CHIEF REUBEN IBOTILE & ORS v. ELF PETROLEUM NIGERIA LIMITED (2019)

CHIEF REUBEN IBOTILE & ORS v. ELF PETROLEUM NIGERIA LIMITED

(2019)LCN/13602(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of July, 2019

CA/C/334/2017

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. CHIEF REUBEN IBOTILE
2. MR. ISRAEL G. PAUL
3. MR. ATIMIEN DICK Appellant(s)

AND

ELF PETROLEUM NIGERIA LIMITED Respondent(s)

RATIO

DEFINITION OF AN “APPEAL”

As I noted earlier, an appeal is a complaint against the decision of the trial Court and where there is no complaint against any act of the trial Court, the appellate Court jurisdiction of the higher Court cannot be invoked. See ALHAJI KASHIM SHETTIMA & 3 ORS V. ALHAJI MOHAMMED GONI & 6 ORS (2011) 10 SC 92; IFEANYICHUKWU OKONKWO & ANOR V. UNITED BANK FOR AFRICA PLC. (2011) 6-7 SC (PT. 1) 189; PROGRESSIVE PEOPLES ALLIANCE (PPA) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2011) 11-12 SC (PT. 11) 40; EMENIKE UENATA V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 2 ORS (2011) 11-12 SC (PT. 11) 4. In other words, the appellate Court will deal with matters duly canvassed at the trial Court and appealed against. See HOPE DEMOCRATIC PARTY (HDP) V. MR. PETER OBI & 5 ORS (2011) 12 SC (PT. 11) 162; PRINCE OYESUNLE ALABI OGUNDARE & ANOR V. SHITTU LADOKUN OGUNLOWO & 3 ORS (1997) 5 SCNJ 281. PER OWOADE, J.C.A.

WHETHER OR NOT FACTS ADMITTED NEEDS FURTHER PROOF

This is consequent on the general principle of law that admitted facts need no further proof. See EGBUNIKE & ANOR V. ACB LTD. (1995) 2 SCNJ 58; SAVANNAH BANK OF NIG. PLC. V. OPANUBI (1999) 13 NWLR (PT. 634) 203; INSURANCE BROKERS OF NIG. V. ATLANTIC ILES MANUFACTURING CO. LTD. (1996) 9-10 SCNJ 171. PER OWOADE, J.C.A.

WHETHER OR NOT DOCUMENTARY EVIDENCE NEEDS TO BE SPECIFICALLY PLEADED

Meanwhile, the trite position of the law is that documentary evidence need not be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such document is covered are expressly pleaded. In other words, unpleaded documents depending on the nature of the claim, may clearly be seen to constitute evidence by which material facts are to be proved and will be admitted as evidence if not pleaded. See IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) 80; OKONKWO V. CO-OPERATIVE AND COMMERCE BANK (NIG.) PLC. (2003) 8 NWLR (PT. 822) 347 SC.; MONIER CONSTRUCTION CO. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 SC; IFEADI V. ATEDZE (1998) 13 NWLR (PT. 581) 205; OKEKE V. ORUH (1999) 6 NWLR (PT. 606) 175 SC; ZENON PET. & GAS V. IDRIAIYYA LTD. (2006) 8 NWLR (PT. 982) 221. PER OWOADE, J.C.A.

WHETHER OR NOT SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED AND PROVED

This is not just for the reason that special damages must be specifically pleaded and proved. See XTOUDOS SERVICES NIGERIA LIMITED & ANOR V. TAISEI (W. A.) LIMITED & ANOR (2006) 6 SCNJ 300; SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. HIS HIGHNESS PERE COLE & 6 ORS (1978) 3 SC 128; O. ARABEMSI & ANOR V. ADVANCE BEVERAGES IND. LTD. (2005) 12 SCM 75.
But also because the rule of strict proof in special damages mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement such as the fact that every item contained in the claim of special damage must be proved by characterized testimony that ties each item with the proof proffered, i.e the evidence led. See ADECENTRO (NIG.) LTD. V. COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY (2005) 5 SCM 73. In fact the claims for special damages must succeed on compelling evidence and not on the sums claimed appearing reasonable to the Court and cannot be left to conjecture or guess work. NIGERIAN NATIONAL PETROLEUM CORPORATION V. CLIFCO NIGERIA LIMITED (2011) 4 SC (PT. 1) 198; UNION BANK OF NIGERIA PLC. V. ALHAJI ADAMS AJABULE & ANOR (2011) 12 SC (PT. IV) 1.
In the instant case, Pw3 whose evidence was discredited under cross-examination rather than PW1 would have been in a better position to provide the evidence of particular losses which are exactly known or accurately measured before the Court. See e.g. IMANA V. ROBINSON (1979) 3-4 SC 1 @ 23. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Nigeria sitting at Uyo Division in Suit No. FHC/UY/CS/61/2005 consolidated with Suit Nos. FHC/UY/CS/59, 60, 62, 63, and 66/2005 presided over by Late Hon. Justice E. S. Chukwu and delivered on the 4th day of April, 2014.

The six (6) consolidated suits were filed in a representative capacity for four (4) Fishing Communities namely: Nkpata and Esukuma Fishing Communities in Oron Local Government Area, Utananta and Utanayaitai in Mbo Local Government Area, Ashak-Abufak, Itakabong, Otuesek and Unietan Fishing Groups all in Mbo Local Government Area of Akwa-Ibom State.

The Further Amended Statement of Claim upon which the suit was fought was filed on 26/05/2016 whereof the total claim of the communities are as follows:
Special Damages ? N329,400,000.00
General Damages ? N230,600.000.00

The total claims for both general and special damages is N560,000.00 which represent Plaintiffs Appellants impacted, fishing nets trapped, fish points and juju shrines impacted and desecrated

as a result of the crude oil spill on 24th day of March 1998 from the Respondent?s Odudu Platform situate at the Atlantic Ocean close to the estuaries of the Oron and Mbo rivers all in Akwa-Ibom State.
The summary of claim on Special and General Damages are as follows:
1. Ukpata Suit No. FHC/UY/CS/61/2005
Special Damages – N53,500.000
General Damages ? N46,500.000
2. Esukuma Suit No. FHC/UY/CS/62/2005
Special Damages ? N57,000.000
General Damages ? N43,000.000
3. Utananta Suit No. FHC/UY/CS/66/2005
Special Damages ? N56,000.000
General Damages ? N43,000.000
4. Utanayaitai Suit No. FHC/UY/CS/63/2005
Special Damages ? N53,000.000
General Damages ? N47,000.000
5. Ashak-Abufak Fishing Groups 1,2 & 3
Itak-Abang Fishing Groups 1 &2
Suit No. FHC/UY/CS/59/2005
Special Damages ? N55,900.000
General Damages ? N24,100.000
6. Otuesek Fishing Groups 1& 2
Inietan Fishing Groups 1 & 2
Suit No. FHC/UY/CS/60/2006
Special Damages ? N53,500.000
?General Damages ?

N26,500.000
GRAND TOTAL
Special Damages ? N329,400.000.00
General Damages ? N230,600.000.00
N560,000.000.00

The six (6) consolidated cases were fought on the strength of the Plaintiffs (Appellants) Further Amended Statement of Claim and the Defendant?s (Respondent?s) Amended Statement of Defence. The Appellants as Plaintiffs filed several Witnesses Statements on oath but only called 3 (three) witnesses ? PW1, PW2, and PW3 who testified in Court. The Respondent called only DW1 in defence.

By pleadings, the Respondent denied the Appellant?s allegation of Crude Oil Spill on or about the 24th day of March 1998. However, during cross-examination DW1 admitted to some oil spill sometime in March 1998 which it reported to the department of Petroleum Resources (DPR) as contained in Exhibit DW1 B and was dispersed.

