THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. ELDER BANIGO I. FIRIBEB & ANOR
(2011)LCN/4968(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of December, 2011
CA/PH/168/2007
RATIO
REPRESENTATIVE CAPACITY: WHEN CAN AN ACTION BE LEGALLY MAINTAINED IN REPRESENTATIVE CAPACITY
It is clear that this action can be legally maintained in representative capacity. It is true that for an action to lie in a representative capability there must be a common interest, a common grievance and the relief claimed must be beneficial to all. See IDRISE V. WILLIAMS INT’. LTD. (1995) 1 NWLR (PT. 379) 142. In this case now an appeal, the evidence of each of PW1 Banigo Iziapwa Firibeb and PW3, Alexis Philip Kue is very consistent on the fact that the farmland affected by the spillage and the crops thereon belong to Firibeb family. Their respective evidence was not shaken under cross-examination. I agree with the learned trial judge that there is common grievance as the economic trees damaged were on family land and the defendant appellant failed to disprove this. See LADEJOBE V. OGUNTAYO (2004) 18 NWLR (PT. 904) page 149. PER T. O. AWOTOYE J.C.A
DOCTRINE OF ESTOPPEL IN PAIS: CIRCUMSTANCE IN WHICH THE DOCTRINE OF ESTOPPEL IN PAIS WILL BE APPLICABLE
According to FATAYI-WILLIAMS JSC (as he then was) in TIKA-TORE PRESS LTD V. AJIBADE ABINA (1973) 1 ALL NLR (PT. 11) 244 at 253, “… Where one party has by his words or conduct, made to the other party a promise as assurance which was intended to have legal relations between them and to be acted on accordingly then once the party has taken him at his word and acted on it, the one who gave the promise or assurance has been made by him, that he must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration but by his words.” PER T. O. AWOTOYE J.C.A
INTERFERENCE WITH THE FINDINGS OF THE LOWER COURT: CIRCUMSTANCE IN WHICH THE APPELLATE WILL NOT INTERFERE WITH THE FINDINGS OF THE LOWER COURT
The findings of the lower court are amply supported by evidence and I will not interfere with them in the absence of cogent reasons to do so. See Wolu Chem V. Gudi (1981) 5 SC 291 at 295, Balogun V. Agboola (1974) 10 SC. 111 Ike V. Ugbaja (1993) 1 NWLR (PT. 301) 539 at 555. I see no reason to fault the assessment of general damages by the learned trial judge. It is unmpeachable. PER T. O. AWOTOYE J.C.A
FINDINGS OF THE COURT: DUTY OF THE APPELLANT WHERE HE CHALLENGES THE FINDINGS OF THE LOWER COURT
…the principle is that where an appeal challenges the findings of the court from which the appeal arises, the appellant succeeds only where he shows that the findings are perverse and have resulted in miscarriage of justice. See Ojokolobo v. Alamu (1998) 9 NWLR (pt 565) 226 Adusei (2004) 4 NWLR (Pt 862) 44 and Fagbenro v. Avobadi (2006) 7 NWLR (pt 978) 174. PER M. DATTIJO MUHAMMAD (OFR)J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)
AND
1. ELDER BANIGO I. FIRIBEB
2. MR. RUFUS L. FIRIBEB
(Suing for themselves and as representing the Firibeb family of Zaakpon, KHALGA, River State) Respondent(s)
T. O. AWOTOYE J.C.A (Delivering the Leading Judgment): This is the judgment in respect of an appeal against the decision of Federal High Court Port Harcourt delivered on 29/9/2006 in suit No. FHC/PH/990/98: Between Elder Firibeb & Ors V. SPDC.
The plaintiffs at the Court below had claimed as follows:
“The plaintiffs’ claim against the defendant is for the sum of fifty million (N50, 000,000.00) naira only being and representing adequate compensation for the May, 1994 Yorla oil spillage in Yorla field in Khana Local Government Area, Rivers State which affected the fishing and farming rights of the plaintiffs.
WHEREFOR the plaintiffs jointly claim against the defendant the sum of N50,000,000.00 (Fifty Million naira) as adequate compensation for the loss sustained in consequence of the Yorla oil field crude oil spillage of 1994.”
After hearing the parties the learned trial judge gave judgment to the plaintiff as follows:-
“The defendant is liable to pay compensation to the plaintiff. The ownership of the area impacted is not an issue and has not been compensated. The plaintiff is therefore entitled to fair and adequate compensation. As the plaintiff’s claim succeed in parts of plaintiffs and order One million Naira under general damages in favour of the plaintiffs.”
