H.R.H. ABRAHAM NABHON THOMAS & ORS v. SHELL PETROLEUM DEV. COY. (NIG) LTD. (2010)

H.R.H. ABRAHAM NABHON THOMAS & ORS v. SHELL PETROLEUM DEV. COY. (NIG) LTD.

(2010)LCN/4050(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of November, 2010

CA/PH/360/2009

RATIO

SPECIAL DAMAGES: WHETHER WHERE THERE HAS BEEN A PROPER AND ADEQUATE PLEADING OF SPECIAL DAMAGES, THE UNCHALLENGED EVIDENCE, WITHOUT MORE, CAN CONSTITUTE SUFFICIENT PROOF OF SPECIAL DAMAGES

SPECIAL DAMAGES: WHETHER SPECIAL DAMAGES MUST BE PLEADED AND STRICTLY PROVED

…the rule about special damages is that it must be pleaded and strictly proved. This does not, however, mean that our law has set a minimum measure of evidence or laid down a special category of evidence required to establish special damages. What is required is that the claimant should establish his claim by credible evidence that he is or they are entitled to special damages, see the case Oshinjinrin v. Elias (1970) 1 All NLR 153; Adim v. Nigerian Bottling Co. Ltd (2010) All FWLR (Pt. 527) 690 at 707 para E-G, WHICH IS A Supreme Court decision. PER ISTIFANUS THOMAS, J.C.A.

DUTY OF COURT: DUTY OF COURT IN INTERPRETATION OF DOCUMENT WHERE THE LANGUAGE USED IS PLAIN AND UNAMBIGUOUS

When a party has clearly agreed to carry out with remedial action, more so in written form, a trial or even appellate court is to give its natural and ordinary grammatical meaning. In the interpretation of a written document, where the language used is plain and unambiguous as in Exhibit F2 in the instant appeal, effect must be of necessity be given its plain and ordinary meaning. It is that clear and unambiguous language that best conveys the intention of the respondent who wrote exhibit F2. The trial court could not have been at liberty to go outside the very meaning of the respondent’s meaning when it said “meanwhile we will go ahead with the remedial action; see the cases of Attorney General Bendel State v. Attorney General of the Federation (1981) 10 SC 1, Securities Plc v. Tinubu (2001) 45 WRN 1; Awose v. Odili (2005) All FWLR (Pt 253) 720 and Nyame v. Federal Republic of Nigeria (2010) All FWLR (Pt. 527) 618 at 662 Para A-F. PER ISTIFANUS THOMAS, J.C.A.

REMEDIAL PROMISE/REMEDIAL ACTION: MEANING OF “REMEDIAL PROMISE AND REMEDIAL ACTION”

As defined in Blacks Law Dictionary, 8th Edition, at pages 1250 and 1319 respectively, remedial promise and remedial action means a promise to repair or replace goods or things; an action intended to bring about or restore long term environmental quality or a measure intended to permanently alleviate pollution. PER ISTIFANUS THOMAS, J.C.A.

INTERFERENCE WITH FINDING OF FACTS: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL INTERFERE WITH THE FINDING OF FACTS OF A TRIAL COURT

I set aside the wrong findings of the trial court, because the duty of evaluation of evidence and ascription of probative value there to is primarily the function of the trial court, but an appellate court can definitely interfere where and when the lower court failed to do so properly as in the instant appeal. An appellate court will only interfere with findings of facts of the trial court if it is established that, the findings of the trial court, are not supported by the totality of evidence on record. In the instant case, the appellants pointed out and tendered the various; correspondences like exhibits A, B, C, D, E, F, G and F2, yet the trial court did not effectively evaluate the purports of the documents, see the cases of OBODO V. OGBO (1987) 2 NWLR (Pt. 54) OGBECHIE V. ONOCHIE (NO.2) (1988) 1 NWLR (Pt.70) 370; MAINAGGE V. GWAMNA (2994) 14 NWLR (Pt.893) 323 And OKONKWO V. OKWONKO (2010) 14 NWLR (Pt. 1213) 228 at 245- 246. PER ISTIFANUS THOMAS, J.C.A.

