MOBIL PRODUCING NIGERIA UNLIMITED v. MR. GEOFFREY M. B. KOFA & ORS
(2018)LCN/11981(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of July, 2018
CA/L/588/2006
RATIO
DAMAGES: SPECIAL DAMAGES
“This was not done by the Respondents in the instant case. Even though the Appellants did not traverse the Respondents averment that the Appellant’s agent destroyed their fishing gears, and the testimony of PW1 on this point was not controverted, it is trite that admission of special damages does not absolve a claimant from strict proof. Put simply, a claim for special damages cannot succeed solely on admission. See NNPC v CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174 where the Supreme Court, aptly held that special damages are never inferred from the nature of the act complained of. See also UNILORIN TEACHING HOSPITAL v ABEGUNDE (2013) LPELR 21375 (CA); ARAB CONSTRUCTION LTD & ANOR v ISAAC (2012) LPELR 9787 (CA).” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
MOBIL PRODUCING NIGERIA UNLIMITED Appellant(s)
AND
1. MR. GEOFFERY M. B. KOFA
2. MR. AUGUSTINE GOVERNMENT
3. MR. DENNIS DAUKUBOBO
(For themselves and on behalf of the named 116 Communities in Burutu and Warri South-West Local Government Area of Delta State of Nigeria) Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment):
This appeal arose from the judgment of the Federal High Court, Lagos division delivered on 28th June, 2006. The Court, coram AUTA, J., entered judgment in the total sum of N491,459,940.00 in favour of the Respondents who were claimants at the trial Court.
The judgment sum was awarded as part of the Respondents claim for special and general damages said to have suffered as a result of an oil spill from the Appellant?s oil platform off the coast of Akwa Ibom State. The Appellant being dissatisfied with the said judgment lodged a Notice of Appeal containing five grounds on 30th June, 2006.
In line with the practice in this Court, parties filed and exchanged their respect briefs of argument. The Appellant’s brief and reply brief was filed on 23/3/18 and 4/5/18 respectively, but the reply brief was deemed 25/5/18 and it was settled by Olumide Aju; Benson Akunya and Kayode Oso; all of F.O. Akinrele & Co. They formulated five issues for determination thus:
1. Whether the learned trial judge was right in his decision that it was too late to raise an objection as to the competence of the suit at the address stage.
2. Whether the learned trial judge was right in not dismissing the suit for being improperly constituted for misjoinder of parties and misjoinder of cases.
3. Whether the learned trial judge properly evaluated the evidence given by the defendant in this suit?
4. Whether the award of N412,980,000.00 in favour of the plaintiff was proper and backed up by credible evidence?
5. Whether the learned trial judge was right in relying on Exhibit J and H to enter judgment in this suit.
The Respondents brief filed 20/3/18 was deemed properly filed 25/5/18 and it was settled by Milton Paul Ohwovoriole, SAN; O.O. Ohwovoriole; Otega T. Ipheghe; N.R. Jurdimma and O.O. Ejewentotor of Milton Paul Ohwovoriole SAN & Co. They formulated four issues thus:
1. Whether the trial judge erred in holding that the issue of misjoinder cannot arise at the point of address, occasioned miscarriage of justice to warrant this honourable Court setting aside the decision of the trial Court.
2. Whether the trial Court properly evaluated the evidence in this suit in arriving at its decision to sustain Respondents’claim.
3. Whether the trial judge erred in entering judgment in favour of the Respondents for the sum of N412,980,000.00 having regards to the evidence before the court.
4. Whether the trial Court was right to have relied on Exhibits G – G9 supported by Exhibit H to have entered judgment in favour of the Respondents.
SUBMISSIONS OF COUNSEL
Appellant’s counsel submitted that both the Court of Appeal and the Supreme Court have consistently allowed the procedure by which an objection as to misjoinder of cause of action or parties is made at the close of trial. He referred to IDISE v WILLIAM INT. LTD [1995] 1 NWLR (PT. 370) 142; JUMBO v SHELL PETROLEUM DEVELOPING CO NIG LTD [1999] 13 NWLR (PT 633) 57; ADEDIRAN & ANOR v INTERLAND LTD [1991] 9 NWLR (PT 214) 155; UBA PLC v AYINKE [2000] 7 NWLR (PT 663) 83 (PT 104). He contended that an objection of this kind goes to the competence of the action and can be raised at any time, even on appeal. He urged this Court to hold that objection as to the competence of the suit was properly raised at the address stage.
