THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. MR. R. T. OGOLO & ORS (2016)

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. MR. R. T. OGOLO & ORS

(2016)LCN/8415(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/OW/240/2013

RATIO

COURT: JURISDICTION; SITUATIONS WHERE THE FEDERAL HIGH COURT HAS EXCLUSIVE JURISDICTION

Apart from the fact that these averments were not denied by the Appellants as Defendants, in their statement of Defense, they expressly admitted same in their paragraph 4 to the extent that they owned “Oil Locations, flow stations, Tarred Roads and oil pipelines in the area”. The undeniable position of the law is that Section 251(1)(n) of the 1999 Constitution brings issues relating to mines and minerals under the jurisdiction of the Federal High Court. The bracketed words in the Constitutional provisions (including oil fields, oil mining, Geological Surveys and natural Gas) bring comparable issues under the jurisdiction of the Federal High Court. See also Section 7(1) (n) of the Federal High Court Act, as Amended in 2005. In S.P.D.C v. MAXON (2005) 9 NWLR (Pt. 719) 541 this Court, per ACHOLONU, JCA (as he then was) observed as follows;
“It is my view that any unsavory result which is actionable in consequence of the activities of Companies engaged in operation and relating to prospection of oil, mines, minerals, Gas exploration and related geophysical works or activities, shall come within the exclusive jurisdiction of the Federal High Court to adjudicate upon.”
In the same token in the case of CHEVRON NIG. LTD. v. ROBERTS (2010) LPELR-3908, this Court per THOMAS, JCA (as he then was) stated; “It is trite law, that where a cause or matter is arising from pertaining to or connected with mines, minerals, oil, oil exploration or geophysical surveys, it is only Federal High Court as created by the Constitution of Nigeria in Section 251 that has exclusive jurisdiction.”
Arising from this position, the Appellant cannot under stretch of imagination be said not to have constructed the Tarred Roads which necessarily includes the construction of adequate drainages, burrow pits, and the making of earth mounds to assist in its activities of oil prospecting and exploration in the area. Where they are found to be negligent in the cause of constructing such tarred roads, drainages, burrow pits and earth mounds, I see no reason why they cannot be sued for negligence and for damages arising from such activities at the appropriate Court, which happens to be the Federal High Court under Section 251(1)(n) of the 1999 Constitution of Nigeria as Amended. This issue is resolved in favour of the Respondent. PER. FREDERICK OZIAKPONO OHO, J.C.A.

EVIDENCE: EVIDENCE OF FACTS NOT PLEADED; THE POSITION OF THE LAW ON THE EVIDENCE LED ON FACTS NOT PLEADED

To get by this position, what must be taken into consideration is the state of the pleadings of the parties and the evidence led in support. The Appellants had alleged that the construction of the drainage and the mound had been in existence before the Respondents came there to construct their Richpat Farms thereon. They also alleged that apart from the fact that Respondents by so doing consented to the risk inherent in the nature of the place, that indeed the heavy rainfall and deluge which wrecked the Farm of the Respondents was indeed an act of God. I have taken my time to examine the Appellant’s pleadings at pages 31 to 32 of the Records. There is nowhere in all its ten (10) paragraphs statement of Defense did it plead that the Appellants had completed its road construction and drainages before the Respondents came to the area to site its farm. In addition and as rightly found out by the lower Court, the claim of the Appellant that the flooding was also an Act of God was also not pleaded. The position of the law is that evidence led on facts not pleaded goes to no issue. See the cases of AMOBI v. AMOBI (1996) 8 NWLR (Pt. 469) 638 SC; OLOWOFOYEKU v. A.G. OYO STATE (1996) 10 NWLR (Pt. 417) 190 SC and ITO v. EKPE (2000) 2 SC 98. PER. FREDERICK OZIAKPONO OHO, J.C.A.

DAMAGES: THE POSITION OF THE LAW CONCERNING THE PLEADING OF SPECIAL DAMAGES

The position of the law is that special damages must be specifically pleaded and strictly proved and that they must be in respect of claimable heads of damages, which should easily lend themselves to qualification and assessment. See the cases ofOKUNZUA v. AMOSU (1992) NWLR (Pt. 248) 416; NGILARI v. MOTHERCAT LTD (1999) 13 NWLR (Pt. 636) 626. However, strict proof does not mean unusual proof and does not mean that the law requires an extra-ordinary measure of evidence to establish entitlement to special damages. See the case of OSHIJIRIN & ORS v. ELIAS & ORS (1970) LPELR-2799 (SC) where the Supreme Court per COKER, JSC had this to say on the subject;
“Undoubtedly the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlements to special damages. What is required is that the person claiming should establish his entitlement to that of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under the head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.” See also the cases of NWANAJI v. COASTAL SERVICES (NIG.) LTD S.A. (2004) 11 NWLR (Pt. 885) 552, 567 and ZERIGBE v. DAVE ENGINEERING CO. LTD (1994) 1 NWLR (Pt. 361) 140 on this issue. PER. FREDERICK OZIAKPONO OHO, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

THE SHELL PETROLEUM DEV. CO. OF NIG. LTD. Appellant(s)

AND

1. MR. R. T. OGOLO
2. MR. C. A. ERASMUS
3. MADAM PATIENCE JAJA
(For themselves and as Representing RICHPAT FARMS) Respondent(s)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal amongst a host of other issues principally revolves around the perennial problem of delimiting the Jurisdiction of the Federal High Court under Section 251 (1) of the Constitution of Nigeria 1999 (as Amended) with regards to a claim, on the one hand whose subject matter the Appellant has insisted is grounded in negligence and damages on the Respondent’s properties; Farm House and Farm Animals and on the other hand, one whose subject matter the Respondent did not dispute, but had insisted the cause of action arose in 1996 long before the commencement of the 1999 Constitution (as amended) and particularly Section 251(1) of the said Constitution. The issue of proper evaluation of documentary evidence and as well the consideration of the tort of negligence and the question of damages were also dealt with.

?In suit number FHC/UM/CS/74/2004 filed at the Federal High Court, sitting at Umuahia, Abia State of Nigeria, the Plaintiffs (who is hereinafter referred to as “the Respondent”) by a writ of summons dated the 20-3-1999 and filed on 22-3-1999 claimed against the

Defendant (who is hereinafter referred to as “the Appellant”) the following reliefs:
“Therefore the Plaintiffs’ Claim against the Defendant is for the sum of N63,000,000.00 being special and general damages suffered by the Plaintiffs as a result of flood caused by the Defendant.”

Pleadings were subsequently ordered and the Respondents filed their Amended statement of claim dated the 7-11-2006. The Appellant filed its statement of defence dated and filed on the 21-6-2000. The Respondents as Plaintiffs called two witnesses in proof of their case while the Appellant as Defendant called one witness. The Lower Court having heard the cases of the parties and held that the Respondents have sufficiently pleaded negligence and have adduced credible evidence to show a duty of care owned them by the Appellant and that same was breached and that the Respondents have suffered damages in the sum of Twenty-One Million, Six Hundred and Two Thousand, Three Hundred and Twenty Four Naira, Fifty Kobo (N21,602,324.50) as special and general damages. See page 205 of the records. Judgment was therefore entered against the Appellant on the 22nd February, 2013.<br< p=””

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Dissatisfied with the lower Court’s judgment, the Appellant has appealed to the Court of Appeal by a Notice of Appeal dated 25th February, 2013. The Appellant with leave of Court filed an Amended Notice of Appeal dated 30th of January, 2015. There are a total of five (5) Grounds of Appeal. These Grounds of Appeal are reproduced here without their particulars as follows;
GROUNDS OF APPEAL:
1. The learned trial Judge erred in law and in fact when he held that it was the Appellant’s negligence that caused the flooding of the Respondents’ farm.
2. The learned trial Judge erred in law and in fact when it held that the Respondents led evidence to prove their case and held the Appellant liable for the alleged flood disaster to the Respondents’ farm.
3. The learned trial judge erred in law when he relied on the valuation report tendered by the Respondents as a basis for the award of the sum of N11,602,324.50k as Special damages in that the award was an entirely erroneous estimate of the loss suffered by the Respondents and an arbitrary exercise of discretion.
4. The learned trial judge erred in law in awarding a total sum of N21,602,324.00

as damages.
5. The Court lacks the jurisdiction to entertain the matter.

?Parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by OLUSOLA LANIYAN, Esq. dated and filed 18-3-2015, a total of four (4) issues were distilled from the five (5) Grounds of Appeal for the Courts determination to wit:
1. Whether the Federal High Court has jurisdiction to entertain the Respondents’ matter.
2. Whether the trial Judge was right in entering judgment against the Appellant when the Respondents failed to prove that the Appellant caused the flood that damaged their farm.
3. Whether the learned trial Court was right to rely on Exhibit “4” to award special damages after finding that Exhibit “4” and its maker were unreliable.
4. Whether the award of N11,602,324.50 as special damages and N10,000,000.00 as general damages totaling N21,602,324.50 (Twenty-One Million, Six Hundred and Two Thousand, Three Hundred and Twenty-Four Naira, Fifty Kobo) against the Appellant as damages is correct and or sustainable in law.

?The Respondents’ brief of argument was settled by R. O. AGBESOR, Esq. He filed a notice of

Preliminary Objection which he also incorporated in his brief filed on the 21-4-2015. The Preliminary Objection taken by the Respondents to the hearing of this Appeal is anchored on the issue of the competence of the Amended Notice of Appeal and also raised in the alternative is the striking out of issue three (3), which the Respondents said, is also incompetent.

