CHEVRON NIGERIA LIMITED & ANOR v. KEHINDE OMOREGHA & ORS
(2015)LCN/7811(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of March, 2015
CA/B/328/2012
RATIO
TORT: NEGLIGENCE; WHAT THE TERM NEGLIGENCE DENOTES
The term negligence denotes the failure to exercise the standard of care that a reasonably prudent person would normally have exercised in a similar situation. That’s to say, any conduct falling below the legal standard established to protect others against unreasonable risk of harm, as against conduct that is intentionally, wantonly, or willfully disregardful of other’s rights It is trite, that the negligence usually includes culpable carelessness. Also termed actionable negligence; ordinary negligence; simple negligence. See BLACK’S LAW DICTIONARY 9th Edition 2009 @ 1133. I think, it was Patrick Devlin, who once aptly remarked that –
“Negligence in law ranges from inadvertence that is hardly more than accidental to sinful disregard of the safety of others.” See THE ENFORCEMENT OF MORALS (1968) @ 36 copiously alluded to in BLACK’S LAW DICTIONARY (Supra) @ 1133. per.
IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF ON ANY PARTY WHO DESIRES A COURT TO GIVE JUDGEMENT AS REGARDS ANY LEGAL RIGHT OR LIABILITY DEPENDENT UPON THE ALLEGED EXISTENCE OF FACTS TO PROVE THAT THOSE FACTS DO ACTUALLY EXIST
Indeed, the law is very much trite, to the effect that any party who desires a court to give Judgment as regards any legal right or liability dependent upon the alleged existence of facts, must prove that those facts do actually exist. See Section 131 of the Evidence Act CAP. 11 Laws of the Federation of Nigeria, 2011. See also OKOYE VS. NWANKWO (2003) FWLR (Pt. 156) 992 @ 1003 paragraph H; UIC LTD VS. HAMMOND NIGERIA (1998) NWLR (Pt. 565) 340 @ 358. per.
IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.
DAMAGES: SPECIAL DAMAGES; WHETHER SPECIAL DAMAGES MUST SPECIFICALLY BE PLEADED AND STRICTLY PROVED ON CREDIBLE EVIDENCE
It is a trite fundamental principle, that special damages must specifically be pleaded and strictly proved on credible evidence. Thus, a Plaintiff claiming special damages has an onerous duty to plead and particularize any item of damage so alleged. See XTOUDOS SERVICES NIGERIA LTD VS. TAISEI (WA) LTD (2006) ALL FWLR (Pt. 333) 164 @ 1658 paragraphs E – H; per Mohammed, JSC; AMIZODO VS. PAZMEEK LTD TRADE (2008) ALL FWLR (Pt. 432) 1201 @ 1215 paragraphs D – E; ANGEL SPINNING AND DYEING LTD VS. AJAH (2000) FWLR (Pt. 23) 1332 @ 1349 paragraphs F – G. per.
IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.
DAMAGES: GENERAL DAMAGES; THE ASSESSMENT OF GENERAL DAMAGES
It is trite doctrine that the assessment of general damages is not predicated upon any established legal principle. Thus, it usually depends on the peculiar circumstances of the case. See UKACHUKWU VS. UZODINMA (2007) 9 NWLR (Pt. 1038) 167; INLAND BANK (NIG) PLC VS. F & S CO. LTD (2010) (Pt. 1216) 395 @ 419 paragraphs C – D. per.
IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.
DAMAGES; THE AWARD OF DAMAGES; THE OBJECT OF AN AWARD OF DAMAGES AND HWEN EXEMPLARY DAMAGES CAN BE AWARDED
Arguably, one of the far-reaching fundamental object of an award of damages, most especially general damages, is to compensate the complainant for the harm or injury done thereto, or to punish the recalcitrant defendant for his intransigant conduct in inflicting that harm. As authoritatively postulated by the Apex Court –
Such a secondary object can be achieved by awarding in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages; even retributory damages can come in to play whenever the defendants’ conduct is sufficiently outrageous to merit punish[ment] as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Per Obaseki, JSC of blessed memory @ 27 paragraphs C – F.
Interestingly, in the case of BROOME VS. CASSELL & CO. LTD (1972) 2 WLR 647, the House of Lords had authoritatively reiterated its resolve to the effect that:
“We cannot depart from ROOKES VS. BARNARD here. It was decided neither per incurium nor ultra vires.”
Most interestingly, however, the Supreme Court held in ELOICHIN (NIG) LTD. VS. MBADIWE (Supra), that the decision of the House of Lords in BROOME VS. CASSELL & CO. LTD (Supra) does not bind the Court of Appeal of Nigeria But that it has a persuasive effect thereon:
It is therefore still good law in Nigeria that exemplary damages can be awarded by Nigerian courts when claimed and proved. Per Obaseki, JSC. per.
IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.
JUSTICES:
IBRAHIM MUSA MOHAMMED SAULAWA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
1. CHEVRON NIGERIA LIMITED
2. WEST AFRICA OFFSHORE LIMITED – Appellant(s)
AND
1. KEHINDE OMOREGHA
2. ABOY OBASUWASE
3. OLAMIDE OMOREGHA
4. HENRY OMOREGHA
5. FOKUNSI OMOREGHA
6. ERI OLUWOLE – Respondent(s)
IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.(Delivering The Leading Judgment): The present appeal is against the Judgment of the Federal High Court, Asaba Judicial Division, Delta State, delivered on March 7, 2011 in Suit No. FHC/ASB/CS/120/96. By the said decision, the Lower Court Coram I. N. Buba, J; entered Judgment in favour of the Respondents (Plaintiffs) against the Appellants (Defendants).
BACKGROUND FACTS:
By the Amended Statement of Claim thereof dated 06/12/05 but filed on 07/12/05 in the court below, the Respondents claimed the sum of N10,000,000.00 for damages to their fishing nets allegedly arising from the Appellants’ negligence.
Pleadings were filed and served by the respective parties. Eventually, the Suit proceeded to trial. At the conclusion of which, the Lower Court delivered the vexed Judgment to the following conclusive effect:
Therefore, it is my findings that the Plaintiffs proved negligence but failed to prove special damages Consequently, Judgment be and is hereby entered for the Plaintiff (sic) against the Defendant (sic) on the head of general damages which I assess and award at N5 Million as same is not exaggerated and having regard to the length of time this case took and value of naira since 1996. For the avoidance of doubt the Defendants be and are hereby ordered to pay the Plaintiff (sic) the sum of N5 Million Naira as damages for the damage done to them by negligently piloting their tug boat. This is the Judgment of this court.
HON. JUSTICE I. N. BUBA
07/03/11
Consequent upon the said Judgment, the Appellants filed a notice of appeal in the court below on 21/3/11. The Record of Appeal was deemed properly compiled and transmitted to this court on 26/02/14. The Appellants’ brief of argument was filed on 03/3/14, within the statutory time limit. The Respondents’ brief was filed on 17/6/14. When the appeal lastly came up on 27/01/15 for hearing, the learned counsel adopted their argument contained in the respective briefs thereof, thus resulting in reserving the Judgment for dezrlivery.
The Appellants’ brief spans a total of 19 pages. At pages 2 & 3 of the said brief, five issues have been raised for determination:
ISSUE I:
Whether the trial court was right in arbitrarily awarding to the Respondents the sum of N5, 000,000.00 (Five Million Naira) only and cost of N75, 000,000.00 (Seventy Five Million Naira) for the alleged destruction of Respondents’ fishing net having held that the Respondents did not lead any cogent, and strong evidence to establish their case. (Ground 1 of the Appeal).
ISSUE II:
Whether the trial court was right in holding that the Respondents proved negligence against the Appellants for the destruction of their fishing net on ground that the Appellants did not effectively cross-examined (sic) the Respondents’ witness on the issue of negligence. (Ground 2 of the Appeal).
ISSUE III:
Whether the trial court was right in holding that the Respondents proved negligence on grounds that Appellants did not effectively cross-examine the Respondents on the issue of speed.
(Ground 3 of the Appeal).
ISSUE IV:
Whether the trial court was right in holding that the action of the Respondents’ before the Lower Court was competent.
(Ground 4 of the Appeal).
ISSUE V:
Whether the Judgment entered in favour of the Respondents is supported by the totality of the evidence adduced by parties in this case.
(Omnibus Ground of Appeal).
The Issue No. 1 is extensively argued at pages 3 – 9 of the Appellants’ brief. In a nutshell, it was submitted that the law is trite, that under no circumstance can general damages be substituted for special damages, which the Plaintiffs failed to specially plead and prove.
Further submitted, that the Respondents’ claim is for destruction of their fishing net by the Appellants’ vessel while towing a tugboat along the waterways. It was contended, that by paragraphs 9 & 9B of their Statement of Defence, the Appellants have denied the Respondents’ claim in paragraph 17 of the Statement of Claim. Thus, issues having been joined (thereon), it behoves the Respondents to prove negligence, as well as special damages. Further contended, that the Respondents, throughout the length and breadth of their pleadings, neither specifically pleaded nor proved special damages. See XTPUDOS SERVICES NIGERI LIMITED & ANOR VS. TAISEI (WA) LIMITED & ANOR (2005) ALL FWLR (Pt. 333) 1640 @ 1658 paragraphs E – H; AMIZODO VS. PAZMAC LTD TRADE (2008) ALL FWLR (Pt. 432) 1201 @ 1215 paragraphs D – F; ANGEL SPINING AND DYEING LTD VS. AJAH (2000) ALL FWLR (Pt. 23) 1332 @ 1349 paragraphs F – G; IYERE VS. BENDEL FEED AND FLOUR MILL LTD (2001) ALL FWLR (Pt. 453) 1217 @ 1244 paragraphs B – D.
