SHELL PETROLEUM DEVELOPMENT COMPANY (NIGERIA) LTD V. CHIEF TAMUNO J. AWILLIE-ODELE-OKOGBO & ORS
(2011)LCN/4452(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of April, 2011
CA/PH/289/2006
RATIO
DUTY OF CARE: WHETHER A DEFENDANT WILL NOT BE LIABLE FOR ANY DAMAGE CAUSED TO THE PREMISES OF HIS NEIGHBOUR, ARISING FROM THE PERFORMANCE OF AN INDEPENDENT CONTRACTOR HE EMPLOYED
It is clear that the claim of the plaintiffs is in tort of nuisance. If Ade and Uche are neighbours and Uche employs the service of an independent contractor to perform an act in consequence of which Ade suffers some injury in his premises the duty of care owed Ade by Uche is non delegatable if the contractor was not careful in the performance of such act. See WILSON & CYDE COAL CO. v. ENGLISH (1938) A.C. 57 at 83 – 84. Normally a defendant will be liable for any damage arising from the accumulation of materials such as explosives gas petrol, water crude oil, sewage and in this case dump of laterite and sand on the already existing spoil dumps which thereby extended into the plaintiffs land and caused blockage and flooding of plaintiff’s farmland. See UMEDUE V. S.P.D.C. (NIG.) LTD (1975) II SC 155. The liability of the defendant cannot be removed because he employed an independent contractor to perform the act. There is no doubt that the consequence of the dump i.e. the flooding of the farmland of the plaintiff (now respondents) was reasonably foreseeable by the appellants. See PENNY v. KENDRICKS (1956) 1W. LR 95. PER TUNDE OYEBANJI AWOTOYE, JCA
RATIFICATION: MEANING OF THE TERM “RATIFICATION” IN COMMERCIAL TRANSACTION
Ratification is the approval of the principal of an act of its agent where the agent lacked authority to so do. It was not the defence of the (defendant) appellant that the independent contractor did what was not what he was employed to do. See CASSIDY V. M.O.H. (1951) 2KB. 343 at 364. PER TUNDE OYEBANJI AWOTOYE, JCA
INDEPENDENT CONTRACTOR: WHETHER THE ISSUE OF RATIFICATION APPLIES TO THE CASE OF AN INDEPENDENT CONTRACTOR
…issue of ratification does not apply to the case of an independent contractor but as in this case, an adoption of the conduct of the independent contractor through acts listed in the judgment is an admission that he was instructed to perform the act which led to the litigation. The principal as well as the independent contractor are therefore equally liable for the tort committed. See SEDLEIGH DENFIELD V. O. CALLAGHAN (1940) AC. 180. PER TUNDE OYEBANJI AWOTOYE, JCA
ERROR IN DECISION: WHETHER EVERY ERROR IN A DECISION WOULD RESULT IN AN APPEAL AGAINST SUCH DECISION BEING ALLOWED
…it is not every error in a case that will result in an appeal being allowed, moreso when such error does not occasion miscarriage of justice. See NWAEZE V. THE STATE (1995) 2 NWLR (PT. 428) 1; AGBI v. OGBEH (2007) 10 WRN 144; ALLI V. ALESILOYE (2000) 16 WRN 1; OJE V. BABALOLA (1991) 4 NWLR (PT. 185) 267. PER TUNDE OYEBANJI AWOTOYE, JCA
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
SHELL PETROLEUM DEV. CO. (NIG.) LTD. Appellant(s)
AND
1. CHIEF TAMUNO J. AWILLIE-ODELE-OKOGBO
2. CHIEF MATHEW E. R. IKALABO
3. CHIEF ERIC J. OFOR
4. CHIEF GERSHOM P. ODU
(for themselves and as representing Okogbo family of Okoroba Town, N.E.L.G.A Bayelsa state suing by their Attorney Chief Francis F. Egele). Respondent(s)
TUNDE OYEBANJI AWOTOYE, JCA (Delivering the leading Judgment): This is the judgment in respect of the appeal filed by the appellant against the judgment of High Court of Bayelsa State in suit NO. YHC/23/2002 delivered on 10/12/2004. Parties to the appeal exchanged briefs of argument after the transmission of record of appeal.
In the appellant’s brief learned counsel for the appellant formulated 3 issues for determination to wit:
“(a) Having regard to the evidence and findings of the trial court is the defendant/appellant liable to the respondents for the actions of an independent contractor in this dispute?
