SEVEN UP BOTTLING CO. PLC. V. MRS. VERO OBAMWONYI UYIGUE (2012)

SEVEN UP BOTTLING CO. PLC. V. MRS. VERO OBAMWONYI UYIGUE

(2012)LCN/5311(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of April, 2012

CA/B/172/2010

RATIO

JUSTICE: MEANING AND NATURE OF MISCARRIAGE OF JUSTICE

Miscarriage of justice has been defined as, a departure from the rules which permit all judicial procedure that makes that which happened not “judicial procedure” at all, in the proper sense of the words. See the cases of Devi v. Ray (1946) AC p.508 and (2) Osisanya v. Odugbesi (2005) 1 FWLR (Pt. 243) p.190. In the case of: Osisanya v. Odugbesi supra at page 202 paras. E – G, Adekeye JCA (as he then was) restated the trite position of the law on the issue of miscarriage of justice thus:

A miscarriage of justice should be declared only when the court, after an examination of the entire case including the evidence is of the opinion that it is reasonably probable that a result more favourable to the appealing party would has been reached in the absence of the error. However, not all errors result in miscarriage of justice. There is miscarriage of justice only where there are substantial errors in adjudication with the resultant effect that the party relying on such errors may likely have a judgment in his favour Amadi v. NNPC (2000) 10 NWLR (Pt. 674) p.76 SC; AfriBank Nig. Plc. v. Shand (1997) 7 NWLR (Pt.514) Pg.601; Okonkwo v. Udoh (1997) 9 NWLR (Pt. 579) Pg. 16. SC. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

WORDS AND PHRASES: MEANING OF NUISANCE

Nuisance is defined as an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of a right. It is an unreasonable use by a man of his land to the detriment of his neigbbour. See the cases of: (1) Eholor v. Idahosa (1992) 2 NWLR (Pt. 223) p. 323; (2) Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) p. 435 and (3) Oluwaniyi v. Adewumi (2008) 13 NWLR (Pt. 1104) p; 387. Therefore, it follows that only a person who has an interest in the land affected can sue. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

DAMAGES: MEANING AND NATURE OF DAMAGES

Damages are monetary compensation for loss or injury to a person or property. They are the sum of money received from a wrong doer as compensation for a wrong.

However, general damages are such which the law presumes to flow from the wrong complained of. A claimant of this category of relief is obliged, purely on the basis that, it is the expectation of the ordinary reasonable man. The relief is to assuage a loss that was naturally caused by the act of the defendant. The relief does not mature on the basis of evidence or a particular yardstick. This category of relief is one at large, incapable of exact calculation. See the cases of: (1) Jegede v. Bamidele (2005) NSLR (Pt. 4) p.154; (2) Leaders & Co. v. Bamaiyi (2005) 2 FWLR (Pt. 259) p.84; (3) Cameroon Airlines v..Otutuzu (2005) 2 FWLR (Pt. 258) p. 997; (4) Omonuwa v. Wahabi (1974) 4 SC p.3t and.(5) Odulaja v. Hadad (1973) 11 S.C p.35. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERENCE WITH AN AWARD OF DAMAGES BY A TRIAL COURT

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

SEVEN UP BOTTLING CO. PLC. Appellant(s)