It was argued, that it’s manifestly clear that the evidence of the Respondents is at variance with their pleadings, especially paragraphs 16 and 17 of the Statement of Claim thereof. That, it’s the law that facts not pleaded go to no issue The court is urged to thus strike out the said paragraphs 16 and 17 of the Statement of Claim. See U.I.C. LTD VS. HAMMOND NIG. LTD (1998) 9 NWLR (Pt. 565) 340 @ 358.
Therefore, the awarding of N5,000,000.00, as general damages and cost in place of special damages, was done by the Lower Court under a mistake of law, and thereby led to injustice and miscarriage of justice.
Under Issue No. 2, it was submitted, that the Lower Court was wrong in holding that the Respondents proved negligence against the Appellants, on grounds that the latter did not cross-examine the Respondents’ witness on the issue of negligence and speed. See Section 131 of the Evidence Act CAP. 11 LAWS OF THE FEDERATION OF NIGERIA, 2011; OKOYE VS. NWANKWO (2003) FWLR (Pt. 156) 992 @ 1003 paragraph H; U.I.C. LTD VS. HAMMOND NIG. LTD (1998) NWLR (Pt. 565) 340 @ 358.
Further submitted, that, the evidence of DW1 was wrongly treated by the Lower Court. The testimony of DW1 (paragraphs 6 – 18) did not dwell on what happened at the scene, but was based on Appellants’ records at disposal thereof. See KATA ENT. LTD VS. DAEWOO NIG. LTD (1985) 2 WLR (Pt. 5) 116; AFRICAN PETROLEUM PLC VS. SOYEMI (2008) ALL FWLR (Pt. 397) 117 @ 127 – 128 paragraphs G – A.
It was postulated, that the Respondents did not prove negligence against the Appellants. And that insufficiency of mere occurrence of accident, or driving on wrong side of the road, is not a proof of negligence. See ABUBAKAR VS. JOSEPH (2008) ALL FWLR (Pt. 432) 1065 @ 1100 paragraphs E – G; HAMZA VS. KURE (2010) ALL FWLR (Pt. 539) @ 1071; IYERE VS. BENDEL FEED AND FLOUR MILLS LTD (2001) ALL FWLR (Pt. 453) 1218 @ 1244 paragraphs B – D; ABUBAKAR VS. JOSEPH (Supra).
The court is urged to hold, that if the Appellants’ vessel flew on excessive speed, the canoe of the Respondents would have capsized. Accordingly, the court is urged upon to resolve the second issue in favour of Appellants.
Under the Issue No. 3, it was submitted that the court was wrong in holding that the action was competent. It was further submitted, that, the Respondents’ action as constituted is incompetent. See NKEMDILIM VS. MADUKOLU (1962) 1 ALL NLR; Order 4 Rule 3 (1) of Federal High Court Rules, 1990.
Referring to paragraphs 7 and 8 of the Statement of Claim and Respondents’ witness’ statement on oath, it was contended that the Respondents’ claim is vague and uncertain as to which of the Respondents’ individual net was destroyed. Secondly, there’s no evidence of joint/common ownership of the fishing nets, and that the profit of their enterprise would be beneficial to all. There was no evidence regarding the purchase, size, shape or age of the individual fishing nets and materials.
Further contended, that it stands to reason, therefore, that the Respondents have no common interest in the fishing net and materials, as it’s individually owned. That, the essential condition for sustaining a representative action is that the persons who are to be represented have the same interest as the Plaintiff in one and the same cause or matter. There must be a common interest alike. See IDISE VS. WILLIAM INT. LTD (1995) NWLR (Pt. 370) 142 @ 153 paragraphs A – D.
The court is urged to hold, that the action is incompetent and/or improperly constituted, and that the Appellants have no standing to sue jointly in this case.
Conclusively, the court is urged to allow the appeal, set aside the Judgment of the Lower Court and enter Judgment for the Appellants.
On the other hand, the Respondents’ brief spans a total of six pages. At page 2 of the said brief, the Respondents raised the following sole issue:
“ISSUE I:
Whether FACTS ADMITTED need further proof.”
Without any much ado, the said Issue 1 was answered to the effect that admitted facts are deemed to have been established. Therefore, they need no further proof. It was submitted, that at the trial of this case, the Appellants did not deny the fact that there was a negotiated and agreed sum of N100 Million for them to pay the Respondents as compensation for damages done to them.
