MOBIL PRODUCING (NIG) UNLIMITED v. AJANAKU & ANOR (2021)

MOBIL PRODUCING (NIG) UNLIMITED v. AJANAKU & ANOR

(2021)LCN/14931(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 15, 2021

CA/L/283/2017

RATIO

COURT: DUTY OF THE COURT WHEN THE ISSUE OF JURISDICTION IS RAISED

The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541, Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. PER OGBUINYA, J.C.A.

JURISDICTION: MEANING AND NATURE OF JURISIDICTION

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unitd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1, Ndaeyo v. Ogunaya (1977) 1 IM SLR v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt.1537) 144; A.- G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. It is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and 3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction” see Madukolu v. Nkemdilim (2006) 2 LC 208 (1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt.1550) Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court. PER OGBUINYA, J.C.A.

PROCEDURE: WHO CAN VALIDLY SIGN A COURT PROCESS

It is now a settled elementary law that an originating process, like writ of summons, originating summons and notice of appeal, must be signed by a legal practitioner, who franked it, or a litigant, in order to infuse validity into it. The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L 11. Laws of the Federation of Nigeria, 2004 (hereunder abridged to “the Act”). In other words, an originating process not signed by a legal practitioner, as ordained by the above provisions of the Act and the rules of Court, is infested with incompetence with the attendant liability of expunction. The incompetence divests the Court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church v. Akindele (1967) NMLR (Pt. 263); Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Cont. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1; FBN Plc. v. Maiwada(supra)/5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd (2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) 220; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420. PER OGBUINYA, J.C.A.
PROCEDURE: IMPORTANCE OF A WRIT OF SUMMONS, AN ORIGINATING PROCESS

It cannot be gainsaid that a writ of summons, an originating process, is the spinal cord of a suit. It is the foundation upon which all other process and proceedings are anchored on in a matter. In other words, all other processes and proceedings trace their paternity and validity to an originating process. It follows that the writ of summons, which is in the heat of expulsion, gave birth to all the other processes filed by the respondents and the proceedings in the action which metamorphosed into the appeal. Given this parental relationship, the incompetence of the writ of summons pollutes the purity of the other processes and proceedings and, ipso facto, render them incompetent. The reason is obvious. They have no substratum to perch and command any validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogita dimpossibila the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513.
The legal consequences, which follow the incompetent writ of summons, are far-reaching. The respondents’ suit was not initiated by due process of law and the condition precedent for its institution was not satisfied as required by law in the view of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event;” see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. co. Ltd. (2016) 15 NWLR (Pt.1536) 439. PER OGBUINYA, J.C.A.

JURISDICTION: EFFECT OF A PROCEEDINGS BEREFT OF JURISDICTION

Where a Court is not clothed with the jurisdiction to entertain a matter, the proceedings germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be mired in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).

It is rudimentary law that where the jurisdiction of a Court to hear a matter is eroded, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481. That will be the fate of the respondents’ suit which journeyed, with the measured speed of Court processes, to this Court. PER OGBUINYA, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MOBIL PRODUCING NIGERIA UNLIMITED APPELANT(S)

And

CHIEF M.A. AJANAKU 2. MR. BENSON OKETOLA (FOR THEMSELVES AND ON BEHALF OF THE FISHING COMMUNITIES & COOPERATIVES SET OUT IN THE SCHEDULE ATTACHED THERETO) RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. The appellant, an unlimited liability company, carries on the business of prospecting, exploration and mining of crude oil offshore and onshore in the territorial boundaries of Nigeria. On or about 10th January, 1998, the appellant’s pipeline and mains (meant for conveying its crude oil from its offshore platform to its onshore terminal at Qua Iboe, Awka lbom State, got burst and ruptured and tons of the crude oil spilled, Idoho Oil Spill, into the Atlantic Ocean. By the combined effects of tidal waves and ocean currents, the Idoho oil spill spread to the respondents’ land and waters of life. The spillage had devastating and deleterious effects on the respondents, fishermen and fish farmers as it damaged their waters, land, environment, property, livestock and marine ecosystem. The respondents alleged that the appellant was negligent in the spillage as it did not do the necessary clean up nor took the post impact remediation measures to restore the natural resources.

The respondents claimed that the appellant refused to make payment of compensation to them. Sequel to that, they complained to the Social and Economic Rights Action Center (SERAC), a non-governmental organisation, which took up the matter, but its efforts were to no avail. Consequently, the respondents beseeched the lower Court, in a representative capacity, via a writ of summons filed on 15th March, 2002, and tabled against the appellant the following reliefs:
i. A declaration that the defendant’s continuing failure, neglect and refusal to undertake post impact remediation measures to restore the ecosystem of the lands and Waters of Life inhabited by the plaintiffs and where they carry on their occupation of fishing and farming, is unlawful, unconstitutional and a violation of the plaintiffs’ right to life, and right to live in an environment favourable to their socio-economic development as guaranteed under Section 33 of the Nigerian Constitution 1999, Articles 22 and 24 of the African Charter on Human Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria 1990.
ii. A declaration that the plaintiffs whose

representatives signed the release forms in favour of the defendant signed same by the undue influence of the defendant and that the document is therefore null and void.
iii. A declaration that the document purporting to release the defendant from paying due compensation to the plaintiffs who signed the documents and or from effecting post impact remediation programmes to restore the plaintiffs’ environment is null and void on grounds that the document relates to an unconscionable bargain which was signed under economic duress and in breach of statutory provisions.
iv. An order for the delivery and cancellation of all release documents signed by representatives of some the plaintiffs on the ground that the signatures of some of the representatives of the plaintiff thereon was obtained by economic duress, undue influence and fraud.
v. An order that the defendant should commence post- impact remediation programmes in respect of the plaintiffs’ lands and waters polluted by the defendant’s Idoho Oil Spill and do such acts and things to clean up the environment of the plaintiffs and to restore same to its original state.
vi. Special damages

of the sum of N8,400,000,000 (Eight Billion, Four Hundred Million Naira) only particulars of which are shown in the schedule attached hereto
vii. Interest on the aforesaid special damages at the rate of 10% per annum from 26th January, 1998 until judgment and interest at the same rate until full payment thereof by the defendant.
viii. The plaintiffs claim the sum of N1,400,000,000 (One Billion, Four Hundred Million Naira Only) being general damages for the infraction of their constitutional and statutory rights and interest on the judgment sum at the rate of 10% from the date of judgment until full payment.

The appellant joined issue with the respondents and denied liability by filing a statement of defence.

Following the rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the respondents called three witnesses, PW1-PW3, and tendered seven documentary evidence, exhibits P1-P7. In disproof of the case, the appellant fielded five witnesses, DW1-DW5, and tendered ten documentary evidence, exhibits D1-D10. At the closure of evidence, the parties, through counsel, addressed the lower Court in the

manner required by law. In a considered judgment, delivered on 14th December, 2014, found at pages 1437-1507, volume IV, of the record, the lower Court granted the respondents’ claim save one relief.