JUSTICES

MUSA DATIJJO MUHAMMAD Justice of The Court of Appeal of Nigeria

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

H.R.H. ABRAHAM NABHON THOMAS & ORS Appellant(s)

AND

SHELL PETROLEUM DEV. COY. (NIG) LTD. Respondent(s)

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of D.E Adokeme (J) of the High Court of Justice, Nembe, Bayelsa State delivered on 31st July, 2006 in which the plaintiffs but now appellants suit was dismissed, hence the appeal.
At the lower court, the appellants per their further, further, further further amended statement of claim which was filed on 19th May, 2008 claimed as follows:-
“(a) The sum of Two hundred and Thirty five Million, Two Hundred and Thirty Thousand Naira (235,230,000.00) being special damages for the Defendant’s blockade/flooding of farm lands, economic trees/ponds etc, of the plaintiffs, destruction for (of) the Okoroba/Opume Road and in convenience caused to the Plaintiffs in it (their) enjoyment/use of the said road as well as; the public at large or Three Hundred Million Naira (N300,000.000.00) as general damages for the same.
(b) An order that the Defendants put back the Okoroba/Opume Road in a useable state or its former state before its destruction.”
By a further, amended statement of defence filed on 12th May, 2008, the respondent denied the appellants claim.
At the commencement of the suit at the lower court, the 2nd defendant namely, Geco-Prakla (Nig) Ltd, by an order of that court was made a party. But the Same 2nd defendant filed an application on notice seeking the court to strike out the suit against it for being statute-barred. The appellant then filed on 20th July, 2006, notice of withdrawal of the suit against the 2nd defendant. The withdrawal was granted by the trial court and on 31st July 2006 the suit against Geco-Prakla (Nig) Ltd was dismissed, leaving the suit between the present appellants and the respondent on company.
At the trial, the appellants called three witnesses who testified to support their pleadings. The respondent called two witnesses who testified in support of their defence. The learned trial judge considered the parties position and dismissed on 26th Sept, 2008 in toto the appellant’s claim.
Dissatisfied with the dismissal, the appellants filed on 1st December 2008 their Notice of appeal’ containing (6)
Six grounds of appeal as contained at pages 281-284 of the record. By the rules of this court parties filed and exchanged their briefs of argument. The appellants filed their briefs on 13th November 2009 and raised three issues distilled from the (6) six grounds of appeal. The issues read as follows:
“1.Whether Exhibit F2 amounts to or is sufficient to ground ratification of the appellants complains of the damages caused by the respondents independent contractor by the respondent and whether it did not reasonably foresee the nuisance complained of by the appellants (ground 1 and 2).
2. Whether the appellants by the pleadings and evidence are bound to show or prove specific losses by persons or communities distinctly before an award of the damages claimed can be granted them (grounds 3, 4 and 6).
3. Whether the lower court was right by not invoking the provisions of section 149(d) of the Evidence Act Laws of Nigeria, 224 against the respondents for failing to produce its records on their claims as Pleaded in their further amended statement of defence (ground 5)”
The respondent filed its brief of argument on 21st April, 2010 and raised (4) four issues distilled from the appellants six grounds of appeal. The respondent’s four issues are as follows:-
(i) whether there was evidence before the learned trial judge upon which to secure a finding that the respondent reasonably foresaw the nuisance complained of (grounds 2).
(ii) whether the learned trial judge was wrong in holding that Exhibit F2 does not amount to crisis not sufficient to ground ratification (ground 1).
(iii) Whether in the circumstances of the case before the trial court, the learned trial judge was not right in refusing to grant the appellants the damages claimed by them (grounds 3, 4 and 6).
(iv) Whether the provision of section 149 (d) of the Evidence Act was applicable in the circumstances of the Case before the trial court.
(Grounds 5).
To determine the appeal effectively, I deem it necessary to consider the appellant issues 1 and 2 jointly as they are similar to the respondents issues (ii) and (i) respectively. The parties issues are similar.
The appellant submission on issue 1 is that, the parties Correspondences in Exhibits A, B, C, D, E, F, G and H which, were between the appellants’ the respondent and Geco- Prakla (Nig) Ltd who was the respondent’s contractor that constructed the road complained about, predates and heralded the admission by the respondent in Exhibit F2. the appellants still submit that, the correspondents between the parties was sufficient proof or evidence that the respondent was sufficiently put on notice of the alleged nuisance and damages caused by its independent contract or against the appellants. Appellants still submit that based on the notice made to the respondent, it opted to carry out a joint investigation of the appellants claims. Learned counsel for the appellant referred this court to the learned trial judge’s finding at page 275 of the judgment (record) counsel still referred to the contents of Exhibit F2 in which the maker namely the respondent had clearly stated that they would “…… go ahead with the remedial action.” Appellants submit that the respondent’s admission in Exhibit F2, was made after the joint investigation and therefore amounts to a ratification of the damages caused by its independent contractor as in law, there would be nothing to remedial without a wrong. Learned counsel to the appellants referred to the Blacks Law dictionary 8th Edition with reference to the definition of “promise; remedial promise; remedial and remedial action” at pages 1249, 1250 and 1319 of the dictionary. Counsel relied to the case of Ellis v. Sheffield Gas Consumers & Co (1853) 118 ER955, Ironbar v. Cross River & Rural Dev. Authority (2003) FWLR (Pt. 165) 375, 390 para G-H
In conclusion, appellants has contended, that the lower court, seriously erred after it found that the respondent had full knowledge of the facts of damages and nuisance before writing and admitted the contents of Exhibit F2. Yet the same judge wrongly failed to allow the claims.