As regards the second issue, Appellant’s counsel submitted that if this Court finds in favour of the Appellant in respect of issue 1 above, then this Court should consider the objection by virtue of her inherent powers in Section 16 of the Court of Appeal Act. He contended that by the nature of the claims presented and the evidence led, the injury alleged by the Respondents is personal to each one of them and that no one has an interest in the claim of the other as to entitle them to present their claims in one single action. He referred to the cases cited under issue 1 and urged this Court to hold that the suit has been improperly constituted and should be dismissed.
Appellant’s counsel on the third issue submitted that the lower Court erred when he found that none of the Respondents experts visited the Respondents communities and that their investigation was limited offshore as opposed to going inlands. He contended that the finding contradicts the clear evidence given by DW1, DW2 & DW6. That if the lower Court had properly evaluated their evidence, he would have come to a different decision.
Counsel submitted that the error of the lower Court constitutes a fundamental breach of duty imposed on the Court and occasioned a miscarriage of justice. He referred to the case of OKPALAEKE v NEPA [2003] 14 NWLR (PT. 840) 383 at 410. He contended further that this Court has the power to review the said evidence and reverse the lower Court’s judgment. He referred to AKPAN v UNION BANK OF NIGERIA PLC [2003] 6 NWLR (PT. 816) 27 at 298.
Appellant’s counsel submitted on the fourth issue that all the claims for fishing gears and equipment like other leads of claim are special damage claims and that they require specific pleading and proof by credible evidence. He cited the case of BADMUS v ABEGUNDE [1999] 11 NWLR (PT 627) 493 at 502 – 503. He contended that the failure of the Respondents to specifically plead is fatal to the foundation of the entire claim and that no award should have been made. He also submitted that even where evidence was given, the lower Court is not allowed to rely on it because the evidence were in respect of unpleaded facts. He referred to A.G. KWARA STATE v ALAO [2000] 9 NWLR (PT 671) 84 at 1005.
Appellant’s counsel submitted that the evidence furnished by the Respondents were either contradictory, unreliable or constitute hearsay and urged this Court to set aside the judgment.
On the fifth issue, Appellant’s counsel posits that the lower Court was in error in relying on Exhibits J and H. He contended that the exhibits are inadmissible and that the evidence given by the witnesses that testified does not qualify as expert evidence and should have been disregarded by the lower Court. He referred to the cases of OGULE & ORS v SPDC NIG LTD (supra); J.E. ELOKPO & SONS LTD v FHA (supra) at 334; SUSANO PHARMACEUTICAL CO LTD v SOL PHARMACEUTICAL LTD & ANOR [2000] 4 NWLR (PT 651) 60; UWA PRINTERS NIG LTD v INVESTMENTS TRUST CO LTD [1988] VOL 19 (PT 111) NSCC 195 at 204; ANYAEBOSI v R.T. BRISCOE NIG LTD [1987] NWLR (PT 59) 84; WESTMINISTER DREDGING NIG LTD & ANOR v OGAN OYIBO & 3 ORS [1992] 5 NWLR (PT 239) 77 and submitted that the exhibits constitute hearsay evidence.
Counsel submitted that Exhibit J., also ought to have been rejected because it was made pende-lite in August 2002, 3 years after the suit was instituted. He relied on Section 91(3) of the Evidence Act.
He also submitted that Exhibit H was prepared by a company that has pecuniary interest in the suit. He cited the case of CHINWUBA v ALADE [1997] 6 NWLR (PT. 507) 85.
He submitted that the fact that objection was not raised at the lower Court does not entitle the lower Court to rely on the documents. He referred to NATIONAL INVESTMENT & PROPERTIES CO LTD v THOMPSON ORGANISATION & ORS [1969] ALL NLR 134 at 138 – 139; UBA PLC v AYINKE [2000] 7 NWLR (PT 663) 83 at 100.