So, therefore, the Lower Court was right in finding the Appellants guilty of the offence of negligence. The court is urged to so hold. See page 21 of the Record, regarding the evidence of PW1 under cross-examination; MAJOR BELLO M. MAGAJI VS. NIGERIANÂ Â ARMY (2008) 3 SCNJ 82 @ 85; NWACHUKWU NZERIBE VS. DAVE ENGR. COMPANY LTD (1994) 9 SCNJ 161 @ 163.
As for Issues II & III, the Respondents merely adopted the submissions thereof in respect of Issue No. 1 above, and urge the court to so hold.
Regarding Issue IV, the Respondents submit that the Lower Court was absolutely right, based on admitted facts and available evidence, when it came to the irresistible, compliable and motivating conclusion that the Respondents’ action was very competent. The court is urged to so hold.
On Issue V, it was submitted that the totality of the weight of evidence before the Lower Court was in favour of the Respondents. Hence, the Lower Court gave the Respondents Judgment. The court is urged to confirm the Judgment of the Lower Court, and hold that as a result of the accident caused by the Appellants, the Respondents and their defendants have been put into an inestimable sufferings, hunger and pains, which are unquantifiable in monetary terms as these are continuous. The Appellants are very rich group of Nigerians, rather than taking good care of the Respondents as they promised, they have come to court to hide under the canopy of the court. The court is urged to dismiss the appeal, so that the whole world would know that the very poor in this country can get justice in our courts.
I have amply considered the circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-‘a-vis the record of appeal, as a whole. It is rather obvious, that with the exception of Issue No. I, the Respondents have adopted Issues II, III and IV of the Appellants. I have deemed it expedient to adopt the five issues formulated and argued by the Appellants in the brief thereof for determination of the appeal, anon.
Arguably, both Issues II and III are apparently coterminous. Thus, I have deemed appropriate to determine them together.
ISSUES II & III
The second Issue raises the vexed question of whether the Lower Court was right in holding, as it did, that the Respondents proved negligence against the Appellants for the destruction of their fishing net, on the grounds that the Appellants did not effectively cross-examine the Respondents’ witness on the issue of negligence. This second issue was distilled from ground 2 of the notice of appeal.
The third issue, on the other hand, raises the question of whether the Lower Court was right in holding that the Respondents proved negligence on grounds that the Appellants did not effectively cross examine the Respondents on the issue of speed. This third issue was stated to have been distilled from ground 3 of the notice of appeal.
In the instant appeal, the case of the Respondents as Plaintiffs at the trial, is that on 23/7/96 at Okan 52 Warri River, the Plaintiffs were carrying out their fishing activities:
When suddenly the 2nd Defendant tug Boat MV/BENGA driven by the 2nd Defendant for the 1st Defendant’s purpose unlawfully, wrongfully and negligently, managed, destroyed or damaged Plaintiffs’ individual fishing nets and materials worth N308, 000.00. Thus, removing our source of livelihood. By this development, we have jointly, and severally suffered
loss and damage. See paragraph 7 of the Further Amended
Statement of Claim at pages 67 and 68 of the Record of Appeal.
The Plaintiffs, thus claimed a total sum of N10Million, and N5Million only for damages and negligence.
On the part thereof, the Appellants denied the claim and testified, inter alia, that on the said 23/7/96, the boat MV/Benga owned by the 2nd Defendant was chartered to the 1st Defendant for production work. That, the boat only applied and worked around the vicinity of Chevron Oil Field and Warri/Escravos River navigational channel which area is out of bounds of all fishing activities. That, the said boat navigated with due care and attention. They denied ever navigating or managing the vessel unlawfully, wrongfully or negligently. And that they did not destroy or caused any damage whatsoever to the Plaintiffs’ fishing net or to any fishing materials worth the claimed amount of N308,000.00.
As alluded to above, the Judgment of the Lower Court is to the following conclusive effect:
Therefore, it is my findings (sic) that the Plaintiffs proved negligence but failed to prove special damages. Consequently, Judgment be and is hereby entered for the Plaintiff against the Defendant on the head of general damages which I assess and award at N5Million as same is not exaggerated and having regard to the length of time this took and the value of naira since 1996. For avoidance of doubt, the Defendants be and are hereby ordered to pay the Plaintiff the sum of N5Million Naira as damages for the damage done to them by negligently piloting their tug boat.
This is the Judgment of this court. See pages 66 – 116 of the Record of Appeal.
As copiously alluded to above, the vexed Judgment in question, is to the effect, inter alia, that “the Plaintiffs proved negligence but failed to prove special damages.”
The term negligence denotes the failure to exercise the standard of care that a reasonably prudent person would normally have exercised in a similar situation. That’s to say, any conduct falling below the legal standard established to protect others against unreasonable risk of harm, as against conduct that is intentionally, wantonly, or willfully disregardful of other’s rights It is trite, that the negligence usually includes culpable carelessness. Also termed actionable negligence; ordinary negligence; simple negligence. See BLACK’S LAW DICTIONARY 9th Edition 2009 @ 1133.