In the alternative and in case the Respondents are overruled in their Notice of preliminary objection, raised herein, Respondents nominated the following issues for the Court’s determination;
1. Whether in view of S. 251(1) of the 1999 Constitution as Amended the Federal High Court has jurisdiction to entertain the Respondents’ matter? (Ground 5).
2. Whether the considering the totality of the oral and documentary evidence canvassed at the trial the lower Court was not right in its judgment that the negligent acts of the Appellant caused the flood which damaged the Respondents’ Richpat Farms. (Grounds 1 and 2).
3. Whether the trial judge rightly evaluated the oral and documentary evidence before awarding special and general damages in favour of the Respondents. (Grounds 3 and 4).<br< p=””</br<

It is important to note that the issues identified by the Respondents are clearly identical to the ones nominated by the Appellant and that for this reason this Court shall determine this Appeal based on the issues nominated by the Appellant, if not for any reason, at least for sake of comprehensiveness. But before this is done, the appropriate thing for obvious reason will be to consider the Notice of Preliminary Objection raised in this matter by the Respondents.

DETERMINATION OF THE NOTICE OF PRELIMINARY OBJECTION
The first argument of learned Counsel for the Respondents in support of the Notice of Preliminary Objection is that from the facts disclosed on face of the Amended Notice of Appeal, the Appeal filed is from the decision contained in the judgment of Hon. Justice U. G. Umar of the Federal High Court sitting at Umuahia. According to learned Respondents’ Counsel the Constitution confers the right of Appeal from or against the decisions of Courts and conferred jurisdiction on the Court of Appeal to hear such Appeals, but that no such jurisdiction is conferred to hear and determine Appeals from the decisions of Judges/Courts including

the ones named in Section 240 of the Constitution of Nigeria 1999 as Amended.

It was the contention of Counsel that in the Amended Notice of Appeal the decision sought to be appealed against is not that of the Federal High Court Holden at Umuahia but the personal decision of Hon. Justice U. G. Umar who was the Judge of the Federal High Court that delivered the Judgment. Counsel on account of this urged this Court to hold that the Amended Notice of Appeal is not only bad but incurable defective and incompetent.

Learned Counsel also argued that Particular C of the Ground 3 of the Amended Notice of Appeal did not arise from the Ground founded on the decision of the lower Court. It was his further contention that all particulars must relate to and flow from the Grounds of Appeal. Counsel referred Court to the case of ARIBO v. CBN & ANOR. (2008) 12 NWLR (Pt. 1260) 133, 153 and also the case of VINCENT v. VINCENT (2008) 11 NWLR (Pt. 1097) 35 in support. According to learned Counsel there was nowhere in the decision of the lower Court where the Court found exhibit 4 unreliable. Learned Counsel urged the Court to strike out paragraph C of Ground 3.<br< p=””

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Learned Counsel also made an alternative submission concerning Ground 3 of the Amended Notice of Appeal. He contended that the substance of Ground 3 of the Amended Notice of Appeal is that the valuation report tendered by the Respondent contained erroneous estimates of the loss suffered by them yet the lower Court relied on it in awarding special damages. Counsel argued that for a Ground of Appeal to be proper and valid, it must relate to its Particulars and that the penalty for failure in this direction is that the said Ground will be liable to be struck out. Apart from this, Counsel contended that no issue was distilled from Ground 3 and he urged Court to strike out Ground 3 of the Amended Notice of Appeal as having been abandoned.

It was also contended that issue 3 nominated for determination by the Appellant does not emanate or arise from any of the Grounds of Appeal in the Amended Notice of Appeal. He said that for this reason issue 3 is incompetent and urged the Court to strike it out.

?In his response concerning the Respondents’ argument that the Appellant’s Amended Notice of Appeal is defective and incompetent, because it is not against the decision

of the Federal High Court, Umuahia learned Appellant’s Counsel submitted that the Respondents’ motion on Notice on the issue is an Academic exercise on semantics as the introductory sentences of the Amended Notice of Appeal does not contain the substance of the Amended Notice of Appeal and by which the competence or otherwise of the Appeal can be judged. According to counsel, when the introductory sentence in the instant Amended Notice of Appeal is read, it will leave no one in doubt that the instant Appeal is against the Federal High Court decision sitting at Umuahia, presided over by Hon. Justice G. M. Umar.

?Learned Counsel further told Court that the Respondents were not misled by the shortcoming and that the case law relied upon by Respondents are on the general principles of law dealing with cases of defective Notices of Appeal and that they are therefore not relevant to the objection raised to the hearing of the Appeal. He urged Court to discountenance them. Apart from these Learned Counsel submitted that it would be unjust to penalize a party for any default, grammatical error or mistake emanating from the Chambers of the learned Counsel to the

party or Registry of Court or Tribunal for a matter beyond the party’s control. Counsel cited the following cases in support; ALADI v. AJIBOLA (2004) 16 NWLR (Pt. 898) 91 AT 188-192; CARLEN v. UNIVERSITY OF JOS (1994) 1 NWLR (Pt. 232) 231; and NKWOCHA v. FED. UNIVERSITY OF TECHNOLOGY (1996) 1 NWLR (Pt. 422) 112.

On account of the Respondents’ arguments concerning the particular C of Ground 3, of the Amended Notice of Appeal, learned Counsel submitted that Particular C relates to Ground 3 and arises from the decision of the lower Court. In addition, Counsel argued that Issue 3 is distilled from Ground 3 of the Amended Notice of Appeal and that it relates to and arises from Ground 3 of the Grounds and Notice of Appeal. He urged Court to discountenance the arguments of learned Respondent’s Counsel that no issue was distilled from Ground 3 of the Amended Notice of Appeal.

In resolving the issues involved in the Notice of Preliminary Objection, there are two factors immediately at play. One is the objection raised concerning the preambles of the Amended Notice of Appeal which learned Respondents Counsel has said does not show that the Appeal filed

herein, is one taken against the decision of the Federal High Court but against the decision of Hon. Justice U. G. Umar. The others are the objections raised concerning the validity or otherwise of a few Grounds of Appeal and issues raised thereon but not specifically against the hearing of the entire Appeal. It may be important to state clearly here, that the Notice of Preliminary Objection in both instances are clearly hinged on factors which make them absolutely un-grantable in the least.

The Objection taken as to the competence or otherwise of the Amended Notice of Appeal simply because of an obvious mix-up or so it seemed in the opening sentences of the Amended Notice of Appeal, is an unnecessary way of promoting technicality at the expense of substantial justice. The attitude of this Court is based primarily on doing substantial justice without much adherence to any form of technicality. The decisions of this Court and as well as those of the Apex Court on issues of this nature are replete with admonitions directing that on no account should technicality be allowed to stand on the way of substantial justice. See the case of BELLO v. ATTN-GEN. OF OYO

STATE (1986) 5 NWLR (Pt. 45) 828 AT 831-837 where it was held as follows;
“It is not necessary that the provisions of a statute be met strictly to the letter, what matters is a substantial compliance. The Court is more interested in substance than in mere form as justice can only be done if the substance of a matter is examined rather than relying on mere technicalities.”

Having carefully read the preliminary or introductory parts of the Amended Notice of Appeal herein, I am absolutely left with no doubt whatsoever that this Appeal is clearly against the decision of the Federal High Court sitting at Umuahia, and containing the Judgment of the Hon. Justice G. M. Umar. I am therefore unable to disagree with learned Appellant’s Counsel that the Objection raised does not amount to a nervous adherence to form. The fact that the Respondents were not in any way misled is clearly obvious and I therefore find and do hold at this stage that that leg of the Respondents’ Objection holds no water absolutely and it is accordingly overruled.

?On account of the objection taken as to the validity or otherwise of a few Grounds of Appeal and nominated issues, it is

important to state that the purpose of a preliminary Objection to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO v. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418. But that where the substance of the Notice of Preliminary objection against the hearing of the Appellant’s Appeal is indeed an objection, not taken against the hearing of the Appeal as such, but one which primarily quarrels against some Grounds of Appeal or issues raised, then it cannot amount to a preliminary Objection to the hearing of the Appeal. In the case of GENERAL ELECTRIC CO. v. HARRY AKANDE (2011) 4 NSCQR p. 611 the Supreme Court was of the opinion that where as in this Appeal the preliminary objection is filed against some Grounds of Appeal and there are other Grounds of Appeal that can sustain the appeal, a preliminary objection was inappropriate. The Court is also of the view that the Respondents ought to have filed a Motion of Notice since the preliminary objection if

successful, would not have terminated the hearing of the appeal as there were other Grounds of Appeal to sustain the appeal. According to the Supreme Court on the issue, Preliminary Objections are only filed against the hearing of an appeal and not against just one or more grounds of appeal which cannot stop the Court from hearing the appeal. See also the recent case of ADEJUMO v. OLAWIYE (2014) 12 NWLR (Pt. 1421) 252 AT 265 RATIO 15, where the Supreme Court per BODE RHODES-VIVOUR, JSC had this to say on the issue;
“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a Preliminary Objection terminates the hearing of an Appeal. Where a Preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”

On the strength of this and several

decided authorities on the issue, I hereby find and do hold that the Notice of Preliminary Objection filed by the Respondents, same having not been filed against the hearing of the entire Appeal per se, but against a few Grounds of Appeal, is therefore inappropriate in the circumstance in disturbing the hearing of this Appeal. On account of this development, this Court shall therefore go ahead and determine this Appeal on its merit.

