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UGWU & ORS v. NB PLC (2020)

UGWU & ORS v. NB PLC

(2020)LCN/15704(CA)

In the Court of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, September 04, 2020

CA/E/570/2017

Before Our Lordships:

Ignatius IgweAgube Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

  1. CELESTINE UGWU 2. CALLISTUS AGU 3. FERDINARD UGWU 4. GREGORY UGWU (For Themselves And On Behalf Of The People Of IbuteUwaniAmekeNgwo In Udi Local Government Area Of Enugu State APPELANT(S)

And

NIGERIA BREWERIES PLC RESPONDENT(S)

 

RATIO:                                                                                         

SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED

The law is trite that special damages must be specifically pleaded,particularized by the claimant making a specific and distinct plea with respect to his claim for special damages. This is because, special damages is different from general and exemplary damages. Thus, whereas general damages is usually at large, special damages is pinpointed and targeted at a specific loss sustained by the plaintiff/claimant as a result of the action or inaction of the defendant. The Supreme Court in the case of NEKA B. B. B. MANUFACTURING CO. LTD. V. AFRICAN CONTINENTAL BANK LTD. (2004) LPELR-1982 (SC), per Iguh, JSC at pages 38-39 held as follows:
“It must be stressed that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and a Court is not entitled to make an award of special damages based on conjecture or some fluid and speculative estimate of alleged loss sustained by a plaintiff.” ABUBAKAR SADIQ UMAR, J.C.A. 

PARTICULARS OF SPECIAL DAMAGES MUST BE GIVEN TO ELIMINATE ANY ELEMENT OF SUPRISE

In the case of MMA INC & ANOR V. NMA (2012) LPELR – 20618(SC), the Supreme Court, per Galadima J.S.C stated the basis for pleading the particulars of special damages as follows:
“The basis for the law requiring the giving of particulars of special damage is to allow the other party know the case against it so as to eliminate any element of surprise. In the case of B.E.O.O. Ind. (NIG) LTD. v. MADUAKOH (1975) 12 S.G. 91 at P, 108, this Court approved Lord Donovan’s observations in PERESTRELLO v. UNITED PAINT (1969) 1 WLR 570 thus: “The obligation to particularize arise not because the nature of the loss is necessarily unusual but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to facts which make such calculation possible”. Similarly, this observation was re-echoed by this Court in the case of ATTORNEY-GENERAL BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt.118) 646, when Nnaemeka-Agu JSC (of Blessed memory) had this to say at p.678: “I must note that the main function of particulars is to give to the other party notice of all necessary particulars in the claim or defence so as to avoid taking the other party by surprise. It may assumeone of the three forms namely: (i) Better particulars of any claim, defence or other matter pleaded; (ii) A statement of the nature of the case relied upon; or (iii) Both such particulars and statement. At the root of it all is the fairness of the trial and the need to enable the other side prepare his case and evidence at the trial.” ABUBAKAR SADIQ UMAR, J.C.A. 

THE AWARD OF GENERAL DAMAGES IS AT THE DISCRETION OF THE COURT
The principles guiding the award of general damages are littered in a legion of judicial authorities of this Courtand that of the Supreme Court. In the case of ELF PETROLEUM V. UMAH & ORS. (2018) LPELR – 43600 (SC), the Supreme Court, Per OGUNBIYI, J.S.C held as follows:
“It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation.” ABUBAKAR SADIQ UMAR, J.C.A. 

NOMINAL DAMAGES WILL ONLY BE AWARDED WHERE THERE IS NO OTHER EVIDENCE IN THE ASSESMENT OF DAMAGES

The law is trite that nominal damages will only be awarded where there is no other evidence in the assessment of damages. See the case of BAKER MARINE NIG LTD. V. CHEVRON NIG LTD. (2006) LPELR – 715 (SC). The Appellants’ through PW2, a University Professor and an Estate Surveyor tendered a report which was upgraded in 1995 and 2002 respectively. The said Report was tendered and marked Exhibit G. PW2 also tendered a valuation certificate which was admitted in evidence and marked Exhibit H. (See pages 73 – 84 of the record of appeal.) From Exhibits G and H tendered by the Appellants’, I am of the view that there was evidence available to the trial Court in the assessment of damages caused to the Appellants’ land, crops and economic trees by the poisonous wastewater and effluent of the Respondent. ABUBAKAR SADIQ UMAR, J.C.A. 