The appellant was aggrieved by the decision. Hence, on 23rd January, 2017, the appellant lodged an 11-ground notice of appeal, copied at pages 1558-1601, volume IV, of the record. In an unpagenated amended notice of appeal, filed on 5th February, 2018 but deemed properly filed on 10th April 2018, which hosts eleven grounds, the appellant prayed this Court for:
An order setting aside the entire judgment of the trial Court including award of costs and dismissing the entire claims of the Respondents for being incompetent, lacking in evidence, unmeritorious and on the basis, that the trial Court lacks jurisdiction.

Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 19th October, 2020.

During its hearing, learned counsel for the appellant, A.A. Latilo, Esq., adopted the appellant’s brief of argument, filed on

25th April, 2018 but deemed properly filed on 19th October, 2020, and the appellant’s reply brief, filed on 5th June, 2018 but deemed properly filed on 19th October, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, K. T. Olawumi, Esq. adopted the respondents’ brief of argument, filed on 28th May, 2018 but deemed properly filed on 19th October, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled five issues for determination to wit:
i. Whether the Respondents’ Writ of Summons issued by an NGO known as Social and Economic Rights Action Center on 15th March, 20002 with no identifiable legal practitioner’s name that signed the said Writ on it is competent as to confer the trial Court with requisite jurisdiction to entertain this Suit and can defect to the Writ of Summons be cured by an amendment.
ii. Whether considering the evidence adduced in this case, the trial Court was right in holding that the Respondents had a common interest and grievance in the suit which makes

same to have been properly commenced in a representative capacity?
iii. Whether the trial Court rightly held that the evidence of PW1 to PW3 as well as Exhibits P5 and P7 were credible and unimpeached under cross-examination in granting judgment while discountenancing the evidence of DW1 to DW5 together with Exhibits D2 and D3 by holding that they are irrelevant to the determination of the suit.
iv. Whether considering the entire evidence adduced in this case, the trial Court could be right when he held that the Respondents had shown that Appellant was negligent, established the cause of the ruptured pipelines and that the oil spill impacted and caused damage to the respondents’ communities and proceeded to grant the Respondents’
v. Whether the award of the sum of N8,400,000,000.00 (Eight Billion and Four Hundred Thousand Naira) as special damages and the sum of N1,400,000,000.00 (One Billion and Four Hundred Million Naira) as general damages could be justified by the state of the Respondents’ pleading, the evidence adduced and in law.

In the respondents’ brief of argument, learned counsel crafted four issues for determination, viz:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the respondents’ writ of summons is competent and in substantial compliance with the rules of Court?
ii. Whether the Respondents’ action was properly constituted as a representative action?
iii. Whether the Respondents successfully proved the Appellant’s liability for negligence at the Court below and the resultant damages suffered from the oil spill of 12th January, 2018?
iv. Whether the Respondents were entitled to the special and general damages claimed against the Appellant?

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondents’ issues can be, conveniently, subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues nominated by the appellant the undisputed owner of the appeal.

Arguments on the issues:
Issue one
Learned appellants’ counsel stated the importance and features of jurisdiction. He relied on Madukolu v. Nkemdilim (1962) All NLR 581; M.O.T. v. Okoroafor (2001) 18 NWLR (Pt. 745)295; Tukur v. Gov., of Taraba State (1997) 6 NWLR (Pt. 510) 549; Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 337. He submitted

that the writ of summons was incompetent because it was not issued by the respondents or legal practitioner nor signed by a legal practitioner and which denied the Court of the jurisdiction to hear the matter. He cited Order 6 Rule 10 (1) and (2) of the Federal High Court (Civil Procedure) Rules, 2000 (the FHC Rules); Order 26 Rule 4 (3) of the FHC Rules; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Braithwaite v. Skye Bank Plc (sic) (Pt. 1346) 1; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Williams v. Adold/Stamm Int’l (Nig.) Ltd. (2017) 6 NWLR (Pt. 1560) 1; Abbas v. Tera (2013) NWLR (Pt. 1338) 284. He noted that the defect in the writ could not be waived as it could be raised even in the Supreme Court. He cited C.G.G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577.

On behalf of the respondents, learned counsel contended that the Registrar had the duty to issue a writ and any irregularity therein would not be taken against a plaintiff. He relied on Order 6 Rule 1(1) of the FHC Rules; Olatunbosun v. Annenih (2009) 15 NWLR (Pt. 1165) 560; B.B.N. Ltd. v. S. Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt. 912) 434. He noted that the writ

complied with Order 6 Rule 10(1) of the FHC. He cited Ogbuanyinya v. Okudo (1990) NWLR (Pt. 146) 551/(1979) 6 – 7 SC 32/(1990) 7 S.C. (Pt. 1) 66. He claimed that there was no requirement for signature of the legal practitioner under the FHC Rules. He observed, in the alternative, that the writ was signed based on the meaning of signature and how to sign it. He referred to ACB Plc v. Haston (Nig.) Plc (1997) 8 NWLR (Pt. 515) 110; Black’s Law Dictionary, 10th edition page 1593; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317. He reasoned that appellant’s objection was based on procedural jurisdiction which it had waived. He cited Kigo (Nig.) Ltd. v. Holman Bros. (1980) 5 — 7 SC 60.

Issue two.
Learned appellant’s counsel submitted that a party suing in representative capacity must show, in his pleading and evidence, that the claims in the suit were such that could be established in that capacity. He relied on Oseni v. Dawodu (1994) 4 NWLR (Pt. 339) 390. He took the view that the respondents did not satisfy the conditions for suing in representative capacity. He cited Ofia v. Ejem (2006) 11 NWLR (Pt. 992) 652. He reasoned that similarity

in circumstances could not mean common interest. He referred to Idise v. Williams Int. Ltd. (1995) 1 NWLR (Pt. 370) 142; Ayinde v. Akanji (1988) 1 NWLR (Pt. 68) 70; Adediran v. Interland (1991) 9 NWLR (Pt. 214) 155. He persisted that exhibit P7 did not satisfy the requirement of the law.

For the respondents, learned counsel enumerated when representative action would be appropriate as noted in Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557; Idise v. Williams International Ltd. (1995) 1 SCNJ 120; Idise v. Williams (1995) 1 NWLR (Pt. 370) 142; Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) 131; Ofia v. Ejem (2006) 11 NWLR (Pt. 992) 652. He insisted that the action satisfied the requirement as it relates to oil spillage. He referred to SPDC v. Edamkue (2003) 11 NWLR (Pt. 832) 533. He concluded that judgment would be given in representative capacity once pleadings and evidence revealed that even without suing in that capacity. He cited SPDC v. Edamkue (supra).

Issue three
Learned appellant’s counsel contended that the lower Court wrongly held exhibits D2 and D3, experts’ reports, as irrelevant because

the experts did not visit the respondents’ communities when they studied and took samples from the affected rivers. He observed that the evidence of PW 1 — PW3 were contradictory and unreliable. He cited Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617. He described PW1’s evidence on source of spillage and issuance of cheques by the appellant as inadmissible hearsay. He referred to Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297.