The learned trial Judge reviewed the evidence of the parties and in his judgment after explaining the meanings of burden of proof on pages 241-242 of the Records, he went on from page 243 of the Records to say:
In effect outside asserting that their nets, fish traps,

totems and juju was desecrated by the pollution, what factual evidence does the Plaintiff have to substantiate this. This can only be drawn from the evidence of PW1 who stated he represented all the groups in the said 6 impacted communities. He gave a gist of what happened on the day they went to fish how 4000 of them set out and all their fishing implements destroyed by the spillage. He placed reliance on the valuation of the Pw3 to substantiate their claim for both special and general damages and he claimed as per his endorsement in the Statement of Claim.
During cross examination and even in their statement of defense, the Defendants denied the alleged spillage but went ahead to state that there was a spill which they reported to DPR. So I will ordinarily believe that actually there was spill and ordinarily hydro-carbons are poisonous to both black men as it is to white men. But it does not end there as the Plaintiffs sufficiently discharged the burden placed on them as to be entitled to the reliefs sought.
?From the testimony of the PW1, I will proceed to that of PW2 who in no small measure established the harmful nature of the oil spill on

the environment. The PW2 evidence stands unshaken as the rock of Gibraltar. There was no cross-examination or counter evidence from the defendant as to the harmful effect of oil spill in our ecosystem. So for all intents and purposes the said testimony must be acted upon. The Law is trite that where evidence given by the party to any proceedings was not challenged by the other party who had the opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it.
On this my proposition of the law, I will place reliance on the case of PASCUTTO VS ADECENTRO NIG LTD (1997) 11 NWLR (PT. 529) 467 @ PARA D-E.

The learned trial Judge also paused at page 244 of the Records to explain the term ?special damages? through the judgment of the Supreme Court per Aniagolu JSC in the case of IMANA V. ROBINSON (1979) 3-4 SC 1 @ 23 and continued at page 245 of the Records more specifically on the evidence of PW3 to say:
So in effect, one will now consider the testimony of the PW3 who is the Estate Valuer and who tendered Exhibits PW3 a, b, c, d, e, f vis–vis the 6 earlier reports prepared

by the same PW3. From the totality of the contradictions in both Exhibits PW3 G to H, this relates to the figures and the annexure which is Appendix A and Appendix B. In the 2nd report there is no Appendix A. The only explanation the Pw3 had is that he did it because of typographical errors.
I cannot but accede to the ROCKONOH PROPERTY CO. LTD. V. NITEL PLC (2001) 14 NWLR (PT 733) @ 468. One will ask can a man who in one report put the village of 3000 persons or number of persons affected by oil spillage and in the earlier one he put the population of 129 was it equally typographical error that made him to remove the whole of Appendix A from the set he wants the Court to believe in Exhibit PW3 a, b, c, d, d, e and f.
In the end, I am of the opinion that the evidence of PW3 does not have the qualities evidence in proof of a case should have for this Court to award the damages claimed by the Plaintiffs.

The learned trial Judge went on to further rely on the cases of ROCKONOH PROPERTY CO. LTD. V. NITEL PLC (2001) 14 NWLR (PT. 733) 468; MISR NIG. LTD V. IBRAHIM (1975) 5 SC 55; AIKHIONBARE V. OMOREGIE (1976) 12 SC 11 on the basic qualities of

evidence that must attract probative value. And, concluded at pages 246-247 of the Records that:
What I have labored to say is that even if I believe there was a spillage, there is no concrete or tangible evidence upon which I can sustain the case of the Plaintiffs and I so hold?Having said that much I hold that the case of the Plaintiffs fails in its entirety and it is accordingly dismissed

Dissatisfied with this judgment, the appellants filed a Notice of Appeal containing six (6) grounds of appeal in this Court on 28/04/2017. The relevant briefs of Argument are:
1. Appellants brief of Argument dated 26/02/2018 and filed on 01/03/2018. It is settled by R. B. Mbaba Esq.
2. Respondent?s brief of Argument dated 28/03/2018 and filed on 03/04/2018. It is settled by Bertram Faotu Esq.
3. Appellants Reply brief of Argument dated 13/05/2018 and filed on 14/05/2018. It is settled by F. N. Ogbu (Mrs.)

THE PRELIMINARY OBJECTION
?Learned counsel to the Respondent filed a

Notice of preliminary objection to the appeal and urged us to determine:
Whether or not the Notice of Appeal filed on 04/07/2014 could be said to be competent before this Honourable Court having been outside the 3 months limit prescribed by Section 24(2) (a) of the Court of Appeal Act.

He submitted that a look at the Notice of Appeal shows that the judgment sought to be appealed against was delivered by the Federal High Court, Uyo Division on the 4th day of April, 2014 while the Notice of Appeal was filed on 04/07/2014.

He submitted that from 04/04/2014 (the date the judgment was given) to 04/07/2014 is more than the three month period allowed by our laws for an appellant to file a Notice of Appeal against a final judgment of a High Court.

He referred to the provision of Section 24 of the Court of Appeal Act, the Interpretation Act and the definition of Gregorian Calendar in the 8th Edition of the Black?s Law Dictionary. He submitted that by the definitions contained in the enactments, three months from 04/04/2014 would lapse on approximately 03/07/2014 and certainly not 04/04/2014. He argued that the Court of Appeal Act did not

use the term three clear months, but three months. The Interpretation Act also did not define month as one clear month. Therefore, month in Section 24(2) (a) of the Court of Appeal Act means only a period of approximately 30 days according to Gregorian Calendar.

He submitted that there is nothing on record to show that Appellants in any way sought the leave of this Honourable Court to file and or regularize their notice of appeal. The position of the law according to Respondent?s counsel is that where leave is required before an appeal could be filed failure to obtain the leave would not only render the appeal incompetent but would also rob the Court of its jurisdiction. He referred on this to the cases of JEV V. IYORTYOM (2014) 14 NWLR (PT. 1428) 575 @609; OKOMU OIL PALM C. O. V. TAJUDEEN (2016) 3 NWLR 9 (PT. 1499) 284 @ 312; SURESH JOPUJOCA V. NDUBUISI (2009) 8 NWLR (PT 1144) 454 @ 461 and urged us to strike out the Notice of Appeal filed on 04/07/2011.

Learned counsel for the appellant on the other hand responded in his Reply brief to the Preliminary objection and submitted that the Notice of appeal filed by the Appellants on Friday the 4th

day of July, 2014 is valid, competent and has invoked the appellate jurisdiction of this Honourable Court to hear and determine the Appeal. He submitted that the Friday the 4th day of April 2014 on which day the judgment was delivered is excluded by operation of Law from the computation of the three months period for the Appellants to file their Notice of Appeal. He submitted that by virtue of Section 15 (2) of the Interpretation Act 2014 LFN a reference in an enactment to a period of days shall be construed from a particular event as excluding the day on which the event occurs.

This according to Appellants counsel means that the 04/04/2014 when the judgment leading to this Appeal was delivered is automatically excluded from the computation of months for filing the Notice of Appeal against the judgment of the Court below. The next day after Friday, 04/04/2014 when time started to run was Saturday 05/04/2014. That the Notice of Appeal filed by the Appellants on 04/07/2014 is valid, competent and within the 3 months stipulated by Section 24 (2) (a) of the Court of Appeal Act, 2004 LFN. He referred to the decision of the Supreme Court in the case of

AZEEZ AKEREDOLU & ORS V. LASISI AKINREMI (1985) 2 NWLR (PT. 10) 787 and urged us to discountenance the Respondent?s preliminary objection.