AND

MRS. VERO OBAMWONYI UYIGUE Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A, (Delivering the Leading Judgment): This is an appeal against the judgment of S.O. Oigbokie, J., of the High Court, Okada, Edo State, delivered on the 3rd of July, 2008. The Respondent was awarded the sum of one million naira (N1,000,000) as general damages, pursuant to her claim of fifty million naira (N50,000,000=) general damages for the tort of nuisance allegedly committed against her and her property by the Appellant.
The Appellant not satisfied with the judgment of the trial court appealed to this court vide its notice and grounds of appeal dated and filed on the 11th of July, 2008. The notice and grounds of appeal contained five grounds of appeal, see pages 113 to 117 of the record of appeal. The five grounds of appeal without their particulars are as follows:
1. The learned trial Judge erred in law and misdirected himself on the fact when after accepting that Exhibit ‘B’ dated 19/2/62 (Oba of Benin Approval) bears the name Joseph Uyigue without any documentary evidence or testimony from any witness other than the Plaintiff/Respondent herself linking her to the document as the owner and consequently came to the conclusion that the alleged root of title was valid.
2. The learned trial Judge erred in law and in fact when she held tenaciously to the assertion that the premises in dispute is the property of the Plaintiff/Respondent.
3. The learned trial Judge erred in law to have speculated and thereby descended into the arena when it is trite that a trial court ought not evolve a case for either party and proceed to give judgment on it.
4. The judgment is against the weight of the evidence.
5. Additional grounds may be filed on receipts of the record of proceedings.
The Respondent’s claims are as contained in pages 35 to 37 of the record of appeal, that is, the Respondent’s 2nd amended statement of claim. Paragraphs 2 to 14 thereof are relevant and for easy reference, they are hereunder reproduced as follows:
2. The Defendant is a Public Liability Company duly incorporated under the laws of the Federal Republic of Nigeria and has a branch at Iguosa village, Benin City within the jurisdiction of this Honourable Court.
3. The Defendant has a plant situate at Iguosa Village, Benin City, where she produces 7UP Drinks amongst others.
4. The plaintiff is and was at all material times the absolute owner in possession of a parcel of land situate at Ward 117K Iguosa Village, Benin city, measuring approximately 400 feet by 500 feet within the jurisdiction of this Honourable Court.
5. The Plaintiff says that the said parcel of land was allocated to her predecessor-in-title vide an application for Building Plot dated 20th May, 1960.
6. The Plaintiff says that Mr. Joseph O. Uyigue her predecessor-in-title and husband (now deceased) transferred all the said parcel of land by mode of Customary Gift and put her in possession of same during his lifetime. The Oba’s approval shall be founded upon at the trial.
7. The plaintiff says that the said Joseph O. Uyigue transferred all the said parcel of land measuring 400 feet by 500 feet to her absolutely.
8. The plaintiff says that she took possession of same and has been exercising rights of ownership over same by cultivating arable crops thereon and erected a building on a part of the said parcel of land.
9. The plaintiff said that the Defendant is and was at all material times the owner of a 7UP Bottling Plant built on a parcel of land in the neighourhood of plaintiffs said parcel of land at Iguosa Village, Benin City.
10. The plaintiff says that at a date which the Plaintiff cannot specify until after discovering herein save that it was before 23rd January, 2001, the Defendant wrongfully caused to issue, proceed and arise from the plant and premises in the possession of the Defendant of offensive, noxious, unwholesome, dirty and filthy matter/substance and escape from their plant and have spread, diffused themselves unto and over a part of the plaintiff said parcel of land and have rendered the plaintiff’s land hazardous, useless and considerably deteriorated in its value and the plaintiff has suffered loss and damage.
11. At the trial the plaintiff shall rely on plan Number KPE 5450 dated 15th June, 2001, wherein the plaintiff’s land edged PINK, and the waste water pipe line from the defendant’s factory and the spill over area is marked YELLOW.
13. The Plaintiff says that on discovering of the escape of the noxious substance into her land she instructed her solicitor to write to the defendant and subsequently a second letter was written after the Plaintiff and the Defendant had some discussion and talks broke down when the Defendant failed to finally resolve the matter amicably. The letters shall be relied upon at the trial.
14. WHEREOF the Plaintiff claims from the Defendant the sum of N50,000,000.00 (Fifty Million Naira) being general damages for nuisance.
In response to the claims of the Respondent, the Appellant filed its Further Amended Statement of Defence, wherein all the claims of the Respondent were denied and contended – See pages 33 to 35 of the record of appeal.
From the grounds of appeal filed by the Appellant, four issues were distilled for the determination of the appeal. These are:
3.01 Whether the learned trial Judge honestly, sincerely and rightly dealt with the case on hand when she stated at page 30 of the judgment thus “In the case at hand on the authority of the above cited cases, the fact that she (plaintiff) did not tender any conveyance between her late husband and the plaintiff has not robbed the plaintiff of competence to sue in respect of exhibit ‘B’ particularly as she has proved possession of that house adjacent to the Moat”. If the analysis is totally wrong, as held by the appellant, does this not amount to a perverse judgment and hence miscarriage of justice?