He classified exhibit P5, expert report of PW2, as documentary hearsay as it was not made by PW2. He referred to Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Isiaka v. Amosun (2016) 9 NWLR (Pt. 1518) 47; NIMASA v. Hensmor (2015) (sic) (Pt. 1452) 278. He claimed that PW2 was an unqualified expert as compared to DW1 — DW4 who were experts in their fields as shown in their evidence. He said that the DW1 — DW4 were not cross-examined on their expert evidence nor discredited. He referred to M.W.T. (Nig.) Ltd. v. PTF. (2007) 15 NWLR (Pt. 1058) 451. He asserted that no fingerprinting was conducted to determine the oil that spilled. He explained that the evidence of PW3, on when the surveyor was engaged, was at variance

with the pleadings and it went to no issue. He relied on Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332; Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 181; Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439; Okhuarobo v. Aigbe (2002) 9 NWLR (Pt. 771) 29; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393. He opined that exhibit P7 was based on the facts supplied to PW3 without independent proof. He cited Uwa Printers Ltd v. Investment Trust Ltd. (1988) 5 NWLR (Pt. 92) 110, Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547.

On the side of the respondents, learned counsel submitted that the evidence of the appellant’s experts, who did not visit the communities, was not direct evidence. He relied on Section 126(b) of the Evidence Act, 2011, Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 316; Ezeazodosiako v. Okeke (2005) 16 NWLR (Pt. 952) 612. He stated that the expert reports, exhibits D2, D3, and D10, did not refer to the respondents’ communities and were irrelevant. He asserted that the evidence of PW2 and PW3 were unchallenged. He referred to Adelakun v. Oruku (2006) 11 NWLR (Pt. 992) 625/(2006)

LPELR-7681 (CA).

Learned counsel conceded that a Court would not act on contradictory evidence. He cited Adebayo v. Ighodalo (1996) 5 SCNJ 1; Julius Berger Plc. v. Ogundehin (2013) LPELR — 20421 (CA). He stated the meaning of contradictory evidence as different from discrepancy as noted in Ashaka v. Nwachukwu (2013) LPELR – 20272 (CA); Dagayya v. State (2006) 7 NWLR (Pt. 980) 637; Onochie v. Elumelu (2014) LPELR – 22969 (CA); Gabriel v. State (1989) 5 NWLR (Pt. 122) 4. He persisted that contradiction must be material to avail a party. He cited Enahoro v. The Queen (1965) 1 ALL NLR 125; The Queen v. Ekanem (1960) 5 FSC 14/(1960) SCNLR 42. He took the view that there were no material contradictions in the evidence of the PW 1 — PW3 and exhibit P 7.

It was posited that the evidence of PW 1 and PW3 was not hearsay nor exhibit P5 documentary hearsay as PW5 was its maker. He referred to Abadom v. State (1997) 9 NWLR (Pt. 479) 1. He postulated that PW2 qualified as an expert as academic qualification was not the only criterion. He relied on Section 68(1) of the Evidence Act, 2011, ANPP v. Usman (2008) LPELR — 3786 (CA). He stated that a

Court could only act on the evidence of an expert when relevant, credible and uncontradicted. He cited Obineche v. Akusobi (2010) 12 NWLR (Pt. 1208) 383; Oyakhire v. Obaseki (1986) 1 NWLR (Pt. 19) 735, Chukwu Construction Co. Ltd. v. Uwechia (1999) LPELR — 5508 (CA). He said that there was no need for fingerprinting based on the appellant’s pleadings. He opined that the appellant’s witnesses and exhibit D2, D3 and D10 admitted the spillage. He claimed that the declaratory reliefs were proved. He concluded that exhibits D2 and D3 did not satisfy the conditions in Sections 6 — 13 of the Environmental Impact Assessment Act 1992.

Issue four
Learned appellant’s counsel posited that the appellant never admitted that it was negligent or that the oil spill impacted the respondents’ communities as admission must be clear and unequivocal. He relied on Coker v. Olusoga (1994) 2 NWLR (Pt. 329) 648. He described some of the respondent’s reliefs as declaratory and could not be granted on admission. He cited A. – G., Rivers State v. A. – G., Bayelsa State (2013) 3 NWLR (Pt. 1340) 123; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211. He

insisted that relief (i) was for enforcement of fundamental right that could not be granted in the suit. He referred to Abdulhamid v. Akar (2006) 13 NWLR (Pt. 996) 127. He said the relief was not proved. He reasoned that exhibit P2 supported the appellant’s case on clean up of the oil. He added that exhibits D8 — D10, tendered by DW5, and evidence of DW1 — DW4 showed the appellant took the necessary steps to clean up the environment. He stated exhibits D2 and D3 were Impact Assessment Reports that showed no damage to the respondents’ communities. He persisted that the lower Court wrongly granted reliefs (ii) and (iii) without the release forms before it.

On the part of the respondents, learned counsel listed the ingredients of negligence. He relied on SPDC v. Otoko (1990) 6 NWLR (Pt. 159) 693; Donoghue v. Stevenson (1932) AC 562; Agbonmagbe Bank Ltd. v. CFAO (1966) 1 ALL NLR 140; Ogidiolu v. Okechukwu (1972) 5 SC 191; Orhue v. NEPA (1998) 7 NWLR (Pt. 557) 187; Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) 626; Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; IMNL v. Nwachukwu (2004) 6 – 7 7 SC 88; U.T.B. (Nig.) v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448. He

maintained that the respondents proved the negligence relying on exhibits P2 — P4 and P 7, and Section 121 (a) of the Evidence Act, 2011. He added that the negligence was proved by way of res ipsa loquitur. He relied on SPDC Ltd. v. Amaro (2000) 10 NWLR (Pt. 675) 248. He observed that the appellant was liable under the rule in Rylands v. Fleetcher (1868) LR 3Hh 330 as its oil escaped into the respondents’ land. He cited SPDC v. Adamkue (supra).

Issue five
Learned appellant’s counsel argued that the respondents did not plead the particulars of special damages and same was wrongly granted. He stated that exhibit P7 was evidence without pleading and went to no issue. He relied on Osazuwa v. Edo State Civil Service Commission (1999) 4 NWLR (Pt. 597) 155. He persisted that the respondents did not discharge burden of proof of special damages. He citedTaylor v. Ogheneovo (2012) 13 NWLR (Pt. 1316) 46.

Learned counsel posited that an appellate Court could interfere with perverse award of general damages. He cited Adekunle v. Rockview Hotel Ltd. (2004) 1 NWLR (Pt. 853) 161. He claimed that the award was wrongly made. He described it as double

compensation and wrong in law. He referred to Gamboruma v. Borno (1997) 3 NWLR (Pt. 495) 530, I.M.N.L. v. Nwachukwu (2004) 13 NWLR (Pt. 891) 543; Julius Berger (Nig.) Ltd. v. Ede (2003) 8 NWLR (Pt. 823) 526; Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc. (2008) 2 NWLR (Pt. 1071) 347.

On behalf of the respondents, learned counsel stated the nature of general damages and the bases for their grant. He relied on Asheik v. M.T. (Nig.) Ltd. (2010) 15 NWLR (Pt. 1215) 114; N.B.C. Plc. v. Oresanya (2009) 16 NWLR (Pt. 1168) 564. He maintained that it was proved that the respondents suffered losses by the spillage.