I agree with the learned counsel for the Appellants that by virtue of Section 15 (2) of the Interpretation Act 2004 LFN, a reference in an enactment to a period of days shall be construed from a particular event as excluding the day on which the event occurs. Section 15 (2) (a) of the Interpretation Act Cap. 123 LFN 2004 reads thus:
15 (2) A reference in an enactment to a period of days shall be construed (a) where the period is reckoned from a particular event as excluding the day on which the event occurs.
The above provision was applied by the Supreme Court in the Interpretation of the provision of Section 31 (2) (a) of the Supreme Court Act which is similar to Section 24 (2) (a) of the Court of Appeal Act in the case of AKEREDOLU & ORS V. LASISI AKINREMI (1985) 2 NWLR (PT. 10) 787 and the full panel of the court came to the conclusion that ?in computing the period of the filing of the Appeal the date 10th April 1985 ? on which the Court of Appeal delivered its judgment must be

excluded .?
In the instant case, the date 4th day of April 2014 on which the Court below delivered the judgment appealed against must be excluded in the computation of the three month period required to file an appeal under the provision of Section 24 (2) (a) of the Court of Appeal Act LFN 2014. Consequently the Appellants Notice of Appeal in this case is valid and competent. The Respondent?s preliminary objection is accordingly overruled.

THE APPEAL
Learned counsel for the Appellants nominated two issues for the determination of the Appeal. They are:
1. Whether the trial Court was right to have dismissed the Plaintiff?s/Appellants claims in Special Damages when Appellants have pleaded and proved their entitlement to Special Damages. (Grounds 1, 3, 5, & 6 of the Grounds of Appeal)
2. Whether the trial Court having found that the Plaintiffs/Appellants evidence through PW2 ?stands unshaken as the rock of Gibraltar? could not have awarded General Damages to the Appellants as to assuage their losses arising and flowing from the wrongful Act of Crude Oil Spillage from the

Defendant/Respondent?s facilities (Grounds 2 and 4 of the Grounds of Appeal).

Learned counsel for the Respondent adopted the two issues nominated by the Appellants for determination of the Appeal. Learned counsel for the Appellants submitted on issue one that the Appellants have proved their case in respect of Special Damages on the balance of probabilities and preponderance of evidence to be entitled to the judgment of the Court below and thus the lower Court was wrong in law to have dismissed the Plaintiffs Appellants case by merely relying on unpleaded documents tendered through cross-examination of PW3. He referred to the provision of Section 137 (1) of the Evidence Act, 2011 and the case of ISHOLA V. UBN (2005) 6 MJSC PG. 40 and stated that Civil cases are proved and won on the balance of probabilities and preponderance of evidence and not beyond reasonable doubt.

Appellants counsel reviewed the facts of the case, the Claims of the Appellants and submitted that the Appellants gave evidence through PW1 (Chief Ebeni Jonah) in this Suit with the other 5 sisters consolidated suits at the Court below in line with their Further Amended

Statement of Claim. That PW1 also gave details of the various items making up Special and General Damages which were not challenged or controverted by the Respondent.

He submitted that these pieces or avalanche of evidence before the lower Court were ably corroborated by the Statement on Oath and the evidence of Pw3 (Mr. Chima J. Oshimiri) as contained in Exhibit PW3 B (Valuation Report). That when a piece of evidence is unchallenged and uncontroverted by the opposing party who has an opportunity to controvert the evidence, the trial Court has no alternative but to believe the evidence. And, that where a party proves his entitlement to Special Damages, the Court must award same. He referred to the cases of IGBINOVIA V. AGBOIFO (2000) 12 NWLR (PT. 681) 339 @ 345; ODULAJA V. HADDAD (1973) 1 ALL NWLR 191 @ 196 (1973) 11 SC PG. 357; OMOREGBE V. LAWANI (1980) 3-4 SC 322.

This, according to Appellants counsel is also for the reason that ?strict proof in Special Damages does not mean unusual proof ? but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give

the defendant access to facts which make such calculation possible.”

He referred to the cases of IMANA V. ROBINSON (1979) 3-4 SC 1 @ 23; NGILARI V. MOTHER-CAT (1999) 13 NWLR (PT. 636) 626 @ 647. This said counsel; the Appellants have done both in their pleadings and evidence as shown in PW1?s evidence and Exhibit PW3 B.

He submitted that the non cross-examination of PW1 by the defence in respect of the fishing nets, fish traps, fish ponds and the juju shrines amount to an admission of the items under these headings and their values. He urged us to act upon the evidence of the Appellants in proof of their case in the consolidated suits. The Respondent said counsel did not plead anything about the various heads of claim in its Amended Statement of defence except by using 5 out of the 6 substituted Valuation Reports tendered as E-E5 before Justice D. A. Adeniji at the Federal High Court Calabar Division to cross-examine PW3.

Appellants counsel referred to the case of BABATUNDE V. PAN ATLANTIC SHIPPING AND TRADING AGENCIES LTD. (2007) 13 NWLR (PT. 1050) 113 @ 147-148 and submitted that the said substituted Valuation Reports had

gone with the old pleading of the Plaintiffs Appellants before the last amendment and the de novo trial at the Court below.

Still on the non-cross examination of PW1, Appellants counsel submitted relying on the cases of GAJI V. PAYE (2003) 8 NWLR (PT. 823) 583 @ 605; AGBONIFO V. AIWEREOBA (1988) 1 NWLR (PT. 90) 325 (1988) 2 SCNJ 146 and KATE ENT. NIG. LIMITED V. DAEWOO NIG. LTD(1985) 2 NWLR (PT. 5) 116 to submit that where a party fails to cross examine a witness on material fact, he is deemed to have tacitly admitted that fact.

The implication of the above scenario according to counsel is that the evidential burden of proof of rebuttal of the Appellants case shifted to the Respondents to show that the crude oil spill from the Respondent?s Odudu Platform never at all was noticed by the appellants Fishing Community and that no properties were damaged. He referred on this to the case of BRAIMAH V. ABASI (1998) 13 NWLR (PT. 581) 167 @ 178-179.

He submitted that the Respondent?s sole witness DW1 at the Court below only stated that the Defendant/Respondent used ?Red Condor? to disperse the crude oil but failed to

clarify the Court where the crude oil was dispersed to. He reasoned that from the remedial measure of dispersal employed by the Respondent to contain the split crude oil, the Respondent only succeeded in spreading the crude oil to other areas outside the point or source of spill i.e. the Odudu Platform area. Also, that Exhibit DW1 B of the Respondent shows that there was spillage from Respondent?s facility at Odudu Platform of ?about 5 Barrels? in March 1998 which document corroborates Exhibit PW1 C i.e Respondent?s Reply letter dated the 28/05/1998 wherein the Respondent admitted the crude oil spillage. He submitted that against those documents, the Respondent pleaded in its Amended Statement of Defence that there was no spillage from its facility on the 24/03/1998 or any date at all.

The PW1, said counsel had given evidence to the effect that the Oron and Mbo Rivers have tidal regimes that flow and ebb at 6 hourly interval thus the crude oil that emanated from the Odudu Platform situate at the Atlantic Ocean close to the estuary of the Oron and Mbo Rivers which source of water bodies are the salt water from the Atlantic Ocean

eventually entered in the said Rivers. The DW1 agreed and admitted under cross-examination that the water at the Odudu Platform is salt water and the said water is not stagnant. The necessary inference and conclusion according to counsel is that the Red condor used by the Respondent helped to transport the spilt crude oil to the appellants Rivers and Creeks to impact the Appellants properties.

He submitted that PW1 gave evidence showing the basis on which Pw3 made calculations and that Pw2 as agreed by the learned trial judge provided answers on the effects of crude oil spilt into the Rivers and Creeks. He referred to the case of NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) & ANOR V. CHIEF STEPHEN O. SEL & ORS that once a valuer like PW3 showed the basis of his calculation of special damages, his evidence is un-assailable when not challenged or contradicted. Appellants counsel urged us not to attach any probative value or evidential value to the Valuation Reports tendered by the Respondent?s counsel through PW3. This he said is first because the said documents having been substituted ceased to be relevant in the de novo proceeding

before Late Hon. Justice E. S. Chukwu which led to the judgment delivered on 04/04/2014, the subject matter of this appeal. On this he referred to the cases of ABAYOMI BABATUNDE V. PAN ATLANTIC SHIPPING AND TRADING AGENCIES LIMITED (2007) 13 NWLR (PT. 1050) 113 @ 147-148; ABORISADE V. ABOLARIN (2000) 10 NWLR (PT. 674) 41 @ 47; NOIBI V. FIKOLATI (1987) 1 NWLR (PT. 52) 619; MAMUDA BIRI V. JUKUR MAIRUWA (1990) 8 NWLR (PT. 467) 425; FBN PLC V. TSOKWA (2004) 5 NWLR (PT. 866) 271; ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE CO. NIG. LTD. (1994) 6 NWLR (PT. 348) 1 @ 15-16; VULCAN GASES LTD. V. G. F. I. G. (2001) FWLR (PT. 53) 13 @ 31; KATTO V. C. B. N. (2001) FWLR (PT 53) 188 @ 195.

