on the case of Oluwalogbon v Government of the United Kingdom (2005) 14 NWLR (pt.946) 700.
He finally submitted that section 7 did not provide that all projects should be subject to EIA and urged the court to resolve Issue 2 in the Appellant’s favour.
RESOLUTION
I have carefully considered the submissions of Learned Counsel on issue 2. The bone of contention here is whether or not the provision of section 7 of the Environmental Impact Assessment Act is applicable and relevant and whether it is a mandatory condition precedent to the grant of approval to construct a petrol station notwithstanding that under Section 12 of the Act, service stations are exempt from mandatory study under the Act. Although the Appellant did not argue section 12 of the EIA Act before the lower court the Court is duty bound in considering the application of any particular section of a Statute to look at the Statute holistically as a whole. That is one of the canons of statutory interpretation. See Savannah Bank of Nigeria Ltd & Anor v. Ajilo & Anor (1989) 1 NWLR (Pt. 97) 305 (1989) LPELR – 3019 (SC); Oluwalogbon v. Government of the United Kingdom (2005) 14 NWLR (Pt. 946) 760; Dalgo Investment & Trust Ltd v. Jenhill Ind. Service Ltd (2002) NWLR (Pt. 107) 1166.
The relevant provisions of the EIA Act are reproduced below:
Section 2: Restriction on public or private project without prior consideration of the environmental impact:
1. The public or private sector of the economy shall not undertake or embark on or authorize projects or activities without prior consideration, at an early stage, of their environmental effects.
2. Where the extent, nature or location of a proposed project or activity is such that it is likely to significantly affect the environment, its environmental impact assessment shall be undertaken in accordance with the provisions of this Act.
3. The criterion and procedure under this Act shall be used to determine whether an activity is likely to significantly affect the environment and is therefore subject to an environmental impact assessment.
4. All agencies, institutions (whether public or private) except exempted pursuant to this Act, shall before embarking on the proposed project apply in writing to the Agency, so that subject activities can be quickly and surly identified and environmental assessment applied as the activities being planned.
Section 7: Opportunity for comments by certain groups
Before the Agency gives a decision on an activity to which an environmental assessment has been produced, the Agency shall give opportunity to government agencies, members of the public, experts in any relevant discipline and interested groups to make comment on the environmental impact assessment of the activity.
Section 12: Mandatory study list not to be carried out without the report of the Agency
1. When a project is described on the mandatory study list specified in the schedule to the Act or is referred to mediation or a review panel, no Federal, State or local Government or any of their authority or agency shall exercise any power or perform any duty or functions that would permit the project to be carried out in whole or in part until the Agency has taken a cause of action conducive to its power under the Act establishing it, or has taken a decision or issued an order that the project could be carried out with or without conditions.
2. Where the Agency has given certain conditions before the carrying out of the project, the conditions shall be fulfilled before any person or authority shall embark on the project.
Section 13(d): Cases where environmental assessment is required
1. Notwithstanding the provisions of Part 1 of this Act, an environmental impact assessment shall be required where a Federal, State or local government agency authority established by the Federal, State or local government council –
(a) Is the proponent of the project and does any act or thing which commits the Federal, State or Local Government Authority to carrying out the project in whole or in part.
(b) ………………
(c) ………………
(d) Under the provisions of any law or enactment, issues a permit or license, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.
Section 61: Interpretation
1. In this Act, unless the con otherwise provides –
“environmental assessment” means, in respect of a project, an assessment of the environmental effects of the project that is conducted in accordance with this Act and any regulations made there under.
“mandatory study” means an environmental assessment that is conducted pursuant to section 17 and that includes a consideration of the factors set out in section 11 of this Act.
“mandatory study list” means the list in the schedule to this Act and those that may be prescribed pursuant to section 55 (1) (c) of this Act.
Schedule: Mandatory study activities
12. Petroleum
(a) Oil and gas fields development
(b) Construction of off-shore pipelines in excess of 50 kilometers in length;
(c) Construction of oil gas separation, processing, handling, and storage facilities;
(d) Construction of oil refineries;
(e) construction of product depots for the storage of petrol, gas or diesel (excluding service stations) which are located within 3 kilometers of any commercial, industrial or residential areas and which have a combined storage capacity of 60, 000 barrels or more.