Learned counsel argued that special damages were pleaded in the schedule and proved in exhibit P7. He relied on SPDC v. Farah (1995) 3 NWLR (sic) 148. He asserted that the appellant did not show the circumstances for this Court to interfere with the damages. He cited SPDC v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439; UBN Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558; Nwobosi v. ACB. Ltd (1995) 6 NWLR (Pt. 404) 658; Okudo v. IGP (1998) 1 NWLR (Pt. 533) 366, Ololo v. Nwoko (2013) LPELR – 22509 (CA). He concluded that a Court could award both

special and general damages. He referred to Ecobank Plc. v. Mohammed (2014) LPELR – 23990 (CA).

Resolution of the Issues
In total loyalty to the injunction of the law, I will settle issue one first. The hub of the issue is plain. It centres on the jurisdiction of the lower Court to hear the suit which mothered this appeal. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541, Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.

1537) 144; A.- G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. It is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and 3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction” see Madukolu v. Nkemdilim (2006) 2 LC 208 (1961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt.1550) Osi v. Accord Party

(2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court.

Now, the appellant’s chief grievance is that the respondents’ writ of summons was incompetent in that it was issued by a non-party and not signed by an identifiable legal practitioner. The appellant hinged its complaint on the provisions of Order 6 Rule 1(2) and 10(1) of the FHC Rules. Due to the kingly position of this provision, it is imperative to pluck it out from where it is ingranied in the FHC Rules, 2000, ipsissima verba, thus:
(1)2 The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing Form 1 in appendix 6 to these Rules, but the Registrar or other officer empowered to do so may, where the applicant for a writ of summons is illiterate, or has no solicitor, dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.
(10)1 Where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff’s address and the legal practitioner’s

name or firm and business address within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.
It is now a settled elementary law that an originating process, like writ of summons, originating summons and notice of appeal, must be signed by a legal practitioner, who franked it, or a litigant, in order to infuse validity into it. The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L 11. Laws of the Federation of Nigeria, 2004 (hereunder abridged to “the Act”). In other words, an originating process not signed by a legal practitioner, as ordained by the above provisions of the Act and the rules of Court, is infested with incompetence with the attendant liability of expunction. The incompetence divests the Court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church v. Akindele (1967) NMLR (Pt. 263);

Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Cont. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1; FBN Plc. v. Maiwada(supra)/5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd (2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) 220; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420.
I have, in due fidelity to the law, inspected the record, the bedrock of the appeal, particularly at the residence of the writ of summons, sought to be jettisoned, which colonises pages 6-9 of the mountainous

record. It must be placed on record, pronto, that the writ of summons parented the respondents’ suit. I have given a microscopic examination to it. To begin with, the SOCIAL AND ECONOMIC RIGHTS ACTION CENTER (SERAC), which issued the writ, is/was not the plaintiff or a party to the respondents’ suit that sired the appeal. It is indicated after SERAC’s address that: “is legal practitioner for the said plaintiffs who reside in Lagos State.” It is discernible from the respondents’ pleading that SERAC is a non- governmental organisation to which they channeled their complaints when they were being tantalised by the appellant for payment of compensation. To this end, SERAC does not, in the least, qualify as a lawyer under the Legal Practitioners Act. On top of the SERAC there is an inscription: Felix Morka. It is written in long hand.
In an avowed bid to arrest and amputate the caustic effect of the long arm of this hallowed principle of law, id est, that an originating process must be signed by a legal practitioner to be valid, the respondents weaved the defence that the lawyer’s name in the writ of summons is the signature. Incontestably, signature of a

legal practitioner may be any contraption, see SLB Consortium Ltd. v. NNPC (supra); Alawiye v. Ogunsanya (supra); Min. IN. & T., Adamawa State v. Yakubu (supra); Nigerian Army v. Samuel (supra). Also, the name of counsel is a sufficient signature in law, see Registered Trustees, Apostolic Church v. Akindele (supra); SLB Consortium Ltd. v. NNPC (supra). In SLB Consortium Ltd. v. NNPC (supra), at page 337 thereof, Rhodes-Vivour, JSC, incisively, declared:
What then is so important about the way counsel chooses to sign processes. Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e the Legal Practitioner Act). All processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.
Incontestably, there is total absence of such contraption in the portion of the writ of summons where the name of the respondents’ legal practitioner is written. If the name, Felix

Morka, is construed as a signature, it then signifies either of two things, videlicet: (a) that it is the signature of the SERAC which, to all intents and purposes, is not a natural person imbubed with the right to sign in that form; (b) that whoever owns the signature, most probability Felix Morka, is a legal practitioner with the appellation/nomenclature of SERAC. Either way, it is incongruous and an affront to the law. While a name can serve as a person’s signature, the converse is not true, id est, that a signature is a name. It stems from these, that the inscription, Felix Morka, cannot play the amphibious roles of being a name and signature concurrently. The law insists on the presence of name and signature of a legal practitioner so as to vest validity and viability in an originating process, see SLB Consortium Ltd. v. NNPC (supra). Put simply, the writ of summons was not signed in the spirit and manner decreed by the law. Indubitably, lack of endorsement of a writ of summons by a lawyer is “a fundamental irregularity that goes to the roots”, see Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd (supra) at 434, per Eko, JSC.

Again, the respondents invented the defence of waiver of the incurable defect in the writ of summons against the appellant on the ground of tardiness/belatedness. As already noted, at the dawn of this resolution, with the aid of ex cathedra authorities, the issue of unsigned writ of summons, in the eyes of law, renders it incompetent which impinges on the jurisdiction of the Court. It admits of no argument, that parties cannot by consent, acquiescence, connivance, waiver or any guise bestow jurisdiction on a Court where none exists or ousts it of jurisdiction in the presence of one, see Okolo v. UBN (2004) 3 NWLR (Pt. 859) 87; Ukpong v. Comm. for Finance (2006) 9 NWLR (Pt. 1013) 187; Gafar v. Govt., Kwara State (2007) 4 NWLR (Pt. 1024) 375; Mobil Prod. (Nig.) Unitd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Customary Court of Appeal, Edo State v. Aguele (2018) 3 NWLR (Pt. 1607) 369; FRN v. Solomon (2018) 7 NWLR (Pt. 1618) 201. In sum, the doctrine of waiver, erected by the respondents, is impotent to infuse validity into the unsigned writ of summons. These, with due

reverence, puncture the defence, invented by the respondents, to castrate the issue. They are lame. I have, in due consultation with the law, demolished all the defences evolved by the respondents. It will smell of judicial sacrilege to crown the writ of summons with the toga of validity. Contrariwise, I declare it as smeared with incompetence and invalid.

no one puts something on nothing and expects it to stand, see UAC v. Macfoy co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogita dimpossibila the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513.
The legal consequences, which follow the incompetent writ of summons, are far-reaching. The respondents’ suit was not initiated by due process of law and the condition precedent for its institution was not satisfied as required by law in the view of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event;” see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. co. Ltd. (2016) 15 NWLR (Pt.1536) 439. The result is that the lower Court was drained of the requisite jurisdiction to entertain the

action ab initio. It, therefore, with utmost respect, defiled the law when it heard the matter. Where a Court is not clothed with the jurisdiction to entertain a matter, the proceedings germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be mired in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).