All of these cases to show the consequences of amendment of pleadings and the implications of a trial de novo before another Judge. Appellants counsel argued that as amendment of pleadings speaks from the date of the filing of the original pleading coupled with the opportunity and/or circumstance of a trial de novo the Appellants were at liberty to substitute their Valuation Reports and that the old valuation Reports tendered in evidence and admitted for the Respondent through

PW3 were not relevant to the proceedings. He added that it is settled that a Court of law will refuse to use a document though admitted with or without objection if found to be inadmissible in law. He referred on this to the cases of OLUKADE V. ALADE (1976) 2 SC 182 and BAYO V. NJIDDA (2004) FWLR (PT. 192) 10 (2004) 8 NWLR (PT. 876) 544.

Arising from the above, Appellants counsel opined that the learned trial judge having been fixated to dismiss the Appellants suit referred in his judgment to the appellants ?Statement of Claim? instead of ?Amended Statement of Claim? For example that at page 243 of the Records, the trial Court stated that PW1 ?placed reliance on the Valuation (sic) of the PW3 to substantiate their claim for both Special and General damages in the Statement of Claim.”

He submitted that the Respondent never at all pleaded any facts relating to Exhibit PW3 G i.e the old valuation report substituted with the new valuation report in its Amended statement of Defence and thus the issue of 2 set of valuation reports amounting to contradictions in the Plaintiffs Appellants case could not have

formed the fulcrum of the trial Court?s decision in dismissing the appellants case. He submitted that the trial Court?s reliance on this point and the emphasis on the case of AGU V. IKEWIBE (1991) 3 NWLR (PT. 180) 385 is unwarranted. That the reliance of the trial Court on the unpleaded old valuation report and the misapplication of the case of AGU V. IKEWIBE (SUPRA) occasioned a grave miscarriage of justice against the Appellants warranting the intervention of this Honourable Court by virtue of Section 15 of the Court of Appeal Act 2004 LFN.
He referred to the case of INSPECTOR GENERAL OF POLICE & ANOR. V. DR. PATRICK IFEANYI UBA & 3 ORS (2015) 11 NWLR (PT. 1471) 405 @ 444-445. He reiterated the principles of law that an un-pleaded fact goes to no issue and that parties are bound by their pleadings through the cases of OLAWUYI V. ADEYEMI (1990) 4 NWLR (PT. 147) 780; ONAMADE V. ACB LTD. (1997) 1 NWLR (PT. 480) 123; IHEANACHO V. CHIGERE (2004) ALL FWLR (PT. 226) 204 (2004) 17 NWLR (901) 130; AKANIWON V. NSIRIM (1997) 9 NWLR (PT. 520) 255; UNITY BANK PLC. V. BOUARI (2008) 33 NSC Q R, 1307; EMEGOKWUE V. OKADIGBO (1973) 4 SC 113;

OGBODA V. ADULUGBA (1971) 1 ALL NLR PG. 538; PETER OJOH V. OWUALA KAMALU & ORS (2005) 12 SCNJ 236; WOLUCHEM V. GUDI (1981) 5 SC 291; OKWEJIMINOR V. GBAKEJI (2008) 5 NWLR (PT. 1079) 172; ADEBAYO V. SHOGO (2005) ALL FWLR (PT. 252) 748; TORTI V. UKPABI (1984) 1. SC NLR 214.

Learned counsel for the Appellants reiterated that the Respondent did not call any other Estate Valuer to challenge the reasons given by PW3 as to why PW3 wrote 2 sets of valuation reports and relied on the new set of valuation report i.e Exhibit PW3 B. That indeed, the issue of 2 sets of valuation reports was not raised in the Respondent?s Amended Statement of Defence but raised through cross examination of Pw3 which according to him goes to no issue. He referred to the case of WEST CONSTRUCTION COMPANY LTD. V. BATALHA (2006) ALL FWLR (PT. 315) 1 @ 4 for the proposition that any evidence led in respect of unpleaded facts whether directly from a witness or extracted under cross examination is inadmissible and goes to no issue.

?He urged us to resolve issue one in favour of the appellants. Learned counsel for the Respondent opened up on issue one by saying that the suit of

the Appellants was founded upon purported negligence. That to succeed, the Appellants must first prove negligence before considering whether they were entitled to any form of damages whether special or general. That the Appellants failed to prove entitlement to judgment, let alone any form of damage(s).

He submitted that the Appellants completely abandoned the above vital aspect of their claim. He referred to the case of U. T. B V. OZOEMENA (2007) ALL FWLR (PT. 358) 1014 and submitted that in the OZOEMENA case just like in the instant case, the Respondent filed a Statement of Defence wherein it denied liability. That the Respondent in its Statement of Defence pleaded that there was no spill at its Odudu Platform on 24/03/1998 as alleged by the Appellants. It also pleaded in paragraph 4 (c) to (e) of the Amended Statement of Defence that its Odudu Platform was made with state of the art facilities and was not constructed over 20 years ago but in 1992. That, despite the Respondent?s pleadings, the Appellants did not file any reply and took no step to prove the alleged negligence upon which their claim was founded.
?

He submitted that the

burden of proving negligence was upon the Appellants. That PW2 wand PW3 only testified as to purported effect of spill (and or negligence) and purported value of alleged damaged items. That they both, like the PW1, failed to or did not testify on the vital elements of the negligence, that is, duty of care and consequent breach of the duty of care. That having abandoned the purported negligence upon which their case was founded, the learned trial Judge was right to have dismissed the Appellants claims in special damages the Appellants having pleaded but failed and or abandoned to prove the purported negligence upon which their case was founded.

Learned counsel for the Respondent submitted further that the Appellants relied on the evidence of Pw3 and the purported valuation reports. The Respondent submitted that it is settled that an appellate Court will not interfere with the findings of a trial Court lightly unless it is shown that the said finding was perverse. After referring to the cases of OLABANJI V. OMOKEWU (1992) 6 NWLR (PT. 250) 671 and OLANREWAJU V. GOVERNOR OF OYO STATE (1992) NWLR (PT. 625) 335 he submitted that the Appellant has not

established any of the circumstances which an appellate Court can set aside the finding of a trial Court. He submitted that the learned Judge made a clear finding on the issue of creditability of PW3 who tendered the said valuation reports on damages when the Court held as follows:
So in effect one will now consider the testimony of the PW3 who is the Estate Valuer and who tendered Exhibits PW3 a, b, c, d, e and f vis–vis the 6 earlier reports prepared by the same PW3. From the totality of the contradictions in both Exhibits PW3 G to H, this relates to the figures and the annexure which is Appendix A and Appendix B. In the 2nd report, there is no Appendix A. The only explanation the PW3 had is that he did it because of typographical errors.
I cannot but accede to the ROCKONOH PROPERTY CO. LTD. V. NITEL PLC (2001) 14 NWLR (PT. 733) @ 468. One will ask, can a man who in one report put the village of 3000 persons or number of persons affected by oil spillage and in the earlier one he put the population of 129. Was it equally typographical error that made him to remove the whole of Appendix A from the set he wants Court to believe in Exhibit

PW a, b, c, d, e, and f.
In the end, I am of the opinion that the evidence of PW3 does not have the qualities evidence in proof of a case should have for this Court to award the damages claimed by the Plaintiff. (Underlining mine). Pages 195 to 196 of the Record of Appeal.