On his own part, Respondents’ counsel submitted that the decision of the lower Court does not occasion a miscarriage of justice, to which this Court may interfere. He cited the cases of NWANGWU v FBN PLC (2009) ALL FWLR (PT 500) 712; OWODUNNI v REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2008) ALL FWLR (PT 421) 824.
He submitted that the Respondents duly applied and obtained the leave of the lower Court after satisfying all the conditions precedent to filing the suit in a representative capacity and that the Appellant has no right to challenge the authority of the Respondents to sue in that capacity. He referred to SPDC NIG LTD v EDAMKUE (2009) ALL FWLT (PT. 489) SC 407 at 432; ADEDIRAN v INTERLAND TRANSPORT LTD [1991] 9 NWLR (PT. 214) 155 at 167; Order 9 Rule 1 Federal High Court (Civil Procedure) Rule, 2009.
Respondents counsel contended that the Respondents have established specific and special injury suffered by each and every one of the Respondents and the persons they represented and that they were authorised to prosecute this suit. He contended that the case of JUMBO v SPDC NIG LTD relied upon by the Appellant is not relevant to this appeal.
Counsel on issue 2 submitted that the lower Court properly evaluated the evidence to arrive at its decision. He referred to AJIBOLA v POPOOLA [1997] 4 NWLR (PT. 498) 206 at 208. He contended that the Respondents? witnesses gave evidence of the effect of the spillage on the creeks, swamps, etc and how the Appellant ordered them to burn their fishing gears which were damaged by the Appellant?s oil spillage and that the Appellant did not give any evidence to controvert same. Counsel submitted that the lower Court was right when it held that the evidence of the Appellant’s experts related to offshore only and not the interior that is the affected communities.
Respondents counsel referred to the case of OKPALAEKE v NEPA and AKPAN v UBN cited by the Appellant and submitted that the authorities are not relevant to this appeal and that the lower Court properly evaluated the evidence and exhibits in this suit.
Counsel on issue 3 submitted that the lower Court was right to have entered judgment in favour of the Respondents and that same was supported by credible evidence. He contended that the Respondents pleaded and also gave evidence of the nature of the damages caused to the Respondents communities by the Appellant’s oil spillage and the assessment exercise done by the Appellant. He noted that the Appellant did not deny the fact of the damage done to the Respondents communities by the oil spillage.
Counsel contended that the cases cited by the Appellant are not relevant to this appeal. He also contended that the lower Court did not base his judgment on any inadmissible evidence and that facts leading to the judgment were all pleaded. Counsel submitted that the matter is a civil one which standard of proof is on the balance of probability and that the two expert witnesses did not give any contradictory evidence.
He submitted that the evidence of PW3 was quoted out of con by the Appellant’s counsel in an attempt to show that the evidence of PW3 is hearsay. He also noted that the only witness called by the Appellant has no knowledge of the oil spillage and that the receipt tendered by the Respondents indicated N7,989,890.00 and not N3,000,000.00 that was wrongly computed by the Appellant.
On issue 4, counsel submitted that the lower Court was right in law to rely on Exhibits G ? G9 and corroborated same with Exhibit H to enter judgment in favour of the Respondents. He relied on MOGAJI & ORS v ODOFIN & ORS (1978) 4 SC 91at 94 – 95. He submitted the three issues raised by the lower Court were all resolved in favour of the Respondents.
He submitted also the Exhibit H cannot be held to be within the meaning of person interested in the outcome of a suit. He referred to UTC NIG LTD v LAWAL (2014) ALL FWLR (PT 727) 671; ABDULLAHI V MAITSIDAU (2012) (PT 653) 2017 CA.
Respondents counsel contended that Exhibit J is not hearsay evidence as the witness PW5 is qualified to talk about Exhibit J as an expert and that PW1 corroborated PW5’s evidence and that even if the exhibit was hearsay, it had no effect on the judgment because the lower Court did not rely on it in giving judgment.