NWLR (Pt. 1351) 481. That will be the fate of the respondents’ suit which journeyed, with the measured speed of Court processes, to this Court.

Let me observe, by way of obiter, that this case, like all other such cases touching on this stubborn and recurring issue, craves for the meticulosity of lawyers in the management and control of a matter from its cradle to its berth in the temple of justice. A matter, or any aspect of it, ought not to be treated with levity. The subsequent aftermath of such lackadaisical approach may be catastrophic. A laissez-faire attitude, in handling an action, has the potential to reverse the fate of a good case to a misfortune. At once, it diminishes the gargantuan confidence the litigants usually repose in lawyers even as they (litigants) bear the unexpected and unfriendly brunt. It must be discouraged.

Overall, I have no choice than to resolve the issue one in favour of the appellant and against the respondents. Consequently, Suit No. FHC/L/CS/247/2002, filed by the respondents, is struck out for being incompetent.

MY VIEWS ON THE OTHER ISSUES IN THE APPEAL
Ordinarily, my finding on issue one, that the

writ of summons was incompetent on account of lack of signature, ought to dispense with the consideration of the other issues in the appeal, see Okpe v. Fan Milk Plc (2017) 2 NWLR (pt. 1549) 282. However, because this is a penultimate Court, the law compels me to make my views known on those other issues for the benefit of the Supreme Court in the likely appeal to it. In view of this injunction, I will consider the other remaining four issues.

It is germane to place on record, upfront, that myriads of documentary evidence were furnished before the lower Court by the feuding parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR

(Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the sea of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the four nagging issues in this appeal.

For the sake of orderliness, I will attend to the four issues seriatim. To this end: I will kick off issue one and two. The meat of the issue is simple and canalised within a narrow compass. It chastises the lower Court’s finding that the respondent’s suit was properly commenced in a representative capacity.

A representative action connotes a suit brought by one or more persons representing others with a common interest in the cause of action, see

Durbar Hotel Plc. v. Ityough (2017) 7 NWLR (pt. 1564) 256; In Re: Apeh (2017) 11 NWLR (pt. 1576) 252. Most Rules of trial Courts make provision for representative action. In Olatunji v. The Registrar Cooperative Societies (1968) NMLR 393, the Supreme Court evolved the conditions that a party who intends to sue in a representative capacity must satisfy, videlicet:
1. There must be numerous persons interested in the case or the side to be represented.
2. All those interested must have the same interest, id est, their interest must be joint and several.
3. All of them must have the same grievance.
4. The proposed representative must be one of them and
5. The relief(s) sought must be in its nature beneficial to all the persons being represented.
See also, Ofia v. Ejem (2006) 11 NWLR (Pt. 992) 652; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; Ukpong v. Comm. For Finance (2006) 19 NWLR (Pt. 1013) 187; Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Alafia v. Gbode Ventures (Nig.) Ltd. (2016) 7 NWLR (Pt. 1510) 116; Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; Durbar Hotel Ltd. v. Ityough (supra); Elf Pet. (Nig.) Ltd. v. Umah (2018) 10

NWLR (Pt. 1628) 428; Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331. In a representative action, the burden to prove the capacity resides in the plaintiff — the representative, see Alafia v. Gbode Ventures (Nig.) Ltd. (supra); Apeh v. PDP (supra).

Then, the knotty question, which begs for an answer, is: did the respondents discharge that ardous burden by establishing the conditions, displayed above, for suing in a representative capacity? It is discernible from the record, the bed rock of every appeal, that the viva voce and documentary evidence, offered by the PW1, the second respondent on record, amply, disclosed that an army of persons, fishermen, were interested in the case. Indeed, exhibit P7 catalogued a legion of those interested both individuals and fishing co-operative societies and 272 communities. Also, it can be gleaned from the evidence of PW 1 that those represented, including the respondents, as parties on record share a common interest as their common and only occupation is fishing and fish farming in the waters of life. Evidence galore that those interested nursed the same grievance as they grief in the destruction of their animals in their

marine environment and ecosystem where they eke out a living in the waters of life. The reliefs solicited, which the evidence showcased, are to the gains of all those interested in the case. In essence, it is a classic exemplification of a suit that should be instituted in a representative capacity for convenience of determination than in divergent individual suits. In effect, the respondents discharged the onus probandi, which the law saddled on them, – by establishing the presence of the conjunctive conditions for institution of their suit in a representation capacity.
At any rate, even if the respondents did not sue in a representative capacity, their evidence imposes a duty/obligation on the Court to reflect that capacity. In Re: Adeosun (2001) 8 NWLR (Pt. 714) 200 at 221, Iguh, JSC, opined:
In the same vein, where a plaintiff did not expressly sue in a representative capacity and there had been evidence to show he was so suing, the law in such case is that the Court should aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is brought so as to bring it in line with the evidence. It would

not matter whether or not an application for such an amendment, had been applied and obtained. See Mba Nta & Ors. v. Ede Anigbo & Anr. (1972) 5 SC 156 at 174-176; Afolabi & Ors. v. Adekunle & Anor (1983) 2 SCNLR 141; Ayeni v. Sowemimo (1982) 2 SC 60 etc.
See, also, SPDCN Ltd. v. Edamkue (2009) 14 NWLR (Pt. 1160) 1; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Jitte v. Okpulor (2016) 2 NWLR (pt. 1497) 542.
In the light of this brief legal anatomy, on representative action, done in due consonance with the law, the lower Court’s finding that the respondents’ suit was properly commenced in a representative capacity is an immaculate one. Indeed, the legal dissection, with due reverence, exposes the poverty of the appellant’s dazzling argument on the point. It will constitute a judicial sacrilege to tinker with a finding that has not shown any hostility with the law. In the end, I resolve issue two against the appellant and in favour of the respondents.

Having dispensed with issue two, I proceed to settle issues three and four. A clinical examination of the two issues, clearly, reveals that they are intertwined and share a common

mission: to emasculate the lower Court’s evaluation of evidence before it. Given this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and space, amalgamate them and fuse their considerations. The kernel of the conjoined issues is plain. They quarrel with the manner the lower Court evaluated the evidence. Put bluntly, the appellant accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence.

To start with, a castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment

rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291, Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.

The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction

between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135, Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V(Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). I have matched the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance.

One of the appellant’s grouse orbits around the allegation of contradiction in the respondents’ evidence. It was contended by the appellant’s counsel that the

respondents’ evidence were infested/tainted with contradictions which ought to render them unusable by the lower Court.

By way of prefatory remarks, etymologically, contradiction, like most legal terminologies, traces its ancestry to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the opposite”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party’s case, see Wachukwu v. Owunwanne (2011) 14 NWLR (Pt. 1266) 1; Yakubu v. Jauroyel (2014) 11 NWLR (Pt. 1418) 205; Aiyeola v. Pedro (2014) 13 NWLR (Pt. 1424) 409; Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Zakirai v. Muhammad (2017) 17 NWLR (Pt. 1593) 181; Pada v. Galadima

(2018) 5 NWLR (Pt. 1611) 160; Edosa v. Ogiemwanre (2019) 8 NWLR (Pt. 1673) 1; Nnadike v. Nwachukwu (2019) 16 NWLR (Pt. 1698) 239.