DETERMINATION OF THE SUBSTANTIVE APPEAL
ARGUMENTS OF APPELLANT’S COUNSEL:
ISSUE ONE;
Whether the Federal High Court has jurisdiction to entertain the Respondents’ matter.
Apart from the fact that learned Appellant’s Counsel obtained the leave of Court to raise the issue of jurisdiction for the first time on appeal, Counsel submitted that the issue of jurisdiction of a Court to entertain a matter being a fundamental one that goes to the roots of the matter, can therefore be raised at any stage of the proceedings on Appeal either in this Court or in the Supreme Court for the first time or even viva voce. Counsel cited the cases of EZOMO v. OYAKHIRE (1985) 1 NWLR (Pt. 2) 195; OLOBA v. AKEREJA (1988) 3 NWLR (Pt.

34) 508; SAUDE v. ABDULLAHI (1998) 4 NWLR (Pt. 116) 387; OPITI v. OGBEIWI (1992) 4 NWLR (Pt. 234) 184 AT 192; P. E. LTD v. LEVENTIS TRADING CO. LTD (1992) 5 NWLR (Pt. 244) 675 AT 693 in support.

It was also submitted by Counsel that in order to ascertain whether a Court has jurisdiction, regard must be had to what the Plaintiff is claiming and that this can only be gleaned from the endorsement on the writ of summons and the statement of claim. He cited the case of ONUORAH v. K.R.P.C. LTD (2005) 6 NWLR (Pt. 921) 393 AT 404 in support. In determining the jurisdiction of the Federal High Court under S.251 (1) of the 1999 Constitution as amended, Counsel said that the parties in the litigation and as well as the subject matter of the litigation must be taken into consideration. He cited the case of ADETAYO v. ADEMOLA (2010) 15 NWLR (Pt. 1215) 191; NEPA v. EDEGBERO (2002) 18 NWLR (Pt. 799) 79 in support.

?Learned Counsel referred to the Respondents’ claims as shown in their writ of summons and statement of claim at pages 3, 13 and 20 of the records and submitted that the claim is founded on negligence and damages. According to learned counsel, the averments

in the Plaintiffs’ statement of claim and the relief sought, leave no doubt that the Plaintiffs’ action was predicated on negligence and damages on the Respondents’ properties. He cited the case of SADIKWU v. DALORI (1996) 5 NWLR (Pt. 447) 162. Having demonstrated that the Plaintiffs’ action was an action grounded on negligence on land and damages thereto, Counsel said that the consequence is that the Federal High Court was wrong in assuming jurisdiction in the plaintiffs’ action.

It was further argued by Counsel that Sections 39 and 41 of the Land Use Act have denoted and delineated the Courts that are vested with jurisdiction to entertain actions that are grounded in land matters which do not include the Federal High Court. Counsel cited the case of N.I.M.R. v. N.U.R.T.W (2010) 12 NWLR (Pt. 1208) 349, 350 in support. It was contended that under Section 251 (1) of the 1999 Constitution as amended, the Federal High Court does not have jurisdiction to entertain actions which are grounded on the tort of negligence committed on the landed property of another and that from the averments in the Statement of Claim at pages 9-14 and 16-21 of the Records, the

subject matter relates to land and negligence. He further contended that there is nothing in the statement of claim that relates to the issue of oil, mining and minerals under Section 251 of the 1999 Constitution and by which the Federal High Court would have been conferred with the requisite jurisdiction to entertain the case.

It was the argument of learned Counsel that Section 251(1) of the 1999 Constitution is the provision that defines the jurisdiction of the Federal High Court and that anything not expressly and specifically mentioned in the said Section 251 or in respect of which jurisdiction is not expressly conferred on the Federal High Court by an Act of the National Assembly is excluded from the jurisdiction of the Federal High Court. He referred this Court to the cases of TUKUR v. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 AT 517 AT 541 and LUFTHANSA GERMAN AIRLINES v. ODIESE 2006, 7 NWLR (Pt. 978) 34 AT 86 in support. Learned Counsel also referred to the case of EBITEH v. OBIKI (1992) 5 NWLR (Pt. 243) p. 614 paragraphs E-F: where this Court held as follows:
“… By virtue of the unlimited jurisdiction conferred on the State

High Courts by Section 236(1) of the Constitution of Nigeria 1979, the State High Courts in the Federation have jurisdiction to determine and hear matters affecting land throughout the State, irrespective of whether land is situated in an area designated as urban area or non-urban area?”

Learned Counsel also argued that the mere fact that the Appellant is an oil prospecting company has nothing to do with the Plaintiff’s claim in this case and does not confer jurisdiction on the Federal High Court. He further argued that what matters is the substance of the Plaintiff’s claim and the reliefs sought. Counsel cited the cases of ADETONA v. ZENITH INT. BANK LTD (2009) 3 NWLR (Pt. 1129) 577; TRADE BANK PLC v. BENILUX NIG. LTD (2003) 9 NWLR (Pt. 825) 416; NKUME v. ODILI (2006) 6 NWLR (Pt. 977) 587 in support. Counsel further argued that in the present case the substance of the Plaintiffs’ claim pertains to damages caused to their farm by flood disaster and that the subject matter involved the consideration of the alleged negligence act of the Appellant in constructing roads, drainages and heaping of earth mounds along the road for the benefit of its host

community. According to Counsel, this has nothing to do with mines and oil minerals under Section 251(1) of the 1999 Constitution and he cited the case of S.P.D.C.N. LTD v. BENIGBO (2010) 6 NWLR (Pt. 1190) p.421 in support.

Against the backdrop of Counsel’s arguments, he submitted that jurisdiction is the bedrock of adjudication and that in the absence of jurisdiction of a trial Court, the entire proceedings and orders of the lower Court are null, void and of no effect and/or consequences. Counsel cited the locus Classicus in the case of MADUKOLU & ORS v. NKEMDILIM (1962) 2 SCLNR 341 and the case of LADOJA v. INEC (2007) 12 NWLR (Pt. 1047) 97 AT 111. Learned Counsel further submitted that the judgment sum of N21,602,324.50 representing special and general damages in the final judgment of the lower Court dated the 22nd day of February, 2013 were therefore made without jurisdiction. An order made without jurisdiction, Counsel said is a nullity and must be set aside. He cited the case of ONYEMA & ORS v. OPUTA & ORS (1987) 6 SC where OPUTA, JSC said:
“…Jurisdiction is fundamental and crucial for if there is want of jurisdiction the

proceedings thereafter will be affected by a fundamental vice and would become a nullity no matter how well conducted they might otherwise be. Again submitted to jurisdiction of the Court is no answer to want of jurisdiction for a total want of jurisdiction cannot be cured by the assent of the parties. If the Court does not possess an initial jurisdiction over the subject matter, it is not possible that the consent of the individual could confer such jurisdiction.”

See also UKWU v. BUNGE (1997) 51 LRCN 1767 AT 1786; TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517 AT 545 and MUSTAPHA v. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (P. 58) 539. On this issue, learned Counsel finally submitted that the Federal High Court was therefore in error in assuming jurisdiction over the matter since the cause of action had nothing to do with mines and minerals, including oil fields, oil mining, geological surveys and natural gas under Section 251 (1)(n) of the 1999 Constitution. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Whether the trial Judge was right in entering judgment against the Appellant when the

Respondents failed to prove that the Appellant caused the flood that damaged in their farm.

Learned Counsel opened his arguments on this issue by submitting that the Respondents failed to prove their case against the Appellant when they failed to lead credible evidence to prove that the Appellant owed them a duty of care and a breach of that duty. Counsel argued that evidence led by the Respondents showed that the Appellant has established its presence around the claim site before the Respondents established their Farm thereon with the attendance risks involved. Counsel further disclosed that the Appellant had constructed the tarred road, drainage gutter and earth mounds to check the seasonal erosion at the claim site before the Respondents established their farm. He emphasized that there is no evidence before the Court establishing the contrary that the Appellant constructed the road, drainage gutter and earth mounds at or around the claim site after the Respondents established their alleged farm. Counsel further said the Respondents ought to have known that their farm is lower than the surrounding environment and take adequate steps to protect their

said farm from flood, which they failed to do.

According to learned Counsel during the cross examination of PW1 at page 172 of the records of appeal, the Respondents admitted that the Appellant had its presence around the claim site before they established their farm in a basin and that the burrow pits around the claim site were dug before Respondents came to the site. It was submitted by Counsel that the fact that Respondents established their farm on a basin/slope after the Appellant had its presence around the claim site supports the doctrine of volenti non fit injuria while the Respondents failed to take any measures to protect their farm against flood which continued to threaten it.

Learned Counsel said that evidence before the Court shows that the Respondents negligently established their said farm on a basin which is prone to seasonal flooding. Counsel referred Court to Exhibits 5 and 6, that is, the survey plan and topographic data of the claim site prepared by Appellant’s experts, which was not challenged and remained uncontroverted by the Respondents. It was further argued by counsel that the Respondents did not deny the fact that their

farm as shown in Exhibits 5 and 6 is on a basin/slope and therefore prone to seasonal flooding. Arising from this position, Counsel contended that it is the mischievous, deliberate and conscious act of the Respondents in establishing their farm on a basin that contributed to the flooding of the said farm. He urged the Court to so hold.

Counsel cited the case of S.P.D.C. v. OTOKO (1990) 6 NWLR (Pt. 159) 693 AT 725 in support and contended that the learned trial Court was wrong in holding that the negligence of the Appellant in making shallow drainage and the earth mound around the area caused the flooding of the Respondents’ farm. In addition he said that the learned trial judge failed to take into consideration the uncontroverted and un-contradicted evidence of the Appellant in Exhibits 5 and 6 which showed that the Respondents’ farm is on a basin/slope prone to seasonal flooding. It was further submitted by Counsel that where a party’s testimony remains uncontroverted, un-contradicted or unshaken during cross-examination, the Court is entitled to accept such evidence as proof of the fact in issue.