3.02. Whether it did not amount to descending into the arena which is an aspect of denial of fair hearing that has led to a miscarriage of justice when the learned trial Judge stated at page 34 of the judgment thus “I must say that there are at least 50 petrol stations built ail around Benin City, none of them has the type of flooding and stagnant water behind them as seen at the locus in quo”?
3.03 Whether given the totality of the evidence adduced at the trial court, the award of N1 million against the Appellant as damages could be justified in law having regard to application of a wrong principle?
3.04 Whether the judgment is not against the weight of evidence before the court?
On the other hand, the Respondent also formulated four issues for the determination of the appeal. The issues read thus:
1. Whether the Respondent has the capacity to sue the Appellant in an action for nuisance?
2. Whether the action for nuisance brought against the Appellant has been proved entitling the Respondent to the sum of N1,000,000.00 (one Million Naira) awarded by the learned trial Judge as general damages?
3. Whether the learned trial Judge in his statement thus: “I must say that there are at least 50 petrol stations built all around Benin City, none of them has the type of flooding and stagnant water behind them as the locus in quo” amounts to a denial of fair hearing?
4. Whether the judgment is against the weight of the evidence before the lower court?
At the hearing of the appeal by this Court, the learned counsel for the Respondent Mr. E.O. Afolabi contended that the abbreviation “LTJ” used in ground three of the grounds of appeal is meaningless. Hence, the ground and issue three distilled therefrom are both incompetent. He also submitted that indeed no issue was distilled from ground three, thereby also making ground three incompetent. The Respondent’s learned counsel also argued that issue four distilled from ground four that, the judgment of the trial court was against the weight of evidence, is equally incompetent. He relied on the case of: Globe Motors Holding Ltd. vs. Honda Motors Company Ltd. (1998) 5 NWLR (Pt.550) p.373 at p.383, para B.
I am of the view that the Appellant’s grounds of appeal and the issues formulated therefrom are very poorly and inelegantly couched. However, there is no doubt that issue three was distilled from ground three. This can be gleaned from the particulars of ground three at page 117 of the record of appeal. That is, paragraph (iv) of the particulars of ground three, I therefore hold that, both ground three and issue three distilled therefrom are competent. Furthermore, on the attack on ground four and issue four, it is equally my opinion and I hold that the attack on ground four and issue four, it is equally my opinion and I hold that that judgment is against the weight of evidence is simply a contention of and dissatisfaction with the evaluation of evidence adduced by parties and a misapplication of principles of relevant laws by the lower court. In other words, this phrase means, error in appraisal of facts or application of law by the lower court. Hence, I hold that the issues formulated for determination by the Appellant are within the scope and ambit of the grounds of appeal.
As already pointed out above, the issues as formulated by the Appellant’s learned counsel are inelegantly couched. Therefore, I will adopt in part the issues formulated by the Respondent’s counsel, that is, issues one and two, as these are apt. Issue three as formulated by the learned counsel for the Respondent and issue two of the Appellant’s are both about whether or not the Appellant was given fair hearing. I believe that the resolution of these three are sufficient for the determination of the appeal. I will however firstly consider the issue of whether or not the Appellant was given fair hearing by the lower court; thereafter, I will consider issues one and two seriatim.
ISSUE ONE
Was the Appellant given fair hearing by the lower court?
The statement of the learned trial Judge under attack is that, none of the over fifty filling-stations in Benin has the type of flooding and stagnant water found at the locus-in-quo.
The learned counsel for the Appellant argued that by the introduction of the said extraneous “matter” into the case, the learned trial Judge clearly erred in not using the facts of the case as presented before her and this unsolicited observation materially influenced her judgment. That, this certainly amounts to a denial of fair hearing which led to miscarriage of justice, a fundamental breach of Section 36 of the Constitution of the Federal Republic of Nigeria.
Responding under this issue, the Respondent’s learned counsel conceived that, a court of law must confine itself to issues raised by parties, for the court is precluded from making a case for the parties which they have not made for themselves or raising issues suo rnotu without giving the parties an opportunity to address it on the issues so raised. On this point, he relied on the cases of:
(1) Dada v. Bankole (2008) 5 NWLR (Pt. 1079) p.26 at p. 47 – 48 paras. H – A; (2) Abalaka v. Min. of Health (2006) 2 NWLR (Pt. 963) p. 105 at p.113; (3) Imonikehe v. A- G, Bendel State (1992) 6 NWLR (Pt. 248) p.396; (4) Leventis (Nig) Plc. v. Akpu (2007) 17 NWLR (Pt. 1063) p.416 at p.425. He submitted that, in the instant case, the learned trial Judge did not speculate on facts not before it, rather, it clearly responded to the issues raised by the Appellant through the evidence of DW1. Accordingly, the issue of water, oil, grease etc flowing from the adjourning petrol filling station into the moat was raised by the Appellant and the issue was properly given as evidence. Hence, the lower court gave adequate consideration to the issue raised by the Appellant and the court in so doing has not breached the Appellant’s constitutionally guaranteed right of fair hearing.
Having considered the submissions of both counsel on this issue, I must restate herein that, fair hearing within the meaning of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or inquiry or investigation, conducted according to all rules formulated to ensure that justice is done to the parties in an action or matter. It is an indispensable requirement of justice that, an adjudicating authority, to be fair and just, shall hear both sides by giving them ample opportunity to present their cases. See the cases of: (1) Olumesan v. Ogundafa (1996) 2 NWLR (Pt.433) p.628 at pgs. 644 – 645 and (2) Onyekwuluje v. Benue State Govt. (2005) 2 FWLR (Pt. 258) p.1067. In the case of Onyekwuluje v. Benue State Govt. Supra at p. 1087,. paras. B – E, Ogbuagu JCA, (as he then was) had the following to say:-
Fair hearing, it is now settled, does not lie on the correctness of the decision handed down by a court or tribunal, but lies entirely in the procedure followed in the determination of the case. When a party who is entitled to be heard, is denied a hearing before a decision affecting him is made, then by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, that decision, cannot bind him. It does not matter whether the same decision would have been reached if he had been heard. Such decision must be set aside in an appropriate action, because in effect, it is null and void. See Prince Adigun & 2 Ors. v. Att.-Gen. of Oyo State & 18 Ors (1987) 3 SCNJ. 118 1 NWLR (Pt. 53) 678 and Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt.106) 652; (1989) 4 SCNJ 146 just to mention but a few.
See also the case of: Abubakar Poly v. Maima (2005) 2 FWLR (Pt.258) p.1038.
In the instant matter, the learned trial Judge took evidence from the two sides of the divide. By his visit to the locus, he was able to confirm evidence already adduced at the trial by the parties. His statement in the judgment that none of the over fifty filling stations around Benin town has the type of flooding and stagnant water behind them as seen at the locus-in-quo, is a mere obiter and not a ratio decidendi. I agree with the submission of the learned counsel for the Respondent that the lower court gave ample opportunity to the Appellant to defend the suit filed against it by the Respondent. The lower court equally gave adequate consideration to all the issues raised by both the Appellant and Respondent. Therefore, the question of fair hearing does not arise at all in the circumstances of this matter and so section 36(1) of the 1999 Constitution is not applicable in this matter as the provisions of same have not been breached in any wise.
Miscarriage of justice has been defined as, a departure from the rules which permit all judicial procedure that makes that which happened not “judicial procedure” at all, in the proper sense of the words. See the cases of Devi v. Ray (1946) AC p.508 and (2) Osisanya v. Odugbesi (2005) 1 FWLR (Pt. 243) p.190. In the case of: Osisanya v. Odugbesi supra at page 202 paras. E – G, Adekeye JCA (as he then was) restated the trite position of the law on the issue of miscarriage of justice thus:
A miscarriage of justice should be declared only when the court, after an examination of the entire case including the evidence is of the opinion that it is reasonably probable that a result more favourable to the appealing party would has been reached in the absence of the error. However, not all errors result in miscarriage of justice. There is miscarriage of justice only where there are substantial errors in adjudication with the resultant effect that the party relying on such errors may likely have a judgment in his favour Amadi v. NNPC (2000) 10 NWLR (Pt. 674) p.76 SC; AfriBank Nig. Plc. v. Shand (1997) 7 NWLR (Pt.514) Pg.601; Okonkwo v. Udoh (1997) 9 NWLR (Pt. 579) Pg. 16. SC.
I have examined the proceedings at the lower court, the words of the learned trial Judge complained about by the Appellant have not resulted in any error which could be said to amount to a miscarriage of justice. I therefore resolve this issue in favour of the Respondent and against the Appellant.
ISSUE TWO
Whether the Respondent has the capacity to sue the Appellant in an action for nuisance?
The learned counsel for the Appellant contended that since the Respondent s claim was that the parcel of land covered by exhibit B was given to her as a gift inter vivos by her late husband, Joseph Obamwenuyi Uyigue, it became imperative for her to state in evidence the date of the transaction. There must also be evidence that the transaction is recognized under Benin native law and custom’