Paragraph 12 (e) above expressly excludes service stations from the mandatory EIA study under the EIA Act. The contention of the respondents is that environmental assessment and mandatory study are not interchangeable; that even if service stations are exempt from mandatory study, they are not exempt from environmental assessment under the EIA Act. A careful study of the aforementioned sections of the EIA Act indicates that environmental assessment is basically the same as a mandatory study. See interpretation section of the EIA Act. The only difference is that a mandatory study is an environmental assessment carried out pursuant to section 17 of the EIA Act.
As pointed out by learned counsel for the Respondent in his brief, an examination of the industries and activities covered by the Schedule to section 12 of the Act reveals that mandatory studies are a sine qua non in respect of large infrastructural projects. Contrary to his submission that from sections 2(1) and (2) of the Act that it is not only in respect such large infrastructural projects that environmental assessment are required. Section 2(2) extends to such large infrastructural projects but not necessarily section 2(1). From the tenor of section 2(1), petrol stations are not exempt from the duty imposed on public or private sector of the economy not to undertake or embark on or authorize projects or activities without prior consideration, at an early stage, of their environmental effects. The all important question therefore is under what law, must the environmental assessment of service stations or petrol stations as required under Section 2(1) be carried out. Is it under the Lagos State Town and Country Planning Regulations and Operational Guidelines for special (approval order) as contended by the appellant or under the Environmental Impact Assessment (EIA) Act? Section 2 subsections 1 & 2 of the EIA Act in my view answers the question. While subsection 1 requires the public or private sector of the economy not to undertake or embark on or authorize projects or activities without prior consideration, at an early stage, of their environmental effects, subsection 2 provides that where the extent, nature or location of a proposed project or activity is such that it is likely to significantly affect the environment, its environmental impact assessment shall be undertaken in accordance with the provisions of the EIA Act. One of the rules of interpretation is expressio unius est exclusio alterius (the express mention of one thing is the exclusion of the other). Therefore under subsection 1, the assessment need not be under the EIA Act. Section 2(3) provides that the criterion and procedure under this Act shall be used to determine whether an activity is likely to significantly affect the environment and is therefore subject to an environmental impact assessment under the Act. By the exclusion of service stations in the Schedule to Section 12 of the Act, it is obvious that petrol stations are not considered activity likely to significantly affect the environment. My view therefore is that the environmental assessment required for petrol stations is not under the EIA Act but the local law of the relevant Government Agency in fulfillment of the requirement of Section 2(1) of the Act. This view is further supported by Section 14 of the EIA Act which provides:
(1) “An environmental assessment of a project shall not be required where –
b. In the opinion of the Agency the project is in the list of projects which the President or the Council is of the opinion that the environmental effects of the project are likely to be minimal;
c. The project is to be carried out during national emergency for which temporary measures have been taken by the Government;
d. The project is to be carried out in response to circumstances that, in the opinion of the Agency, the project is in the interest of public health or safety.
(2) For greater certainty, where the Federal, State or local government exercises power or performs a duty or function for the purpose of enabling projects to be carried out, an environmental assessment may not be required if –
(A) the project had been identified at the time the power is exercised or the duty or function is performed; and
(B) the Federal State or local government has no power to exercise any duty or perform functions in relation to the projects after they have been identified.
My interpretation of the above provision as it relates to petrol stations is that where a State Government in the process of creating a new satellite town carries out the necessary survey and designates a particular area for petrol station, the assumption is that it had taken into consideration all the necessary environmental issues before designating the area for petrol station as required under Section 2(1) of the EIA Act. Having performed this duty at the time of the exercise of the power, there may be no need for further environmental assessment under the Act. All that would be necessary is to ensure that all necessary rules regulations and conditions as stipulated under the relevant local laws as regards the construction of petrol stations are complied with. The point I have been struggling to make is that I agree with the Appellant even if he did not say so at the lower court that the records show that what was carried out was not an environmental impact assessment under the EIA Act but environmental impact analysis as required under the Lagos State Town and Country Planning Regulation and Operational Guideline for special Applications (Approval Order). There was consequently no need for compliance with Section 7 of the EIA Act. The learned trial judge was therefore in grave error when on the basis of section 7 of the EIA Act he held that the failure to give the Respondents or any other interest groups the opportunity to comment on the EIA Report rendered any approval given by any authority to construct the petrol station ineffectual. Issue 2 is resolved in favour of the Appellant.