I think, it was Patrick Devlin, who once aptly remarked that –
“Negligence in law ranges from inadvertence that is hardly more than accidental to sinful disregard of the safety of others.” See THE ENFORCEMENT OF MORALS (1968) @ 36 copiously alluded to in BLACK’S LAW DICTIONARY (Supra) @ 1133.
Indeed, the law is very much trite, to the effect that any party who desires a court to give Judgment as regards any legal right or liability dependent upon the alleged existence of facts, must prove that those facts do actually exist. See Section 131 of the Evidence Act CAP. 11 Laws of the Federation of Nigeria, 2011. See also OKOYE VS. NWANKWO (2003) FWLR (Pt. 156) 992 @ 1003 paragraph H; UIC LTD VS. HAMMOND NIGERIA (1998) NWLR (Pt. 565) 340 @ 358.
The statement on oath of the Plaintiffs only witness (PW1) in the person of Mr. Kehinde Omoregha, is contained at pages 14 – 16 of the Record of Appeal. The PW1’s testimony is to the effect, inter alia, thus:
8. That I and the other Plaintiffs were on our fishing boats on 23/7/96 at Okan 52, Warri River carrying out our fishing activities when suddenly the 2nd Defendant Tug Boat MV/BENGA driven by the 2nd Defendant for the 1st Defendant’s purpose unlawfully, wrongfully and negligently, managed destroyed or damaged Plaintiffs’ individual fishing nets and materials worth N308,000.00. Thus, removing our only source of livelihood. By the development, we have jointly and severally suffered loss and damage.
According to the PW1, the particulars of negligence were that:
I. The act of driving and managing the TUG BOAT MV IBENGA at a speed which was excessive considering the totality of the circumstances.
II. Failure to take sufficient care or proper look out with regard for other users of the said river at that particular time or period.
III. Driving and managing the TUG BOAT MV IBENGA at a speed which was excessive haven regard to the closeness of the said BOAT to the Plaintiff’s small canoes or fishing nets.
IV. Driving or managing the TUG BOAT MV IBENGA along the said RIVER without due regard to the general condition of the said river at that particular period.
V. Failure to exercise sufficient or adequate management and control of the said TUG BOAT MV IBENGA at that particular period.
VI. Failure to stop, show down or in any other way in the management of the said BOAT haven regard to the general condition of the said river at that particular time.
The PW1 equally stated that the Appellants promised to settle this matter with the Respondents amicably out of notice and out of court by agreeing to pay them the sum of N308,000.00 as at 1996, but to no avail. Despite several reminders by the Respondents, the Appellants bluntly refused to honour their earlier promise. Hence, the instant Suit.
Instructively, on 22/6/09, the suit came up for trial, the PW1 adopted the statement on oath as evidence in-chief thereof in the case. In the course of which, the fishing nets in question were tendered vide the PW1, and accordingly admitted as Exhibit P.
Under cross-examination by Nwaka Esq, the PW1 testified, inter alia, thus:
PW1: The Escavos(sic) River has navigational channels. The Defendant vessel is an ocean going vessel. The vessel was working with Chevron. We were fishing at near Okan 52 where the tugboat destroyed our fishing boats. We fish along our area in the Atlantic Ocean… I saw Mv/Ibenga the vessel in question… The vessel did not ring any alarm I do not know whether bigger vessel ring alarm when the (sic) approach. I do not know whether chevron has oil location at Escavos River but I know is the time they were passing they destroyed our nets while we were a deep water almost about 3 – 4 fathom. According to our occupation you can fish in shallow water as well as in deep ocean water when the vessel was approaching us, they were on fill speed. The tugboat had high warning because of the speed.
Our boat use small engine and we use paddle also. At the time of the incident we were paddling the boat. On that day there were no other boats… I did not report the incident to the marine police because they promised to settle me through their Public Relation Officer. Our canoe is either/or two tone weight. Our boat did not capsize. See pages 20 – 21 of the Record.
On the part thereof, the Appellants called one Maurice Ndiomu, the Personnel/Administrative Manager thereof. His statement on oath is contained at pages 24 – 26 of the Record to the effect, inter alia, thus:
7. That the tug Boat M/V IBENGA owned by the 2nd Defendant was at all times material to this action chartered to Chevron Oil Company i.e. the 1st Defendant herein, and was being used to do production work around the vicinity of chatterer’s offshore oil field near Okan and Escravos. On that 23/7/96, the tug boat only plied and worked around the vicinity of Chevron Oil Field and Warri/Escravos river navigational channel which area is out of bounds of all fishing activities.