Appellant’s reply brief was majorly a rehash of the arguments in the Appellant’s brief. Counsel also submitted that the Respondents did not controvert the fact that Exhibit H was made pende-lite.
RESOLUTION
Summarily stated, it is the contention of the Appellant’s counsel that the learned trial judge erred when he held that the issue of misjoinder ought to have been raised by the Appellant earlier, particularly as the Plaintiffs/Respondents’ representative capacity was not challenged by the Appellant when the trial Court granted them leave to sue as such. I am with respect unable to accept the Appellant?s contention as well founded. The law as rightly stated by the Respondents’ counsel is that a defendant has no right to challenge the authority of a Plaintiff who sued in representative capacity. This position of law emphasised by the Supreme Court in SPDC (NIG) LTD v EDAMKUE (supra) where it was held as follows:
‘It is settled that once the Plaintiff/Plaintiffs, expressed on a writ or Statement of Claim that the action, was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or Community to sue in that capacity. It is only a member of that group, family or Community, who can dispute, intervene, or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sues. It will be futile for a defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal, can never affect the defendant adversely…”
In other words, the Appellant herein has no locus standi to object to the said representation since he is not a member of the group of persons or communities that authorised the named Respondents/Plaintiffs. With respect, I fully appreciate the decision of the learned trial judge that the issue of misjoinder cannot arise, particularly as the Appellant did not challenge the ex parte order of the lower Court granting them leave to institute the suit in representative capacity, particularly in the light of the recent decision of the Apex Court in ELF PETROLEUM NIGERIA LIMITED v UMAH & ORS (2018) LPELR 43600 (SC) where similar facts ensued. In the leading judgment, OGUNBIYI, JSC held that there was no motion to set aside or appeal against the order to sue in representative capacity made in that case and that since none of the Respondents and those represented is opposed to the Respondents’ capacity or authority to represent them, the action can be initiated in representative capacity. See also A-G., KWARA STATE & ANOR v LAWAL & ORS (2017) LPELR – 32347 (SC).
Meanwhile, it is the contention of the Appellant’s counsel that the learned trial judge improperly evaluated the evidence given by the Appellant/Defendant in this case. Counsel argued that the trial judge erred when he held at pages 2041, Volume IV of the record of appeal as follows:
”It is pertinent to note that all the evidence given by the experts from the Defendant’s side, admitted that they conducted the investigation off-shore Forcados. These witnesses also admitted that they did not conduct any investigation on shore. None of the said experts visited the said communities. Their evidence is therefore not relevant to the case in hand. It therefore means that the Defendant did not contradict the evidence of the Plaintiff’s witnesses that the Forcados River and Ramos River were impacted and the 116 Plaintiffs communities were negatively impacted. The evidence of the DW1 – DW4 are based on the investigation they carried off-shore the affected areas. The opinions are therefore based on what they observed off-shore. The only report that deals with the hinterland, creeks, creek lets, ponds is that tendered by the Plaintiffs. The exhibits tendered by the Plaintiffs witness especially EXH. G – G9, the photographs and negatives, showed the bundles of nets they were affected by the oil spillage. It was also not denied by the Defendant’s witnesses that the nets were burnt on the order of the Defendant’s officers….”
In our adjudicatory system in this country, appellate Courts do not make it a habit of disturbing inferences or finding of fact of a trial judge who had the singular opportunity of listening to the witnesses and seeing their demeanour, it is settled law however, that such finding of facts or inferences may be questioned and interfered with in certain circumstances, particularly where same cannot be supported or are not proper conclusions and inferences to be drawn from evidence. See EDILCON (NIG.) LTD v UBA PLC (2017) LPELR 42342 (SC) where it was held inter alia as follows:
”It has long been established that an appellate Court, generally speaking, should not interfere with findings of fact of trial Courts. The reason is simple. The latter Courts, that is, trial Courts, had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they equally, observe all their habits and mannerisms. These include their demeanour and idiosyncrasies. As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence: competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence.”
Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. That is why the law takes the view that a failure in this regard would warrant interference of the appellate Court… This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from finding properly made, the appellate Court is in as good a position as the trial Court to come to a decision… This explains the prescription that an appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account matters which he ought not to have taken into account or where he shut his eyes to the obvious… Such a perverse finding is a finding of facts which is, merely speculative and is not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial Judge…
See alsoEZEAFULUKWE v JOHN HOLT LTD (1996) LPELR 1196 (SC); ADEYE & ORS v ADESANYA & ORS [2001] 6 NWLR (PT. 708) 1. It will be recalled that the learned trial judge found and held that none of the expert witnesses presented by the Appellant conducted their investigation on shore and/or visited the Respondents’ communities. In my respectful view, the relevant question to be considered is whether the trial judge finding is borne out of the evidence on record; if it, is that enough justification for the Court to jettison the evidence elicited from the Expert witnesses and give judgment in favour of the Respondents.
At pages 115 to 116, Volume 1 of the record of appeal, is the evidence of DW1, James Dele Oluwokudejo, a vegetation expert testified thus:
”I know about the Idoko Oil Pollution. I was involved, within 24 hours of the Spill we arrived Eket. I was involved in the study of vegetation along the Nigeria Coast line and the estuaries. I participated in the out flight from the Cross-River, in Calabar along the coast line up to Lagos.
I observed the plant formations along these routes. We collected water samples in river mouths along these routes. I remained at the energy control centre Eket were (sic) samples were taken, on how to contain the Spill and minimize the effect of the spill. I visited the Forcados River. During the plant time study, I observed that oil and (sic) not impact the areas along the coast land and estuaries water samples were collected from 22 River Mouths were at discharged into the sea. And 2.5 Kilometers up stream. They were tested to detect the pressure of Hydro-carbon. I know the Forcados and river before this spill. The report showed that the level of Hydrocarbon was very low. This is the short term assessment Report. My name is contained therein (Admitted as Exhibit K)…”
I visited the mangrove again after 9 months. The 2nd visit was to determine the actual long time impact on the environment and the people if any. To quantify and qualify the probably impact using internationally accepted scientific mythologies. I made visible observation on the plant communities and general ecology of these areas. I took photographs of the various plant formations.
I collected plant sample for laboratory analysis. The results of the observations indicated that the oil spill did not have any impact on the plant population in these areas. We produced a report. This is the report. (tendered as Exhibit ‘L’)
During cross-examination, he stated thus:
”I am a vegetation expert. They don’t grow offshore. I studied the coastlands and the shore lines. We study the Forcados and Ramos Rivers, which are the two major Rivers in that area. They drained the area in question. I did not discover oil at the mouth of the Ramos and Forcados when I did my studies. We did not visit the communities at the first study. During the long time study we surveyed those areas in my Boat. We came across 20-30 communities. The target for the studies is plant community and not people. Vegetation are found inland. I refer to Page 77 Sub Section 445. The meaning of estuary is all those areas who are at high tide are affected by water. It can be 80 kilometres into the hinterland…”
It is evident from the evidence of DW1 that the witness stated his expertise to be in the field of vegetation and gave evidence on the discovery made in relation to the plant communities. He plainly stated that they did not visit the communities at the first study and they only visited the mangrove on the second study. Whereas DW2 testified thus at page 117 of the record:
“I know about the Idoko oil spill, when I was contacted in 1998, to help them as lead scientist, if there is any health implication of the oil spill. We designed a study to look into their request. In September 1998 we began the survey to December 1998. We went through the several coastal towns. We went through the health record of the clinics, hospitals in those areas. We looked at the pattern where there are increases in certain ailment in the communities as a result of the spillage. Our conclusion is that there no proven evidence of anything in the environment that altered the pattern of disease. There was no upsurge. We did the studies in Burutu and Forcados. P. 246 ? 283 Health Survey….”
During cross-examination at page 118 of the record that he did not personally go the Respondents’ communities although was quick to note that individuals were interviewed.