It was the argument of the Appellant’s learned counsel that, for a grant to constitute a valid grant under customary law, a plaintiff must show that she was or her ancestor let her into possession in the presence of witnesses. The nature of possession claimed must be capable of raising a presumption of ownership under Section 146 of the Evidence Act. Thus, it must be exclusive possession and not mere occupation. On this postulation, he referred to the case of: Elemo vs. Aderonpe (2008) 11 NWLR (Pt.1097) p.50 at pgs. 74 – 75 paras. H – B, B – D. In learned counsel’s view, the Respondent herein did not prove ownership of any land or building let alone exclusive possession. It is fundamental that where an attempt to prove a root of title fails, acts of possession based on that root of title cannot sustain a claim for title. And because issues were joined on title to the land in dispute, the Respondent had a duty to establish her claim thereto before obtaining any benefit therefrom. Having failed in this regard the Respondent had no competence to sue in this suit. On this position, he relied on the cases of: (1) Owhonda v. Ekpechi (2003) 17 NWLR (Pt.849) p.326 at p.349 paras A-D, G-H; (2) Ukaegbu v. Nwololo (2009) 3 NWLR (Pt.1127) p.194 at pgs. 221 – 222 paras H-A; (3) Olisa v. Asojo (2002) 1 NWLR (Pt.747) p.13 and (4) Eze v. Igiliegbe (1952) 14 WACA p.61.
Furthermore, he stressed his earlier contention that by exhibit F dated 31/5/93, Joseph O. Uyigue could not be allowed to approbate and reprobate having been bound by the document he voluntarily signed in column 5 with other principle members of the Iguosa Community for the use in perpetuity by the Appellant of the moat.
Contrariwise, the learned counsel for the Respondent argued that the Respondent as the owner in possession of the property covered by exhibit B which is the Oba of Benin Land Approval bearing the name of Obamwenuyi Uyigue, the Respondent’s predecessor in title, has the requisite capacity to sue the Appellant in an action for nuisance. For, it is only a person who has an interest in an affected land or property that can institute an action in nuisance. This is because, in law, anyone who has the use or enjoyment of land has protection against private nuisance. Put in other words, a person who has rights over or in connection with a land may bring a claim to have an act of nuisance redressed. He rested his argument on the case of: Pemberton v. South Wark LBC (2001) 1 WLR P. 1672.
The Respondent’s learned counsel restated the claim of the Respondent that the land in this instant matter which measures 400ft by 500ft was transferred to her by Joseph Uyigue her deceased husband, her predecessor in title vide a customary gift during his life time. And that she applied for and was granted an approval in respect of the said land by the Oba of Benin, this is, exhibit B. Consequently, the Respondent has been exercising rights of ownership over the land by cultivating crops on it and she also erected a building on a part of the parcel of land. These are acts of possession as acclaimed in legal authorities such as the cases of: (1) Okhuarobo v. Aigbe (2002) FWLR (Pt. 116) p. 869; (2) Dada v. Bankole (2008) 5 NWLR (Pt. 1079) p.26 at p. 33; (3) Ladipo v. Aiani (1997) 8 NWLR (Pt.517) p.356 at p.367 paras. A- B and (4) Alatishe v. Sanyaolu (1964) 1 All NLR (Pt. 1) p.398. It was further contended in favour of the Respondent that, the case of: Madu v. Madu (2002) 13 NWLR (Pt. 784) p.231 at p.236 relied on by the Appellant’s counset in his brief of argument has no relevance to this case. In Madu’s case, the Respondent’s claim that the property was given to her as a gift was rebutted by the Appellant’s husband who had separated from the Respondent whom he married customarily. However, in the instant case, even though the Respondent’s marriage to the predecessor in title, Mr. Joseph Uyigue was a polygamous marriage but no member of the family including any of the wives or children are laying claim to the land in the possession of the Respondent nor is anyone disputing her ownership over the property.
The learned counsel for the Respondent submitted that, it is trite that trespass to land is any unjustifiable interference with land in possession of a party. Therefore, an action for trespass is maintainable by any person in exclusive possession of land against any person save the true owner or a person with a better title in respect of any interference with his possession. Hence, a plaintiff in an action for trespass will succeed if at the material time his exclusive possession of the land is established. In this instant case, the Respondent’s case succeeded at the lower court as a result of her ability to prove her exclusive possession of the land that was trespassed upon by the Appellant. The learned counsel for the Respondent opined that, the provisions of Section 146 of the Evidence Act are not applicable to the facts of this case. The Respondent can competently sue the Appellant for nuisance, being in possession of the property with no rival claims. What is more, the Respondent’s claim is not founded on declaration of title but on nuisance. For, whereas a claim for trespass as in the instant case is sustainable by a person in possession, a claim for declaration of title is a claim which must be proved with cogent, satisfactory and emphatic evidence. The two claims are therefore not the same and the ingredients required to establish them are not at par. On this argument, reliance was placed on the case of: Abasi v. Onido (1998) 5 NWLR (Pt. 548) p.92.
In the instant matter, the Respondent’s claims are anchored on “nuisance”.
Nuisance is defined as an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of a right. It is an unreasonable use by a man of his land to the detriment of his neigbbour. See the cases of: (1) Eholor v. Idahosa (1992) 2 NWLR (Pt. 223) p. 323; (2) Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) p. 435 and (3) Oluwaniyi v. Adewumi (2008) 13 NWLR (Pt. 1104) p; 387. Therefore, it follows that only a person who has an interest in the land affected can sue.