8. The Plaintiffs do not know where they carried out their fishing expedition on 23/7/96.
9. M/V IBENGA was navigated with due care and attention. Defendants deny ever navigating or manage the vessel unlawfully, wrongfully, or negligently and did not destroy or cause any damage whatsoever to the Plaintiff’s fishing net or to any other fishing materials worth N308, 000.00 (Three Hundred and Eight Thousand Naira). In this connection, the Defendants will rely on the vessel LOG BOOK during the voyage.
10. I reiterate emphatically that M/V IBENGA was navigated with due care and attention and at no time did they drive M.V. IBENGA speed which was excessive but always maintained safe speed. Defendant further states that their vessel navigated with due care and attention and in absolute obedience to National/International Maritime Rules and Code.
11. I state categorically that we were not negligence in managing our vessel but had full control of our vessel having regard to other vessel plying in the water.
12. I stresses most vigorously that never was there a time that we made promises of whatever nature to the Plaintiffs as to any form or for whatever reason or thing at all. The Defendants further stressed that they have as a guiding rule and policy not to indulge in out of court settlement, let alone partaking and/or procuring directly and/or indirectly persons/agents for the purpose of any manner of assault.
…
17. I state that the Plaintiff’s claim as constituted against the Defendants is misconceived, speculative, misdirected, malicious and discloses no reasonable course of action against the Defendants.
18. I state that Plaintiff’s claim is frivolous, speculative and unfounded and that the Plaintiffs are not entitled as claimed or at all and same ought to and should be dismissed with substantive cost.
On 20/7/09, the DW1, Mr. Nwalia, adopted the statement on oath thereof, and testified under cross-examination, thus:
On the 25/7/96 I cannot remember where I was. I know what follows. I know what happened to M/V Ibenga from the vessel was charted to Chevron Oil Company and was working at Okan and Escavos based on the records I was not there I was not an eye witness. See page 40 of the Record.
As copiously alluded to above, the PW1 has emphatically reiterated under cross-examination by Nwalia, Esq. thus:
“We were fishing at near Okan 52 where the tugboat destroyed our fishing boats… The vessel did not ring any alarm… When the vessel was approaching us, they were on full speed. The tugboat had high warning because of the speed.”
What’s more, the PW1 maintained under cross-examination, to the following effect:
“I did not report the incident to the marine police because they promised to settle me through their Public Relation Officer.”
Most curiously, however, despite the above sterning revelation by the PW1, the Appellants did not deem it compellingly expedient to call the said Public Relation Officer thereof to testify in the case. Instead, the Appellants called the DW1 whose evidence has turned out to be utterly worthless thereto.
Most interestingly, when the DW1 was cross-examined by Ebosele Esq; where he was on 25/7/96 he has this rather intriguing revelation:
“DW1: On the 25/7/96 I cannot remember where I was.”
All that the DW1 knew was that:
“M/V Ibenga from the vessel was chartered to Chevron Oil Company and was working at Okan and Escavos based on the records I was not there I was not an eye witness.”
Not surprisingly, regarding the testimony of the DW1, the Lower Court, came to the following conclusion:
In other words, whilst the witness can testify competently on the records of the 2nd defendant. However, he is not a witness that can be relied upon whatsoever as to what happened at the scene where the Plaintiffs’ nets where alleged to have been damaged. Oral evidence must be direct, therefore all the evidence from paragraphs 6 – 18 of the statement on oath by DW1 collapse like a pack of cards and cannot be relied on. See page 110 of the Record.
I think, I cannot agree more with the above far-reaching, and unassailable findings of the Lower Court. And I have no hesitation whatsoever in upholding same.
In the circumstances, having due regard to the foregoing far-reaching postulations, there is no doubt that both Issues II & III ought to be, and are hereby, resolved against the Appellants in favour of the Respondents.
ISSUE NO. 1:
The Issue No. 1 raises the vexed question of whether or not the Lower Court was right in arbitrarily awarding to the Respondents the sum of N5, 000,000.00 (Five Million Naira) only and cost of N75,000.00 (Seventy Five Thousand Naira) for the alleged destruction of Respondents’ fishing net, having regard to the fact that the Respondents did not lead any cogent, and strong evidence to establish their case. This issue No. 1 was said to have been distilled from ground 1 of the Notice of Appeal.
It is a trite fundamental principle, that special damages must specifically be pleaded and strictly proved on credible evidence. Thus, a Plaintiff claiming special damages has an onerous duty to plead and particularize any item of damage so alleged. See XTOUDOS SERVICES NIGERIA LTD VS. TAISEI (WA) LTD (2006) ALL FWLR (Pt. 333) 164 @ 1658 paragraphs E – H; per Mohammed, JSC; AMIZODO VS. PAZMEEK LTD TRADE (2008) ALL FWLR (Pt. 432) 1201 @ 1215 paragraphs D – E; ANGEL SPINNING AND DYEING LTD VS. AJAH (2000) FWLR (Pt. 23) 1332 @ 1349 paragraphs F – G.