ISSUE NO. 3
Whether upon a proper evaluation of the evidence, the trial court ought not to have entered Judgment in favour of the Appellant in respect of all the reliefs sought, particularly, the declaratory reliefs (Grounds 4 and 5 of the Notice of Appeal)
APPELLANT’S ARGUMENT
Learned Counsel for the Appellant submitted that had the trial court properly evaluated the evidence led by the parties, it would have granted all the reliefs sought by the claimant particularly the declarative reliefs. Relying on the case of Ogunleye v Oyewole (2000) 14 NWLR (PT.687)290 at 303, para C-E, learned counsel submitted that the trial court failed to evaluate credible evidence of the claimant’s witnesses and further submitted that the learned trial Judge did not evaluate the oral and documentary evidence led by the parties in respect of the declarative reliefs sought before it. He submitted that the evidence of the respondent’s sole witness at the trial court was unreliable, scanty and cannot be a proper rebuttal of the oral and documentary evidence adduced by the Appellant at the lower court. Referring to sections 77 and 66 of the Evidence Act, Learned Counsel submitted that the testimony of the Respondent’s sole witness was speculative and not factual as same was based on his “belief”. Relying on the case of Obiekwe v Obi (2005) 10 NWLR (PT.932) 60 @ 79, learned counsel submitted that the mere ipse dixit of the Respondents sole witness, DW1 cannot stand to contradict the available documentary evidence in support of the approval for the construction of petrol filling station granted to the Appellant. He further submitted that there was no law prohibiting the construction of petrol station in any particular neighborhood and that the evidence of the Respondent’s witness DW1 on the same was speculative and sentimental. He relied on the case of Orhue v NEPA (1998) 7 NWLR (pt. 557) 187. Counsel finally submitted challenging the N100, 000. 00 (One hundred thousand naira) damages awarded in its favour that the trial court did not evaluate the evidence of the appellant’s witness before arriving at such paltry sum.
RESPONDENTS’ ARGUMENT
In response to the submission of learned counsel for the Appellant, learned counsel for the Respondent in his brief of argument submitted that a party seeking for a declaratory relief, has a duty to adduce cogent and credible evidence to justify the exercise of the discretion which a declaratory order is. He cited the cases of Titiloye vs Olupo (1991) 7 NWLR (pt. 205) 518 paragraphs H-D pages 532-535, Bankole vs Pelu (1991) 8 NWLR (pt. 211) 523 paragraphs C-D page 541.
He contended that the appellant has failed to show which admissible piece of evidence the trial court rejected or which inadmissible evidence it relied upon and the extent to which such misdirection in law has resulted in a miscarriage of justice. Learned counsel submitted that until the appellant discharges that onus, there is no basis upon which the findings of a trial court will be tampered with. He cited the case of Akinfe vs UBA Plc (2007) 10 NWLR (PT.1041) 185.
Counsel further submitted that the assessment and evaluation of evidence is essentially the duty of the trial court and that the appellate court should be slow to interfere in the absence of special circumstances. He relied on the case of Abeke v state (2007) 9 NWLR (PT. 1040) 411 AT 434.
Learned counsel submitted that there was no reason for the trial court to award a higher amount of damages as claimed by the appellant since nothing was damaged on the premises neither did the appellant prove that it suffered any damage. He urged the court to dismiss the appeal and affirm the Judgment of the lower court.
APPELLANT’S REPLY ON LAW
Learned counsel for the appellant in his reply brief submitted that the appellant has demonstrated in its brief that the trial court did not properly evaluate the testimony of the witnesses and asked the court to carry out its evaluation and give judgment to the appellant accordingly.
RESOLUTION
I have carefully considered the submissions of learned counsel. The issue here is whether or not the evidence placed before the lower court was properly evaluated before the learned trial Judge delivered its Judgment. I must state from the onset that the learned trial judge did not undertake any evaluation of the evidence led in this case as regards the declarations sought in reliefs (a) & (b) because of the error his lordship committed in formulating a sole issue which precluded the consideration of other crucial issues. The Appellant’s witnesses in their witness statements on oath testified that the use of the land as a petrol filling station is designated as such both on the Certificate of Occupancy and on the master plan for the Lekki Peninsula Phase 1 Scheme. The oral evidence was supported by documentary evidence. CW1B is the Certified True copy of the Certificate of Occupancy. It showed that the land is designated for Petrol Filling Station and that the Certificate of Occupancy was granted for commercial purposes. In the Schedule in Exhibit CW1B the land was expressly described as “All that piece of land situated at Lekki, known and referred to as Petrol Filling Station in Block 15 Lekki Peninsula Scheme 1 Eti Osa Local Government…” The witnesses further testified that the appellant sought and obtained relevant approvals from the Nigerian Police Force, Lagos State Fire Service, Lagos State Urban and Regional Planning Board and the Ministry of Petroleum Resources. See pages 283 – 285 Record of Appeal. The oral evidence was again supported by relevant documentary evidence, Exhibits CW2B, CW2C, CW2D and CW2E. The evidence of the witnesses was not contradicted under cross-examination. Their credibility remained unshaken. As against the evidence of these witnesses, all the sole witness called by the Respondent said was this:
“I believe that the construction of the petrol station so close to a restaurant and on such an area of land constitutes a serious threat to lives and property of the residents of the estate and I believe that the claimant did not obtain the required approval or permission under the relevant National and state Laws and if such an approval or permission has been given it was given without the requisite consultation and consent of the residents of the estate whose lives will be affected by the claimant’s project.”