In order to determine whether the Respondent was a proper party to sue in this instant case, all the lower court was expected to do was to examine the claim of the Respondent before it, which gives her the right to initiate the action for the alleged wrongful act of the Appellant. The learned trial Judge in my opinion properly evaluated the evidence proffered by both parties on this point and came to the right conclusion that the Respondent had been in possession of the property, the subject matter of the claim. This is borne out of the evidence of Respondent’s witnesses who the learned trial Judge had the privilege of observing. I have no reason whatsoever to disturb the findings of the lower court in this regard. They were properly supported by legal evidence, clearly not perverse and patently not erroneous. The findings must and I hold that they do stand. See the cases of: (1) Olohunde v. Adeyoju (2000) 5 S.C. (Pt. III) p. 118; (2) Igwego v. Ezengo (1992) 6 NWLR (Pt. 249) p.561; (3) Woluchem v. Gudi (1981) 5 S.C. p.291 at p. 326 and (4) Mora v. Okonkwo (1987) 3 NWLR (Pt. 60) p. 314 at p.321,.
I again have to agree with the position of the Respondent that, the claim of the Respondent is that of the tort of nuisance and not for declaration of title to the property in issue. It was therefore sufficient for the Respondent to establish her possession of the property only, which she rightly in my view established as held by the learned trial Judge. Put in other words, the claim of the Respondent was sustainable by her being in possession of the property. There is also no doubt that the Appellant is a neigbour of the Respondent. There was abundant evidence in this regard. That was the reason indeed, the Appellant engaged the Respondent in talks geared towards an amicable out of court resolution of this matter. This is attested to by the averments in paragraph 17 of the Appellant’s further amended statement of defence – See page 34 of the record of appeal. For ease of reference the said paragraph 17 reads thus:
The defendant is specific answer to paragraph 13 of the statement of claim admits of receipts of letter from plaintiffs solicitors as well as having some discussion emphasized that discussion broke down because of the spurious and frivolous claim by the plaintiff.
This issue is also resolved against the Appellant and in favour of the Respondent.
ISSUE THREE
Whether the action of nuisance brought against the Appellant was proved so as to entitle the Respondent to the sum of one million naira awarded by the learned trial Judge as general damages?
On this issue, the learned counsel for the Respondent submitted that, in a claim for general damages, a plaintiff must establish in principle his legal entitlement to them. He relied on the cases of: (1) Omiyale v. Macaulay (2000) 7 NWLR (Pt. 1141) p. 597 at p. 620 paras. A – B and (2) Dumez (Nig.) Ltd. v. Ogboli (1972) 1 ANLR p.241 at p. 252. He contended that failure on the part of the Respondent to produce a medical report from a medical practitioner as to her health and receipts from the pharmacy where she purchased her drugs, made it impossible for the lower court to determine the injury she suffered, as properly founded by the lower court. However, in spite of this clear finding, the learned trial Judge went ahead to award general damages. The award is unjustified and anomalous. There is no basis at all for same, the Respondent having failed to establish as required by law, a clear case of private or public nuisance against the Appellant. In the instant case, inconveniences to respondent was not established. On this position, he relied on the cases of: (1) NNB Plc. v. Denclog Ltd. (2005) 4 NWLR (Pt. 916) p. 560 and (2) Abubakar v. B.O. & AP Ltd. (2007) 18 NWLR (Pt. 1066) p. 336. A trial Judge is bound by the pleadings, evidence adduced and emotion-free disposition in the course of evaluating the totality of evidence before him. He relied on the case of: Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR p.430. A stagnant odourless unsightly liquid substance viewed by the lower court at the locus without more can not cause the Respondent loss and damage to entitle her to any award, this is because the said unsightly odourless liquid was to subjected to any forensic analysis for the court to determine its implication or effect on human beings and plants.
The learned counsel for the Appellant restated the legal principle that, an appellant court will interfere with award of damages by a trial court if the award was made in violation of a principle of law. It is the strong contention of Appellant that trespass has not been proved in this instant matter because the Respondent not being the owner of the land in question, she could not complain that it had been trespassed upon and where there is no trespass a claim for damages cannot be considered.
Relying on the cases of: (1) Oluwaniyi v. Adewumi supra at p.407; (2) Adediran v. Interland Transport Ltd (1991) 9 NWLR (Pt. 21) p. 155 and (3) Eholor v. Idahosa (1992) 2 NWLR (Pt. 233) p.323 at p. 336 paras. E – F, the learned counsel for the Respondent submitted that, nuisance is an unreasonable use by a man of his property to the detriment of his neighbour. Nuisance is also defined as an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his legal right. A private nuisance is one which interferes with a person’s use and enjoyment of land or of some right such as an easement connected with land.
It was argued against the Appellant that the waste or effluents from its factory which escaped into the Respondent’s land constitutes private nuisance when the said waste or substance produces offensive odour that caused inconveniences to the Respondent’s use of the land and her health.-