In the instant case, in the absence of any evidence led by the Respondent to establish the special damage claimed thereby, the Lower Court held, rightly, in my view to the following effect:
Having stated that I cannot rely on that evidence, have the Plaintiffs proved the damages in the sum of N10,000.00 which was alleged to have been agreed. The Plaintiff to lead evidence on the value of their nets and income thereof.
It’s not at all in doubt, that the Respondents have failed to prove special damages. And this is in accordance with the above findings of the Lower Court. The Lower Court equally found at page 115 lines 17 – 19 and 116, lines 2 – 9 of the Record, to the effect that –
In the instant case, the Plaintiff had 2 heads of claim i.e. N10Million and N5Million for general damages.
…
Consequently, Judgment be and is hereby entered for the Plaintiff against the Defendant on the head of general damages which I assess and award at N5Million as same is not exaggerated and having regard to the length of time this case took and the value of naira since 1996. For the avoidance of doubt, the Defendants be and are hereby ordered to pay the Plaintiff the sum of N5 Million as damages for the damage done to them by negligent piloting their tugboat.
This is the Judgment of this court.
I would want to believe that the above findings and conclusion reached in the Judgment by the Lower Court are cogent, and duly supported by the evidence and circumstances surrounding the case on record.
Indeed, it’s trite that if special damages are not claimed and/or not strictly proved, they will not be awarded.
It is trite doctrine that the assessment of general damages is not predicated upon any established legal principle. Thus, it usually depends on the peculiar circumstances of the case. See UKACHUKWU VS. UZODINMA (2007) 9 NWLR (Pt. 1038) 167; INLAND BANK (NIG) PLC VS. F & S CO. LTD (2010) (Pt. 1216) 395 @ 419 paragraphs C – D.
However, exemplary damages, being in nature, general damages together with punitive damages, the facts can be granted. See ELOICHIN (NIG) LTD VS. MBADIWE (1986) 1 NWLR (Pt. 14) 47; (1986) ALL NLR 1; (1986) 1 SC. 99; (1986) LPELR – 1119 (SC), per Obaseki, JSC of blessed memory.
In the case of ELOICHIN (NIG) LTD VS. MBADIWE (Supra), one of the two vexed issues raised by the Appellants:
(2) Whether it is the law in Nigeria that award of exemplary damage cannot be made save only in the category of cases laid down by the House of Lords in ROOKES VS. BARNARD (1964) AC 1129.
Whereupon, the Apex Court aptly held, inter alia, thus:
Exemplary damages being in nature general damages together with punitive damages fixed high enough to be not only compensatory but also punitive, it is my opinion that where facts damages can be awarded and ought to be granted if the facts pleaded and proved establish a case of trespass. Per Obaseki, JSC of blessed memory.
Arguably, one of the far-reaching fundamental object of an award of damages, most especially general damages, is to compensate the complainant for the harm or injury done thereto, or to punish the recalcitrant defendant for his intransigant conduct in inflicting that harm. As authoritatively postulated by the Apex Court –
Such a secondary object can be achieved by awarding in addition to the normal compensatory damages, damages which go by various names to wit: exemplary damages, punitive damages; even retributory damages can come in to play whenever the defendants’ conduct is sufficiently outrageous to merit punish[ment] as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. Per Obaseki, JSC of blessed memory @ 27 paragraphs C – F.
Interestingly, in the case of BROOME VS. CASSELL & CO. LTD (1972) 2 WLR 647, the House of Lords had authoritatively reiterated its resolve to the effect that:
“We cannot depart from ROOKES VS. BARNARD here. It was decided neither per incurium nor ultra vires.”
Most interestingly, however, the Supreme Court held in ELOICHIN (NIG) LTD. VS. MBADIWE (Supra), that the decision of the House of Lords in BROOME VS. CASSELL & CO. LTD (Supra) does not bind the Court of Appeal of Nigeria But that it has a persuasive effect thereon:
It is therefore still good law in Nigeria that exemplary damages can be awarded by Nigerian courts when claimed and proved. Per Obaseki, JSC.
In the circumstance, the Issue No. 1 ought to be, and same is hereby, equally resolved against the Appellants.
ISSUE NO. 4:
The fourth Issue raises the question of whether or not the Respondents’ action is competent The Issue in question has been distilled from Ground 4 of the Notice of Appeal.
Instructively, at pages 108 – 109 of the Record, the Lower Court stated thus:
Let me quickly say by way of preliminary point that all submissions of the Suit of the Plaintiffs did not comply with Order 7 Rule 12(1) of the rules of this court 2009 is neither here nor there.
