CALMDAY & ORS v. SPDC (NIG) LTD
(2022)LCN/16097(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, April 01, 2022
CA/PH/576/2008
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Between
1. MANSON O. CALMDAY 2. SAMUEL AYEBAINEMI 3. SOLOMON JACOB (For Themselves And Entire Member Creek Fishing Nets Owner) APPELANT(S)
And
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED RESPONDENT(S)
RATIO:
THE PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE
It is trite that the plaintiff must succeed on the strength of his case and not in the weakness of the case of the defendant except where the case of the defendant supported his case, in which case he is entitled to take advantage of the evidence of the defence that supports his case. See Okpala Vs Ibeme (1989) 3 SCNJ 153; (1989) 2 NWLR (Pt. 102) 208, Kodilenye Vs Odu (1935) 2 WACA 336, Offodile Vs Offodile (2019) 16 NWLR (Pt. 1698) 189. TANI YUSUF HASSAN, J.C.A.
A TRIAL COURT HAS THE PRIMARY DUTY TO EVALUATE RELEVANT AND MATERIAL EVIDENCE
Appraisal of oral evidence and ascription of probative value to such evidence, is the primary duty of the trial Court and the essence is that it is the trial Court that has the opportunity of hearing and assessing the evidence and demeanour of a witness. Where assessment of evidence and ascription of probative value to such evidence is carried out by the trial Court, an appellate Court would not interfere in the absence of special and/or exceptional circumstances. See Adeleke Vs Oyetola (2020) 6 NWLR (Pt. 1721); Adeye Vs Adesanya (2001)6 NWLR (Pt. 708) 1.
A trial Court has the primary duty to evaluate relevant and material evidence both oral and documentary after hearing and watching the demeanour of witnesses called by the party in any proceedings having regards to their pleadings. To discharge this duty, the trial Court must show how and why it arrived at its findings of facts and final determination of the issues before it. A trial Court appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on two pans of scale to determine which is heavier, not in terms of quantity but quality of testimonies. See Onyekwuluje Vs Animashaun (2019) 4 NWLR (Pt. 1662) 242, Multichoice (Nig.) Ltd Vs M.C.S.N Ltd/Gte (2020) 13 NWLR (Pt. 1742) 415, Okoro Vs Okoro (2018) 16 NWLR (Pt. 1646) 506 andNdulue Vs Ojiakor (2013) 8 NWLR (Pt. 1356) 311. TANI YUSUF HASSAN, J.C.A.
THE ESSENCE OF CROSS – EXAMINATION OF A PARTY WHO DOES NOT ACEEPT THE EVIDENCE AS TRUE
When a witness testifies on a material fact in controversy in a case, the other party if he does not accept that it is true, should cross-examine him or at least show that he does not accept the evidence as true. Where he fails to do either, the Court can and will take his silence as acceptance that he does not dispute same – Ishaya Vs State (2019) 4 NWLR (Pt. 1661) 76 at 83. See also Simon Vs State (2017) 8 NWLR (Pt. 1566) 199; Olowu Vs Building Stock Ltd (2018) 1 NWLR (Pt.1601) 343 at 363 and Gaji Vs Paye (2003) 8 NWLR (Pt.823) 583. TANI YUSUF HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court of Nigeria, Yenagoa Judicial Division delivered on the 12th of February, 2007 in Suit No. FHC/YNG/CS/340/2003 by Honourable Justice Okechukwu J. Okeke.
The appellants as plaintiffs at the Federal High Court Yenagoa by an Amended Statement of Claim dated 30th January, 2002 and filed on the 31st of January, 2002 in place of the earlier statement of claim filed on 17/6/99 claimed against the respondent as defendant therein as follows:
1. The sum of N150,000,000.00 (One Hundred and Fifty Million Naira) only being compensation for plaintiffs fishing nets, hooks, fish ponds and damages as a result of Oil Spillage from the defendant’s Oil Exploration activities at Well 41 Nembe 4 Flow Station Nembe Creek Oil Field within the jurisdiction of this Honourable Court sometimes about August 1994.
2. An injunction restraining the defendant, its agents or servants from paying the said compensation or part thereof to anybody or group of person other than the plaintiffs or their appointed attorney.