He added that the findings have not been impugned or shown to be perverse and submitted that the findings ought not to be set aside.

Respondent?s counsel again referred to the case of ROCKONOH PROPERTY CO. LTD. V. NITEL PLC (2001) 14 NWLR (PT. 733) 468 and submitted that in that case, the Supreme Court referred to the testimony of the witness who presented the valuation report as ?nothing other than sheer mystery presented to the Court as evidence? and expressed surprise that the trial Court accepted such evidence. This, counsel said is because the position in law is that expert evidence is not sacrosanct. A Judge has a duty of examining the totality of evidence before him before reaching a conclusion on an issue regardless of whether expert evidence is produced or not. He submitted that from the findings of the learned trial Judge, it is obvious

that there was no credibility or cogency to the valuation reports and that the learned trial Judge was right in not awarding the Appellants the damages sought.

On the submission by the Appellants counsel that the valuation reports tendered during cross-examination by PW3 were not pleaded, learned counsel for the Respondents submitted as follows:
i. The documents (valuation reports) were made by the Appellants.
ii. The two sets of valuation reports were made by the Appellants? same witness.
iii. Both sets bore the same address.
iv. They did not anywhere in the statement of claim or amended statement of claim or Further Amended Statement of Claim state that they are abandoning either set.
v. There were major discrepancies between both set of reports.
vi. The witness who made the said reports did not at any time state that he made two sets of reports. He rather pretended that he made only one (set of) valuation report(s).
vii. The said witness when confronted with the issues during cross-examination attempted to claim that he made two sets ?due to typographical errors?.
?viii. The differences

between both sets were shown to be beyond mere typographical errors.
ix. The Appellants brought the two sets of valuation reports contradicting themselves.
x. We (Respondents) simply tendered the set they choose to hide to show/prove that the suit and the testimony of the witness is contradictory, unreliable, speculative and a ruse.
xi. There is absolutely NOTHING in the Further Amended Statement of Claim showing that there were two sets of reports, let alone that any earlier one was abandoned. In fact the Appellants and the witness, PW3 wanted to pass it off as if it was the same until we compared and discovered the fraud which we duly used to cross-examine the witness and brought it to the attention of the Court.
xii. The learned trial Judge in his judgment addressed the issue and made a clear finding when he held as follows:
?What is more the law has not changed. The law is that the evidence elicited during cross examination is not inadmissible merely because such evidence is not supported by the pleadings of the party eliciting the evidence. It suffices if the evidence is pleaded by either of the parties to the suit. On

this proposition of the law, I will place reliance on the case of AGU V. IKEWIBE (1991) 3 NWLR (PT. 180) 385.?
xiii. The Appellants have not challenged this position of the law and or finding of the learned trial judge.

He urged us to resolve issue one in favour of the Respondent. Learned counsel for the Appellants reacted to the ?new issues? raised in the Respondent?s brief of Argument especially the issue of lack of proof of negligence of the respondent in the Appellant?s Reply brief.

?He submitted that a careful perusal of the pleading and evidence of the appellants will show that the Appellants have pleaded and given evidence of the negligence of the Respondent in the causation of the crude oil spillage from its Odudu Platform which was noticed on the Mbo and Oron Rivers and Creeks on the 4th day of March, 1998 by the Appellants which said Crude Oil Spill adversely impacted the appellants properties and environment. He referred to paragraph 22 a-e of the Appellants Further Amended Statement of Claim. He submitted that the Appellants through Chief Ebeni Jonah (PW1) at paragraph 50 a-e of his Statement on

Oath gave evidence of negligence. He added that Appellants are not expected by law to plead and prove negligence of the Respondent beyond reasonable doubt. On this he referred to Section 131 (1) and 133 (1) of the Evidence Act 2011 and the case of ISHOLA V. UBN. (2005) 6 MJSC 40.

He submitted that the case of U. T. B. V. OZOEMENA (2007) ALL FWLR (PT. 358) 1014 on proof of his negligence cited and heavily relied upon by the Respondent?s counsel does not support the Respondent?s case. He said the duty of care enunciated in the case of U. T. B V. OZOEMENA (SUPRA) is the duty of the Respondent, Elf Petroleum Nigeria Limited owed the appellants not to cause damage to the environment while exploring and producing crude oil. That the Respondent breached that duty of care by negligently allowing the said crude oil in its control and management to escape and cause damage to the Appellants Fishing properties and environment. Appellants counsel further submitted that the Respondent had already admitted in DW1?s statement on oath that there was crude oil spill from its facility in March 1998 in addition to the admission in its letter of

25th May 1998, Letter, Exhibit PW1c and the Respondent is therefore liable to the Appellants in damages. He referred to the case ONOVO V. MBA (2014) 14 NWLR (PT. 1427) 391 @ 324 that an admission in favour of an opposing party constitutes an admission against the interest of a party.

He submitted that the Appellants did not only plead and prove negligence on the part of the Respondent in the causation of the crude oil spillage, but also in addition relied on the Rules in RYLANDS V. FLETCHER (1868) LR 3 HL PAGE 330. On this, he further referred to paragraph 23 of the Further Amended Statement of Claim and the evidence of DW1 at paragraph 6 (d) on page 111 of the Record of Appeal. He relied on the case of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF TIGBARA EDAMKUE & ORS (2009) ALL FWLR (PT. 489) 407 @ 438 to say that the learned Judge was therefore right to have found that there was actually crude oil spill from the Respondent?s Odudu Platform on 24/03/1998 and noted his harmful and hazardous effects on humans and the environment (ecosystem) but that surprisingly the trial Court went ahead to dismiss the Appellants case.

The finding on the occurrence of the crude oil spill as a result of the negligence of the Respondent remains binding. Still on this, Appellants counsel submitted that that they (Appellants) did not appeal against the findings of the trial Court on the issue of the occurrence of the crude oil spill but only appealed against the refusal of the trial Court to make the awards of special and general damages claimed by the Appellants. Also that the Respondent has not cross-appealed against the findings of facts of the trial Judge and cannot now canvass arguments on the same. That findings of fact not appealed against remain binding on the party the findings are made against. He referred to the case of OKE V. MAJA (2014) 3 NWLR (PT. 1394) 374.

RESOLUTION OF ISSUE ONE
It seems to me that the learned counsel to the Appellants was quite right when he described the introduction of the subject matter of lack of proof of negligence by the Respondent in the Respondent?s Brief of Argument as ?New Issues?. The trial Court did not make any negative findings of lack of proof of negligence against the appellants. Rather, acting on the

contradictions in the evidence of PW3 on the valuation reports in between the Exhibits PW1 B and the PW1 G series, the learned trial Judge found the evidence of PW3 unworthy to sustain the claim of special damages by the appellants and by no other further reasoning than that, and without considering the Appellants claims for special damages dismissed the Plaintiff?s Appellants claims in its entirety.

In this respect, and as a matter of procedures on appeal, the learned counsel for the appellants was right when he said that the findings of fact not appealed against remain binding on the party. This is because if nothing else, the learned trial Judge held at page 243 of the Records as follows:
During cross-examination and even in their statement of defense, the Defendants denied the alleged spillage but went ahead to state that there was a spill which they reported to DPR. So I will ordinarily believe that actually there was spill and ordinarily hydro-carbons are poisonous to both black men as it is to white men. But it does not end there as the Plaintiffs sufficiently discharged the burden placed on them as to be entitled to the reliefs

sought.

The Appellants were satisfied with the above finding and did not find any reason to appeal it. The Respondent presumably was also satisfied with the above finding and filed no cross-appeal against it. The attempt therefore by the Respondent to raise the issue of proof of negligence in this appeal is procedurally incompetent and wrong in substance.

(2011) 12 SC (PT. 11) 162; PRINCE OYESUNLE ALABI OGUNDARE & ANOR V. SHITTU LADOKUN OGUNLOWO & 3 ORS (1997) 5 SCNJ 281.