The learned appellant’s counsel identified some portions of the evidence of the respondents’ witnesses, PW1 — PW3, that were plagued by contradictions to wit: that PW 1 said that engagement of the firm of surveyors, Imade & Co, was after the meeting with the appellant while the PW3 said it preceded the meeting; PW2 said that he knew the plaintiffs (PW1) and later said he did not know him under cross-examination and that PW3 testified in-chief that he carried out the report alone but under cross-examination he said he did it with other experts. I have, in total allegiance to the dictate of the law, married these highlighted areas in the respondents’ evidence with the harmful incidents of contradiction x-rayed above. The raison d’etre for the juxtaposition is plain. It is to ascertain if the pieces of evidence are soiled by contradictions.
To my mind, these are pockets of infinitesimal differences in evidence which do not, in the least, qualify as material contradictions. They are rather discrepancies that are

impotent to ruin the pungent evidence of the respondents professed by PW1, PW2 and PW3. The law embraces discrepancies in evidence of witnesses in that “minor variations in their testimonies merely imbue their evidence with imprimatur of truth”, see Eke v. State (2011) 3 NWLR (Pt. 1235) 589 at 665, per Fabiyi, JSC; Muh’d v. State (2018) 5 NWLR (Pt. 1613) 405; Isah v. State (2018) 8 NWLR (Pt. 1621) 346. It follows that the minute differences in the narration of evidence attest to the veracity of the witnesses on the point.
In any event, the law gives witnesses the liberty to recount events with slight differences not in a robotic manner. It means that witnesses are not expected, being human and not automatic machines, to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours, vis-a-vis events. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspection as they will be guilty of evidential tutorage, see Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. On this premise, I am not armed

with any legal justification to ostracise those pieces of evidence from the appeal on account of phantom or non-existent contradictions. Thus, the lower Court did not offend the law when it did not expel the evidence of the PW 1, PW2 and PW3 on the footing of contradictions. The appellant’s defence of evidential contradiction is, with due deference, disabled from its birth. It cannot fly.

Another grudge, nurtured by the appellant, appertains to the expert evidence proffered by the feuding parties. This brings to the fore the interpretation of the provision of Section 68 of the Evidence Act, 2011 (former Section 57 of the defunct Evidence Act, 2004). It reads:
68. (1) When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or act, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or question as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in Section (1) of this section are called experts.

An expert is a person who is specially skilled in the field he is giving evidence. He is one who has made the subject he speaks on a matter of particular study, practice or observation and possess a particular and special knowledge of the subject. He must be a person qualified to speak with some amount of authority by reason of his special training skill mastery or familiarity with the subject matter in question, see A-G, Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Rabiu v. Amadu (2013) 2 NWLR (Pt. 1337) 36. It can be garnered from this clear provision, that it is the Court that decides whether or not a witness is an expert, in the areas catalogued in the provision, using his knowledge and skill as a template. A Court is not bound to accept the evidence of an expert, see Seismograph Service Ltd. v. Onokpasa (1972) 4 SC 123; Seismograph Service Ltd. v. Ogbeni (1974) 4 SC 85; Ojo v. Gharoro (2006) NWLR (Pt. 987); Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535; Oando (Nig.) Plc v. Adijere (WIA) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 407; Gundiri v. Nyako (2014) 2 NWLR (Pt.

1391) 211; Rabiu v. Amadu (supra); Oando (Nig) Plc v. Adijere (WIA) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Okereke v. Umahi (2016) 11 NWLR (Pt.1524) 438; Ladoja v. Ajimobi (supra); Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179; Bille v. State (2016) 15 NWLR (Pt. 1536) 363; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.

In the first place, the appellant decried exhibit P5 as a documentary hearsay because it was tendered by PW2, who was not its maker, which, de jure, rendered it unusable by the lower Court. Unarguably, a document must be tendered by its maker or else it will be declared a documentary hearsay, see Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; Isiaka v. Amosun (2016) 9 NWLR (Pt. 1518) 47; APGA v. Al-Makura (2016) NWLR (Pt. 1505) 316. Exhibit P5 is wrapped between pages 249 — 296 volume I, of the wordy record. At the bottom of its threshold, at page 249 supra, it shows that it was prepared by PW2, Sylvester S. Orhier of African

Inter-Environmental Monitor (AFRIEM). To the extent that PW2 was the one who prepared exhibit P5, PW2 was competent to answer questions on it. On this score, it does not wear the stigma of a documentary evidence. I therefore, see no legal justification to categorise it as one.

It can be gleaned from the evidence on record the keystone of every appeal, that PW2, a holder of Diploma in Forestry, is an environmental ecologist who had garnered experience in oil spillage and environmental matters with many reports to his credit. He authored exhibit P5. At once, evidence demonstrated that DW1 — DW5, fielded by the appellant, possessed intimidating academic qualifications in environmental matters. They prepared exhibits D2 and D3. The lower Court, in exercise of its expansive power in the domain of expert evidence, acted and relied on the evidence of PW2 and exhibit P5 in preference to those of DW1 — D5 and exhibits D2 and D3. The lower Court justified/rationalised its judicious act on the ground that PW2 visited the locus in quo, that is, the communities, before arriving at his decision in exhibit P5. Contrariwise, the DW1 — D5, as confirmed

in their parol testimonies, under the cross-fire of cross- examination, never inspected the places affected in the respondents’ communities. It flows that, while the exhibit P5 is an offspring of an eye witness account of the debilitating effects of the Idoho Oil explosions in the premises of the respondents’ communities, the exhibits D2 and D3 can qualify as offshoots of speculations. Again, the affected communities do not make the list of those in exhibits D2 and DW3 thereby disclosing serious disconnect with them. These, in my humble view, disrobed the evidence of DW1 — DW5 and their progeny, exhibits D2 and DW3, of any efficacy/effervescence vis-a-vis the casus belli in the case. In the eyes of the law, relevance is the heart of admissibility and attachment of probative value to any evidence. It stems from the foregoing, that the evidence of DW1 — DW5 and exhibits D2 and D3 were marooned in the murky ocean of irrelevance. The lower Court did not fracture the adjectival law when it categorised them as irrelevant and welcomed the relevant evidence of PW2 and exhibit P5. The finding is not offensive to the law to warrant intervention by this

Court.

Let me place on record, pronto, that with the legitimate excision of the evidence of DW1 — DW5 and exhibits D2 and D3 from the four walls of relevancy, which I concurred with, the corollary is that the evidence of the respondents gained the enviable position of unchallenged evidence. The law gives the Courts the nod to act and rely on unchallenged evidence to reach a decision, see Cameroon Airlines v. Otutuizu (supra); Tanko v. Echendu (2010) 18 NWLR (Pt. 1224) 253; Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (Pt. 1350) 225; Nwakonobi v. Udeorah (2013) 7 NWLR (Pt. 1354) 499; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138; C.B.N. v. Okojie (2015) NWLR (Pt. 1479) 231.