The defendant/respondent’s statement of defence was dated 21st June, 2000 and filed on the 26th of June, 2000. After the exchange of pleadings, trial commenced. The plaintiffs/appellants called one witness and tendered four exhibits marked as Exhibits “A”, “B”, “C” and “D”, while defendant/respondent also called a sole witness to testify on its defence. At the end of trial the plaintiffs/appellants’ case was dismissed.
Dissatisfied with the judgment, the Appellant appealed to this Court on four grounds of appeal with their particulars and reliefs sought.
The appellants’ brief dated the 18th of June, 2012 was filed on the 19th of June, 2012 but deemed properly filed on the 20th of September, 2012. The appellants’ reply on points of law to the respondents’ Amended brief was filed on the 24th of March, 2021.
Learned counsel for the appellants A.B. Adesemoye Esq. distilled two issues for determination thus:
1. “Whether or not the defendant/respondent sufficiently proved that the Oil Spillage from the defendant Oil exploration activities at Well 41, Nembe 4 Flow Station Nembe Creek Oil Field in August 1994 was as a result of sabotage.”
2. “Whether from the state of pleadings and evidence, the learned trial Judge could not have reached a decision, dismissing the plaintiffs’ claim.
Learned counsel for the appellants adopted the brief and the reply on points law. He urged the Court to allow the appeal and set aside the judgment of the Court below.
The respondent’s Amended Brief was dated 3rd of November, 2020 and filed on 1st December, 2020 but was deemed properly filed on the 15th of March, 2021. In it, three issues were formulated for determination of this appeal. The issues read:
(a) “Whether the trial Court was right when he held that Appellants had no mandate to sue the Respondent for fishing hooks and fish ponds thereby dismissing Appellants claim” (Ground 1).
(b) “Whether the trial Court was right when he held that the cause of Oil Spill that led to this suit was sabotage” (Ground 2).
(c) “Whether the Appellants led any credible evidence to prove their case at the Court below” (Grounds 3 and 4).
Learned counsel for the respondent adopted the brief and urged the Court to dismiss the appeal.
However, the respondent’s counsel filed a Notice of Preliminary objection on the 1st of December, 2020 and incorporated the argument in his Amended brief of argument filed on the 1st of December, 2020 but deemed filed on 15th March, 2021. It is incumbent where a notice of preliminary objection is raised, it must first be determined.
PRELIMINARY OBJECTION
The objection raised by the respondent’s counsel is that the appeal is incompetent and liable to be struck out. The objection is predicated on the following grounds:
1. The suit is incompetent and premature because the appellants who were plaintiffs at the Court below did not comply with the condition precedent under Section 11(5) of the Oil Pipelines Act Cap. 7 Laws of the Federation of Nigeria, 2004 before this suit was brought.
PARTICULARS
(a) The Appellants’ claim arose from the exercise of rights under an Oil Pipeline license granted under the Oil Pipelines Act. Specifically, Appellants claim for alleged damages to fishing nets, fishing hooks and ponds due to an alleged Oil spill from the Respondent’s Oil well in Nembe Creek (Well 41) which is injurious affection to their property due to the operation of Oil Pipeline by the Respondent.
(b) The rights of persons affected by the grant and operation of an oil pipeline license is circumscribed by Section 11(5) of the Oil Pipelines Act. The claim must be for compensation only and not for damages, negligence, injunctions, or any other claim.
(c) Section 11(5) of the Oil Pipelines Act also requires parties involved in the dispute to engage in negotiations over the compensation payable before approaching the Court for redress.
(d) As established by this Court in the case of NAOC VS Mr. Onyemachi Ogbu (Appeal No. CA/PH/387/11), a Claim filed without complying with this condition precedent is incompetent and should not be entertained before any Court.
(e) The appellants’ claim having not been founded upon or perused under the exclusive compensation requirement of Oil Pipeline Act ought to be struck out as incompetent.
2. The appeal is incompetent because the Appellants did not transmit a complete Record of Appeal to enable the Court to determine the issues raised in the appeal.
PARTICULARS
(a) The main grouse of the Appellants from the Notice of Appeal filed in this action is that the learned trial Judge did not properly assess and evaluate evidence led before the trial Court.