In any event, as far as this case is concerned, the learned trial Judge was not wrong to have held that the Appellants as Plaintiffs have discharged the burden on them that indeed they suffered damage by the oil spillage from the Respondent?s Platform.

In accordance with averments in paragraphs 22, 23 and 24 of the Appellants Further Amended Statement of Claim, the Pw1 witnessed as follows in paragraphs 11, 12, 14, 17, 18, 19, 27, 28, 31, 50, and 51 of his Statement on Oath.
11. The defendant is the owner of a large offshore mining lease names OML 100, OPI and ODPI from the Federal Government of Nigeria through which the defendant developed the ODUDU Platform (DOMY) close to the estuary of MBO and ORON Rivers in Akwa ?Ibom State.
12. That the Odudu Platform is used as a gathering point of crude oil meant for oversea buyers.
14. That on and about the 24th March 1998 there was a major oil spillage from the defendant?s ODUDU Platform which has been corroding unattended for several

years finally erupted, fractured and completed spewed its current capacity of crude oil into the Atlantic Coast line in the south Central Coastal area of Nigeria.
17. That we carried out our fishing activities in the Oron and Mbo Rivers and Creeks in Oron and Mbo LGAs of Akwa-Ibom State from time immemorial.
18. That I remember the 24th day of March, 1998. On that day we went out for our daily fishing activities in the Oron and Mbo Rivers and creeks which has been our fishing grounds from time immemorial and after laying our nets in the river, as the water started flowing in from the Atlantic Ocean where the defendant has its installation, the Odudu Platform into the Oron and Mbo Rivers, we suddenly noticed a massive crude oil spill which emanated from the defendant platform carried into the Oron and Mbo Rivers with the help of the flowing tide. It eventually spread and covered the entire surface of the Oron and Mbo Rivers, thereby impacted our fishing nets already laid in the rivers. We could only retrieve some of the impacted nets and some of it got lost in the river. I can identify part and sample of the impacted nets if I see

them.
19. That when we returned to the shorelines, river banks and the creeks of our fishing communities, we then noticed that the spill crude oil was also carried from the Atlantic Ocean by the help of the flowing tide into the river banks, shore lines and creeks, impacted and smeared on our items of worship i.e (Totems) thereby desecrating and annihilating the gods. It also impacted and damaged our fishing traps set in the Rivers and Creeks.
27. That the source of the waterbody in the Mbo and Oron rivers and creeks is the Atlantic Ocean where the defendant has its installation and it is a tidal regime which ebbs and flows at 6 hourly intervals daily.
28. That the spilt crude oil was carried and transported with the help of flowing and ebbing tide intermittently into the fishponds which polluted them, suffocated the fishes in the fish ponds and killed all the fishes.
?31. That the defendant later on the 28th day of May 1998 replied to our letters and denied liabilities on the ground that the spilt crude oil was immediately controlled and cleaned up. If I see the copy of the defendant?s letter, I can identify it.

50. The defendant was is negligent for the causation of the spillage of 24/03/98 in the followings:
a. The defendant ought to have carried out periodic underwater inspection of its ODUDU Platform via X-ray to detect earlier sign of fracture and corrosion.
b. The defendant ought to have maintained proper surveillance with the state of art instrument panels that will promptly alert on a sudden loss in pressure within the platform which device would serve as an early warning of leakage.
c. The defendant being aware of the prevalent strong south-westerly ocean current in the area should have anticipated that in case of an oil spill from its South-Easterly field the mouths of the major rivers lying South-Westerly in the Cross River and Akwa-Ibom States and even Rivers State namely, Oron, Mbo, Calabar Rivers will be natural point of entry into the fragile Deltatic homesteads of the plaintiffs and failed to stock pile contingent sorbets and Coastal booms of install same at the mouths of these rivers to forestall unhindered access of the oil slick via natural transport.
?d. The defendant failed to warn us, the plaintiffs of the

dangers of the oil spill and did not supply relief materials viz food items, clothing, drinking water, drugs etc to alleviate our sufferings.
51. In the light of the forgoing we want the Honourable Court to order the defendant to pay us the sum of N560,000.00 representing Special and General Damages.

Moreover, in addition to the admission of the spillage by the Respondent in Exhibit PW1C, the DW1 Stated in paragraph 6 (d) of his statement on oath on page 111 of the Records thus:
The defendant says that sometime in March 1998, a supply barge ran into a pipe on its way to the platform and there was a very minor spill of only five barrels of crude oil. Containment and recovery operations were launched immediately hence the spill did not spread beyond the area of the platform. We state that it is impossible for such small amount of crude oil to spread as far as was stated by the plaintiffs.

?By the above admission by the Respondent, the burden of proving negligence by the Appellants is minimized. This is consequent on the general principle of law that admitted facts need no

further proof. See EGBUNIKE & ANOR V. ACB LTD. (1995) 2 SCNJ 58; SAVANNAH BANK OF NIG. PLC. V. OPANUBI (1999) 13 NWLR (PT. 634) 203; INSURANCE BROKERS OF NIG. V. ATLANTIC ILES MANUFACTURING CO. LTD. (1996) 9-10 SCNJ 171. It is clear from the above that the attempt by the Respondent in the appeal to raise the issue of proof of negligence by the Appellants is belated, unwarranted and goes to no issue. In the circumstance, it is a digression because there was no such challenge in the appeal before this Court.

The real concern of the Appellants in issue one is whether the learned trial judge was right to have acted on the old and substituted valuation report admitted as Exhibits PW3 (G-H) utilized in the cross-examination of PW3 to dismiss the Appellants claims for special damages. The contention of the Appellants is that the old valuation report was relied upon by the Appellants before the amended pleadings of the Appellants culminating into the extant Further Amended Statement of Claim and became irrelevant to the proceedings which after then started de novo.
?Learned counsel for the Appellants referred to page 477 of the Record of Appeal

where the learned trial Judge referred to the decision of the Supreme Court in the case of AGU V. IKEWIBE (1991) 3 NWLR (PT. 180) 385 and held in dismissing the Appellants case that:
What is more the law has not changed; the law is that the evidence elicited during cross-examination is not inadmissible merely because such evidence is not supported by the pleading of the party eliciting the evidence. It suffices if the evidence is pleaded by either of the parties to the suit?.
Learned counsel for the Appellants believes that the learned trial Judge misapplied the above proposition taken from the decision in AGU V. IKEWIBE (SUPRA) to the facts and circumstances of the instant case. This, he said is because the Respondent did not plead the old valuation report admitted as Exhibits PW3 (G-H) and the Appellants have abandoned the said Exhibits Pw3 (G-H) series to place reliance on their Exhibit PW3 (A-F) based on their Further Amended Statement of Claim. On this, Appellants counsel relied on an array of decided cases. First to show that amendment to pleadings take effect from the date of the original pleading. Second, to show

that parties are bound by their pleadings. Third and not less important to Appellants counsel, that unpleaded facts elicited under cross-examination go to no issues.
I think that both the learned trial Judge and the learned counsel to the Appellants are right on the variously expressed position of the law. I would like to add however that on the peculiar facts of the case, the learned trial Judge indeed did not misapply the decision of the Supreme Court in the case of AGU V. IKEWIBE (SUPRA). This is because, there is nothing on the face of the record that the tendering of Exhibits PW3 (G-H) could not be done based on the state of the Appellants pleadings. For example, by paragraph 21 of the Further Amended Statement of Claim, the Appellants Plaintiffs aver thus:
21. The Plaintiffs immediately after the spill engaged the services of an Estate Valuer, Mr. Chima J. Osimiri of Ben Alamina & Partners at No. 28 Forces Avenue Orosi, House Port Harcourt, to carry out inspection of the properties i.e Fishing Nets, Traps, Ponds and Juju Shrines impacted and damaged by the spilt crude oil. The Plaintiffs will found and rely on the said valuation report