The learned counsel for the Respondent submitted that the Appellant paid compensation to Iguosa Village Community in respect of the communal moat where it channeled its waste and effluent water into as can be seen from exhibit E. It was further canvassed for the Respondent that the grant by the community to the Appellant of the use of the community moat is not a license for the Appellant to commit nuisance on neighbouring lands. What is more, the Respondent’s claim against the Appellant is not on the use of the moat but the damage to her property. Therefore, exhibit F is not a defence to the nuisance committed on the Respondent’s property. However, the moat was filled up with the waste, thereby causing the noxious substance to escape into the neighbouring land of the Respondent. In the process, her building and her crops on the land were damaged and destroyed. Her health was affected as she fell ill and eventually had to relocate from her building as a result of the offensive smell. DW1 gave evidence that there was a building in ruins which further corroborated the evidence of the Respondent, that part of her house was affected by the waste which escaped from the moat into her land. DW2 stated further in his evidence at page 50 of the record of appeal that when the Respondent’s land was flooded by the waste from the Appellant’s plant as a result of the over flooding of the moat, the Appellant went there with generator to pump out the effluent. The trial of this case was moved to the locus in quo where it was established that the nuisance committed on the land of the Respondent not only caused damage to the crops she planted but also to her building.
The learned counsel for the Respondent submitted that, when nuisance consists of an encroachment; the law will presume damage. He relied on this position on the cases of: (1) Adediran v. Interland Transport Ltd supra at p.184 paras. E – H and (2) Eholor v. Idahosa supra at p. 336 paras. G – H. He reiterated that, general damages are such a loss which flows naturally from the defendant’s act. Therefore, they need not be specifically pleaded. They arise by inference of law and need not be proved by evidence, hence, it suffices if they are generally averred. He relied further on the cases of: (1) Maidara v. Halilu (2000) 13 NWLR (Pt.684) p. 257 at p.261; (2) Incar Motors v. Benson (1975) 3 S.C. p. 117; (3) Demez (Nigeria) Ltd. v. Ogboli (1972) 1 All NLR p.244, 252 and (4) Omonuwa v. Wahabi (1976) 4 S.C. p.37 at p.50. Accordingly, it was learned counsel’s view that the action for nuisance having been proved by the Respondent against the Appellant, general damages assessed at one million naira and awarded to the Respondent by the lower court is meritorious.
The summation of the findings of the lower court were that, in the process of the Appellant causing waste water/effluents to be discharged or drained from its factory to the moat provided for that purpose, the moat became flooded. The waste flowed to the land of the Respondent which adjourns the Appellant’s factory, and allegedly caused damage to the Respondent’s building on the said land. The learned trial Judge found from his visit to the locus-in-quo that there was greenish stagnant water behind the Respondent’s building and held that the effluent was definitely from the Appellant’s factory.
The contention of the learned counsel for the Appellant is that consequent upon the findings of the lower court that there were no medical certificate and receipts for drugs purchased regarding the alleged impairment of the health of the Respondent so as to determine the injury suffered by her, the lower court was wrong to make an award in general damages for the Respondent.
The law is trite that, it is a claim for special damages that needs to be specially pleaded and specifically proved. In the instant matter, the claim of the Respondent is for general damages, the couching of paragraph 11 of the Respondent’s 2nd amended statement of claim notwithstanding. She did not claim special damages, hence it was not necessary for her to plead and prove the extent of the injury suffered by her. The minimum requirement the law demands from her is not more than establishing that she experienced discomfort or inconvenience by reason of the irritation caused her by the act of the Appellant. In my humble but firm opinion, there was sufficient evidence to buttress the claim of the Respondent that by reason of the act of the Appellant, she did actually suffer discomfort because she had to relocate from her house even as she also lost the patronage of tenants in her property. Afterall, it was the consensus of both the Appellant’s counsel and the lower court that the condition of the Respondent’s property was not pleasant to the eyes as a result of the effluent on the said property. Damages are monetary compensation for loss or injury to a person or property. They are the sum of money received from a wrong doer as compensation for a wrong.
However, general damages are such which the law presumes to flow from the wrong complained of. A claimant of this category of relief is obliged, purely on the basis that, it is the expectation of the ordinary reasonable man. The relief is to assuage a loss that was naturally caused by the act of the defendant. The relief does not mature on the basis of evidence or a particular yardstick. This category of relief is one at large, incapable of exact calculation. See the cases of: (1) Jegede v. Bamidele (2005) NSLR (Pt. 4) p.154; (2) Leaders & Co. v. Bamaiyi (2005) 2 FWLR (Pt. 259) p.84; (3) Cameroon Airlines v..Otutuzu (2005) 2 FWLR (Pt. 258) p. 997; (4) Omonuwa v. Wahabi (1974) 4 SC p.3t and.(5) Odulaja v. Hadad (1973) 11 S.C p.35.