The appellant’s other grouch bemoans the lower Court’s finding of negligence against the appellant. It is important to, first and foremost, understand the purport and attributes of negligence. Negligence, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, see Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1;

Abubakar v. Joseph (2008) 13 NWLR Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138, Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630.
Negligence is a question of fact, not law, so that each case has to be decided on its peculiar facts, see S.B.N. v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; African Petroleum v. Soyemi (2008) All FWLR (Pt. 397) 117; F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Royal Ade (Nig) Ltd. v. N.O.C.M. Co Ltd. (2004) 8 NWLR (Pt. 874) 206;A.B.C. Transport Co. Ltd. v. Omotoye (2019) 14 NWLR (Pt. 1692) 1971.
In Donoghue v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage. These three ingredients have since been accepted and

assimilated in the Nigerian jurisprudence, see Agbonmagbe Bank Ltd. v. CFAO (1967) NWLR 173; FBN Plc. v. Associated Motors Co. Ltd, (1998) 10 NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Iyere v. B.F.M. Ltd. (2008) 18 NWLR (Pt. 1119) 300; Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra); Royal Ade (Nig.) Ltd. v. N.O.C.M. Co Plc (supra); Makwe v. Nwukor (supra); Abusomwan v. Mercantile Bank Ltd. (supra); A.B.C. Transport Co. Ltd. v. Omotoye (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253.

To start with, the respondents gave unrefuted evidence on the expired age of the pipeline which hosted the dangerous crude oil whose explosion stimulated the controversy. The law charges/tasks an owner/operator of oil pipelines, like the appellant, to maintain and effect repair of the same to ensure that the dangerous crude oil being transported through them do not escape and cause damage to human lives and environment, see Centre For Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518; Section 11 of the Oil Pipelines Act Cap. 407, Laws of the Federation of Nigeria, 2004. The settled position of the law is that

a party who allowed crude oil, which is dangerous, to escape into a neighbour’s land is tantamount to negligence, see SPDC (Nig.) Ltd. v. Tiebo Vil (2005) 9 NWLR (pt. 931) 439. It is decipherable from the incontrovertible evidence on record, the touchstone of the appeal, that the appellant is a company in the business of prospecting, exploration and mining of a crude oil, via offshore and onshore, in Nigeria. The parties are consensus ad idem that the exploded pipeline warehoused the oil that belonged to the appellant. The final products of the oil will be purchased by the respondents for use in various forms. In essence, the respondents are the ultimate consumers of its final products. The respondents, as already noted, are fishermen and fish farmers whose business locations are offshore and onshore of Atlantic Ocean. It stems from these relationships, typified in proximity and neighborhood, that the appellant had a duty of care towards the respondents vis-a vis the preservation of its oil maintaining and shielding the pipeline, its containers, from any harm. It is axiomatic that the bounden duty was eroded when the pipeline exploded and the oil spilled out.

The respondents alleged that they were inflicted with lots and variegated losses arising from the oil spillage which travelled/transited from Qua Ibom Terminal (QIT) to their coastal/tidal communities in Lagos State. It flows that injury and damages germinated from the breach and same afflicted the respondents. In effect, the respondents, in their pleadings and evidence proved the three co-existing and conjunctive ingredients of negligence against the appellant.
That is not all. The lower Court deployed the doctrine of strict liability as propounded by the House of Lords in Rylands v. Flecher (1868) L.R.3 HL 330 thus:
We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or perhaps that the escape was the consequence of vis major or the act of God, but as nothing of this sort exists here, it is

unnecessary to inquire what excuse would be sufficient.
Admirably, the rule in Rylands v. Flecher (supra) has since received the blessing or imprimatur of the Nigerian Court in oil exploration cases in the firmament of negligence, see SPDCN Ltd. v. Edamkue (supra); SPDCN Ltd. v. Anaro (2015) 12 NWLR (Pt. 1472) 122; Centre For Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518. The respondents showcased, in their pleading and evidence, that the appellant stored oil, likely to cause mischief, which escaped and caused horrendous effects on the businesses and properties of the respondents. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. Curiously, the appellant, in its infinite wisdom, starved the Court of any negativing evidence, in the realm of the respondents’ culpability or force majeure, to neutralise/demolish the concrete and damning evidence furnished by

the respondents. The lower Court, in my humble opinion, did not, in the least, injure the law when it employed the rule in Rylands v. Flecher (supra) to hold that the appellant was negligent. I endorse it in toto.

In the light of this juridical survey, conducted in obeisance to the law, the lower Court did not defile the law to make its finding guilty of the allegation/accusation of perfunctory evaluation of evidence preferred against it by the appellant. The lower Court’s finding is in tandem with the law and ipso facto, unimpeachable. To this end, I must dishonour the learned counsel’s salivating invitation to crucify the decision on the undeserved altar of improper evaluation of evidence. As a result, I have no choice than to resolve the conflated issues three and four against the appellant and in favour of the respondents.

It remains to treat issue five. It queries the correctness of the lower Court’s award of special and general damages of N8.4 Billion and N1.4 Billion respectively to the respondents. I will handle them one after the other.

Damages have been defined as: “that pecuniary compensation which law awards to a person for the injury

he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort”, see Iyere v. B.F.F M Ltd (2008) 18 NWLR (Pt. 1119) 300 at 345, per Muhammad, JSC, Umudje v. SPDCN (1975) 8-11 SC 155 at 162; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B.(2004) 2 NWLR (Pt. 858) 521.

Special or particular damages are those damages which are the actual, but not necessary, result of the injury complained of, but follow it as a natural and proximate consequence in a particular case, that is, by reason of special circumstances or conditions, see Ahmed v. CBN (2013) 2 NWLR (Pt. 1339); U.B.N. Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Ajigbotosho v. R.C.C. Ltd. (2019) 3 NWLR (Pt. 1659) 287; UBN Plc v. Nwankwo (2019) 3 NWLR (Pt. 1660) 474; Ibrahim v. Obaje (2019) 3 NWLR (Pt. 1660) 389; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. Special damages must be specially pleaded with particulars and strictly proved. By a strict proof, the law means that a party claiming special damages should establish his entitlement to them by credible evidence of such a nature/character that would suggest he is indeed entitled to them,

see Oshinjinrin v. Elias (1969) NSCC vol. 6, 95; Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512; Neka B.B.B. Mfg. co. v. Ltd. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521; S.P.D.C. (Nig.) Ltd. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439; Gonzee (Nig.) Ltd. v. N.E.R.D.C. (2005) 13 NWLR (Pt. 943) 634; N.N.P.C. v. Klifco (Nig.) Ltd. (2011) 10 NWLR (Pt. 1255) 209; Ahmed v. CBN (supra); Ajagbe v. Idowu (2011) 17 NWLR (Pt. 1276) 422; Akinkugbe v. E.H. (Nig.) Ltd. (2008) 11 NWLR (Pt. 1098) 375. Admission by an opponent party to special damages does not relieve a claimant from strict proof, see S.P.D.C. (Nig.) Ltd. v. Tiebo VII (supra); Akinkugbe v. E.H. (Nig.) Ltd. (supra); N.N.P.C. v. Klifco (Nig.) Ltd. (supra).