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Enugu State in the Enugu Judicial division delivered by P. I. ENEJERE J. on 23rd May, 2013.

BRIEF STATEMENT OF FACTS
The Appellants as Plaintiffs in the Court below commenced the action which is the subject of the instant appeal vide a Writ of Summons dated 27th May 2005 and filed on 31st May, 2005. By an Amended Statement of Claim filed on 15th November, 2006, the Appellants prayed the Court below for the following reliefs:
“(a) An Order of perpetual injunction restraining the Defendant by itself, agents, servants or privies from further discharge and allowing industrial waste and effluents from its factory at the 9th Mile Corner, Ngwo Enugu to flow into the Plaintiffs’ said land at Ibute Uwani Ameke Ngwo along Nsukka public highway.
(b) An Order by the Court on the Defendant to immediately rehabilitate the damaged land including sand filling of the deep gullies caused by the industrial discharge from the Defendant’s factory.
​(c) An Order for the Defendant to immediately re-channel the industrial waste through a cement concrete underground tunnel to any all season waterway.
(d) An Order on the Defendant to pay compensation to the Plaintiffs in the sum of N150,000.00 (One Hundred and Fifty Million Naira) being the current value of the damages caused by the Defendant’s destruction of the Plaintiffs’ said land and injurious affection to the farming rights of the Plaintiffs’, destruction of economic trees and farm crops broken down as follows:
i. N23,188,000.00 (Twenty-Three Million, One Hundred and Eighty-eight Thousand Naira) as special damages.
ii. N126,812,000.00 (One Hundred and Twenty-six Million, Eight Hundred and Twelve Thousand Naira) as general damages for mental torture and anguish caused the Plaintiffs by the devastation of their farm lands and estate by the Defendant.

The case of the Appellants are that they are deemed holders of Certificate of Occupancy and in possession of the parcel of Agricultural land comprising of 374 plots situate at Ibute Uwani Ameke Ngwo in Udi Local Government Area of Enugu State, lying along the Nsukka Public High Way. The Appellants’ stated further that they and the ancestors before them have been farming on the said land from time immemorial and which served as their main source of livelihood. According to the Appellants, they cultivated economic tree which were destroyed by the Respondent’s continued unabated wastewater discharge and effluents leading to wide scale loss of farm crops, economic trees and wide. It is the case of the Appellants that the Respondent’s factory was initially owned by the Diamond Breweries but was acquired by the Nigerian Breweries in 1993 and before then, they had made representations to the defunct Diamond Breweries requesting and presenting compensation payable to them for the destruction and ways to stop the devastation. That the damage to their land was quantified on 13/6/1992 by an estate valuer and when the Respondent took over Diamond Breweries, the destruction continued. The Appellants stated that in the year 1996, they instituted an action against the Respondent and that the Enugu State Government constituted a joint implementation committee of Enugu State Environmental Protection Agency (ENSAPA) to look into the matter. That the Respondent requested them during the joint committee meeting to withdraw their suit before they meet their demands which they did. The Appellants stated further that at the end of the joint committee intervention, ENSAPA made a recommendation which was sent to the Respondent and that the Respondent has not reacted to the recommendation that they should be paid compensation.

The Respondent in its defence denied that the effluent from their Breweries was toxic and capable of destroying crops and economic trees of the Appellants’ farm lands. The Respondent stated further that its effluent from its Breweries was emptied into a natural existing drain which finally flowed into a stream. That the entire vicinity of the Appellants land at 9th Mile Ngwo and beyond is naturally prone to destruction by flood considering the topography of the area. The Respondent stated that the joint committee’s recommendation for payment of compensation was not considered because it could not find any basis for such recommendation.