(b) The Appellants specifically challenged the weight attached to Exhibit “D”, a joint investigation Report, which stated that the Oil spill was caused as a result of sabotage, by learned trial judge in determining the cause of the oil spill complained of by the appellants.
(c) However, the appellants did not include the said Exhibit “D” in the records of Appeal transmitted to enable this Court determine the ground/issue raised by the appellants.
(d) Appellants did not also transmit other vital documents necessary for the just determination of the appeal.
(e) The lack of complete Record of Appeal is a fundamental defect that robs the Court of jurisdiction to entertain this appeal.
Learned counsel for the respondent formulated two issues for determination of the preliminary objection thus:
(i) “Whether the Court below lacked the jurisdiction to entertain this suit since the conditions precedent set under the law were not complied with.”
(ii) “Whether this appeal is incompetent given that the record of Appeal is incomplete.”
On the first issue, learned counsel for the respondent submitted that the trial Court was in error to have entertained this suit when the condition precedent for filing the suit was not complied with, which robs the Court of jurisdiction. He relied on Madukolu Vs Nkemdilim (1962) LPELR 24023 (SC). That the condition precedent for instituting action against holder of Oil Pipeline License are spelt out under Section 11 of the Oil Pipelines Act, Cap 07 LFN, 2004 which are:
i. The claim must be founded on the Oil Pipelines Act and must be one for compensation.
ii. The parties must have attempted fixing the quantum of or amount payable as compensation before recourse would be had to the Courts to fix same.
Counsel referred to Section 11(5) of the Oil Pipelines Act on the mode of instituting actions against a holder of Oil Pipelines License and for payment of compensation to persons injuriously affected and the case of Nigerian Agip Oil Company Ltd Vs Mr. Omyemachi Ogbu CA/PH/387/11 (Unreported) on the interpretation of Section 11(5) of the Act.
Counsel also submitted that the claims of the appellants for specific damages, general damages and injunction are clearly brought outside the Oil Pipelines Act.
It is finally submitted on this issue that the extant action is incompetent being one not for compensation and not in strict compliance with the Oil Pipelines Act which robs the Court of jurisdiction.
On the second issue, counsel submitted that this Court cannot hear an appeal on incomplete record of appeal. Relying on the case of Onnoghen Vs FRN (2019) LPELR – 47931 and Mutual Life Assurance Vs Iheme (2010) LPELR-4568, it is submitted that a scrutiny of the Record of Appeal transmitted on 18/08/2007 shows that, not all the documents relevant to the determination of the appeal were transmitted. That Exhibit “D” the joint inspection report tendered by the respondent was not transmitted, and also Exhibits “B” and “C” were not transmitted. Counsel argued that where an incomplete record was transmitted, no appeal can be heard and the appeal therefore is incompetent, and liable to be struck out.
Learned counsel for the appellants in response to the preliminary objection formulated a sole issue for determination thus:
“Whether or not the respondent’s preliminary object can be sustained in the circumstance of this appeal.”
It is the submission of the appellants’ counsel that the record of appeal was compiled and transmitted by the registrar of the Court below with all the exhibits tendered by the parties at the lower Court and the records duly served on the parties. He referred to page 96 of the records of appeal to show that the parties were duly summoned by the registrar of the Court below and were represented owing to the settlement of the records of appeal. That the respondent if aware that the record is incomplete, he should have taken the advantage of Order 8 Rule 6 of the Court Appeal Rules, 2016 to compile and transmit additional records.
It is finally submitted that the procedure adopted by the respondent in raising the preliminary objection is unknown to law and rules of procedure. He referred to Order 10 Rule 1 of the Court of Appeal Rules, 2016; Order 1 Rule 5 of the Court of Appeal Rules and Section 30 of the Court of Appeal on the procedure for raising a preliminary objection. The Court was referred to Laromeke Vs Omini (2018) LPELR -44152 (CA) and urged the Court to discountenance the objection.
The respondent’s objection predicated on the incomplete record has no basis. I had recourse to the record of appeal at pages 28-71 of the record where the documents admitted as Exhibits “A”, “B”, “C” and “D” are so marked. The fact that copies of the exhibits are not reflected in the record does not make the record of appeal incompetent since the original documents marked Exhibits “A”, “B”, “C” and “D” were transmitted to the Court of Appeal along with the record of appeal, which are more authentic.