In proof of this specie of damages, the respondents tendered exhibit P7 through PW3, its maker. Exhibit P7 is a catholic document which monopolise pages 297-522, volumes I and II, of the mountainous records. In it, the respondent itemised the particulars of monetary damages, which they suffered, following the appellant’s oil spillage at Idoho. The various sums are attached to items of the different individuals that make the respondents’ affected communities.

Exhibit 7, as already noted, was not countered by the appellant. In other words, it acquired the enviable status of an unchallenged documentary evidence. It must be stressed that a documentary evidence is permanent, incorruptible and indelible in contradistinction to oral evidence which oozes out from the vocal cord of man and liable to distortions by its owner. Amazingly, the appellant did not greet its admission with any protest. The lower Court followed the principles governing award of special damages as enunciated in judicial authorities. The appellant’s elegant argument on this award, with due respect, flies in the face of the law.

General damages are those damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and strictly proved, see U.B.N. Plc v. Ajabule (supra); Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd. (supra); Ajigbotosho v. R.C.C. Ltd. (supra); UBN Plc v. Nwankwo (supra); Ibrahim v. Obaje (supra); Onyiorah v. Onyiorah (supra). It is at the discretion of the Court to award general damages, see Cameroon Airlines v. Otutuizu (supra); Ahmed v. CBN (supra);

Unity Bank Plc v. Ahmed (2020) 1 NWLR (Pt. 1705) 364. Did the lower Court exercise its discretion properly in awarding the general damages? This involves a little excursion into the large domain of discretionary power of Court.

Discretion signifies: the right or power of a Judexto act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560. An exercise of discretion does not grant the Court the unbridled licence to act arbitrarily or capriciously. Contrariwise, it gives it the latitude to act judicially and judiciously, see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195; APGA v. Oye (2019) 2 NWLR (Pt. 1657) 472; Adeniyi v. Tina George Ind. Ltd. (supra). To act judicially denotes ”… discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence

of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”, see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously… is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S & T.A Ltd. (supra), at 164, Per Ogbuagu, JSC.
In the wide residence of discretion, previous decisions are not of much relevance. The reason is not far-fetched. The facts and circumstances of two cases are not always on all fours. A Court of law is not willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to exercise of discretion. It can only use such decisions as guidelines, seeAbacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleman v. C.O.P., Plateau State (supra); Babatunde v. P.A.S. & T.A. Ltd. (supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017)

13 NWLR (Pt. 1581); 1 NJC v. Dakwang (supra); Adeniyi v. Tina George Ind. Ltd. (supra). An appellate Court is, usually, loath to interfere with an exercise of discretion save where it is: wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and Oil co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takoh v. MTN (Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533.

My noble Lords, the lower Court’s judgment, which the appellant seek to impugn, spans pages 1437 — 1508, volume IV, of the elephantine records. I have given a microscopic examination to it. Interestingly, it is comprehension-friendly. In it, the lower Court invoked the guiding principles in award of damages as decreed in decided authorities as the barometer to make its assessment. The respondents pleaded that the appellant’s oil spillage occasioned immense damages to the inhabitants of the

respondents’ communities, their tools/implements of fishing and fish farming, their prey (the aquatic animals), their domestic animals (pictorials shown at pages 523-526, volume II, of the windy record) and destruction of marine plants and vegetation et cetera. They concretised these pleading with unchallenged evidence of these corrosive effects in their marine environment. The importance of socio-economic rights cannot be overemphasised in the life of any citizen. A person’s inalienable fundamental right to life, which is entrenched in Section 33 of the Constitution, as amended, the fons et origo of our laws, cannot be properly harnessed in the absence of his rights to hospitable environment, water, air, land, forest and wild life which are also rights guaranteed under Section 20 of the selfsame Constitution. The two species of rights share symbiotic relationship and, ipso facto, should run pari passu in enforcement. It is impossible for any person to actualise his right to life when his socio-economic rights have fallen into eclipse. Thus, the award took care of the monetary interests of the respondent by balancing the dire consequences of the oil spillage.

Put differently, it was aquintessence of judicial and judicious award.
Besides, the appellant was the tortfeasor in the established negligence. In that wise, the law grants the Court the unbridled licence to damnify it, the violator, in damages, see Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356; Oando (Nig.) Plc. V. Adijere (W.A.) Ltd. (supra); Harka Air Serv. (Nig.) Ltd. v. Keazor (2011) 13 NWLR (Pt. 1264) 320; British Airways v. Atoyebi (supra). Interestingly, in the domain of tort of negligence, the law allows for damages for natural loss, pains, sufferings, injury, mental feelings and discomfort even when they are not monetarily quantified, see Eseigbe v. Agholor (1993) 12 SCNJ 82; Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra); Muhammad v. IGP (2019) 4 NWLR (Pt. 1663) 492. The foregoing solidifies the legality of the lower Court’s award of the N1.4 Billion general damages. In the aggregate, the lower Court acted judicially and judiciously and did not desecrate the law on exercise of discretion. In sum, the lower Court’s exercise of discretion was not injudicious nor was it guilty of any of its negative elements that will compel an appellate Court to

interfere with it.
The appellant’s learned counsel had submitted that it had shown reasons for this Court to interfere with the award of damages. An appellate Court does not usually interfere with award of damages unless: (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of some principles of law; or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a wholly erroneous estimate of the damages, see SPDCN v. Tiebo VII (supra); Cameroon Airlines v. Otutuizu (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Agu v. General Oil Ltd. (2015) 17 NWLR (Pt. 1488) 327.
I just enumerated the circumstances under which an appellate Court would tinker with award of damages. I had just found that the lower Court paid due fidelity to the law when it awarded the damages in the case. As shown earlier, the lower Court did not

offend the law nor disregarded its principles in the awards. It was not mistaken as to the facts. It never invited matters alien to the case in its assessment of the damages. The corollary is that no injustice will arise if an appellate Court fails to intervene in the awards. On the quantum of the damages, the appellant, for reasons best known to it, made no case for mitigation of damages before the lower Court or even in this Court. It therefore, denied the Court, to its detriment, of the necessary facts and evidence that would have propelled this Court to slash the damages. In a nutshell, the lower Court was/is not guilty of any of the circumstances chronicled above as to warrant and stimulate this Court to tamper with the award in damages. It will therefore, tantamount to transgression of the law to intervene against the award. I resolve the issue five against the appellant and in favour of the respondents.

In the interest of clarity and to forestall any ambiguity, having resolved the four issues against the appellant, l would have dismissed the appeal were the writ of summons competent. In the face of its incompetence, these are my views

on the four issues for the benefit of the Supreme Court.

On the whole, given my finding, on the incompetence of the writ of summons, on issue one, I allow the appeal. Consequently, I strike out the Suit No. FHC/L/CS/247/2002, filed by the respondents, for being incompetent. The parties shall bear the respective costs they expended in the prosecution and defence of the fruitful appeal.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother OBANDE FESTUS OGBUINYA, JCA and I adopt the judgment as mine with nothing further to add.

BALKISU BELLO ALIYU, J.C.A.: I agree with the judgment just delivered by my learned brother Obande Festus Ogbuinya, JCA.

Appearances:

A. Latilo, Esq. For Appellant(s)

T. Olawumi, Esq. For Respondent(s)