On the part of the respondent at pages 10-12 of its brief, it is submitted that the trial judge was right in holding that, Exhibit F2, does not amount to ratification or admission of nuisance or damages to the appellants’ flooded farms. The respondent has contended that ratification must be evidenced by clear adoptive acts which must be accompanied by full knowledge of the essential facts. The respondent referred to and relied on the English case of Eastern Construction Co V. National Trust Co. (1914) A.C. 197, 213: Freeman V. Rosher (1849) 13 Q.B. 780, 789; Roe V. Birkenhead (1851) 1 Exch. 36. The respondent further contended that in the instant appeal, the only evidence upon which the appellants wanted the court to base a finding of ratification was Exhibit F2 in which the respondent just stated that “mean while, we will go ahead with the remedial action.” The respondent further argued that Exhibt F2 fell far below the standard required by law to secure a finding of ratification, and that there was neither express mention of Geco-Prakla (Nig) Ltd, namely the independent contractor or reference to the acts of the independent contractor or reference to the acts of the afore said contractor in Exhibit F2. The respondent is of the view that there was no believable evidebce by the appellants of any adoptive acts on the part of the respondent as required by law. The respondent concluded its issue (ii) that its DW2 Sir Chief Raymond Amadi, had denied any remedial action by the respondent, and urged this court to resolve the issue in their favour.
Appellants issue number 2 is whether by their pleadings and evidence, they were bound to show or prove specific individual losses or specific communities before an award of the damages claimed could be granted. The appellants submit that the evidence of PW1 was unchallenged or uncontroverted or uncontradicted as rightly found by the trial judge, who admitted that the appellant’s communities jointly owned the properties, namely the economic crops damaged; and that the act of the respondent interfered with the appellant’s use of the road and the public at large who suffered losses and proved general damages. They have accused the trial judge who, according to them went on a frolic of his own despite his findings at page 6 and 14 of his judgment (pages 272-273 of the record), and held that, it was perverse when the trial judge held that the appellants did not prove individual losses. The appellants further submitted that their case was not fought on the basis of personal claims or distinct communal claims. That it was not a case of special damages on behalf of thousands of persons that own properties but on behalf of communities that jointly own properties. Learned counsel submitted that this being a case of private and public nuisance, they had shown and proved that they suffered damages over and above that of the generality of the public and are entitled to an award Special damages or in the alternative” general damages.
Appellants urged that the trial court should have awarded the damages and referred to the cases of Iyere v. Bendel Feed and Flour Mill Ltd (2009) All FWLR (Pt. 453) 1217, 1250 Paras E-F; Umudje v. Shell Petroleum Dev. Co (1975) 9-11 SC 155, 162; Ejowhomu v. Edok – Eter Ltd. (1985) 5 NWLR (Pt. 39) 1 and Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) 453, 446 para B-C. Appellants urged the court to resolve this issue 1 and 2 in their favour.
In opposing appellants’ issue 2, learned counsel for the respondent raised its issue (i) at page B of its brief and submitted that, the lower court was right in holding that the respondent could not have reasonably foreseen the nuisance complained by the appellants. That to secure a finding that the respondent in the instant appeal foresaw that there was going to be nuisance when it contracted the work to the independent contractor, the appellants should have most importantly, know that from the nature of road construction to be executed, know nuisance will result, and referred to the case of Bower v. Peak (1976) 1 Q. B. D 321, 326.
The respondents then contended that the appellants did not lead evidence of the nature of work to be executed try the respondent’s independent contractor. Respondents counsel has argued that Exhibit F2 can only show knowledge after the damage complained of, and can at best be referred to as hindsight but certainly not reasonable fore sight of nuisance as envisaged by law. Respondent urged the court to resolve issues (i) and (ii) in their favour. I have carefully considered the parties arguments in their respective briefs in relation to the issues. At page 272 of the record, the trial judge in his judgment clearly admitted or found from the evidence of PW1 as follows:
“From the evidence of PW1 that the economic and farmlands affected by the nuisance belonged to the Communities not individuals and the capacity in which the suit was brought gives the cloak of a public or communal ownership of the said farmlands and no witness gave evidence of personal or private losses, neither did PW1 attribute the damages to individuals nor to each community separately.”
Still at page 2.77 to 273, his Lordship found and admitted that:-
“However, it does not seem to make any difference to our law whether the nuisance complained about is public or private considering the dictum of Uwais JSC in Adedirans case at page 165 ratio 14 based on section 6 (6) of 1979 Constitution. It would appear to me that both the individual affected by such nuisance and the Attorney – General are at liberty to sue…… In the instant case, the plaintiffs (appellants) have said that they suffered losses of their farmland and economic land apart from the general loss of the use of the road or great hardships in its use suffered by the generality of the road users. I therefore hold that they can bring this action even on their own rights. This suit is therefore competent and I would hereby consider the other issues for determination for an action in nuisance to succeed, there must be sensible material damages to the plaintiff’s; property.”
Since the trial judge had found that the appellant’s suit was competent and had the right to sue for special and general damages, the next line is to find out what special or general damages was pleaded and proved by evidence. This is so becausethe rule about special damages is that it must be pleaded and strictly proved. This does not, however, mean that our law has set a minimum measure of evidence or laid down a special category of evidence required to establish special damages. What is required is that the claimant should establish his claim by credible evidence that he is or they are entitled to special damages, see the case Oshinjinrin v. Elias (1970) 1 All NLR 153; Adim v. Nigerian Bottling Co. Ltd (2010) All FWLR (Pt. 527) 690 at 707 para E-G, WHICH IS A Supreme Court decision.