​Upon the close of trial and final addresses by counsel to the parties, the learned trial Judge in a considered judgment delivered on 23rd May, 2013 dismissed the Appellants’ claim for special damages but granted them nominal damages in the sum of N200,000.00.

Dissatisfied with the decision of the trial Court, the Appellants invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 8th May, 2017 and filed on 9th May, 2017. The said Notice of Appeal containing seven grounds of appeal can be gleaned at pages 235 to 241 of the record of appeal.

In line with the Rules of this Court, parties filed and exchanged their respective briefs. The Appellants’ Brief is dated 5th December, 2017 and filed on 11th December, 2017. The said Brief was deemed properly filed and served by an Order of this Court made on 25th June, 2018. The Appellants also filed a Reply Brief dated 23rd March, 2020 and filed on 9th June, 2020. The said Reply Brief was deemed properly filed and served by an Order of this Court made on 11th June, 2020. Both Briefs were settled by C. C. ECHETEBU, ESQ. who at paragraph 3 of the Appellants’ brief distilled three issues for the determination of the appeal to wit:
“1. Whether the trial Court erred by denying the Appellants the award of special damages. (Distilled from grounds 1 and 2)
2. Whether the trial Court exercised its discretionary powers judiciously and judicially in its award of general damages. (Distilled from grounds 3 and 5).
3. Whether the trial Court erred in proper evaluation of evidence led before it leading to a perverse decision. (Distilled from grounds 4, 6 and 7).”

The Respondent’s Brief of argument on the other hand is dated 6th March, 2019 and filed on the same date. The said Brief was deemed properly filed and served by an Order of this Court made on 11th March, 2020. The said Brief was settled by OGOCHUKWU ONYEKWULUJE ESQ. who at paragraph 3.1 of the Respondent’s Brief distilled two issues for the determination of the appeal as follows:
“1. Whether the trial Court was wrong when it refused to award special damages to the Appellant on the ground that the pleading of the Appellant was insufficient and the claim not proved as required by law.
2. Whether the trial Court was not right in its award of N200,000 as nominal damages in the circumstances of the case.”

The appeal was heard on the 11th June, 2020 wherein counsel to the parties adopted their respective briefs and made oral submissions in respect of their diverse postures in the appeal.

APPELLANTS’ ARGUMENTS AND SUBMISSION
On issue No. 1 distilled by the Appellants, counsel argued that the law is trite that an appellate Court would not interfere with an award of special damages unless the award is based on some wrong principle of law, or where the amount is so high or so low as to make it entirely erroneous of the damages suffered by the claimant. It is the submission of counsel that the Appellants in their Amended Statement of Claim specifically pleaded Exhibits G and H (valuation reports) which formed part of the pleadings of the Appellants. He submitted further that the said reports specifically itemized and particularized damages inflicted on the Appellants’ farm land by the action of the Respondent. It is the submission of counsel that from the evidence adduced on the said two evaluation reports which were not challenged during cross-examination, the Appellants sufficiently proved their claim for special damages. It is the contention of counsel that the trial Court was duty bound to accept the unchallenged and uncontroverted evidence placed before it as same was not discredited by the Respondent during cross-examination. He referred the Court to the case of MONKOM V. ODILI (2010) 2 NWLR (1179) 419 at 442.

He submitted that the valuation Reports which ran into many pages clearly specified, itemized and particularized damages on the said land and to produce the whole report in the Amended Statement of Claim will appear so cumbersome and inelegant. He argued that it is trite law that where a trial Court awards damages wrongly, an appellate Court can act to award the correct damages within reason. He cited the case of MTN NIGERIA COMMUNICATIONS LIMITED V. AQUACULTURE CO-OPERATIVE FARMERS SOCIETY LIMITED (2014) 40 W.R.N 123 at p. 134.

He therefore urged the Court to hold that the trial Court erred in law when it denied the Appellants the relief of special damages based on wrong principle of law it applied, having made findings of fact supporting such award.

On issue No. 2, it is the argument of counsel that the award of general damages is at the discretion of the Judge which must be exercised judiciously and judicially. He cited the case of KEYSTONE BANK LTD. V. SHEMONAL (NIG) LTD (2016) 4 W.R.N 105.