I agree with learned counsel for the appellant that the testimony is speculative and not factual as the evidence is based on the ‘belief’ of the witness. The witness gave evidence of his opinion on the matter and not having been held out to be an expert or demonstrated his expertise as to when certain constructions on premises will constitute injury to residents of the area; the evidence is inadmissible by virtue of Section 67 of the Evidence Act 2011. On the issue of the witness’s belief that approval was not obtained before the construction work commenced, the evidence is not only speculative but also false in view of the overwhelming oral and documentary evidence adduced by the appellant on the approvals obtained. The evidence of the sole witness of the Respondent was clearly unreliable and did not in any way dent or rebut the oral and documentary evidence adduced by the Appellant. It is beyond doubt that if the learned trial judge had undertaken any evaluation at all of the evidence adduced by the parties in respect of the declarations sought in reliefs (a) and (b) of the appellant’s further amended statement of claim and ascribed probative value to same the learned judge would have had no difficulty whatever in granting the reliefs. The law is that where a trial court fails to consider and evaluate material evidence essential to a proper and just determination of the case, the Court of appeal is in as much a good position as the trial court to consider and evaluate such evidence and make proper findings. See Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35; Christopher Okofo v. Eunice Uzoka (1978) 4 SC 77 @ 86; Abusomwan v. Mercantile Bank (Nig) Ltd. (1987) 3 NWLR (Pt. 60) 196 @ 207; Fatuade v. Onwoamanam (1990) NWLR (Pt. 132) 322.
On evaluation of evidence by the trial judge as regards Relief (C) of the further amended statement of claim, my views differ from the above. Relief (C) is for “a declaration that the defendants’ constant harassment of the Claimant’s staff is wrongful and amounts to trespass on the part of the defendants and also conspiracy to injure the claimant by way of its business.” On this relief, the Appellant in its further amended statement of claim pleaded thus:
“11. The Claimant avers that on the beginning of its construction of its petrol station, the Defendant embarked on a systematic disruption of its construction work by way of constant demonstrations, distribution of inflammatory pamphlets, picketing and harassment of workers on site
12. The Claimant avers that one such protest was recorded by the Nigeria Television Authority (NTA) and Cool FM who had been invited by the Defendants on the 20th of December 2003.
22. The Claimant avers that the Defendants have also from time to time prevented the Claimant’s supply vehicles from gaining entry into the Scheme as the gate is manned by a private security outfit employed by the Defendants.”
In response to the above averments, the Respondents in their further amended statement of defence deposed thus:
“5. Contrary to paragraph 11 of the further amended statement of claim, the defendants deny that neither they nor their servants or agents at all or at any time disrupted the claimant’s construction work.
6 The defendants deny that they or their servants, agents or employees at any time prevented the claimant’s supply vehicles from gaining entry into the area as alleged in paragraph 22 of the further amended statement of claim.
7 With reference to paragraph 12 of the further amended statement of claim, the defendants admit being present at the claimant’s site on 20th December 2003 but say that they were there by the claimant’s leave and invitation, and they were not there at any other time either before or after that date.”