In the instant appeal matter, the appellant pleaded paragraph 8 in their further, further, further further amended statement of claiming on their special damages at page 96 as follows:-
S/NO    ITEMS       NUMBER ENUMERATED    AVERAGE ANNUAL       AMOUNT
1.    Plantain       1,700 No       @N700 per tree          1,190,000.00
2.    Banana          1,000 trees       @N500 per tree          *500,000.00
3.    Cocoyam       800 stands       @N100 per stan    d       80,000.00
4    Oil Palm       500 No          @N2,000 per tree       *1,000,000.00
5.    Raffia Palm       2000 No       @N2,500 per tree       *5,000.000.00
6.    Bush Mango       150 No          @N600 per tree               90,000.00
7.    Bread fruits       200 stands       @N450 per tree               90,000.00
8.    Yam          100 stands       @N200 per stand            20,000.00
9.    Pear          5000 trees       @N500 per tree              250,000.00
10.    Cassava       150,000 stands       @N50 per stand                      97,500.00
11.    Large fish ponds    15 No          @N6,500 per pond       *15,817,500.00

2. Injurious Affection             N175,530,000.00
3. Disturbance                N43, 882, 500.00
GRAND TOTAL             N235,230,000.00

Now having pleaded their Special damages, it is Very important to ascertain whether the appellants had proved same or not, because where there has been a proper and adequate pleading, the unchallenged evidence, without more, can constitute sufficient proof of special damages, but if the claimant failed to establish same the court will discountenance same; see Dumez (Nig) Ltd v. Ogboli (1972) 1 All NLR (Pt.1) 242 OR ( 1972) 3 SC196; Adudaja v. Haddad Co. Ltd (2010) All FWLR (Pt. 527) 690, 702 Para A-D.
At page 219 of the record, the  appellants witness, PW1 effectively testified on 12th May, 2006 before the trial court and he stated as follows:-
*Q. On 2/206 you said the flooding occasion by the damage done to the road caused a drop on economic activities, please tell the court what this means?
A. The affected areas had farming activities going on, on both sides of the road. There were fish ponds and fishing activities on both sides of the road. There were other economic trees on both sides of the road.
Q. could you tell the court the items that were damaged by the action of the Defendants that you showed to the value?
A. There were plantain stems – 1,700 with average income of N700.00 Per Year = N1,190,000
Banana stems – 1000 stems at N500 each    N500, 000.00
Cocoyam – 800 stems at N100 each       N80,000.00
Oil Palm – 500 trees at N2000 each        N1,000,000.00
Raffia palm – 200 trees at N450 each       N90,000.00
Bush mango – 150 trees at N600 each       N90,000.00
Breadfruit — 200 trees at N450 each        N90,000.00
Yam stems 100 stands at N200 each       N20,000.00
Pear trees – 500 trees at N500 each        N250, 000.00
Cassava – 150,000 stems at N500 each        N7.5 million
Large fish ponds 15 annual income of N6, 500 with total of
N97, 500.00
Q. Did the values produce any report?
A. Yes they did, they included a general injurious affection of N175, 530,000.00, and for general disturbance they valued N43,882,500.00 totaling in all N235 ,230,000.00
Q. Do you remember the total figure of the income losses in respect of the items earlier enumerated?
A. No, it is about N15 million”
Still to prove the special damages pleaded, the appellants called PW3 Mr. Naneil Appah, an estate surveyor and valuer. His evidence is at pages 242-248 of the record where he testifies in chief and was vigorously cross- examined by the respondent. At page 243, pw3 tendered without any objection, the survey and valuation Report on compensation claims for Opume/Okoroba Communities Bayelsa state, and was admitted and marked as Exhibit “K”.
In the respondent’s further amended statement of defence contained at page 155 of the record, the respondent merely denied that the plaintiffs/appellants are not entitled to any special or general damages or any damages at ail which they claim against the defendant/respondent.