at the trial of this suit.
The Appellants claim this pleading they relied on in relation to their Further Amended Statement of Claim on the valuation report of the Exhibit PW3 (A-F) series having abandoned the valuation report of the Exhibit PW3 (G-H) series tendered earlier in support of claim and before the trial de novo of the suit before Late Justice Chukwu.
The Respondent however used the Exhibit Pw3 (G-H) series to cross-examine the PW3 as a previous statement in writing for credibility of the witness. Section 199 of the Evidence Act Cap 62 (now Section 232 of the Evidence Act 2011) reads:
A witness maybe cross-examined as to previous statements made by him in writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is intended to contradict such witness by the writing, his attention must, before such writing can be proved, or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him.
Provided always that it shall be competent for the Court at

any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of trial as it deems fit.
The learned counsel for the Appellants does not consider it a problem that the cross-examination of PW3 and the tendering of the PW3G valuation report series was done in accordance with the provision of Section 199 of the Evidence Act Cap. 62 (now Section 232 of the Evidence Act 2011) but insisted that the Respondent did not plead the tendering of any valuation report series and therefore Exhibit PW3G was an unpleaded document.
Meanwhile, the trite position of the law is that documentary evidence need not be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such document is covered are expressly pleaded. In other words, unpleaded documents depending on the nature of the claim, may clearly be seen to constitute evidence by which material facts are to be proved and will be admitted as evidence if not pleaded. See IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) 80; OKONKWO V. CO-OPERATIVE AND COMMERCE BANK (NIG.) PLC. (2003) 8

NWLR (PT. 822) 347 SC.; MONIER CONSTRUCTION CO. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 SC; IFEADI V. ATEDZE (1998) 13 NWLR (PT. 581) 205; OKEKE V. ORUH (1999) 6 NWLR (PT. 606) 175 SC; ZENON PET. & GAS V. IDRIAIYYA LTD. (2006) 8 NWLR (PT. 982) 221.
A combination of the application of the above principle and the Appellants pleading themselves or valuation report in paragraph 21 of their Further Amended Statement of Claim would seem to justify the application of the principle enunciated by the Supreme Court in the case of AGU V. IKEWIBE (SUPRA) to with: ?that the evidence elicited during cross-examination is not inadmissible merely because such evidence is not supported by the pleading of the party eliciting the evidence. It suffices if the evidence is pleaded by either of the parties to the suit ?.
The practical manifestation of the cross-examination of PW3 under Section 199 of the Evidence Act Cap. 62 could be found from excerpts from his cross-examination as for example demonstrated at pages 388-389, 384 and 396-397 of the Record of Appeal. First at pages 388-389;

I made two reports but I am relying on the one I tendered in evidence. In my first report I said that the fishing population is 129 but in my second report I said it is 300 fishing population. I said it was a typographical error.
I cannot know the community the 3000 population belongs to now. Is it correct that there is no appendix A in Exhibit PW3F? is that correct? Yes it is not there.
There are not in all the reports I tendered? Is it also a typographical error, it is not. The villages sent a delegation to me and said that since they founded the purchase of oil nets and done the cost of digging ponds that they should aggregate all the claims in the name of the fishing communities and fishing groups that what happened. Since they share the proceeds together and share fishes jointly they should assign all the claims to the communities and fishing groups that purchased and own those things.
Are you now saying that what you said in your second report is what you were told by the Plaintiffs and not your supplied expert opinion? No sir in your earlier report you had 2170 as against 3000 in Exhibit Pw3F? Yes what happened is that initially some

persons were not willing to join them when they took that decision all of them joined bringing the total to 3000.
The amounts stated in both reports are different. No the unit cost is the same, but the total changed because more people joined them. Counsel applies to tender as Exhibit the witness earlier estate valuers report. Which is opposed by the Plaintiffs counsel on the ground that it is not relevant to the Court. At this point this suit is adjourned to 22/06/2010 and 01/07/2010 for continuation of hearing.
Second, at page 394
In Exhibit PW3H you included appendix A list of names and you removed appendix A on your new report? Yes I was given inadequate information when I was preparing the 1st report. It was later that they gave me adequate information which resulted in increment in fishing population for instance from 200 to 2000.
Is it correct to say that your report was based on what you were told? It is not correct that my report was based on what we were told. It was based on what we saw in the result of the inspection. For instance we saw 200 persons during the first time we went for inspection. But when we went for the

2nd inspection we now met 2000 persons those persons who were not willing to join them initially now joined them. But you removed appendix A in your old report because there are fictitious? It is false. Because we physically counted the fishermen and the items impacted.
And at pages 396 ? 397 of the Records, as follows:
Both reports were as a result of the same inspection you made, you never made two inspections? We went there for some day as reported in our valuation report and the result of the inspection revealed that the lowest of the fisher woman or fisherman will obtain an income of between N10,000 and N15,000 naira only the N100,000 and N150,000 which he saw in the first report is a typographical error.
Your date of inspection in both and new reports are the same? Yes they are the same. Those were the dates we went for inspection and the dates we carried out market survey before we now did the computation.
That is to say the same date you were given wrong information were the same date you were given correct information? It is not true.
?Did you sign both reports on the same date? I did not sign the two reports

in the same date. The effective date is 30th September, 1998, but I signed the two reports on different dates because of the cost implications. Did you back date any one? No I did not back date any one.
It seems to me that the learned trial Judge was entitled to form his own opinion on the totality of the evidence of PW3 as he did on page 245 of the Record that:
? PW3 does not have the qualities evidence in proof of a case should have for this Court to award the damages claimed by the Plaintiffs.”
In the case of ROCKONOH PROPERTY CO. LTD V. NITEL PLC (2001) 14 NWLR (PT. 733) 468, the Supreme Court held inter alia that ?the law does not permit evidence which is of no probative value to be relied upon by the Court to support a claim. It is an important aspect of civil procedure that for evidence to be considered useful and which a Court can act upon, there are certain basic qualities it must possess namely:
The first consideration is usually the double requirement of relevancy and admissibility:

(i) ?<br< p=””

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(ii) ?
(iii) The evidence must have credibility or cogency thereby must have the Court to ascribe some probative value to it having regard to its nature and what it is intended to establish.
Similarly, in U. T. B V. OZOEMENA (2007) ALL FWLR (PT. 358) 1014 the Court held inter alia
The evidence must have credibility or cogency thereby enabling the Court to ascribe probative value to it having regard to its nature and what it is intended to establish. MISR NIG. LTD. V. IBRAHIM (1975) 5 SC55; AIKHIONBARE V. OMOREGIE (1976) 12 SC 11. In the instant case, the valuation report Exhibit ?V? is not evidence capable of proof; it neither has cogency nor any probative value which can be ascribed to it.
In this respect, the learned counsel for the Respondent was right to declare that the position in law is that expert evidence is not sacrosanct. See JUAH V. MICHEAL (2010) 10 NWLR (PT. 1203)519. For where a witness is not believed, no finding of fact can be placed on his evidence. See GILBERT ONWUKA & ORS V. MICHEAL EDIALA & ANOR (1989) 1 SC (PT.

11) 1. Indeed once any evidence is found to be unreliable, that is the end of that evidence and to all intent and purposes it ceases to be relevant evidence in the case in question. See DICKSON ARISA V. THE STATE (1988) 7 SC (PT. 1) 52.
Learned counsel for the Appellants suggested that the evidence of PW1 would have been sufficient to justify the claims of the appellants for special damages. I do not agree with him in the circumstances of the case. This is not just for the reason that special damages must be specifically pleaded and proved. See XTOUDOS SERVICES NIGERIA LIMITED & ANOR V. TAISEI (W. A.) LIMITED & ANOR (2006) 6 SCNJ 300; SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. HIS HIGHNESS PERE COLE & 6 ORS (1978) 3 SC 128; O. ARABEMSI & ANOR V. ADVANCE BEVERAGES IND. LTD. (2005) 12 SCM 75.
But also because the rule of strict proof in special damages mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement such as the fact that every item contained in the claim of special damage must be proved by characterized testimony that

ties each item with the proof proffered, i.e the evidence led. See ADECENTRO (NIG.) LTD. V. COUNCIL OF OBAFEMI AWOLOWO UNIVERSITY (2005) 5 SCM 73. In fact the claims for special damages must succeed on compelling evidence and not on the sums claimed appearing reasonable to the Court and cannot be left to conjecture or guess work. NIGERIAN NATIONAL PETROLEUM CORPORATION V. CLIFCO NIGERIA LIMITED (2011) 4 SC (PT. 1) 198; UNION BANK OF NIGERIA PLC. V. ALHAJI ADAMS AJABULE & ANOR (2011) 12 SC (PT. IV) 1.
In the instant case, Pw3 whose evidence was discredited under cross-examination rather than PW1 would have been in a better position to provide the evidence of particular losses which are exactly known or accurately measured before the Court. See e.g. IMANA V. ROBINSON (1979) 3-4 SC 1 @ 23. The learned trial Judge was therefore right in all the circumstances to have dismissed the Appellants claims in special damages.
Issue one is resolved against the Appellants.