DW3 similarly stated during cross-examination at page 122 of the record of appeal that he did ‘not remember going into the communities listed in this case.’ While, DW4, Professor Babajide Alao, stated at page 123 of the record that ‘people went into the Forcados River but not communities’ and further stated during cross-examination that their ‘report is based on the off-shore (as they) did not visit the interior’ Similar statement was made by DW5, Professor Kola Kusemiju, and DW6, Lawrence Olajimi Awosika showing that the learned trial judge was right to have found that the Expert Witnesses did not visit the Respondents’ communities. Same will not be interfered with or disturbed by this Court.
However, as I have earlier asked, can it be said that the trial judge was right to have given judgment in favour of the Respondents’ I am unable to answer this question affirmatively. Without doubt, burden of proof is on the party who alleges the affirmative and it lies on the party who will fail in the case where no evidence is given. Generally, the burden of proof rests on the Claimant, the Respondents in the instant case.
See NWAVU & ORS v OKOYE & ORS (2008) LPELR – 2116 (SC), where the Supreme Court emphatically stated:
”The legal burden is the proof which remains constant throughout a trial… it is the burden of establishing the facts and contentions which will support a party’s case. If at the end of trial he has failed to establish these to the appropriate standard, he will lose. The incidence of this burden is usually clear from the pleadings, it usually incumbent upon the plaintiff to prove what he contends as the golden rule is that the onus of proof is on the plaintiff… Thus, the burden rests upon the party desiring the Court to take action. He must satisfy the Court or Tribunal that the conditions which entitle him to an award have been satisfied… In respect of particular allegation, the burden lies upon the party for whom the substantiation of that particular allegation is an essential of his case…”
See also ARJAY LTD & ORS v A.M.S. LTD (2003) LPELR 555 (SC); DIAMOND BANK LTD v PARTNERSHIP INVESTMENT CO LTD & ANOR (2009) LPELR 939 (SC); BALOGUN v A-G., OGUN STATE (2002) LPELR 726 (SC); BAMGBEGBIN & ORS v ORIARE & ORS (2009) LPELR 733 (SC).
In this case bothering on nuisance, it is certainly the duty of the Respondents to not only establish that there was, considering the peculiar facts on record, oil spill caused by the Appellant; the spill has caused injury or damage to the person or property of the Respondents and to what extent.
In the instant case, the learned trial judge found, and rightly so, that there is no dispute that there was an oil spillage on 12th January, 1998, which emanated from the Appellant’s oil facility. The dispute in this case is whether the oil spill has negatively affected the Respondents’ communities. The view of the trial judge on this question can be found at pages 2040 to 2044 Volume VI, of the record of appeal. I find it necessary to extensively reproduce that part of the judgment hereunder. The learned trial judge held:
”The only report that deals with the hinterland, creeks, creek lets, ponds is that tendered by the Plaintiffs. The exhibits tendered by the Plaintiffs witnesses especially EXH. G – G9, the photographs and negatives, showed the bundles of nets were affected by the oil spillage.
It was also not denied by the Defendant’s witnesses that the nets were burnt on the order of the Defendant’s officers.
From the evidence therefore before the Court the oil spillage from the Defendant’s facilities affected the communities negatively. It is pertinent to note that throughout the evidence of the defence, no reason was given for the said massive spillage of crude oil in the waters, which later permeated into the Rivers in that community. The Court can only decide that the pipe lines have been old and lacked maintenance. If to say that they have taken necessary and proper care of the facilities, this accident would not have occurred. The oil companies should know that there are people that live there and earned their means of livelihood from the Sea, Rivers and creek lets. The Court therefore held that the spillage affected the communities adversely and they suffered damages to their land and economic activities as stated in this case.
It therefore goes that the Plaintiffs are entitle to damages…
The other issue to consider is that of damages. The Plaintiff tendered the report by EFAB Associates, which amounted to the sum of N320,000,050, the Defendant Counsel submitted that this has not been pleaded nor proved. The Plaintiffs Counsel did not rebut the assertion and the Court finds that there is no special pleadings to damage to land and evidence led to established the said claim of the Plaintiffs it is a claim for special damages, which in law apart from having to be specifically pleaded evidence must be heard to that effect. This has not been done in this case. It is accordingly not granted. The Court finds that they have established the claim for damages to their rivers, creeks and creek lets and ponds and also the fishing gears as stated in the statement of claim. The evidence of the PW 3 and EXH. H also supports the above claim. The Court believes the evidence of the Plaintiffs witnesses that the oil spill affected their environment. The Defendant did not deny that as a result of the oil spillage they went to the community and distributed claim Forms. The claim for professional fees has also been established by the evidence of PW 3 and EXH. B & B1. The Court therefore grant that claim.