?It was argued by Counsel that the Respondents’ PW1

admitted during cross-examination in page 151 of the Records that other farmlands within the claim site around the Respondents farm were not affected during the flood. Counsel also submitted that from the totality of the evidence before the Court, the Respondents failed to prove that it was the Appellant’s act that caused the flooding of their farm, since they knowingly and negligently constructed on a basin/slope. Counsel argued that the Appellants’ construction of road, gutter and earth mound were justifiably done to stop erosion and or flood in the area around the claim site. It was further submitted that from the evidence before the Court the Respondents knew the direct and remote cause of the flood on their farm as borne out in their Statement of Claim. In this connection Counsel referred Court to paragraphs 9 and 10 of the Respondent’s Statement of Claim, where the Respondents pleaded that it was an unprecedented three days and nights continuous down pour that caused the flood disaster to their farm.

?According to learned Counsel, the Appellant not being a rain maker, the only logical explanation to the cause of the alleged flood of the Respondents’

farm according to the Respondents is that it was an act of God and he urged this Court to so hold. It was also submitted by Counsel that from the evidence led, the flood can only be an act of God as suggested by the Respondents in their pleadings and not the act of the Appellant. Counsel said that the Appellant’s denial of liability in the flooding of the Respondents’ farm was neither challenged nor controverted by the Respondent either by pleading or cross-examination. The Appellant’s assertion and proof that it was not its negligence that caused the flooding of the Respondent’s farm was equally not challenged or controverted by the Respondent. Counsel argued that there is no shred of evidence before the Court establishing the liability or negligence of the Appellant in the alleged events that led to the suit and that the only expert evidence before the Court, i.e. Exhibit 5 and 6 established that the Respondents knowingly put their farm on a basin/slope naturally prone to seasonal flooding and neglected to take any steps to protect the said farm.

?Counsel also drew attention to the fact that the Appellant pleaded and produced expert evidence that it was

not the road construction, drainage and or earth mound around the claim site before the presence of the Respondents that caused the flood to the Respondents’ farm. He said that the Respondents failed to call any evidence in rebuttal and thus failed to prove their case on the balance of probability and urged this Court to so hold. It was also submitted by Counsel that the defense of Act of God is not an after-thought since the Respondents in their statement of claim pleaded facts that reasonably established that the alleged flood could only be Act of God and not caused by anyone including the Appellant. Counsel therefore submitted that the Appellant rightly relied on it, without pleading same. He referred this Court to the case of SKETCH PUBLISHING CO. LTD v. AJAGBEMOKEFERI (1989) 1 NWLR (Pt. 100) 678 AT 695 and 711 on this issue. Counsel urged this Court to resolve this issue in favour of the Appellant and to hold that the trial judge was wrong in entering judgment against the Appellant when the Respondents failed to prove that the Appellant caused the flood that damaged their farm.

ISSUES THREE & FOUR:
Whether the learned trial Court was right

to rely on Exhibit “4” to award special damages after finding that Exhibit “4” and its maker were unreliable.
Whether the award of N11,602,324.50 as special damages and N10,000.000.00 as general damages totaling N21,602,324.50 (Twenty-One Million, Six Hundred and Two Thousand, Three Hundred and Twenty Four Naira, Fifty Kobo) against the Appellant as damages is correct and or sustainable in law.

Learned Counsel informed this Court of the trial Court’s award of the sum of N11,602,324.50k as special damages and another sum of N10,000.000.00 as general damages the total of which amounted to sum of Twenty-One Million, Six Hundred and Two Thousand, Three Hundred and Twenty Four Naira, Fifty Kobo (N21,602,324.50) against the Appellant as damages. In so deciding, learned Counsel told Court that the trial Court relied on the valuation report prepared by the PW2 and admitted in evidence as Exhibit 4 to support their claim of special damages. It was submitted by learned Counsel that the contents of Exhibit 4 were neither pleaded nor any of the particulars of the Exhibits which are relevant and materially in support of the special damages awarded stated.

?It

was further submitted by Counsel that the Respondents also failed to provide credible evidence in support of their claim of special damages as required and that the trial Court rightly made a finding of fact that the expert evidence in support of the claim for special damages in Exhibit 4 is manifestly unreliable because the maker, the PW2 was not a witness of truth. Learned Counsel referred this Court to pages 205 and 206 of the Records in this connection.

It was the argument of learned Counsel that the trial Court having not placed reliance on the PW2’s evidence, i.e., the maker of Exhibit 4 ? Valuation Report, in awarding the special damages in the sum of N11,602,324.50K, then the award was one that was made in error as the Respondents, had failed to meet the requisite standard for the grant of special damages as laid down by the Supreme Court, that items of special damages must be strictly pleaded and proved with particularity. Counsel referred this Court to the case of S.P.D.C. (NIG.) LTD v. TIEBO VII (2008) 9 NWLR (Pt. 931) 439 in support. It was therefore submitted by Counsel that the said award of the sum of N11,602,324.50k made in favour of

the Respondents was erroneously made as same was not based on established principles of law and a proper evaluation of the evidence before the learned trial judge. Apart from this, Counsel submitted that the items of claim in Exhibit 4 are not grantable because they are not strictly pleaded and proved by cogent evidence in addition to the fact that it failed to meet the strict requirements of the law for a claim of special damages. He cited the case of CALABAR EAST COOP v. IKOT (1999) 14 NWLR (Pt. 638) 225 AT 240 on this issue.

?It was further argued by learned Counsel that evidence before the Court showed that it was the PW2, a Veterinary Surgeon and Animal Scientist that prepared the Valuation Report – Exhibit 4, relied upon by the Respondents to prove their claim for special damages. According to Counsel, there is no shred of evidence before the trial Court to show that the PW2 was an expert in Agricultural produce, a professional psychologist, Corporate Consultant or a qualified valuer to value items 3, 4, 5 and 6 in Exhibit 4. But that evidence before the trial Court showed that the PW2 relied on what he was told by the PW1 in order to put Exhibit 4

together, which therefore made Exhibit 4 a documentary hearsay and which the trial Court ought to have rejected totally rather than picking and choosing as the Court did.

Learned Counsel also told Court that the PW2 at page 156 of the Records of Appeal stated that he did the Valuation of the Respondents’ farm in his office in Port Harcourt from the information the PW1 gave him and said that the PW2 did not see or interview any of the Respondents or staff of Richpat Farm to determine their earnings to arrive at the Value in item 5 (Valuation on loss due to allowance of the Respondents). It was also submitted that the evidence before the trial Court showed that Exhibit 4 – Valuation Report and Exhibit 3 – post mortem, heavily relied upon by the Respondents were inelegantly concocted and fabricated for the purpose of the suit. In addition, Counsel submitted that the trial Court was in error to have relied on any of the items in Exhibit 4 when same was manifestly contradictory and unbelievable and that evidence before the trial Court showed that Exhibit 4 was based on opinion of other persons and not that of the PW2, the expert.

?Counsel contended that

the burden is on anyone claiming that he suffered special damages to establish his entitlement to it by comprehensive and credible evidence which must incorporate all the relevant conditions required in proof of special damages before it is regarded as adequate proof. Counsel referred Court to the case of OSHINJINRIN v. ELIAS (1970) 1 ALL NLR 153 AT 156 on this issue. According to Counsel the standard required was not achieved in this case because the PW2 had no business to value some of the items he allegedly valued in Exhibit 4. It was also argued by Counsel that evidence led in proof of special damages must show the same particularity as is necessary for its pleading and that where it is defective, unbelievable and unreliable as in this case, the Court ought not to award the claim. He referred to the case of ADEDEJI & SONS MOTORS LTD. v. INNEH (1996) 8 NWLR (Pt. 465) 240 AT 246 in support.

?Learned Counsel drew attention to pages 205-206 of the Records where the trial Court held that since the Appellant did not sufficiently challenge or deny items, 3, 4, 5 and 6 of Exhibit 4 that same are grantable. Counsel said that this was an obvious error on the

part of the trial Court as it was wrong for the learned trial judge to hold that items 3, 4, 5, 6 and 7 have not been denied and therefore grantable. He said that the Appellant at paragraph 10 of its statement of defense denied paragraph 30 (erroneously numbered 28) in this Statement of Claim. He therefore submitted that the law with regards to damages is that they are deemed to be an issue whether special or general and whether the alleged damage is part of the cause of action or not. And that where there is any allegation that a party has suffered damages, the allegation as to the amount of damages is deemed to be traversed unless specially admitted. Counsel cited the cases of OSUJI v. ISIOCHA (1989) 3 NWLR (Pt. 111) 623 AT 640; PRODUCING MARKETING BOARD v. ADEWUNMI (1972) 11 SC 111; NGILARI v. MOTHERCAT LTD. (1999) 13 NWLR (Pt. 636) 622 AT 647 in support.