(b) Did the respondents discharge the onus of proof placed on them for each of the items of special damages as claimed in this suit?
(c) was the trial court right in making the award of damages it ordered for each of the items claimed having regard to the principles of double compensation in the award of damages?”
The Respondents in their brief formulated three issue for determination. The issues are:-
“3.1 ISSUE I
Whether the court below was right in holding that the Appellants ratification of their independent contractors acts by virtue of Exhibits H and K it was liable for the tort of nuisance against the Respondents.
3.2 ISSUE II
Whether issues (b) and (c) raised in the appellants brief of argument are competent.
3.3 ISSUE III
Whether the court below was right in awarding damages to the tune of N28, 359,650,000.00 against the appellants as claimed by the Respondents.”
Issue 2 of the Respondent’s brief challenges the competence of issues (a) and (b) raised in the appellants brief of argument.
I shall take this first. The contention of the respondents was that the appellants did not raise the issues contained in issues (b) and (c) at the lower court. Learned counsel for the respondent submitted that the issue of whether or not the respondents discharged the onus to prove each of the items of special damages as claimed or was being awarded double compensation was being raised for the first time on appeal without the leave of court. Learned counsel therefore urged the court to strike out the two issues. He relied on LEBIGE V. REG. TRUSTEES C & S (2003) 2 NWLR (PT. 804) page 399 AT 422, OSENI V. BAJULU (2009) 18 NWLR (PT. 1172) Pages 164 at 179.
Surprisingly the appellant did not file any Reply to respondent’s brief and hence did not reply to the submission of the respondents.
I have carefully gone through the record of appeal and the proceedings at the lower court at every stage. I have also gone through the address of learned counsel for the defendant now appellant at the trial court. These issues on quality and standard of evidence offered in proof of special damages were never raised at the lower court in the addresses of counsel. They are therefore new issues being raised before this court without leave of court. Learned counsel for the Respondent urged the court to strike out the issue. I agree with this submission.
I also uphold the objection of learned counsel for the Respondent to issues (b) and (c) as formulated by the Appellant in their brief because the appellant, inspite of having been served with the Respondents brief which contained the new points not raised in the appellants brief failed to file a Reply Brief to deal with the new points. Order 7 Rule 10 of the Court of Appeal Rules states inter alia thus:
“WHERE AN APPELLANT FAILS TO FILE A REPLY BRIEF WITHIN THE TIME SPECIFIED IN RULES 5, HE SHALL BE DEEMED TO HAVE CONCEDED ALL THE NEW POINTS OR ISSUES ARISING FROM THE RESPONDENT’S BRIEF”.
In the light of the aforestated, issues (b) and (c) formulated by the appellants are hereby struck out.
The only remaining issue to be considered is issue (a) which reads thus:
“Having regard to the evidence and findings of the trial court is the defendant/appellant liable to the respondents for the actions of an independent contractor in this dispute?” This issue is essentially the same with issue (I) formulated by the Respondents. Issue (III) formulated by the Respondent is on the award of damages. Having struck out the issues formulated by the appellant on this point, there is no valid argument canvassed by the appellants on the issues and the related grounds of appeal on this therefore it is not necessary, to comment on issue in the Respondents’ brief.
In his argument on issue (a) learned counsel for the appellant submitted that a principal should not be held liable for the acts of an independent contractor that offered services to him with regard to third parties. He cited PENNY V. WINBLEDON UNC (1899) 2 QB 72; HOLLIDAY V. NATIONAL TELEPHONE CO. (1S99) 2 QB 392. He submitted that there were however exceptions which were dependent upon a finding that the employer was himself in breach of same duty which he personally owed the plaintiffs. Learned counsel stated that the exceptions did not include ratification and that even if it did it must be evidenced by clear adoptive acts accompanied by full knowledge of all the essential facts. He relied on EASTERN CONSTRUCTION VO. V. NATIONAL TRUST CO. (1914) A.C. 197 at 213.
He submitted that the fact that a party who was sued in trespass committed by one purporting to act on his behalf had offered a compromise was no evidence of ratification. He referred to ART. 251 page 137 CLERK & LINDSELL 12TH EDITION.
He finally submitted that the trial court erred by applying the principle of ratification as an exception in order to hold the appellant liable for the tort committed by an independent contractor. He posited that IRONBAR’S case (2003) FWLR (PT.185) page 375 at 390 did not apply as same dealt with vicarious liability of a master and servant and not an independent contractor.