The Defendant lost complete sight of the fact that this suit was commenced in 1996. To expect the Plaintiffs to comply with Order 7 of the 2009 Rules is anachronistic suffice it to say that the Defendants were misled as to, in what capacity the Plaintiffs brought this suit.
In the instant case, the provisions of the Federal High Court (Civil Procedure) Rules, 2009, most especially Order 9 Rule 12(1) are very much instructive to the following effect:
12(1). Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.
The Plaintiffs (Respondents) in the instant case are six in number. By paragraphs 1 & 17 of the Further Amended Statement of Claim thereof, the Plaintiffs claim thus:
1. Plaintiffs are fishermen and Nigerians who reside at Agogboro Fishing Camp in the Warri North Local Government Area of Delta State of Nigeria and Escravos, Warri. Fishing constitutes Plaintiffs only means of livelihood.
…
17. WHEREFORE, the Plaintiffs claim jointly and/or severally against the 1st and 2nd Defendants the sum of N10,000,000.00. See pages 6 – 8 of the Record.
Obviously, it’s very clear from the pleadings of the Plaintiffs (Respondents), that they sued the Appellants (Defendants) jointly and/or severally. Thus, the submission by the Appellants under Issue No. 4 is highly misconceived, and rather preposterous, to say the least. And I so hold.
In the circumstance, the Issue No. 4 is equally resolved against the Appellants.
ISSUE NO. 5:
The Issue No. 5 raises the question of whether or not the Judgment entered for the Respondents is supported by the totality of the evidence adduced by the respective parties at the trial. It is distilled, so to say, from the Omnibus ground.
I think, in view of the fact that the Issues Nos. 1, 2, 3, and 4 have been resolved against the Appellants, the answer to the fifth issue is most inevitably in the positive, and same is accordingly resolved against the Appellants.
In my considered view, the vexed Judgment of the Lower Court cannot rightly be said to be perverse, thus it is not liable to be set aside by this court. Instructively, it is a trite principle, that a perverse decision of a court can be evident in a variety of ways. It could be because the trial court has turned a ‘blind eye’ to vital facts or evidence on record or misconceived the thrust of the case presented. Or it took irrelevant matters into account, thereby substantially forming the basis of its decision. Or derailed from the issues raised and canvassed upon by the respective parties, to the extent of jeopardizing the merits of the case.
Invariably, the hall-mark in all the foregoing irregularities is a miscarriage of justice, thereby resulting in compellingly warranting the appellate court to set aside the vexed decision on appeal. See UDENGU VS. UZUEGBU (2003) 34 WRN 1; (2003) 13 NWLR (Pt. 836) 136 @ 152 paragraphs B – D; ATOLAGBE VS. SHORUN (1985) 1 NWLR (Pt. 2) 360; ADIMORA VS. AJUFO (1988) 3 NWLR (Pt. 80) 1; OVERSEAS CONST. CO. (NIG) LTD VS. CREEK ENT. (NIG) LTD. (1985) 3 NWLR (Pt. 13) 407; MOGHALU VS. WOBO (2005) 11 WRN 115 @ 113; (2014) 17 NWLR (Pt. 903) 465.
Hence, having resolved each of the five issues against the Appellants, there is no gainsaying the fact that the present appeal is unmeritorious, and it’s hereby dismissed by me.
Consequently, the Judgment of the Federal High Court, Asaba Judicial Division, delivered on March 7, 2011 by the Hon. Justice I. N. Buba, is hereby affirmed.
The Respondents shall be entitled to costs of N50,000.00 against the Appellants.
PHILOMENA MBUA EKPE, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother I. M. M. SAULAWA JCA. I am in full agreement with the reasoning and conclusion reached therein.
My learned brother has laid down the law in very clear and unambiguous terms. The issues herein have also been eloquently and completely marshalled to the extent that I have indeed nothing more useful to add. I hereby reiterate the fact that this appeal is lacking in merit and is hereby also dismissed by me.
Accordingly, and in consequence, the judgment of the Federal High Court, Asaba Judicial Division of Delta State, delivered on the 7th day of March, 2011 by I. H. Buba J. is hereby affirmed.
I abide by his Lordships order as to costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the judgment just delivered by my Lord, Ibrahim Mohammed Musa Saulawa, JCA. His Lordship has exhaustively dealt with the issues for determination in the appeal. I agree with his reasoning and conclusion that this appeal is unmeritorious and deserves to be dismissed. Therefore, having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I equally join in dismissing the appeal. Accordingly, the appeal fails and the judgment of the Federal High Court in Suit No.FHC/ASB/CS/120/1996 delivered on 7th March, 2011 is hereby affirmed. I abide by the order as to costs made in the lead judgment. Appeal dismissed.
Appearances
I. R. Nwalia Esq and O. C. Iheanacho-Uwa For Appellant
AND
S. E. Ebosele For Respondent