I have observed the detailed, clear special damages claimed by the appellants and were established by PW1, 2 and 3, and the witnesses were vigorously cross-examined by the respondent’s counsel, but the evidence of the appellants witnesses could not be discredited what so ever. In proving its defence that the appellants are not entitled to the special and general damages, the respondent called only two witnesses namely Mr. Stephen Odigidie, DW1 an industrial relations adviser of Geko-Prakla Nig. Ltd, who is not a party to the suit. The respondent called DW 2, Sir Chief Raymond Amadi. His evidence in Chief and cross- examination is at pages263-266 of the record. DW2 is the Head of the
Defendant in the, East and custodian of all acquisition compensation documents, spillages, blockages and rentals.
He testified that the respondent’s documents are proprerly filed and in computer system, and that the documents are maintained and updated, in the system and are made available on request. To my utter surprise, DW1 who claimed to be the keeper of all the defendant’s documents that were properly filed and in the computer system, was politely asked, to how the contract documents between the respondent and their independent contractor, Geko-prakla Nig. Ltd, who, caused the massive flooding that affected the appellants farms, crops and destroyed the communities road, where he said
“All efforts made to retrieve them proved abortive. They can be said to be missing my Lord,”
Still in his examination in chief, Dw2 admitted that Exhibit FZ was a response to the appellant’s letter dated 10th August, 1997 which was tendered as Exhibit B. During cross-examination at page 264-266, DW2 damned the respondents claim. The cross-examination questions and answers are reproduced as follows:-
Cross-examination
“Q. If shell or Geko Prakla is to repair a public road it must seek the consent of government or the owners of the road?
A. I do not know about that.
Q. If Shell or Geko is to repair somebody’s house, it must seek that persons consent before it can carry out the repairs?
A. I do not know.
Q. .The Okoroba/Opume road is a public road owned by government. Who owns it?
A. I do not know who owns it.
Q. you were not in the team of Shell that went for inspection on that road due to Plaintiff’s complaint, were you?
A. No I was not in the team.
Q. And it was not your department that went for that inspection?
A. Not my department.
Q. And it is not your department that will give the result of that inspection?
A. It is not my department.
a. Is there anywhere in exhibit “F2” that exhibit “B” was referred to?
A. No it is referred to.
Q. You will agree that by exhibit “F2″ Shell; was ready to go on with the remedial action of the Plaintiffs complaint?
A. We went there and discovered that there was blockage so there was no need for a remedial action. We did not refer to Geko Prakla.
Q. By your records you do not have anything to show that the Okoroba/Opume road was in a perfect condition.
A. It is in the system that it was a perfect road.
Q. Can the court have that document?
A. No I do not have it here.
Q. Do you have in your system that Okoroba/Opume was graded by Geko prakla,
A. Yes.
Q. Can we have that document?
A. I do not have it here.
Q. Was it Shell that awarded Prakla to grade the road?
A. No.”
It is now no more in doubt that, the appellants had intimated the respondent that the act of their independent contractor-Geko Prakla Nig. Ltd had caused massive damage at admission is made by DW2 who deliberately failed to tender the contract documents between the respondent and the independent contractor His Lordship, the trial judge had made that fact in his judgment at page 275 of the record where he stated as follows:-
“Court:
The documents tendered show that Exhibit F2 was written after the joint investigation team visited the site of this claim. The defendant therefore had full knowledge of the facts of the damages complained of before writing the same.”
The important question now to make is simple. What are the contents of Exhibit FZ since the trial court had accepted that it amounted to full knowledge of the facts of the damages complained and claimed by the appellants?
Exhibit F2 reads as follows:-
CHIEF F.F. EGELE
DANIEL CHAMBERS, 7 ISAAC BORO
ST, OLD GRA, PH.