The appellant being dissatisfied with the judgment filed a Notice of Appeal containing 4 Grounds of Appeal.
For clarity’s sake I reproduce the grounds of appeal (without the particulars).
“GROUND ONE:
The learned trial judge of the Federal High Court erred in law when, after holding thus:
“It is indisputable that the Defendant’s facilities are still in the area unattended to and not maintained because the community chased them away from operating in their area. The community to that extent is to be held responsible for not allowing the defendant in the area of impact so as to maintain the facilities. In the circumstances, I cannot find that the defendant is negligent in not maintaining their facilities in accordance with section 11 (5) (b) of Oil Pipelines Act.”
GROUND TWO:
The learned trial judge of the Federal High court erred in law by holding that the plaintiffs, action was properly maintained in representative capacity when the principles governing representative action are not present.
GROUND THREE
The learned trial judge of the Federal High Court erred in law when he held that the doctrine of estoppel by matter in pais did not apply in this case.
GROUND FOUR:
The learned trial judge of the Federal High Court erred in law by awarding general damage of N1, 000,000.00 (One Million Naira) to the plaintiffs when there is no legal basis to do so.
On transmission of records of appeal learned counsel for the appellant filed and served his appellant’s brief of argument but the Respondents failed to file their Respondent’s brief of argument.
On 28/6/2010, an application of the appellant this appeal was set down for hearing on the appellant’s brief only the Respondents having failed to file their brief within the time stipulated by the Ruler.
In the appellant’s adopted brief filed on 25/6/07 learned counsel for the appellant formulated 4 issue for determination. They are:-
“(i) Was the trial Court right in holding that the defendant/appellant is liable to pay compensation to the plaintiffs/Respondents on the basis that section 11 (5) (c) provides for strict liability akin to the Rule in Ryland V. Fletcher when he had earlier found the community responsible for not allowing the defendant/appellant in the area of impact so as to maintain its facilities and thus found the defendant not negligent in maintaining the facilities in accordance with section 11(5) (b) of the Oil Pipeline Act?
(ii) Was the trial Court right in holding that the Plaintiff/Respondents’ action can be legally maintained in representative capacity when, from the evidence adduced, there is no common interest, no common grievances, and the reliefs sought are not common to all the plaintiffs?
(iii) was the trial court right in holding that the doctrine of estoppel in matter in pais did not apply in this case?
(iv) was there any justifiable legal bases for the trial court to award the sum of N1, 000,000.00 (One Million Naira) to the Plaintiff/Respondents in view of the facts established and the findings of the court in respect of them?
Learned counsel for the appellant submitted that section 11(5c) of the Oil Pipelines Act 1990 provided adequate defence for the defendant/appellant in the circumstances of the case.
He argued that the plaintiff’s case could not legally be maintained in a representative capacity considering the personal and exclusive interest of PW1 as disclosed in his evidence as against that common to the members of the family as a whole.
He submitted that the plaintiffs were estopped by doctrine of estoppel by matter in pais from maintaining the action against the defendant considering the circumstances of the case. He added further that there was no legal justification for awarding the plaintiffs the sum of N1 million as general damages. He cited many authorities including:
(i) S. P. D. C. v. OTOKO (1990) 6 NWLR (pt. 159 693
(ii) Mark & Co. Ltd. V. Knight Streemship Co. Ltd (1910) 2 KB 1021
(iii) Ogamioba V. Oghene (1961) 2 NSC (5).
He finally urged the court to allow the appeal, set aside the judgment of the court below and dismiss the plaintiffs’ claim
I have carefully considered the submissions of learned counsel for the appellant.
Was the trial court right in law in giving judgment and awarding the sum of N1 million as general damages in favour of the plaintiff’s.
This appeal turns principally on the interpretation of section 11 (5 b and c) of the Oil Pipeline Act 1990, section 11 (5b and c) of the said Act state as follows:-
“The holder of a license shall pay compensation.
(b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work, structure or thing executed under the license for any such damage not otherwise made good.
(c) to any person suffering damages (other than an account of his own default or an account of his malicious act of a third person) as a consequence of any breakage of a leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good.”
Section 11 (5b and c) of the Oil Pipelines Act makes a holder of a license (in this case, the appellant) liable to pay compensation to any person suffering damages as a result of the negligence of the agent or servants or workmen of the appellant but excludes liability when the damage is caused by the default of the person suffering damage or the malicious act of a third person.