The law is equally settled that, an appellate court will ordinarily not interfere with an award of damages by a trial court. However, an appellate court will interfere with the award of damages by the trial court if satisfied either that the trial Judge in assessing the damages applied the wrong principle of law such as taking into account an irrelevant factor or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damages. See the cases of: (1) Obara v. Board of Mgt. Eko Baptist Hospital (1978) 6 – 7 S.C. p.15 and (2) Leaders & Co. V. Bamaiyi supra. The lower court in this matter having found and rightly so, that the Respondent suffered inconvenience, this needed to be redressed. This in my opinion is based on the evidence adduced by both parties. The Appellant also in my humble but firm view, failed to show that the trial Judge acted on some wrong principles of law or had taken into consideration some extraneous matters which he ought not to in the assessment of the damages. In the light of all that I have reiterated above, the award of one million naira to the Respondent for the pollution of her property by the lower court cannot be faulted in any way at alt. The learned trial Judge was right in holding that the Respondent suffered an injury to her property. This issue is equally resolved against the Appellant and in favour of the Respondent.
The law is manifest that, to succeed in an appeal, the appellant must show that the court below made such errors, either in the appraisal of the facts or its application of the relevant laws to the facts to warrant the intervention of an appeal court. See the cases of: (1) Shittu v. Fashawe (2005) NSLR (Pt.3) p.22; (2) Chief L. Oyelakin Balogun v. Alhaji Busari Amubikan (1989) 3 NWLR (Pt. 107) p.18 and (3) Dibiamaka v. Osakwe (1989) 3 NWLR (Pt.107) p.101. The Appellant has not, in my respectful view, been able to satisfy me that I ought to intervene to set aside the judgment of the lower court.
For the above reasons, I hold that this appeal is devoid of merit. It is dismissed. I affirm the judgment of the learned trial Judge, S.O. Oigbokie, J., delivered on the 3rd of July, 2008, in Suit No. HCOK/8/2005 with costs assessed at Thirty Thousand Naira (N30,000) in favour of the Respondent and against the appellant.

RAPHAEL CHIKWE AGBO. J.C.A: I had the pleasant duty of reading before now the lead judgment delivered by Omoleye, JCA and I agree completely with her both in her reasoning and conclusions. Even an earlier trespasser in occupation can maintain an action in trespass or nuisance against a later trespasser. There is no merit in this appeal. I also dismiss it and abide by all the consequential orders contained in the lead judgment.

CHIOMA EGONDU NWOSU-IHEME (PH.D) J.C.A: My learned brother OMOLEYE JCA gave me the privilege of reading before now the lead Judgment just delivered. I agree with the reasoning and conclusion in the Judgment and I adopt them as mine.
I therefore dismiss the appeal and affirm the Judgment of the learned trial Judge. I also abide by order as to costs.

Appearances

B.O. Saiki Esq.For Appellant

AND

Mr. E.O. Afolabi,
Mrs. J.O. Otokiti,
Miss M. Owie,
Mrs. A.O. Yusuf,
Miss A.I. Tsado and
Mrs. U. UwumarogieFor Respondent