Dear Sir/Madam,

RE: BLOCKAGE & DESTRUCTION OF OPUME/OKOROBA ROAD, OGBIA
We refer to the joint site investigation between our representatives and you/you r representative (s) on 28/05/1998 in respect of the above subject matter, and do request that you report to out ERE.PAFL department with this letter as from 18/05/1999 for further information.
Meanwhile, we will go ahead with the remedial action.
CC:
Correspondence No. EC57
Originator No. EB662.
Yours faithfully,
For: THE SHELL PETROLEUM
DEVELOPMENT COMPANY OF NIGERIA LIMITED
(SIGN)
VINCENT M. OKWECHIME, JR
HEAD, LANDS ACQUISITION AND COMPENSATION, EAST.”
In my considered opinion, it was the respondent who manufactured Exhibit F2, and clearly admitted that, the company (respondent) would go ahead with the remedial action caused by its independent contractor which was clearly found during the joint site investigation between the representatives of both parties on 28th May, 1998.
Contents of exhibit F2 is clear evidence showing the damages caused by the respondent as witnessed by both parties during the agreed joint investigation. When a party has clearly agreed to carry out with remedial action, more so in written form, a trial or even appellate court is to give its natural and ordinary grammatical meaning. In the interpretation of a written document, where the language used is plain and unambiguous as in Exhibit F2 in the instant appeal, effect must be of necessity be given its plain and ordinary meaning. It is that clear and unambiguous language that best conveys the intention of the respondent who wrote exhibit F2. The trial court could not have been at liberty to go outside the very meaning of the respondent’s meaning when it said “meanwhile we will go ahead with the remedial action; see the cases of Attorney General Blended State v. Attorney General of the Federation (1981) 10 SC 1, Securities Plc v. Tinubu (2001) 45 WRN 1; Awose v. Odili (2005) All FWLR (Pt 253) 720 and Nyame v. Federal Republic of Nigeria (2010) All FWLR (Pt. 527) 618 at 662 Para A-F.