The contention of the appellant at the lower court was that the damage which led to the spillage in respect of which compensation was sought was as a result of vandalisation by Ogoni people and so the appellant was exclude from liability. However the learned trial judge found that this was not proved.
His Lordship in his judgment found as follows:
“The defence of vandalisation of facilities requires evidence lead to support the averment that the Defendant’s Yorla Bomu Pipeline was vandalized and the crude oil spilled. Mr. Kip rightly submitted that there is no evidence led by the Defence before this court to show that the alleged vandalization in Ogoni was in respect of the Yorla Bomu Pipeline. I do agree with him that the standard of proof required for claims of vandalisation and acts of a third party are high. Vandalization and acts of a third party connontes criminality and the standard of proof required is beyond reasonable doubt. It is not enough as the defence has pleaded and D.W.2 testified that there was vandalisation without linking same to the Bomu pipeline as it relates to the present spillage. The defendant in paragraph 6 (III) of their Statement of Defence pleaded that the massive destruction defendant’s facilities in Ogoni land lead to arrest and prosecution by the police.
The onus was on the Defendant to lead evidence to support these pleadings by establishing the facilities destroyed. The persons arrested and prosecuted for doing what? There is no police report nor charge which evidence I of prosecution some persons for destruction of Yorla Bomu Pipeline in order to establish the defence contention that the spillage was as a result of a third party. All I can deduce is that the defendants having averred they left Ogoni which P.W.1 in evidence confirmed that Defendant left Ogoni land leaving their facilities behind.
The defendant claim of a third party’s act cannot be sustained in the absence of any evidence.”
This finding was not challenged by the appellant in this appeal. For clarity’s sake I reproduce hereunder the grounds of appeal of appellant as per its Notice of Appeal filed on 11/12/2006 (excluding the particulars).
“GROUND ONE: The learned trial judge of the Federal High Court erred in law when, after holding thus:
“It is indisputable that the Defendant’s facilities are still in the area unattended to and not maintained because the community chased them away from operating in their area. The community to that extent is to be held responsible for not allowing the defendant in the area of impact so as to maintain the facilities. In the circumstances, I cannot find that the defendant is negligent in not maintaining their facilities in accordance with section 11 (5) (b) of Oil Pipeline Act.”
He went on to hold that the defendant is liable to pay compensation to the plaintiffs on the basis that section 11 (5)(c) provides for strict liability akin to the Rule in Rylands V. Fletcher.”
GROUND TWO the learned trial judge of the Federal High court erred in law by holding that the plaintiff’s action was properly maintained in representative capacity when the principles governing representative action are not present.
GROUND THREE; The learned trial judge of the Federal High court erred in law when he held that the doctrine of estoppel by matter in pais did not apply in this case.
GROUND FOUR: The learned trial judge erred in law by awarding general damage of N1, 000,000.00 (one Million Naira) to the plaintiffs when there is no legal basis to do so.”
Where an appellant did not appeal against a finding of a lower court, the finding remains valid and binding between the parties. See S.P.D.C. N. V. X. M Fed. Ltd. (2007) 4 WRN 80 at 102; ZEHERI V. ATHESSAN (2002) 14 NWLR (PT. 786) 52.
It follows from the above that the finding that the defendant/appellant did not prove that the damage was as a result of the malicious act of a third person is valid.
It is not the case of the appellant that the damage was as a result of the default of the plaintiff/Respondent. It therefore means that the “other than an account of his own default or an account of the malicious act of a third person” is excluded from the application of section 11(5) (c) of the Act. This means that with respect to the case of the appellant section 11(5c) of the Act should read as follows.
The holder of a license (the appellant) shall pay compensation to any person (the plaintiff/respondent) suffering damage as a consequence of any breakage of or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good.” I therefore agree with the learned trial judge when he stated that section 11(5c) of the Act provides, for strict liability akin to the Rule in Rylands and Fletcher.” The case of S.P.D.C. LTD v. CHIEF GRATEM OTOKO & ORS (1990) 6 NWLR (PT. 159) 693 cited by the appellant is clearly distinguishable from this case because in this case the malicious act of a third person was not proved unlike in S. P. D. C. LTD V. OTOKO (supra).