With regard to the respondent’s issue of non-compliance with the condition precedent for instituting the action, at pages 16 – 21 of the record, in the statement of claim, the reliefs sought by the appellant therein is for compensation for damages and the injunction. In relief 2, it is to restrain the respondent from paying the compensation to anybody or group of people but to the appellants. Section 11 (5) of the Oil Pipelines Act, is specific on the payment of compensation for damages caused and that is what the appellant claimed. The respondent’s submission on this issue is out of context and technical. The preliminary objection is a waste of judicial time. It is accordingly dismissed.
THE APPEAL
I adopt the appellants’ issues in determining this appeal. The two issues shall be taken together.
ISSUE ONE
“Whether or not the defendant/respondent sufficiently proved that the Oil Spillage from the defendant Oil exploration activities at Well 41, Nembe 4 Flow Station Nembe Creek Oil Field in August 1994 was as a result of sabotage.”
ISSUE TWO
“Whether from the state of pleadings and evidence, the learned trial Judge could not have reached a decision, dismissing the plaintiffs’ claim.”
On issue one, learned counsel for appellants referred to the evidence of Dw1 in chief when he testified on the 28th of June, 2005, that there was an Oil spillage at the defendant’s Well 41 Nembe Creek in September, 1994 caused by sabotage, to submit that from the defendant’s evidence in proof of sabotage, it is hinged in the defendant’s incident of September 1994 as against the one in August, 1994 which they are complaining of. He referred to Exhibit “D”, the spillage incident report which shows that the spillage complained of occurred on the 6th of August, 1994.
Learned counsel submitted that the trial Court in its judgment failed to consider that Exhibit “D” did not indicate the cause of Oil Spillage from the defendant/respondent’s oil exploration activities at Well 41 Nembe 4 Flow Station Nembe Creek Oil Field, it did not indicate the cause of oil spillage and it was single handedly signed by the appellant without impute from the other investigating authorities such as the Department of Petroleum Resources, Nigerian Police and community representatives. The Court was referred to Nwobodo Vs Onoh (1984) 1 SC1, SPDC Vs Olarewaju (2003) FWLR (Pt. 140) 1640 and Hashidu Vs Goje (2003)15 NWLR (Pt.843) 352, to submit that Exhibit “D” cannot be conclusive proof of sabotage having emanated from the defendant/respondent alone. The Court is urged to hold that the entire evidence of the defence of the defendant/respondent did not relate to the incident of 6/8/1994.
Referring to Section 11(5)(c) of the Oil Pipelines Act Cap 338 LFN, 1990 which was the operative law at the time of the institution of this suit provided that compensation for damage must be occasioned by acts other than on account of the claimant’s default or on account of the malicious act of a third person. It is submitted that the defendant/respondent did not establish the defence of sabotage as envisaged by the oil pipelines Act as required by Section 138(1) of the Evidence Act.
On issue two, it is the submission of the appellants’ counsel that the learned trial judge did not properly evaluate the evidence placed before him to conclude that the spillage is as a result of sabotage and dismissed the plaintiffs’/appellants’ claim. That the plaintiffs/appellants led evidence that was not challenged, controverted or discredited by the opposite party, the Court ought to act on the unchallenged evidence before it. counsel referred to Obembe Vs Wemabod (1977) 5 SC. 115 and Eka Vs Iyo (2007) 11 NWLR (Pt.1045)385 and 404 paragraph F- G.
It is finally submitted that the plaintiffs/appellants having pleaded and led sufficient evidence in proof of special damage, this Court is in a good position to assess the award of damage for the appellants and award same. The Court was referred to Ukoma Vs Nicol (1962) 1 SCNLR 176 and Udo Vs C.R.S.N.C. (2002) FWLR (Pt. 104) 665 among others and to hold that the appellants are entitled to the compensation claimed based on the undisputed facts and figures contained in the plaintiffs/appellants’ pleadings and evidence before the trial Court on fishing hooks and ponds. We are urged to resolve in favour of the appellants.