More over, by virtue of sections 132(1) and 151 of the Evidence Act, 2004, the evidence of the respondent deposed to by its DW1 denying the promise of a remedial action at pages 264 and 265 of the record is estopped from leading oral evidence to contradict the meaning and intention of exhibit which was authored by the same respondent. I am therefore of the solid finding, that, exhibit F2 is a clear adoptive act of the respondent’s independent contractor’s irregular acts while executing the contract after full knowledge of same after the joint investigation and also through the correspondents made in Exhibits A-H.
As argued by the learned counsel for the appellants in their words -We will go ahead exhibit F2 after the joint investigation amounts to a ratification of the damages caused by the independent contractor, as in law, there can
Not be nothing to remedy without a Wrong committed. I therefore state that it was completely wrong for the trial court to hold that, the respondent did not make positive action as a follow up before the exhibit F2 could be regarded in law as a remedial promise. As defined in Blacks Law Dictionary, 8th Edition, at pages 1250 and 1319 respectively, remedial promise and remedial action means a promise to repair or replace goods or things; an action intended to bring about or restore long term environmental quality or a measure intended to permanently alleviate pollution.

In the respondent’s letter in exhibit F2, it is Very clear, that, they made a positive promise to remedy the damages which were observed in the joint investigation and l so hold. Based on the above finding, I hereby set aside the trial courts holding at page 275 of the record, where his Lordship wrongly said thus:
“But just the sentence we will go ahead with the remedial action, is not sufficient to ground ratification or confirmation of the contractors; wrongful acts.”
Having reached far, I hereby resolve appellants, issues 1 and 2 which are similar to the respondent’s issues (i) and (ii) respectively, in favour of the appellants. I set aside the wrong findings of the trial court, because the duty of evaluation of evidence and ascription of probative value there to is primarily the function of the trial court, but an appellate court can definitely interfere where and when the lower court failed to do so properly as in the instant appeal. An appellate court will only interfere with findings of facts of the trial court if it is established that, the findings of the trial court, are not supported by the totality of evidence on record. In the instant case, the appellants pointed out and tendered the various; correspondences like exhibits A, B, C, D, E, F, G and F2, yet the trial court did not effectively evaluate the purports of the documents, see the cases of OBODO V. OGBO (1987) 2 NWLR (Pt. 54) OGBECHIE V. ONOCHIE (NO.2) (1988) 1 NWLR (Pt.70) 370; MAINAGGE V. GWAMNA (2994) 14 NWLR (Pt.893) 323 And OKONKWO V. OKWONKO (2010) 14 NWLR (Pt. 1213) 228 at 245- 246.

On appellants issue No 3, learned counsel had argued that, it was wrong for the trial court who refused to invoke the provisions of section 149 (d) of the Evidence Act, 2004 as the respondent failed to produce the contract documents between it and its independent contractor. It is trite law that parties are bound by their pleadings.

The court and the parties are also bound by the records of proceedings.

The respondents further amended statement of defence at pages 155-157 of the record especially paragraphs 12 and 13 are in connection with the contract between the respondent and the contractor, but DW1 and DW2 failed to tender the
Contract document, and under cross-examination at page 265 to 266, DWZ deliberately failed to answer relevant questions. The cross-examination and the answers are reproduced much earlier or above, at pages 19-21 of this judgment.
The powerful cross-examination has shown that if the contract documents were produced by the respondent’s
DW2, it would have been most unfavorable to the respondent as clearly provided in section 149 (d) of the
Evidence Acts, and I so hold.
Since I have stated that the respondent had failed to tender the contract documents at the trial court, that court, should have considered the evidence of the appellants, who had pleaded that, there was an agreement between the respondent and its independent contractor, namely Geco- Prakla Ltd who had the obligation not to cause damages against the appellants and the general public by creating nuisance. The appellants had expressly pleaded and established by the evidence of PW1 that, the respondent’s independent contractor, caused the massive damage to their community farms, economic trees and caused general nuisance and general damages which the law implies in every breach of contract and in every violation of a legal right as expounded by the appellate court in the case of Famojuro v. Otamu (1955-56) W.N.L.R. 67. The trial court in the instant appeal, failed to asses the special and general damages claimed by the appellants. By virtue of section 16 of the Court of Appeal Act, 1976 as amended, this appellate court shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part.

General damages are losses which flow naturally from the defendant’s act or nuisance and its quantum need not be pleaded or proved as it is generally presumed by law. This is enunciated in the maxim ubi jus ibi remedium, see Bello v. Att-General, Oyo State (1986) 5 NWLR (Pt. 45) 826, and I therefore, apply this principle to the instant appeal.