Having vehemently and categorically denied constant harassment of the claimant’s staff, apart from the entry on the site on 20/12/03, the burden rested squarely on the appellants to adduce convincing evidence of the harassment. Apart from the general allegation as averred to in the pleading, and the specific instance given of the trespass of 20/12/03, no further particulars were given of the alleged harassment such as dates they occurred, the particular officer of the Appellant who was present or the names of the drivers of the appellant’s supply vehicles who were refused entry into the estate. It is consequently not surprising that the learned trial judge disbelieved the evidence that the respondents obstructed work on the site. As submitted by learned counsel for the respondent, a party seeking declarative relief has a duty to adduce cogent and credible evidence to justify the exercise of the discretion. Titiloye v. Olupo [1991] 7 NWLR (Pt. 205 518 @ 532 – 535 H – D; Odunze v. Nwosu [2007] 13 NWLR (Pt. 1050)1@ 52 A – B. Further, evaluation of evidence of parties and their witnesses and the ascription of probative value to same is an area in which the trial judge has pre-eminence and is the master of same as he sees, hears and watches the demeanor of the witnesses and so is in a better position to believe or disbelieve them. See Momoh V Umoru (2011) 15 NWLR (pt 1270) SC 217; Agbi v. Ogbeh [2006] 11 NWLR (Pt. 990) 65 @ 115 C-E. The learned trial judge was right in refusing to grant relief (C) as framed and in granting damages for trespass, the respondents having admitted entering the appellant’s site on 20/12/03.
On the adequacy of the amount of damages awarded, the law is that a plaintiff is entitled to nominal damages for trespass where no damage or loss is caused Umunna & Ors v. Okwuraiwe & Ors(1978) 6-7 SC 1; (1978) LPELR-3378 (SC). There was no evidence before the trial court that the appellant suffered any damage as a result of the trespass by the respondents on appellant’s site on 20/12/03. On the contrary, the appellant’s witness CW1 admitted under cross-examination that there was no damage. An appellate court will not interfere with an award of damages by a trial court because it is inclined to award a different amount. In order to justify the reversal of the decision of a trial court on the question of the amount of damages, it is necessary for the appellate court to be convinced that one of the following circumstances exist, namely:
i. That the trial court acted upon some wrong principle of law or under a mistake of law;
ii. That the award is arbitrary or perverse;
iii. There was an element of wrong exercise of discretion in the award;
iv. That injustice would result if the appeal court does not interfere;
v. That the amount awarded by the trial court is either ridiculously high or ridiculously low that it must have turned out to be a wholly erroneous estimate of the damages.
See Usang v Hanseatie Int’l Ltd (2009) 11 NWLR (Pt 1153) 522.
In the instant case having regard to the circumstances revealed by the evidence before the trial court, it is my view that the damages awarded to the appellant in the sum of N100,000.00 was fair enough. Issue 3 is partly resolved in favour of the appellant.
In the final result this appeal succeeds in part. The part of the judgment of Shitta-Bey J. in Suit No. LD/162/2004 dismissing reliefs (a) and (b) of the further amended statement of Claim is set aside. In its place the reliefs are hereby granted as follows: It is hereby DECLARED (1) that the parcel of land known as Block 15 Lekki Peninsula Petrol Filling Station as set out in Certificate of Occupancy No. 23/23/1991L and the master plan of the Lekki Peninsula Phase 1 Scheme is designated and set apart for the purposes of the construction of petrol filling station; (2) that the plaintiff’s construction of a petrol filling station on the said parcel of land is legal and valid and in conformity with the terms of the certificate of occupancy no. 23/23/1991L. The aspect of the judgment granting (1) an order of perpetual injunction restraining the Defendants/Respondents from committing further acts of trespass on Claimant’s/Appellant’s land; (2) N100, 000.00 (one hundred thousand naira) damages for trespass committed on Claimant’s /Appellant’s land by Defendants/ Respondents on 20/12/03; (3) N10,000.00 (ten thousand naira) cost in favour of the Claimant/Appellant are hereby upheld. I also uphold the judgment of the lower court dismissing relief 3 praying for a declaration that the defendants’ constant harassment of the plaintiff’s staff on site is wrongful. I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have before now been afforded the draft of the judgment just delivered by my learned brother Chinwe Eugenia Iyizoba JCA.
I agree with her opinion and conclusion that the appeal succeeds in part.
I also abide by the consequential order made as to costs.
FATIMA OMORO AKINBANI, J.C.A.: I have had the privilege of reading the judgment just delivered by my learned brother Chinwe Eugenia Iyizoba JCA.
I agree with the reasoning and conclusions therein and abide by the order as to costs.
Appearances
TAYE OLATUNBOSUN Esq. with JOLOMI JAMES Esq. and A. B. AIRUOYE holding the brief of DR. MUIZ BANIREFor Appellant
AND
LADIPO SOETAN ESQ.For Respondent