Responding, learned counsel for the respondent submitted on issue one that the trial Court was right in holding that the appellants had no authority to sue the respondent for fishing hooks and fish ponds. That the law is trite that in a representative action, the plaintiff can only represent those who gave him the authority to do so and in respect of a claim in which the interest is common with that of those he represents. That the reliefs sought must be beneficial to all the representatives and those represented. He relied on Ighedo Vs PHCN (2018) LPELR- 43863 (SC)
It is submitted that the appellants in proof of the mandate given to them to sue, tendered Exhibit “A”, a resolution by the communities in Nembe Creek who described themselves as “fishing nets owners and specifically authorized the appellants to sue the respondent for polluted fishing nets and nothing more. That the only common interest and common relief beneficial to the appellants and the people they represent is polluted fishing nets, not fishing hooks nor fishing ponds. He said Exhibit “A” is a document that speaks for itself and oral evidence cannot vary the content of a document. The Court was referred to Ashakacem Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR-46541.
Learned counsel for the respondent submitted further that the trial Court was right in holding that the cause of the oil spillage was sabotage which finding was based on Exhibit “D”. That the respondent led credible evidence to show the cause of spill which was reported to the relevant authorities in charge of oil incidents in the Department of Petroleum Resources, Federal and State ministries of Environment which jointly carried out an investigation with the community representatives. The outcome of their investigation is Exhibit “D”. Counsel argued that this piece of evidence was not challenged or contradicted and the Court relied on it to determine that the cause of the spill was sabotage. That unchallenged evidence that is positive and cogent can be relied upon by the Court. He referred to Odulaja Vs Haddad (1973) 11 SC 357 at 364 – 365.
Relying on Ajibulu vs Ajayi (2014)2 NWLR (Pt. 1392) 483 and Ikumonihan Vs State (2014)2 NWLR (Pt. 1392) 564 the Court is urged not to interfere with the decision of the trial Court which is reasonable.
On issue two, learned counsel for the respondent submitted that the appellants’ allegation that the respondent’s spilled oil in August, 1994 was as a result of respondent’s negligence that caused damages to their fishing nets, fish pond and fishing hooks have the burden of proof on them, as they can succeed on the strength of their case and not on the weakness of the defence.
Counsel argued that the evaluation of evidence which is in the province of the trial Court, the trial Court after hearing the evidence of the parties duly evaluated same and disbelieved the case of the appellant while believed the case of the respondent based on the evidence given by the parties in Court. Counsel relied on Ezeani Vs FRN (2019) LPELR-46800 (SC) and Anaeme Vs Okpalla (2017 LPELR -42780 (CA). That the trial Court duly placed the cases of the parties on the imaginary scale to arrive at its decision. The Court is urged to uphold the findings and decision of the trial Court and dismiss the appeal.
The case of the appellants is for compensation as a result of oil spillage from the respondent’s oil exploration activities at well 41 Nembe 4 Flow Station-Nembe Creek Oil Field. The compensation is in respect of damage done to the appellants fishing nets, hooks and fish ponds as a result of the oil spillage. The appellants alleged negligence on the part of the respondent that caused the oil spillage.
The respondent on its part alleged sabotage as the cause of the oil spillage.
The contention of the appellants is that the evidence of the respondent’s witness related to oil spillage of September 1994 as against the appellants’ complaint of oil spillage of August, 1994. He referred to Exhibit “D”, the spillage incident report which shows that the spillage complained of, occurred on 6th August, 1994. Counsel argued that Exhibit “D” cannot be conclusive proof of sabotage having emanated from the respondent without impute from the Department of Petroleum Resource, the Nigerian Police and community representatives.
Learned counsel for the respondent submitted in response that the trial Court was right in holding that the cause of oil spillage was sabotage. He said the respondent led credible evidence to show that the cause of the spillage was reported to the relevant authority in charge of oil incident in the Department of Petroleum Resources, Federal and State Ministries of Environment which jointly carried out an investigation with the community representatives, the outcome of which investigation is Exhibit “D”.