The claim for legal fees has not been established as there is no document tendered to support that claim. It is accordingly refused.
It is pertinent to note that the area is a riverine area, the Court finds very difficult to agree with the Plaintiffs that they have 314 lakes in that community. A lake is a piece of land surrounded by water. The Court therefore refused to grant the claim for damage done to lakes, as it has not been established by credible evidence that such lakes exist, in such environment. The claim for general damages is also not granted, as it will amount to double compensation if this is granted. The claim for special damages is enough.
In conclusion, the Court therefore enters judgment in favour of the Plaintiffs as per the statement of claim, less claims 1, 3 and 6 and 9 of the statement of claim…
It is obvious that the trial judge relied on the evidence of PW3 as well as Exhibit H to reach his decision. Perhaps, this is because the evidence of the other witnesses presented by the Respondents are insufficient to sustain their claims. Now, the evidence elicited from PW3 can be found at pages 107 of the record reads thus:
”… I am an estate survey and valuer. I know the Plaintiffs of Burutu Local Government, contacted our Firm AFAP Associates, to assist and value the existent of damage done to their ponds, river and riverlets, which emanated from the Eket Mobil Spillage of 12/1/98. To determine the compensation possible to our client. The physical inspection was carried out of the affected areas between 12/8/-28/8/98 for about two weeks. The Plaintiffs hired speed boats to assist us. We covered the 10/15 communities in a day. We covered 116 communities within these period.
We valued the land, Rivers, Lake and ponds, using the Investment method or income method. Cost method, market price less depreciation was used for the omitted names of the individuals claimants of 20,649. For their fishing gears, Traps fishing lines etc. An assessment report was made. Land mass, 169, 0125 hectares at the rate of N2000 per hectare, 320,000.50
Rivers, 65, 230,060. Individual claimants is 20,649.50K, omitted N412, 980,000. Ponds – 537 in river N40,446.5k N21,720,050, N880,770,110 = Total..
Contingency N189,229,980. Grand total = N998,000,000. This is the report. (tendered as Exhibit ‘H’).
We were of course paid the sum of N10,980,000 and we issued them receipt for that. It is Exhibit B and B1.
We were returned in August 1998. I went for physical inspection of the affected areas. I went through the Polytechnic. I have my estate Management ND in 1993.
We were supplied by information by the Plaintiffs. They showed us C. Of O. to show that they were the owners. I saw that they were the owners. I saw one certificate related to Ijansa. We went there physically. We show all the fishing gears, lakes, Rivers and ponds listed in the report. We prepared the map. I can see Elebo the population is about 1000. It is surrounded by water. About 12 creeks. Average is N57,000. If we paid N50,000 it must be a mistake. Lakes N57,687.50 Average. The other N50,000 is a mistake.
Fishing Bond – It is N40,000 and there is N50,000 as arose. We have not paid vat on the fee they paid us. We notice some oil stains by the bank of the river. The economic trees were dried up, with their leaves falling down. I don’t know what caused the leave to dry. We did not do any scientific research to show that the damage was caused by the spill. I am not saying that the damage arouse (sic) out of the Mobil oil spill. Contingency values – includes inconveniences.
It was blackish in colour. We observed the oil in all the lakes and ponds. The communities are linked up. Clean up exercise is part of the contingency.