?It was further argued by Counsel that the trial judge misdirected himself when he held that the Appellant did not sufficiently challenge or deny items 3, 4, 5 and 6 of Exhibit 4 as there is no such thing as an implied admission to a claim for damages where a party has filed a defense or where the

statement of defense contained no reference to the question of damages. It was submitted by Counsel that the view of the learned trial judge was erroneous and it is implicit in the denial of liability which the Appellant had clearly done in its statement of defense that the damages claimed by the Respondents were also being denied. Counsel referred Court to CALABAR CEMENT COMPANY LTD v. DANIEL (1991) 4 NWLR (Pt. 188) 750 AT 760. It was further submitted that the law is that unchallenged evidence without more as in this case cannot constitute sufficient proof of special damages and Counsel cited the cases of CONSOLIDATED BREWERIES PLC v. AISOWIEREN (2001) 15 NWLR (PT. 736) 424 AT 450; MOMODU v. UNIVERSITY OF BENIN (1997) 7 NWLR (Pt. 512) 325 AT 350; IMNL v. NWACHUKWU (2004) 13 NWLR (Pt. 891) 543 AT 565 in support.

?In the case of the sum of N10,000,000.00 awarded as general damages, Counsel referred Court to the fact that the Respondents also claimed the sum of N20,736,505.50k as general damages without more, while the Court at the end awarded the sum of N10,000,000.00. On account of this position, Counsel submitted that no facts were led in support of the

Claim for general damages. This claim, Counsel submitted is therefore deemed abandoned and that it was therefore wrong for the learned trial judge to have awarded general damages without evidence in support and especially when special damages had failed woefully. Counsel cited the cases of S.P.D.C. v. TIEBO VII (SUPRA) AT PAGE 470; U.B.N. LTD. v. ODUSOTE BOOKSTORE LIMITED (1995) 9 NWLR (Pt. 421) 558 on the issue. It was also submitted that although it is within the discretion of the Court to make an assessment for general damages, however, but that the award to be made must be borne out by the evidence before the Court. See OKOKO v. DAKOLO (2006) 14 NWLR (Pt. 1000) 401 AT 434. Counsel emphasized that there was no shred of evidence from any expert to prove the findings made by the trial judge that it was the road, drainage and or earth mound existing before the alleged farm was established that caused the purported and alleged flooding of the Respondents’ farm.

?In addition, Counsel contended that there was no evidence before the Court on how it arrived at the sum of N10,000,000.00 and that what would have assisted the Court to make a fair and reasonable

assessment of the quantum of such damages were simply not in evidence. It was therefore submitted by Counsel that the award of N10,000,000.00 was arbitrary and not judiciously and judicially awarded. He said that in a claim for general damages where a Plaintiff cannot put a value to his losses, it is still incumbent on him to pinpoint the area of losses he suffered that has not been compensated by way of special damages. Counsel cited the case of U.B.A. PLC v. SAMBA PETROLEUM CO. LTD. (2002) 16 NWLR (Pt. 793) 361 AT 402 where this Court per SALAMI, JCA had this to say on the subject;
“… A claim for general damages demands the same standard of proof as special damages and the only distinction being that the Plaintiff is unable to place specific value on particular losses but it is incumbent on it to pinpoint the area of losses he suffered.”

The Respondents having failed to do this in this case Counsel contended the trial Court cannot speculate on the issue, but must act only on facts placed before it by way of what the party has claimed and proved by a preponderance of evidence. Counsel, however conceded that although general damages do not require

strict proof, the amount awarded must be within reason and that the Court must be guided by all the circumstances of the case. Counsel cited the case of ACB PLC v. HALSTON NIG. LTD (1997) 8 NWLR (Pt. 515) 110 AT 136. Counsel urged the Court to allow this appeal and set aside the decision of the lower Court.

ARGUMENTS OF RESPONDENTS’ COUNSEL:
ISSUE ONE;
Whether in view of Section 251(1) of the 1999 Constitution as amended the Federal High Court has the jurisdiction to entertain the Respondents matter?
Learned Respondents’ Counsel began by conceding to the following submissions of the Appellant contained in paragraphs 4.2 and 4.3 of the Appellant’s brief of argument, which he said represents the accurate state of the law and all the cases cited, which he also said are clearly apposite in the circumstance. These are;
(a) The issue of jurisdiction of a Court to entertain a matter being a fundamental one can be raised at any stage of proceedings in the Court of Appeal, and in the Supreme Court for the first time or even viva voce.
(b) In order to ascertain whether a Court has jurisdiction, regard must be had to what the Plaintiff is

claiming and this can only be gleaned from the endorsement on writ of summons and the Statement of Claim. In other words, jurisdiction which is the bedrock of a case is determined on the Statement of Claim of the plaintiff.

Counsel however, contended that the obligations and rights of parties in an action must be considered in the light of the law at the time when the cause of action arose. Counsel cited the cases of GOVT. OF MIDWEST STATE v. MID-MOTORS NIG. CO. LTD (1977) 11 NSCC 429, 437-438; UWAIFO v. A.G. BENDEL STATE & ORS (1982) 13 NSCC 221; ADESANOYE & ORS v. ADEWOLE & ANOR (2000) FWLR (Pt. 14) 2387, 2411 to buttress his arguments here.

In this connection, Counsel referred Court to the Respondents’ averment regarding the events of the 05-09-1996, when after three (3) nights torrential continuous rainfall led to an unprecedented flood disaster whereby 950 pigs belonging to the Respondents in their Richpat Farm in Owaza, Ukwa Local Government Area of Abia State got drowned, while animal feeds, crops, cassava, yams and vegetables were destroyed. It was the contention of the Respondent’s Counsel that the flooding occurred either due to

the Appellant’s negligence in the construction of roads, drainage and burrow pits in and around the areas under the Appellant’s control or the Appellant’s nuisance act of erecting or heaping earth mounds at the side of the access roads between the Respondents Richpat Farms and the Appellant’s resulting in the diversion of the natural course of water or blocking of its flow or Appellant’s strict liability or both. Counsel referred to paragraph 12 of the Statement of Claim at page 17 of the Records of Appeal.

?According to Counsel, the Respondents claim as shown in the writ of summons and Statement of Claim at pages 3, 13 and 20 of the Record of Appeal shows that the cause of action arose in 1996 while the 1999 Constitution heavily relied upon by the Appellant and which stipulates in Section 251(1) the jurisdiction of the Federal High Court came into force on the 29th day of May, 1999. It was further contended by Counsel that the 1999 Constitution was not in operation as at the time the cause of action arose in 1996. For this reason, Counsel argued that the provisions of Section 251(1) of the 1999 Constitution as Amended is completely and obviously

inapplicable to this case. In this connection, Counsel contended that unless a contrary intention is expressed there is a presumption that an enactment has no retrospective operation and that the principle is always that the law looks forward and not backward. Learned Counsel finally on this issue submitted that from the terms of the 1999 Constitution as amended, the provisions cannot be construed to have retrospective operation and he urged this Court resolve this issue against the Appellant.

ISSUE TWO;
Whether considering the totality of the oral and documentary evidence canvassed at the trial, the lower Court was not right in its judgment that the negligent acts of the Appellant caused the flood which damaged the Respondents Richpat Farms?
It was disclosed by Learned Counsel that in order to establish that the acts of the Appellant caused the occurrence of the flooding that destroyed the Respondents’ farm at Owaze in Ukwa Local Government Area of Abia State, the Respondents relied on negligence, nuisance and the doctrine the res ipsa loquitor. Learned Counsel argued that in law, where a party to an action alleges negligence he must establish

the following:
(i) That the Defendant owed him a duty of care.
(ii) That the Defendant breached that duty of care.
(iii) The conduct of the Defendant was careless.
(iv) That the Plaintiffs suffered damage in consequence of the Defendant’s failure to take care.

Counsel cited the cases of AGBONMAGBE BANK LTD. v. C.F.A.O. LTD (1966) ANLR 125 AT 145, 152 (1967) NMLR 173, 177 and UNIVERSAL TRUST BANK OF NIGERIA v. OZOEMENA (2007) NWLR (Pt. 1022) 448, 464, 465, 487 AND 488 to buttress his arguments.

According to learned Counsel, where a Plaintiff pleads and relies on negligence by conduct or action of a Defendant, he must prove by evidence and give particulars of the negligence, the conduct or action and the circumstance of its occurrence giving rise to the breach of duty of care and it is only then that the burden shifts to the Defendant to adduce evidence to counter the inference of negligence on his part. He cited the following cases in support of his arguments;
INTERNATIONAL INSTITUTE OF TROPICAL AGRICULTURE v. AMRANI (1994) 3 NWLR (Pt. 332) 296, 319 and U.T.B. NIG v. OZOEMENA (SUPRA) 465.

Counsel told Court that the

Respondents in paragraphs 5, 6, 7, 8 and 12 of their Statement of Claim, pleaded negligence and that the PW1 testified in line with the Statement of Claim as contained in his affidavit evidence. He further referred Court to the affidavit evidence of the PW1, particularly the paragraphs 4, 5, 6 and 7 at pages 63-65 of the Record of Appeal. According to Learned Counsel, the evidence of the PW1 shows that the Respondents and the Appellant have a common boundary which is corroborated by the testimony of DW1 and Exhibits 2 and 5 being the Appellant’s survey plan.

Counsel told Court that the lower Court after a thorough evaluation of the evidence of the parties including Exhibit 5 tendered by the Appellant believed the evidence of the Respondents that the construction of the earth mounds and shallow drainage by the Appellant caused the flooding which devastated the Respondents’ farm. Counsel further said that the lower Court also found that the Appellant did not show by credible evidence that the shallow drainage and the construction of the earth mounds were not the factors responsible for the flooding.