​He submitted that the findings of facts by the trial Court were not drawn from established facts and the said findings did not flow from the evidence adduced. He submitted that the trial judge failed to come to a decision on inference, assessment and evaluation of evidence presented to him by the witnesses and exhibits tendered. He argued that general damages need not be pleaded or proven as same naturally flows from the Defendant’s act and arises by inference of law. He submitted that the learned trial judge having come to a conclusion that the Appellants’ are entitled to general damages, erred in law by awarding nominal damages instead. He submitted that the manner in which general damage is qualified is by relying on what would be the opinion and judgment of a reasonable man in the circumstance of the case and that the trial Court erred in law by awarding the nominal damage of N200,000.00 only, notwithstanding that the Appellants established by evidence that they suffered huge damage and loss. He referred the Court to the decision of the trial Court at page 233 lines 6 to13 of the record of appeal. He submitted further that the award of general damages is never an alternative to special damages and the Court is not precluded from awarding general damages simply because it had awarded or declined to award special damages to the Plaintiff.

​On issue No. 3, it is the submission of counsel that the trial Court erred in law in proper evaluation of the evidence led before it. He submitted that the trial Court was wrong to have awarded nominal damages to the Appellants having found that the Respondent’s waste poured into the Appellants’ land was toxic and poisonous leading to damage to the Appellants’ land and economic trees. He submitted further that the award of nominal damages by the trial Court cannot be said to be a corresponding and sufficient remedy in view of the findings and conclusions of the trial Court with respect to the quantum of damages to the Appellants’ land and the impunity exhibited by the Respondent. He submitted that the trial Court erred in law when it held that the Appellants did not plead and did not prove any element of mental torture. He submitted further that the trial judge inhis judgment agreed with the Appellants that their land cannot produce anything and that the Appellants are heartbroken. It is the contention of counsel to the Appellants that in view of the position of the trial Court, the Appellants need not prove anything further and that the lack of precision or certainty in the claim for personal injury is no ground for the trial Court to award nominal damages or relieve the necessity of paying damages for breach of duty of care. He submitted that claims in damages for pains and sufferings, scars, damages to land and economic trees are in the nature of general damages and do not have to be pleaded separately and distinctly. He referred the Court to the case of S.C.C (NIGERIA) LTD V. OKPARA ELEMADU (2005) 7 NWLR (PT. 923_ 28 at 42.

On the whole, he urged the Court to allow the appeal and resolve all the issues in favour of the Appellants.

RESPONDENT’S ARGUMENTS AND SUBMISSIONS
On whether the trial Court was right to have refused the Appellants’ claim for special damages, the Respondent’s counsel submitted that Appellants having not pleaded and particularized the items of special damages, the issue of proof did not arise. He argued that the law is trite that for a claim for special damages to succeed, the pleadings must meet the requirement of law and to this end; special damage must be properly pleaded, itemized with its particulars and strictly proved by a party so claiming. He referred the Court to the case of DANIEL HOLDINGS LTD. V. UBA PLC (2005) 13 NWLR (Pt. 943), 533.

On issue No. 2, it is the submission of counsel that the Appellants claimed the sum of ₦126,812,000.00 (One Hundred and Twenty Six Million, Eight Hundred and Twelve Thousand Naira) as general damages for mental torture and anguish caused to them by the devastation of their farm lands and estate by the Respondent. He submitted that the Appellants did not give evidence of any torture or mental anguish resulting from the destruction of the community farm land to warrant an award of general damages as claimed. It is the submission of counsel that there was no way the trial Court would have assessed the mental torture and anguish without proof because none was obvious or apparent from the evidence led.

​He submitted that the trial Court was right in its assessment and award of the sum of N200,000 as nominal damages and that the amount is not too small and the findings not perverse. He urged the Court to resolve this issue in favour of the Respondent and against the Appellants.