I don’t reside in that area. It was the Plaintiffs that told us that it was Mobil oil spillage that caused the damage…”
Without seeking guidance from any other source, it is evident from the above testimony of PW3 that the Plaintiff did not affirmatively establish the fact that the alleged damage caused to their rivers, lakes, creeks and communities were caused by the Appellant’s oil spill. For the avoidance of doubt, PW3 emphatically stated supra that his firm, the author of Exhibit H, did not conduct any scientific research to determine if the alleged damage was caused by oil spill, and ipso facto, the Appellant’s oil spill. A fortiori, from the evidence of PW3 and having had the benefit of studying the content of Exhibit H, I am unable to accept the finding and conclusion of the learned trial judge that the Respondents discharged the onus of proving their case against the Appellant. ”
On the other hand, I have given careful consideration to the testimony of PW3 as well as the content of Exhibit H authored by the Witness’ firm, and it seems to me plain that the Exhibit is only valuable to show the value of properties, purportedly damaged and no more. As the witness stated on record, what they carried out was a valuation of the rivers, ponds, lakes etc and not to investigate the damage, if any, resulted from the oil spill from the Appellant’s facility. It is now tolerably clear that the learned trial judge erred when he gave judgment in favour of the Respondents on the strength of the evidence of PW3 and Exhibit H.
I think I ought to stress that all the other witnesses presented by the Respondents were unable to show vide credible evidence that the spill from the Appellant’s oil facility negatively affected the Respondents’ communities. In addition, from a close perusal of the Respondents’ claim, one cannot be left in doubt that the claims are in the specie of special damages which must be specifically pleaded and strictly proved.
This was not done by the Respondents in the instant case. Even though the Appellants did not traverse the Respondents averment that the Appellant’s agent destroyed their fishing gears, and the testimony of PW1 on this point was not controverted, it is trite that admission of special damages does not absolve a claimant from strict proof. Put simply, a claim for special damages cannot succeed solely on admission. See NNPC v CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174 where the Supreme Court, aptly held that special damages are never inferred from the nature of the act complained of. See also UNILORIN TEACHING HOSPITAL v ABEGUNDE (2013) LPELR 21375 (CA); ARAB CONSTRUCTION LTD & ANOR v ISAAC (2012) LPELR 9787 (CA).
There is one final point I wish to make in connection to Exhibit J tendered by the Respondents in proof of their case. I believe the learned trial judge ought to have rejected the Exhibit for the simple reason it was made pende-lite in August, 2002, after the suit was instituted vide a Writ of Summons filed 20th June, 2000. It is trite law that document made by a party to a suit or person otherwise interested when proceedings are pending or anticipated is not admissible. This is effect of the mandatory provision of Section 83(3) of the Evidence Act, 2011 which thereby renders Exhibit J inadmissible and cannot be acted upon in this case. See LADOJA v AJIMOBI & ORS (2016) LPELR 40658 (SC); U.T.C. (NIG) PLC v LAWAL (2013) LPELR 23003 (SC); B. B. APUGO & SONS LTD v OHMB (2016) LPELR 40598 (SC); HIGHGRADE MARITIME SERVICES LTD v F.B.N. LTD (1991) LPELR 1364 (SC).
I think I ought to re-emphasise the point that the learned trial judge found and held in his judgment that the Respondents have not proved by credible evidence that they are entitled to judgment as per Reliefs (1), (3), (6) and (9) of their Amended Statement of Claim. Suffice to say that there is no appeal on that part of the decision of the learned trial judge, it remains binding on the parties. Be that as it may, in my considered opinion, if the learned trial judge had ipso facto properly evaluated the evidence led by the Respondents including exhibits tendered, he would have reached the irresistible conclusion that the Respondents did not discharge the onus of proof which rest on them and are therefore not entitled to any judgment in their favour.
In the final result, and for all the reasons I have given above, this appeal is substantially meritorious and is hereby allowed. The judgment of the Federal High Court, Lagos, coram AUTA, J., delivered on 28th June, 2006 is hereby set aside. Costs of N100,000.00 awarded in the Appellant’s favour.
TIJJANI ABUBAKAR, J.C.A.: I read the lucid leading Judgment prepared and rendered in this appeal by my learned brother Obaseki-Adejumo JCA.
I am in complete agreement with the sound reasoning and conclusion. I adopt the entire Judgment as my own, I have nothing extra to add.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my Lord ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
Appearances:
Olumide Aju with him, B. C. Akunya
For Appellant(s)
O. O. Ahvovarolode Okpoli (Mrs.)For Respondent(s)