?It was contended by Counsel that the lower Court in

reviewing the pleadings and the evidence led properly evaluated the evidence and made appropriate findings of facts which are consistent with the evidence led and are not perverse. In this connection, learned Counsel contended that where a trial Court unquestionably evaluates the evidence before him and justifiably appraised the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial Court; but that it can only ascertain whether there is evidence in the records on which the trial Court acted and that when there is, the Court is rendered impotent and cannot interfere. In other words, Counsel argued, that an Appellate Court will ordinarily not disturb the findings of facts by a trial Court unless such findings are wrong and not supported by evidence. He cited the following cases in support; OKPARAJI & ORS v. OHANU & ORS (2001) FWLR (Pt. 43) 385, 403; SALIBA v. YASSIN (2002) FWLR (Pt. 94) 168, 182 and OBUEKE & ORS v. NNAMCHI & ORS (2012) ALL FWLR (Pt. 633) 1940, 1956,

?It was argument of learned Counsel that the Respondents established their said farm before the construction was done on the

camp site by the Appellant and that the doctrine of volunti non fit injuria does not support the Appellants case. Counsel in support of this position, referred to the evidence of the PW1 under cross examination by Appellant’s Counsel, where the PW1 said the Defendant made earth mounds along his farm and that he was indeed already in the camp site when it was made. Counsel referred Court to page 172 of the Record of Appeal on this issue. He therefore submitted the lower Court adequately appreciated this piece of evidence in its judgment at page 203 of the printed records.

?In assuming, but without necessarily conceding that in the event that it turns out that the Respondents established their farm on a slope after the Appellant’s presence in the area, Counsel submitted that the flooding of the Respondents Richpat Farm would not have occurred and damages incurred if not for the construction of shallow concrete drainage gutter and earth mounds by the Appellants, which prevented the free flow of water. See paragraphs 5, 6, 8 and 12 of the Statement of Claim at pages 16 and 17 of the Record of Appeal and paragraphs 4, 5, 7 and 11 of the affidavit

Evidence of the PW1 on pages 63, 64 and 65 of the Record of Appeal. Counsel said that the lower Court dispassionately examined exhibit 5 and believed the evidence of the Respondents that the construction of the earth mound and shallow drainage caused the flooding.

It was further contended by learned Counsel that the submission of the Appellant where he relied on paragraphs 9 and 10 of the Respondents’ Statement of Claim in stating that there was an unprecedented three (3) days and nights continuous down pour, and which caused the flood disaster to their Richpat Farms is grossly misconceived. He said that at paragraph 12 of the Statement of Claim the Respondents clearly attributed the cause of the flooding to the negligent construction of roads, drainage and burrow – Pits in and around the areas under the Defendant’s control or the Defendant’s nuisance act of erecting or heaping earth mounds at the side of the access roads between the Plaintiffs and the Defendants, resulting in the diversion of natural course of water or blocking of its flow or Defendant’s strict liability or both. He referred Court to pages 10 and 17 of the Record of Appeal on this

issue.

On the defense of Act of God, it was contended by Counsel that the defense is unavailing to the Appellants on the following grounds:
1. It was not pleaded and no evidence was accordingly led in support thereof. The true legal position is that a Defendant as in the case the Appellant is not entitled to rely upon a defense which is based upon facts not stated in the Statement of Claim unless he alleges such fact specifically in his pleadings by way of special defense. See N.I.P.C. LTD v. BANK OF WEST AFRICAN LTD (1962) 1 ALL N.L.R. 556, 559 & 566.
2. It is inconsistent with the pleadings of both parties.
3. Failure to plead this took the Respondents by surprise. Counsel drew attention to Order 13 Rule 6 and 17 of the Federal High Court (Civil Procedure) Rule 2009.

Counsel urged this Court to resolve issue two against the Appellant.

ISSUE THREE:
Whether the trial judge rightly evaluated the oral and documentary evidence before awarding special and general damages in favour of the Respondents?
It was contended by Counsel that special damages must be specifically pleaded and strictly proved and that they must be in

respect of claimable heads of damages, which should easily lend themselves to qualification and assessment. But that strict proof does not mean unusual proof and that the Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which makes such calculation possible. Counsel opined that strict proof does not mean that the law requires an extra-ordinary measure of evidence to establish entitlement to special damages and does not also mean that an award in special damages cannot be made unless such damages are established beyond doubt as in criminal cases. It was argued that the person making a claim in special damages should establish his entitlement to such special damages by credible evidence of such character as would satisfy the Court that he is indeed entitled to an award under that head. Counsel cited the cases of NWANAJI v. COASTAL SERVICES (NIG.) LTD S. A. (2004) 11 NWLR (Pt. 885) 552, 567 and ZERIGBE v. DAVE ENGINEERING CO. LTD (1994) 8 NWLR (Pt. 361) 140 on this issue.

?It was the contention of Counsel that the award of special damages was based on exhibit 4 which was

properly tendered by its maker, the PW2. He said that the lower Court evaluated the evidence led in respect of special damages particularly exhibit 4 and found that the evidence of PW2 particularly in respect of the pigs was not reliable and accordingly held that items 1 and 2 of the valuation report in exhibit 4 were not proved. Counsel referred Court to pages 205-206 of the Record of Appeal. He also said that the lower Court on a proper evaluation and consideration of exhibit 4 granted items 3, 4, 5, 6 and 7. According to Counsel, the lower Court awarded special damages not merely that the Appellant admitted same or did not deny it. He argued that the lower Court evaluated exhibit 4 when it rejected items 1 and 2 and accepted and granted items 3, 4, 5, 6 and 7 in exhibit 4. Counsel further contended that the Appellant did not challenge or contradict items 3, 4, 5, 6 and 7 in exhibit 4 and no evidence was adduced by it as an option or alternative sum in opposition to the special damage awarded by the lower Court. Specifically, Counsel submitted that unchallenged evidence without more can constitute sufficient proof of special damages. He cited the cases of

N.N.P.C. v. SALE (2004) ALL FWLR (Pt. 223) 1859, 1901; OBANOR v. OBANOR (1976) 1 NMLR 39, 42-43 and CONSOLIDATED BREWERIES PLC v. AISOWIEREN (2002) FWLR (Pt. 116) 959, 990-991. In the case of N.N.P.C v. SALE (2004) ALL FWLR (Pt. 223) pg 1859 at 1901 it was held that:
“Once a value showed the basis upon which the witness calculated the amount claimed by the Respondent in the case as special damages, his evidence is unassailable and could be relied upon especially when such evidence has not been challenged or contradicted and no evidence was adduced by the other side as an option or alternative sum. In the absence of contrary evidence the amount awarded was reasonable and never excessive.”

On the whole, Counsel urged this Court to dismiss this Appeal and affirm the decision of the lower Court.

RESOLUTION OF APPEAL;
ISSUE ONE;
Whether the Federal High Court has jurisdiction to entertain the Respondents’ matter
It was the contention of the Appellant that the subject matter of the dispute between the parties at the lower Court is founded on the “tort of negligence and damages” on the Respondent’s property. Counsel invited the attention

of this Court to the Respondent’s pleadings filed at the lower Court and published at pages 3, 13 and 20 of the printed records. It was Counsel’s further contention that the lower Court in delivering its ruling on the issue, started on the right footing when it acknowledged that the documents to inspect are the Plaintiff’s pleadings but that the Court missed the track when it failed to appreciate the fact that the parties’ dispute was one basically grounded in the tort of negligence and damages.

According to Counsel, this issue as presented for the Court’s adjudication beckons the Court to determine whether the Federal High Court has jurisdiction over matters grounded in the tort of negligence and damages. Learned Counsel acknowledged the spate of controversy which the issue of the exclusive jurisdiction of the Federal High Court vis–vis the unlimited jurisdiction of the State High Court has generated over the years as is evident in a tong line of decided cases.

It was Counsel’s contention that upon the birth of Decree 107 of 1993 and later Section 251 of the 1999 Constitution it appeared the conflict was laid to rest only for it to blow

over a little after. But Counsel argued that despite this position the Sub-paragraphs (p), (q), (r) of Section 251(1) of the 1999 Constitution has remained settled and that nothing in these Sub-paragraphs tends to suggest that they are relevant to the facts of the case under consideration especially as disclosed in the Respondent’s pleadings with regards to the claim for damages and for the tort of negligence. Learned Counsel told Court that the decision of the lower Court on the one hand was based on the fact that the Appellant is an Oil Company and that the lower Court misdirected itself, thinking it could equate the disaster which overtook the Respondent’s farm to a similar occurrence under the exploratory and oil prospecting roles of the Appellant as an oil prospecting company.

Perhaps, the question to be addressed here is whether the Federal High Court is in any position to entertain a matter, grounded in the tort of negligence and damages to landed property, following the observations of the Supreme Court per NIKI TOBI, JSC and EDOZIE, JSC (as the duo then were) going by the decision of the Supreme Court in FELIX ONUORA’S case (supra), where the

noble Lords were emphatic that the Federal High Court has no jurisdiction over matters dealing with simple contracts. In the decision of this Court in the case of OMOTOSHO v. ABDULLAHI (2008) 2 NWLR (Pt. 1072) 537 it was held that the Federal High Court has no jurisdiction to entertain matters grounded in land issues as follows;
“Thus, the Federal High Court is not empowered with the jurisdiction to entertain action over land matter. In other words, the Federal High Court is not one of the Courts vested with jurisdiction by virtue of Sections 39 and 41 of the Land Use Act to entertain actions over land matters not being a State High Court or Area or Customary Court or Court of equivalent cadre. And the Jurisdiction would not lie in the Court by mere fact that one of the parties is a Federal Government Agency.”