I resolve this issue in favour of the Respondents:
Was the trial court right in holding that the plaintiff/respondents action can be legally maintained in representative capacity? It is clear that this action can be legally maintained in representative capacity. It is true that for an action to lie in a representative capability there must be a common interest, a common grievance and the relief claimed must be beneficial to all. See IDRISE V. WILLIAMS INT’. LTD. (1995) 1 NWLR (PT. 379) 142.
In this case now an appeal, the evidence of each of PW1 Banigo Iziapwa Firibeb and PW3, Alexis Philip Kue is very consistent on the fact that the farmland affected by the spillage and the crops thereon belong to Firibeb family. Their respective evidence was not shaken under cross-examination. I agree with the learned trial judge that there is common grievance as the economic trees damaged were on family land and the defendant appellant failed to disprove this. See LADEJOBE V. OGUNTAYO (2004) 18 NWLR (PT. 904) page 149. This issue is resolved in favour of the Respondent.
Is the doctrine of estoppel by matter in pais applicable in this case to stop the plaintiffs form challenging the ex gratia arrangement?
According to FATAYI-WILLIAMS JSC (as he then was) in TIKA-TORE PRESS LTD V. AJIBADE ABINA (1973) 1 ALL NLR (PT. 11) 244 at 253, “… Where one party has by his words or conduct, made to the other party a promise as assurance which was intended to have legal relations between them and to be acted on accordingly then once the party has taken him at his word and acted on it, the one who gave the promise or assurance has been made by him, that he must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration but by his words.” I am unable to see how this doctrine applies in this case. The plaintiffs never represented to the defendant/appellant that their family land was part of community land Exhibit A, the letter dated 20/7/94 by their former counsel S. K. Igbara is clear on this. Also even before the payment of compensation to the community the plaintiff vide a letter dated 9/4/97 written by Tim Lebura Kip their new solicitor protested against such. See Exhibit E. Where then is the representation relied upon by the defendant/appellant. I therefore agree with the learned trial judge that estoppel by matter in pais does not apply in the present case. I resolve this issue in favour of the respondents.
Issue 4 is on whether there is any legal justification or awarding the plaintiffs/respondents the sum of N1 Million as general damage. The plaintiff/respondents and their witnesses gave evidence that the oil spillage affected their family land. They wrote the defendant asking for compensation. When the defendant wanted to pay to the community they protested. The defendant never did anything to crosscheck the claim of the Plaintiff. The defendant itself did not know the extent of the damage and it called no member of the community compensated to rebut the assertion that the family land of the plaintiffs was affected by the spillage. The lower court found that the plaintiff established the fact that there was oil spillage and it flowed into the land of the plaintiffs. The findings of the lower court are amply supported by evidence and I will not interfere with them in the absence of cogent reasons to do so. See Wolu Chem V. Gudi (1981) 5 SC 291 at 295, Balogun V. Agboola (1974) 10 SC. 111 Ike V. Ugbaja (1993) 1 NWLR (PT. 301) 539 at 555.
I see no reason to fault the assessment of general damages by the learned trial judge. It is unmpeachable. I resolve the fourth issue in favour of the respondents.
This appeal lacks merits. It is accordingly dismissed with cost assessed as N30, 000.00 in favour of the Respondents.
M. DATTIJO MUHAMMAD (OFR)J.C.A: I read in advance the lead judgment of my learned brother Awotoye JCA in this appeal. I agree with his lordship that the principle is that where an appeal challenges the findings of the court from which the appeal arises, the appellant succeeds only where he shows that the findings are perverse and have resulted in miscarriage of justice. See Ojokolobo v. Alamu (1998) 9 NWLR (pt 565) 226 Adusei (2004) 4 NWLR (Pt 862) 44 and Fagbenro v. Avobadi (2006) 7 NWLR (pt 978) 174. My learned brother has painstakingly demonstrated appellant’s failure in discharging the burden the law has placed on him to this end. The appeal, for this, but more so the fuller reasons contained in the lead judgment, must fail. I therefore dismiss the appeal too and abide the order of cost of the appeal made in the lead judgment.
PAUL ADAMU GALINJE, J.C.A: I read in advance the judgment just delivered by my learned brother AWOTOYE, JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat.
My learned brother has admirably resolved all the issues canvassed in this appeal in such a way that I have nothing useful to add. For the same reasons ably set out in the lead judgment, I too find this appeal unmeritorious, and accordingly dismiss same.
I abide by the consequential orders made therein, including order on cost.
Appearances
F. N. UdechukwelezeFor Appellant
AND
B. B. KpobeFor Respondent