It is well principle of law that this court will interfere with the award of special or general damages by the lower court when the award is based on some wrong principle of law or where the amount awarded was so high or so small to make it an entirely erroneous estimate of the general or special damages suffered by the claimants; see the cases of Ejowhomu v. Edoketer Mandilas Ltd (1986) 5 NWLR (Pt. 39)1; Mutual Aids Society v. Akinrele (1966) 1 All NLR 336 and Nwachuwu v. Egbuchu (1990) 3 NWLR (Pt 139) 435.
In the instant appeal, the trial judge erroneously refused to award the special damages claimed by the appellants which was properly adduced and established by the unstoppable evidence of PW1, 2 and 3. I therefore award the totality of the appellants special damages totaling N235,230.00 (Two Hundred and thirty five million, two hundred and thirty thousand naira) as constrained in this further, further, further further amended statement of claim filed on 19th May, 2008 at the lower court. I hereby resolve appellants issues Number 3 which is covered by the respondent issues three and four, in favour of the appellants.
The trial court was wrong in its conclusion when it held that the appellants could not prove personal losses or specific losses to the communities distinctly. It is to be noted that the appellant’s case at the trial court, was never fought on the basis of personal claims or distinct communal claims. Normally, an appellate court will not interfere with an award of damages by a trial court unless in situations which include:-
(a) where the trial court acted under wrong Principle of law;
(b)where the court acted in disregard of applicable Principle of law;
(c) where the court acted in misapprehension of facts,
(d) where the court took into consideration irrelevant matters while considering its award.
(e)Where injustice will| result if the appellate court does not act.
(f)Where the amount awarded is ridiculously low or high that it must have been an erroneous estimate of the damages.
See the cases of U.B.N. v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558; Ziks Press Ltd v. Alvan Ikolu (1951) 13 WACA 188; A.C.B Ltd v. Apogu (2001) 5 NWLR (Pt.707) 652 and the rent case of Oyeneyin v. Akinkugbe (2010) 41 NSCQR (Pt. 1) 416 at 442 per Adekeye, JSC.

In the instant appeal, the trial court did not properly evaluate or appraise the evidence of the parties before it dismissed the appellants claim. I am fully aware that the duty of appraising evidence given at the trial is pre-eminently that of the trial court which had the advantages of seeing, hearing and watching the demeanor of parties witnesses. It is no doubt the right of the trial court to ascribe probative value before coming to a decision of the matter. But where the trial court has failed to appraise the impact of the cross-examination as in the instant appeal, the appellate court shall reverse the findings of a trial court where such does not reflect a proper assessment of the totality of the evidence before the court or the judgment turns out to be perverse or shows lack of judicious or judicial exercise of discretion, 41 NSCQR 1 at 35, hence I have reversed the findings of the lower court and award the special damages alone in the appellants claim which was pleaded and proved effectively. It is trite law that proof of evidence in a civil case is on the balance of probability or on the preponderance of evidence.
As to general damages claimed by the appellants at the lower court, it is to be noted that, in the award of damages, a court must be mindful of the necessary to ensure that a party is not doubly compensated for the same injury, see Ogba v. Otubusin (1961) All NLR 229; Ekpe v. Fagbemi (1979) 3 S.C 209 and Kopek v. Ekisola 41 NSCQR 553 at 584 per Oguntade, JSC.
I therefore, decline to award damages on the general damages.
Finally, the appeal is meritorious and is allowed. Cost of N50, 000 in favour of the appellants and against the respondents.

T.O AWOTOYE, J.C.A.: I had the advantage of reading in draft the judgment just delivered by my learned brother THOMAS JCA, and I entirely agree with his reasoning and conclusion.
I too allow the appear costs of N50,000.00 in favour of the Appellants is awarded.

DATTIJO MUHAMMAD, J.C.A (OFR): For all the reasons contained in the lead judgment of my learned brother THOMAS JCA, I also adjudge this appeal meritorious and allow same, at a cost of N50,000 against the Respondent and in favour of the Appellants.

Appearances

Chief F.F. Egele with S.I. Agagu.
P. Ereforokuma for AppellantsFor Appellant

AND

S.O. Wogu Esq., with E.C/ Enuyinga EsqFor Respondent