According to Appellant’s Counsel, there is nothing under Section 251(1) of the Constitution of Nigeria, 1999 as Amended which empowers the Federal High Court to entertain claims of which negligence on land property or damages thereto is the subject matter. Counsel cited the case of EBITEH v. OBIKI (Supra) in support. This however, reminds Court

of the decision of this Court in the case of NKUMA v. ODILI (2006) ALL FWLR (Pt. 313) 24, where this Court was emphatic on the issue as follows;
“It seems to me however that a simple claim concerning entitlement to compensation for land as in this case cannot be seen as one “connected with or appertaining to mines and minerals including oil fields…all the cases in which the Court of Appeal and this Court had decided that the provisions of both Decrees ousted the jurisdiction of a State High Court clearly touched on issues of compensation for pollution and damages resulting from mining operations and related matters and none was on compensation for owners of land. This case is simply a land dispute. It could well have been a land dispute as to who was entitled to the compensation for a land to be used for farming, gulfing or a football field.”

What really matters in construing this matter at this stage, is the substance of the Plaintiff’s case and the reliefs claimed. Counsel cited the cases ADETONA v. ZENITH INT. BANK LTD (2009) 3 NWLR (Pt. 1129) 577; TRADE BANK PLC v. BENILUX NIG. LTD (2003) 9 NWLR (Pt. 825) 416; NKUME v. ODILI (2006) 6 NWLR (Pt.

977) 587 in support. Counsel further argued that in the present case the substance of the Plaintiffs claim pertains to damages caused to their farm by flood disaster and that the subject matter involved consideration of the alleged negligence act of the Appellant in constructing roads, drainages and heaping of earth mounds along the road for the benefit of its host community. According to Counsel, this has nothing to do with mines and minerals under Section 251 of the 1999 Constitution and he cited the case of S.P.D.C.N. LTD v. BENIGBO (2010) 6 NWLR (Pt. 1190) P.421 in support. Counsel submitted that the Federal High Court was therefore in error in assuming jurisdiction over the matter since the cause of action had nothing to do with mines and minerals, including oil fields, oil mining, geological surveys and natural gas under Section 251(1)(n) of the 1999 Constitution. Counsel urged this Court to resolve this issue in favour of the Appellant.

?On the part of the Respondent, learned Counsel however, contended that the obligations and rights of parties in an action must be considered in the light of the law at the time when the cause of action arose.

Counsel cited the cases of GOVT. OF MIDWEST STATE v. MID-MOTORS NIG. CO. LTD (1977) 11 NSCC 429, 437-438; UWAIFO v. A.G. BENDEL STATE & ORS (1982) 13 NSCC 221; ADESANOYE & ORS v. ADEWOLE & ANOR (2000) FWLR (Pt. 14) 2387, 2411 to buttress his arguments here.

?In this connection, Counsel referred Court to the Respondents’ averment regarding the events of the 5-9-1996, when after three (3) night’s torrential continuous rainfall which led to an unprecedented flood disaster whereby 950 pigs belonging to the Respondents in their Richpat Farm in Owaza, Ukwa Local Government Area of Abia State got drowned, while animal feeds, crops, cassava, yams and vegetables were destroyed. It was the contention of the Respondent’s Counsel that the flooding occurred either due to the Appellant’s negligence in the construction of roads, drainage and burrow pits in and around the areas under the Appellant’s control or the Appellant’s nuisance act of erecting or heaping earth mounds at the side of the access roads between the Respondents Richpat Farms and the Appellant’s resulting in the diversion of the natural course of water or blocking of its flow. Counsel referred

to paragraph 12 of the Statement of Claim at page 17 of the Records of Appeal.

According to Counsel, the Respondents claim as shown in the writ of summons and Statement of Claim at pages 3, 13 and 20 of the Record of Appeal shows that the cause of action arose in 1996 while the 1999 Constitution heavily relied upon by the Appellant and which stipulates in Section 251(1) the jurisdiction of the Federal High Court came into force on the 29th day of May, 1999. It was further contended by counsel that the 1999 Constitution was not in operation as at the time the cause of action arose in 1996. For this reason, counsel argued that the provisions of Section 251(1) of the 1999 Constitution as Amended is completely and obviously inapplicable to this case.

I have taken a very careful but calm view of the arguments made by learned counsel in this matter. It may be better to clear a few issues before going into the real issues at stake. Of course the argument that jurisdiction is the live wire of any matter in Court is already an overused expression which should not be allowed to take our time here. The subject matter jurisdiction of Court refers to the Court’s

competence to entertain and resolve the dispute between the parties before the Court. This was expounded in the case ATTN-GEN. FEDERATION v. GUARDIAN NEWSPAPERS LTD. (1999) 9 NWLR (Pt. 618) 187 AT 133 where the Supreme Court per KARIBI-WHYTE, JSC had this to say;
“It is well settled and our Courts are replete with decided cases which have established the principle that the word jurisdiction means the authority which a Court has to decide matters before it or to take cognizance of matters presented in a formal way for its decision.”
See also the case of NDAEYO v. OGUNNAYA (1977) 1 SC 11.

It is well known fact that the superior Courts of record in Nigeria are created by the Constitution and that their subject matter Jurisdiction is as specified therein in certain statutes. There has been a stiff contention in this case between both sides of the divide as to what the subject matter of the dispute between the parties really is. The one has dubbed it a matter grounded in negligence and damages related to land following the claims of the Plaintiff at the lower Court, while the other offered no arguments other than that Section 251(1) of the 1999

Constitution of Nigeria 1999 as Amended does not apply to the events leading to the cause of action having occurred in 1996 before the 1999 Constitution came into force.

However, it may at this stage be proper, concerning the question of the applicable law as raised by learned Respondents’ Counsel to set the records properly straightened out. The settled position of the law has always been that it is the substantive law at the time the cause of action arose that governs the case while the procedural law at the time of the hearing of the matter will be applicable to the case. See the case of CCG NIG. LTD. v. ASAGBARA (2000) FWLR (Pt. 17) 110, where the Court held thus;
“In civil actions, existing procedural laws are applicable to a case in Court of first instance whether such laws came into force before or after the cause of action arose and if at the appellate level, whether such procedural laws came into force before or after the notice of appeal was filed. In the instant case, the provisions of Section 7 of Decree No. 1991 and Section 230 of Decree No. 107 of 1993, being procedural laws are applicable to the case, whether they came into force before

or after the cause of action arose.”
In the case of ADAH v. N.Y.S.C. (2004) 13 NWLR (Pt. 891) 639 AT 648 the Supreme Court per UWAIFO, JSC had this to say on the subject;
“It ought to be understood that the law which supports a cause of action is not necessarily co-extensive with the law which confers jurisdiction on the Court which entertains the suit founded on that cause of action. The relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose whereas the jurisdiction of the Court to entertain an action is determined upon the state of the law conferring jurisdiction at the point in time the action was constituted and heard.”

Learned Appellant’s Counsel had argued that at the time the Respondents as Plaintiffs instituted their action against the Appellant in 1999, it is Section 251(1) of the 1999 Constitution as Amended that conferred jurisdiction on the Court. I simply find myself unable to disagree with Counsel’s submission on the issue. Perhaps, once again and probably another way of looking at it is the fact that Section 230 (1) of Decree 107 of 1993 which was the law applicable when the

suit was filed is in pari materia with Section 251(1) of the 1999 Constitution as Amended. Therefore, and as far as the question of the jurisdiction of the Federal High Court is concerned, I simply find myself unable to disagree, all said and done with learned Appellant’s Counsel that the law which applied then and still applies now is Section 251(1) of the 1999 Constitution as Amended.

That, however, is how far these spates of agreements can go on these issues with learned Appellant’s Counsel. Beyond these, I find myself unable to agree that the Federal High Court had no jurisdiction to entertain the matter, in which the Appellant as Claimant had been sued for the tort of negligence and damages to landed properties of the Respondent. To be sure, the construction of roads and drainages in the area, as the evidence in the matter has shown cannot be said to have been done in connection with any other activities than with the exploratory or oil prospecting or production activities of the Appellant in the area. The Respondent’s paragraphs 3 and 4 are instructive, where the Respondent as Claimant averred as follows;
“3.The Defendant Company is a limited

liability Company registered under the laws of the Federation of Nigeria carrying on the business inter alia of exploration for crude oil and the transportation of same through pipelines. Its main place of business in River State is the Shell Industrial Area situate at Rumuobiakani, Port Harcourt.
4. In connection with its operations, referred to in paragraph 3 above the Defendants own several oil locations, flow stations, abandoned and unfulfilled burrow pits, tarred ring roads and oil pipelines in areas adjacent to the plaintiffs’ farms.”

jurisdiction of the Federal High Court. See also Section 7(1) (n) of the Federal High Court Act, as Amended in 2005. In S.P.D.C v. MAXON (2005) 9 NWLR (Pt. 719) 541 this Court, per ACHOLONU, JCA (as he then was) observed as follows;
“It is my view that any unsavory result which is actionable in consequence of the activities of Companies engaged in operation and relating to prospection of oil, mines, minerals, Gas exploration and related geophysical works or activities, shall come within the exclusive jurisdiction of the Federal High Court to adjudicate upon.”
In the same token in the case of CHEVRON NIG. LTD. v. ROBERTS (2010) LPELR-3908, this Court per THOMAS, JCA (as he then was) stated;
“It is trite law, that where a cause or matter is arising from pertaining to or connected with mines, minerals, oil, oil exploration or geophysical surveys, it is only Federal High Court as created by the Constitution of Nigeria in Section 251 that has exclusive jurisdiction.”
Arising from this position, the Appellant cannot under stretch of imagination be said not to have constructed the Tarred Roads which necessarily includes the construction of adequate

drainages, burrow pits, and the making of earth mounds to assist in its activities of oil prospecting and exploration in the area. Where they are found to be negligent in the cause of constructing such tarred roads, drainages, burrow pits and earth mounds, I see no reason why they cannot be sued for negligence and for damages arising from such activities at the appropriate Court, which happens to be the Federal High Court under Section 251(1)(n) of the 1999 Constitution of Nigeria as Amended. This issue is resolved in favour of the Respondent.