The evidence of Dw1 at pages 51-65 of the record is that, as a result of the oil spillage, the respondent reported the incidence to the Department of Petroleum Resources, (DPR) Federal Ministry of Environment, State Ministry of environment, where it exists which carried out the investigation with the representatives of the community to which a report exhibit “D” was issued. It is clearly stated in Exhibit “D” that unknown persons tempered with the Well head valve nipple. The date of the incident indicated in the report was 8th August, 1994. The investigation having been carried out by the Department of the Petroleum Resources, the report of the investigation was signed by the Head of Department on the 7th of September, 1994. The respondent having initiated the investigation the report will obviously be issued in its name. And that does not mean as contemplated by the appellants’ counsel in his submission that the report Exhibit “D” emanated from the respondent and was signed by the respondent. This is not correct. This evidence was not challenged or controverted under cross-examination and the Court can rightly act on it.
When a witness testifies on a material fact in controversy in a case, the other party if he does not accept that it is true, should cross-examine him or at least show that he does not accept the evidence as true. Where he fails to do either, the Court can and will take his silence as acceptance that he does not dispute same – Ishaya Vs State (2019) 4 NWLR (Pt. 1661) 76 at 83. See also Simon Vs State (2017) 8 NWLR (Pt. 1566) 199; Olowu Vs Building Stock Ltd (2018) 1 NWLR (Pt.1601) 343 at 363 and Gaji Vs Paye (2003) 8 NWLR (Pt.823) 583.
The effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. In the instant case, DW1 the respondent’s witness stated the cause of the oil spillage to be sabotage based on the report of the investigation carried out by the Department of Petroleum Resources and representatives of the community involved. The appellants who alleged negligence ought to have cross-examined DW1 on this vital evidence which is in rebuttal to the assertion of the appellants, but failed to cross-examine the witness on this vital issue.
Exhibit “D” the investigation report on the oil spillage bear eloquent testimony to what happened. Document when tendered and admitted in Court is more credible and authentic than the words, from the vocal cord of man because it is permanent and indelible through the ages. Therefore oral evidence is not admissible to add to, vary subtract from the document.
The appellants’ counsel submission that the evidence of Dw1 related to spillage of September 1994 as against their claim of August 1994 is of no moment, for human beings are mere mortals susceptible to human error, since the investigation report dated 7th September, 1994 is in respect of the spillage of August 1994 as clearly indicated therein. The error is pardonable as it is harmless.
Section 11 (5) (c) of the Oil Pipelines Act LFcap 07N, 2004 provides for payment of compensation to any person injuriously affected by the exercise of the powers under the license other than on account of his own default or on account of malicious act of a third person. The respondent in defence of the action against it by the appellants was able to show that the cause of spillage was an act of sabotage as evidenced by Exhibit ’’D”. The trial Court was therefore right in relying on Exhibit “D” to hold that it supported the case of the respondent that the spill was caused by sabotage. By virtue of Section 11(5)(C) of the Oil Pipelines Act, the appellants are not entitled to compensation being a malicious act of a third party. Issue one is resolved against the appellants and in favour of the respondent.
On issue two, the submission of the appellants’ counsel is that the trial Court did not properly evaluate the evidence placed before it to come to a right decision.
Appraisal of oral evidence and ascription of probative value to such evidence, is the primary duty of the trial Court and the essence is that it is the trial Court that has the opportunity of hearing and assessing the evidence and demeanour of a witness. Where assessment of evidence and ascription of probative value to such evidence is carried out by the trial Court, an appellate Court would not interfere in the absence of special and/or exceptional circumstances. See Adeleke Vs Oyetola (2020) 6 NWLR (Pt. 1721); Adeye Vs Adesanya (2001)6 NWLR (Pt. 708) 1.
A trial Court has the primary duty to evaluate relevant and material evidence both oral and documentary after hearing and watching the demeanour of witnesses called by the party in any proceedings having regards to their pleadings. To discharge this duty, the trial Court must show how and why it arrived at its findings of facts and final determination of the issues before it. A trial Court appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on two pans of scale to determine which is heavier, not in terms of quantity but quality of testimonies. See Onyekwuluje Vs Animashaun (2019) 4 NWLR (Pt. 1662) 242, Multichoice (Nig.) Ltd Vs M.C.S.N Ltd/Gte (2020) 13 NWLR (Pt. 1742) 415, Okoro Vs Okoro (2018) 16 NWLR (Pt. 1646) 506 andNdulue Vs Ojiakor (2013) 8 NWLR (Pt. 1356) 311.