ISSUE TWO
Learned counsel for the appellants submitted on issue two that the Respondent never offered any evidence in rebuttal of the Plaintiffs Appellants case at the Court

below to justify the dismissal of the Appellants claim by the trial Court under General Damages. He reiterated the facts of the case and referred in particular to the averments in paragraph 22 a-e of the Further amended Statement of Claim and paragraph 50 a-d of the Statement on Oath of PW1 to show that the Appellants pleaded and proved that the Respondent was negligent in the causation of the crude oil spill of 24/03/1998.

He submitted that the Appellants have also proved their entitlement to general damages as pleaded in paragraph 31 under General Damages of the further Amended Statement of Claim. That the Court below therefore had no difficulty in holding at pages 243-244 of the Record of appeal that:
From the evidence of PW1, I will proceed to that of PW2 who in no small measure established the harmful nature of oil spill on the environment. The PW2 evidence stands unshaken as the rock of Gibraltar. There was no cross-examination or counter evidence from the defendant as to the harmful effect of oil spill in our ecosystem so for all intents and purposes the said testimony must be acted upon

?Appellants counsel

submitted that curiously the Court below erred when despite this crucial findings of fact, dismissed the Plaintiffs Appellants cases both in Special and General Damages. He submitted that the learned trial judge could have used the occasion after having found that the evidence of PW2 ?was unshaken as the rock of Gibraltar? to obey the law by awarding the sum of N46, 500.00 ? claimed by the Plaintiffs Appellants as General Damages. He referred to the decision of the Supreme Court in SC 344/2008: ELF PETROLEUM NIGERIA LIMITED V. DANIEL C. UMAH & 24 ORS 2018 LPELR ? 43600 delivered on the 19th January, 2018 and submitted that General Damages are awarded at the discretion of the Court when established as the remedial measure to assuage the losses and injuries flowing from the wrongful act of the Defendant which in this case is the spilt crude oil. He further referred to the cases of UBN V. IKWE (2000) 3 NWLR (PT. 646) PAGE 223 and YALAJU-AMAYE V. A. R. E. C. LTD. (1990) 4 NWLR (PT. 149) PAGE 222 that general damages are the kind of damages which the law presumes to flow from the wrong complained of and must not be pleaded and proved by

the Appellants before the Court can grant same.

Appellants counsel made further reference to Exhibit DW1 B and submitted that the admission of the cause of action in this suit by the Respondent, the crude oil spill in March, 1998 which the Appellants noticed on the Oron and Mbo Rivers and Creeks on the 24/03/1998 is enough proof of negligence on the part of the Respondent. He concluded that the learned trial Judge of blessed memory having found that the Plaintiffs Appellants established the harmful nature of the spilt crude oil on the Plaintiffs Appellants properties and environment was bound in law to award General Damages to the Appellants.

Learned counsel for the Respondent submitted in respect of issue two that while the Appellants counsel emphasized the findings of the learned trial Judge on the ?unshaken? evidence of PW2, that the Appellants counsel forgot to mention other findings of the learned trial Judge as on pages 246-247 of the Record of appeal that ?..there is no concrete or tangible evidence upon which I can sustain the case of the Plaintiffs and I so hold? or his conclusive

finding that ?……….. the case of the Plaintiff fails in its entirety? That in any event, the testimony of the said PW2 upon which the appellants based his argument on was not in proof of negligence but only on the purported effect of damage. He urged us to resolve issue two in favour of the Respondent.

The issue of the proof of negligence of the crude oil spillage was adverted to in my treatment of Issue one consequent on the submissions of the learned counsel for the Respondent on issue one. I adopt my answers and resolution on Issue one in respect of Appellants Issue two.

I have had occasion to decide without any fear of contradiction that the Appellants pleaded and proved through the evidence of PW1 and Pw2 and the admission of the Respondent in its pleading and Exhibit DW1 B that the crude oil spillage which caused damage to the properties and environment of the Appellants on 24/03/1998 was due to the negligence of the Respondent.

?Unfortunately, the learned trial Judge dismissed the case of the Plaintiffs appellants in its entirety on account of his discontentment with the evidence of PW3 who understandably was

not able to prove the appellants claims for special Damages. Clearly, however, the claims of Special Damages and General Damages are two different heads of claims and whereas in the instant case, the appellants claims for Special Damages fail, a Court of law would not be permitted without reasons and in the face of uncontradicted and uncontroverted evidence of PW1 and PW2 in proof of the negligence on the part of the Respondent to also dismiss the appellants claims on general damages.
Clearly where as in the instant case a trial Court made no assessment of general damages, an appellate Court can make the assessment itself if there exists on the record enough evidence on which the assessment can be based. See OLAWALE SHONIBARE V. C. S. SHOLEYE (2009) 4-5 SC (PT. 1) 1; BROADLINE ENTERPRISES LTD. V. MONETARY MARITIME CORPORATION (1995) 10 SCNJ 1. The Appellants in the instant case are entitled to the award of general damages. Issue two is accordingly resolved in favour of the Appellants.

?In this appeal, Issue one was resolved against the appellants but Issue two is resolved in favour of the Appellants. This appeal is allowed in part.

In consequence, the part of the judgment of the learned trial Judge which dismissed the Plaintiffs Appellants case in its entirety is hereby set aside. Accordingly, instead of the total claim of N230,600,000.00 for General Damages in respect of the six consolidated suits which constitute this Appeal No. CA/C/334/2017 that is Suit No. FHC/UY/CS/61/2005, FHC/UY/CS/62/2005, FHC/UY/CS/66/2005, FHC/UY/CS/63/2005, FHC/UY/CS/59/2005, FHC/UY/CS/60/2006, I award a sum of N120 Million naira as General Damages in the six consolidated cases, meaning that the Appellants in each of the consolidated suits shall be entitled to General Damages in the sum of N20 Million Naira each.

Furthermore, cost of this appeal is assessed at N300,000.00 (Three Hundred Thousand Naira) in favour of the appellants in respect of the six consolidated suits which constitute Appeal No CA/C/334/2017. Each of the appellants in each of the six 96) suits shall be entitled to costs in the sum of N50,000.00. Appeal Nos. CA/C/332/2017, CA/C/333/2017, CA/C/335/2017, CA/C/336/2017, CA/C/337/2017 shall abide with the decision and orders in Appeal No. CA/C/334/2017.

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YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance a copy of the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA and I am in complete agreement with the reasoning and conclusion arrived at in the judgment. My Lord in a concise and succinct manner resolved the two issues distilled for determination. I have nothing more to add.
I too allow the appeal in part and abide by the orders made therein.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Mojeed A. Owoade, JCA. I too allow the appeal in part and abide by all the consequential orders, inclusive of the orders as to costs.

Appearances:

R. B. MBABA, ESQ.For Appellant(s)

BERTRAM FAOTU, ESQ.For Respondent(s)

Appearances

R. B. MBABA, ESQ.For Appellant

AND

BERTRAM FAOTU, ESQ.For Respondent