Learned counsel for the Respondents in his brief argued otherwise. He submitted that the defendant (appellant) having ratified the actions of the independent contractor by taking the actions which were unequivocal, the actions could not be accounted for by any other inter pretations except ratification. He relied on the unreported case in Appeal No. CA/PH/360/2009 – HRH ABRAHAM NABHON THOMAS & 10 OTHERS V. SHELL PETROLEUM DEVELOPMENT COY. (NIG.) LTD delivered by the Court of Appeal sitting in Port Harcourt on Wednesday the 24th day of November 2010. He cited also EASTERN CONSTRUCTION CO. V. NATIONAL TRUST CO. (1914) A.C. 97 at 228 and CLARK & LINDSELL ON TORY 16TH Edition pages 228 and 241.
He urged the court to affirm the decision of the lower court.
I have carefully considered the submissions of learned counsel on both sides.
It is not in dispute that there is an unchallenged finding of fact by the lower court that WILBROS NIGERIA LIMITED was an independent contractor to the appellant.
The sole issue for determination is on the liability of the appellant to the respondent in respect of the tort committed by the independent contractor, the appellant by so doing become liable. The acts of ratification listed out by the learned trial judge were.
(i) inspecting the site of blockade complained of with the plaintiffs.
(ii) Promising to take remedial action
(iii) entering into negotiation with the plaintiffs and
(iv) offering to pay compensation in the sum of N332,800.00 to the plaintiffs.
Do the above constitute ratification and is ratification an exception to the general rule that a principal shall not be held liable for the tort of an independent contractor that offers services to the third parties?
Is the appellant liable in anyway for the tort of the independent contractor?
The facts of this case are not in dispute. The Respondents in their brief adopted the statement of facts as in the appellant’s brief. The facts of this case as stated by the appellant are as follows:-
“2.01 The plaintiff/respondents case is that the defendant/appellant “caused a further dredging of Okoroba Greek without abating spoil dumps 123 and clumping more laterite and sand on the already existing spoil dumps thereby extending the dumps into the plaintiffs land out of the area initially acquired by the defendant and further causing the blockade and flooding of the plaintiffs farmland (see p. 18A of the records) underline mine. This plea of the plaintiff/respondents amount to an act of trespass if proved.
2.07 It is not a disputed fact that the defendant/appellant employed the services of a company called Wilbros Nig. Ltd for the dredging of the Creek the subject matter of this dispute.
2.08 The defendant/appellant in its amended statement of defence paragraph 3 pleaded that the said company Wilbros Nig. Ltd was an independent contractor and that it had no control over the company or, its- operations in dredging the creek (see p. 16 of the record).
2.09 It is also a fact that the defendant/appellant through DW1 offered evidence in support of the records).
2.10 The respondents b y their counsel in the address admitted that Wilbros Nigeria Limited was an independent contractor employed by the defendant/appellant (see p. 58 of the record).
2.11 It is also not disputed that the trial court made a finding of fact in its judgment that Wilbros Nigeria Limited was an independent contractor to the defendant in this suit (see p. 78 of the records).”
It is clear that the claim of the plaintiffs is in tort of nuisance. If Ade and Uche are neighbours and Uche employs the service of an independent contractor to perform an act in consequence of which Ade suffers some injury in his premises the duty of care owed Ade by Uche is non delegatable if the contractor was not careful in the performance of such act. See WILSON & CYDE COAL CO. v. ENGLISH (1938) A.C. 57 at 83 – 84. Normally a defendant will be liable for any damage arising from the accumulation of materials such as explosives gas petrol, water crude oil, sewage and in this case dump of laterite and sand on the already existing spoil dumps which thereby extended into the plaintiffs land and caused blockage and flooding of plaintiff’s farmland. See UMEDUE V. S.P.D.C. (NIG.) LTD (1975) II SC 155.