ISSUE TWO;
Whether the trial Judge was right in entering judgment against the Appellant when the Respondents failed to prove that the Appellant caused the flood that damaged their farm.
The argument of learned Appellant’s counsel is that the Respondents failed to prove their case against the Appellant when they failed to lead credible evidence to prove that the Appellant owed them a duty of care and a breach of that duty. Counsel argued that evidence led by the Respondents showed that the Appellant has established its presence around the claim site before the Respondents established their Farm thereon with

the attendance risks involved. Counsel further disclosed that the Appellant had constructed the tarred road, drainage gutter and earth mounds to check the seasonal erosion at the claim site before the Respondents established their farm.

In their response, the Respondents relied on negligence, nuisance and the doctrine the res ipsa loquitor in insisting that the destruction of the Respondents’ farm was as a result of the torrential rainfall which led to the flooding of the environment. According to learned Counsel, where a Plaintiff pleads and relies on negligence by conduct or action of a Defendant, he must prove by evidence and give particulars of the negligence, the conduct or action and the circumstance of its occurrence giving rise to the breach of duty of care and it is only then that the burden shifts to the Defendant to adduce evidence to counter the inference of negligence on his part. Counsel told Court that the Respondents in paragraphs 5, 6, 7, 8 and 12 of their Statement of Claim, pleaded negligence and that the PW1 testified in line with the Statement of Claim as contained in his affidavit evidence. He further referred Court to the affidavit

evidence of the PW1, particularly the paragraphs 4, 5, 6 and 7 at pages 63-65 of the Record of Appeal. According to learned counsel, the evidence of the PW1 shows that the Respondents and the Appellant have a common boundary which is corroborated by the testimony of DW1 and Exhibits 2 and 5 being the Appellant’s survey plan.

On the question of the claim by the Appellants that the Respondents established their said farm when the construction of the road and drainage had been done, Respondent’s counsel disagreed and submitted that the farm had been in existence before the Appellant established its campsite and that the doctrine of volunti non fit injuria does not support the Appellants case. Counsel in support of this position, referred to the evidence of the PW1 under cross examination by Appellant’s Counsel, where the PW1 said the Defendant made earth mounds along his farm and that he was indeed already in the camp site when it was made. Counsel referred Court to page 172 of the Record of Appeal on this issue. He therefore submitted that the lower Court adequately appreciated this piece of evidence in its judgment at page 203 of the printed records.<br< p=””

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Perhaps, what the lower Court said on this issue may be instructive in the circumstance. The Court observed at page 203 of the printed records as follows;
“It is my finding that the Plaintiffs in this case have led evidence to support the pleadings in the above mentioned paragraphs of the statement of claim. The Defendant here requires proof of whether it was the Defendant that caused the flooding. The Defendant in his bid to discredit the testimony on oath of PW1 cross examined as to when the earth mound was constructed the PW1 stated that it was constructed when the farm was in existence. Now exhibit 5 is tendered and admitted in evidence through DW1. When one looks at exhibit 5, after an access road there is the alleged shallow concrete drainage. Immediately after the concrete drainage toward the Richpat Farm is an earth mound which runs throughout the length of the Richpat Farm. The case of the Plaintiff is that the construction of these earth mounds and the shallow drainage caused the flooding. For this Court not to believe in this evidence led in accordance with the pleadings of the Plaintiffs the Defendant has to show by credible evidence that the

shallow drainage and the construction of the earth mound was not responsible for the flooding. This was not pleaded neither is there any evidence in rebuttal, what the defendant did was only to say in his address that the flooding was an act of God. The defense of Act of God was neither pleaded nor was there any evidence led in support.”

to the area to site its farm. In addition and as rightly found out by the lower Court, the claim of the Appellant that the flooding was also an Act of God was also not pleaded. The position of the law is that evidence led on facts not pleaded goes to no issue. See the cases of AMOBI v. AMOBI (1996) 8 NWLR (Pt. 469) 638 SC; OLOWOFOYEKU v. A.G. OYO STATE (1996) 10 NWLR (Pt. 417) 190 SC and ITO v. EKPE (2000) 2 SC 98.

On the side of the Respondents, the records show copiously that credible evidence was led which showed that the shallow drainage constructed by the Appellant and the earth mound caused the flooding. The evidence of the PW1 in this regard is instructive. In the circumstances, I cannot fault the findings of the lower Court on the issue 1 and issue two, I accordingly resolved in favour of the Respondent.

ISSUES THREE and FOUR;
Whether the learned trial Court was right to rely on Exhibit “4” to award special damages after finding that Exhibit “4” and its maker were unreliable.
Whether the award of N11,602,324.50 as special damages and N10,000,000.00 as general damages totaling N21,602,324.50 (Twenty-one Million, Six Hundred and Two

Thousand, Three Hundred and Twenty-Four Naira, Fifty Kobo) against the Appellant as damages is correct and or sustainable in law.

At the lower Court, Exhibit 4 in the trial is a Valuation report said to have been prepared by the PW2 whose evidence the Court found to be unreliable. Appellant had said that the award of special damages made by the lower Court were erroneous so long as they were made based on the said Exhibit 4 prepared by the PW2. It was further submitted by Counsel that the contents of Exhibit 4 were not pleaded and that Exhibit 4 did not have any particulars, that is the relevant and material facts in support of the alleged special damages awarded in the sum of N11,602,324.50k.

It was further submitted by Counsel that the Respondents failed to provide credible evidence in support of their claim of special damages as required and that the trial Court rightly made a finding of fact that the expert evidence in support of the claim for special damages in Exhibit 4 is manifestly unreliable because the maker PW2 was not a witness of truth. Learned Counsel referred this Court to pages 205 and 206 of the Records for the

findings of the trial Court.

In their response, the Respondents admitted that the award of special damages in this case was based on Exhibit 4 which was properly tendered by its maker, the PW2. Counsel, however said that the lower Court evaluated the evidence led in respect of special damages particularly Exhibit 4 and found that the evidence of PW2 particularly in respect of the pigs was not reliable and accordingly held that items 1 and 2 of the valuation report in respect of the pigs were not proved. He too referred Court to pages 205-206 of the Record of Appeal. He also said that the lower Court on a proper evaluation and consideration of Exhibit 4 granted items 3, 4, 5, 6 and 7. According to Counsel, the lower Court awarded special damages not merely that the Appellant admitted same or did not deny it. He argued that the lower Court evaluated Exhibit 4 when it rejected items 1 and 2 and accepted and granted items 3, 4, 5, 6 and 7 in the Exhibit. Counsel further contended that the Appellant did not challenge or contradict items 3, 4, 5, 6 and 7 in exhibit 4 and no evidence was adduced by it as an option or alternative sum in opposition to the special damage

awarded by the lower Court. Specifically, Counsel submitted that unchallenged evidence without more can constitute sufficient proof of special damages.

category of evidence required to establish entitlements to special damages. What is required is that the person claiming should establish his entitlement to that of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under the head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.”
See also the cases of NWANAJI v. COASTAL SERVICES (NIG.) LTD S.A. (2004) 11 NWLR (Pt. 885) 552, 567 and ZERIGBE v. DAVE ENGINEERING CO. LTD (1994) 1 NWLR (Pt. 361) 140 on this issue.

Apart from the foregoing, following a very careful examination of the records, it is discovered that the Appellant did not challenge or contradict items 3, 4, 5, 6 and 7 in Exhibit 4 which represented the basis upon which the lower Court made its awards. It was also discovered that no evidence was adduced by the Appellant as an alternative sum put forward in opposition to the special damages claimed by the Respondents. The law is settled that unchallenged evidence can be the very basis upon which an award of special damages can be made. See the cases of OBANOR v. OBANOR (1976) 1

NMLR 39, 42-43 and CONSOLIDATED BREWERIES PLC v. AISOWIEREN (2002) FWLR (Pt. 116) 959, 990-991. In the case of N.N.P.C. v. SALE (2004) ALL FWLR (Pt. 223) 1859 at 1901 it was held that:
“Once a value showed the basis upon which the witness calculated the amount claimed by the Respondent in the case as special damages, his evidence is unassailable and could be relied upon especially when such evidence has not been challenged or contradicted and no evidence was adduced by the other side as an option or alternative sum. In the absence of contrary evidence the amount awarded was reasonable and never excessive.”

Arising from the foregoing, all four issues are resolved in favour of the Respondents. The Appeal therefore fails and it is accordingly dismissed with cost of N50,000.00 against the Appellant

IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading in draft the lead judgment of my learned brother, F. O.

Oho, JCA just delivered.
I agree entirely with his reasoning and conclusion that the appeal succeeds in part. I endorse the consequential order as to costs.

PETER OLABISI IGE, J.C.A.: I have been afforded the opportunity to read in advance the judgment just delivered by my brother OHO, J.C.A.

I agree with the said judgment.

Appearances

Olusola Laniyan, Esq.For Appellant

AND

R. O. Agbesor, Esq.For Respondent