The submission of the appellants’ counsel on this issue is that the appellants having led evidence sufficient to entitle them to damages, the trial Court as a result of improper evaluation of evidence dismissed their claim by relying on Exhibit “D” that the spill is as result of sabotage. That exhibit “D” cannot be conclusive proof of sabotage having emanated from the defendant/respondent alone.
However, it is important to point at this stage that it is the appellants who tendered Exhibit “D” in evidence and the appellants’ counsel cross-examined DW1 on Exhibit “D” though not on material facts. The appellants who tendered Exhibit “D” in proof of their case, it turned out to support the case of the respondent that the cause of spill is as a result of sabotage which disentitled them to compensation by virtue of Section 11(5)(C) of the Oil Pipelines Act. This is captured in the judgment of the trial Court at page 89 of the record when it held:
“Exhibit “D” tendered by the plaintiffs supports the defendant’s position that the spill was caused by sabotage. The defendant is therefore not liable for loss, if any suffered by the Plaintiffs.” See Shell Petroleum Development Company Vs Otoko (1990) 6 NWLR (Pt. 159) 693 at 725 paragraph D.”
It is trite that the plaintiff must succeed on the strength of his case and not in the weakness of the case of the defendant except where the case of the defendant supported his case, in which case he is entitled to take advantage of the evidence of the defence that supports his case. See Okpala Vs Ibeme (1989) 3 SCNJ 153; (1989) 2 NWLR (Pt. 102) 208, Kodilenye Vs Odu (1935) 2 WACA 336, Offodile Vs Offodile (2019) 16 NWLR (Pt. 1698) 189.
In the instant case, the investigation report Exhibit “D” showed that the spill was caused by unknown persons who tampered with the Well head valve nipple. Exhibit “D” operated as admission of sabotage against the interest of the appellants who tendered it, particularly now at the appellate Court when the same plaintiffs/appellants contended that the defendant /respondent failed at trial Court to prove that the cause of the spill is sabotage. See Olasope Vs NBN (1985) 3 NWLR (Pt. 11) 14700 Nsirim Vs Nsirim (2002)3 NWLR (Pt. 755) 697.
An appellant who relied on improper evaluation of evidence to set aside a judgment has the onus to identity or specify the evidence improperly evaluated or not evaluated. He has also to show convincingly, that if the error complained of had been corrected, the conclusion reached would have been different and in his favour. See Abdullahi Vs Adetutu (2020) 3 NWLR (Pt. 1711) 338 at 348 and Dakur Vs Dapal (1998) 10 NWLR (Pt. 571) 573.
In the instant case, the appellants failed woefully to meet these conditions. There was no particularization of the evidence wrongly evaluated. They have therefore failed to discharge the onus on them.
Where a trial Court as in the instant case unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appellate Court to interfere, and to substitute its own views for the view of the trial Court. See Woluchem Vs Gudi (1981) 5 SC 291 and UBN Plc Vs Borini Prono Co Ltd (1998) 4 NWLR (Pt. 547) 640.
The issue is resolved against the appellants and in favour of the respondent. The net effect is that there is no merit in this appeal, having resolved all issues against the appellant.
I have no hesitation in entering an order dismissing this appeal. Appeal dismissed. Parties to bear their respective costs.
PAUL OBI ELECHI, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA in this appeal. I find myself in complete agreement with his Lordships reasoning and conclusion that the appeal is not meritorious and is worthy of being dismissed.
I also dismiss same and abide by the consequential order as for parties to bear their respective costs in this appeal.
Appeal dismissed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: My brother, TANI YUSUF HASSAN, JCA availed me the opportunity of reading before now, the judgment just delivered by him in this appeal.
I endorse into the reasoning and conclusion for dismissing both the Respondent’s preliminary objection and the Appellants’ appeal.
I abide by the order on costs.
Appearances:
A.M. Akinrodoye, Esq. with him A.C. Ojo, Esq. For Appellant(s)
D.I. Okpe, Esq. For Respondent(s)