The liability of the defendant cannot be removed because he employed an independent contractor to perform the act. There is no doubt that the consequence of the dump i.e. the flooding of the farmland of the plaintiff (now respondents) was reasonably foreseeable by the appellants. See PENNY v. KENDRICKS (1956) 1W. LR 95. They had been paying compensation to affected communities under similar circumstance. It therefore seems clear to me with due respect to the learned trial judge that this matter could have been decided without resorting to the issue of ratification by the (defendant) appellant. Counsel for the appellant in his address before the lower court raised other points apart from ratification. Ratification is the approval of the principal of an act of its agent where the agent lacked authority to so do. It was not the defence of the (defendant) appellant that the independent contractor did what was not what he was employed to do. See CASSIDY V. M.O.H. (1951) 2KB. 343 at 364. It was what the independent contractor was employed to do or what was incidental to what the independent contractor was employed to do that caused the damage’ Paragraphs 3 – 5 of the statement of claim of the plaintiffs/respondents were not denied except for the averment of the defendant appellant that Wilbros Nigeria Limited was an independent contractor. Though strictly speaking, issue of ratification does not apply to the case of an independent contract or but as in this case, an adoption of the conduct of the independent contractor through acts listed in the judgment is an admission that he was instructed to perform the act which led to the litigation. The principal as well as the independent contractor are therefore equally liable for the tort committed. See SEDLEIGH DENFIELD V. O. CALLAGHAN (1940) AC. 180. But it is not every error in a case that will result in an appeal being allowed, moreso when such error does not occasion miscarriage of justice. See NWAEZE V. THE STATE (1995) 2 NWLR (PT. 428) 1; AGBI v. OGBEH (2007) 10 WRN 144; ALLI V. ALESILOYE (2000) 16 WRN 1; OJE V. BABALOLA (1991) 4 NWLR (PT. 185) 267.
The error committed by the lower court on the issue of ratification has not occasioned any miscarriage of justice.
In spite of the error of the lower court on ratification I still resolve ISSUE 1 of the Respondent’ brief in favour of the Respondents.
This appeal lacks merit’ It is accordingly dismissed with N60, 000.00 cost in favour of the Respondents.
HON. JUSTICE M. DATTIJO MUHAMMAD, J.C.A: Having had a preview of the lead judgment of my learned brother AWOTOYE JCA, I agree that the appeal lacks merit and on the basis of the reasonings and conclusion articulated in the read judgment, I also allow the appeal. I abide by the consequential orders reflected in the lead judgment.
EJEMBI EKO, J.C.A: The cause of action in this appeal was pleaded in the statement of claim. The appellant had in 1990 employed Wilbros Nig Ltd, an independent contractor, to dredge Okoroba Creek. Appellant had on the land of the respondent community three dump sites, which caused some blockage resulting in the flooding of the respondents’ farmlands and ponds. In 1992 the appellant paid compensation for the damage caused by the over flooding without removing the spoil dumps at the three dump sites that caused that flooding. This notwithstanding, the appellant further caused the “further dredging of Okoroba Creek without abating” the three spoil dumps and this aggravated the nuisance complained of by the respondents.
The argument in this appear turns on whether it is the appellant or its appointed independent contractor, Wilbros Nig Ltd, that should be held liable for damages caused by the flooding of the respondent’s farmlands in consequence of the dredging of Okoroba creek and the dumping of spoil dumps.
It is not in dispute that the appellant engaged Wilbros Nig Ltd to dredge Okoroba creek. The appellant accepted responsibility and paid compensation for damages to respondents’ farmlands which were caused by appellant’s agent, Wilbros Nig Ltd, dumping spoils on flow channels. Ordinarily, where the principal is disclosed and known it is not appropriate to proceed against the agent. The appellant, as the facts of this case disclose, had stepped in to pay compensation, as the principal of Wirbros Nig Ltd, for the flooding of the respondents, farmlands in consequence of the appellant’s agent’s unevacuated spoil dumps. By this conduct the appellant had admitted liability that it instructed Wilbros Nig Ltd., its agent, to do what the respondents complain of. Appellant, therefore, is stopped from denying liability for the continuance of the same nuisance.
By section 26 of the Evidence Act admissions, through not conclusive proof of the matters admitted, they may operate as estoppels under the provisions of Part VIII of the Act. Section 151 is one of such provision under Part VIII of the Evidence Act. It estops a party, who by his declaration or act, had intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, from denying the truth of that thing. It is on this estoppels that the respondents stand to insist on the liability of the appellant for the nuisance caused by Wilbros Nig Ltd, and avowed agent of avowed agent of the appellant, resulting in the floodings of the farmlands of the respondents. In the earlier flooding the appellant paid compensation for the resultant damage, which is an admission by conduct. By the combined effect of sections 26 and 151 of the Evidence Act the appellant is, in my judgment, stopped from denying their liability to the respondents in the peculiar facts of this case.
I am completely in agreement with my learned brother, T.O. AWOTOYE, JCA, in the judgment just delivered, that the appeal lacks merits. I also dismiss the appeal with N60, 000.00 costs in favour of the respondents.
Appearances
Appellant AbsentFor Appellant
AND
Chief F. F. Egele
S. I. AzoguFor Respondent