APPELLANTS’ REPLY
In his reply brief, counsel to the Appellants submitted that Exhibit G which is the updated compensation valuation certificate for compensations valuation report on eroded/flooded Agricultural lands dated 24/2/1995 was well detailed and itemized. It is the contention of counsel that as against the submission of the Respondent that the claim for special damages ought to have been tabulated in the Amended Statement of Claim, the era of technicality is no longer in vogue and the Court are now enjoined to pursue substantial justice. He referred the Court to the case of OJAH V. OGBONI (1996) 6 NWLR Part 454 page 272 at 292, paras D – E.

On issue two distilled by the Respondent, counsel submitted that general damage is implied by law and need not be specifically pleaded and that same is a loss which flows naturally from the Defendant’s act. He urged the Court to discountenance the Respondent’s arguments and allow the appeal.

RESOLUTION OF ISSUES
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. I am of the view that the issue hereunder stated is apt and germane for the resolution of the issues raised in the appeal:
“Whether from the facts and circumstances of this case, the trial Court was right to have refused the Appellants’ claim for special damages and to have awarded them the sum of N200,000.00 as nominal damages?

The first limb of the issue distilled by the Court for the resolution of the instant appeal is whether the trial Court was right to have refused to grant the Appellants’ claim for special damages. In the Appellants’ Amended Statement of Claim which can be gleaned at pages 23 – 26 of the record of appeal, the Appellants’ claimed the sum of ₦23,188,000.00 (Twenty-Three Million, One Hundred and Eighty-eight Thousand Naira) as special damages. The trial Court’s rationale for refusing this leg of the Appellants’ claim can be found at pages 232 of the record of appeal wherein the trial Court held as follows:
“The Plaintiffs in their Amended Statement of Claim claims “Twenty three million, one hundred and eighty eight thousand naira as special damages and One hundred and twenty six million, eight hundred and twelve thousand naira as general damages for mental torture and anguish caused the plaintiffs by the devastation of their farm lands and estate by the defendants.
I am in total agreement with the defence counsel in his submission that the Plaintiffs pleading with regards to the special damages is defective. It is a very well settled principle of law that special damages must be pleaded specifically with clear particularity and proved strictly. The plaintiffs did not plead the particulars of their special damage…
In the instant case the plaintiffs have not particularized head of special damages in their pleadings. Their claim for special damages therefore is not viable or tenable.”

The law is trite that special damages must be specifically pleaded, particularized by the claimant making a specific and distinct plea with respect to his claim for special damages. This is because, special damages is different from general and exemplary damages. Thus, whereas general damages is usually at large, special damages is pinpointed and targeted at a specific loss sustained by the plaintiff/claimant as a result of the action or inaction of the defendant. The Supreme Court in the case of NEKA B. B. B. MANUFACTURING CO. LTD. V. AFRICAN CONTINENTAL BANK LTD. (2004) LPELR-1982 (SC), per Iguh, JSC at pages 38-39 held as follows:
“It must be stressed that the law is firmly established that special damages must be pleaded with distinct particularity and strictly proved and a Court is not entitled to make an award of special damages based on conjecture or some fluid and speculative estimate of alleged loss sustained by a plaintiff.”

In the instant appeal, it is important to examine the pleadings of the Appellants to determine if their pleading met the rules guiding the award of special damages. In paragraph 19 of the Appellants in their Amended Statement of Claim, the Appellants as Plaintiffs in the Court below pleaded thus:
Paragraph 19:
“Plaintiffs aver further that the said Joint Implementation Committee at the conclusion of its work fixed the amount of compensation payable by the Defendant to the Plaintiffs at ₦23,188,000.00 (Twenty- three Million, One Hundred and Eighty-eight Thousand Naira). The Plaintiffs total land affected are 374 plots. Plaintiff plead the letter of recommendation (JIC) addressed by the Enugu State Environmental Protection Agency (ENSEPA) to the Defendant’s Managing Director dated 24/09/2002. Plaintiffs were copied the said letter”.

The above was all the Appellants pleaded in respect of their claim for special damages and no more. The items constituting the special damages were not pleaded and no particulars of the items were pleaded as stated by the legal authorities cited above on this issue. The only other pleading in this process is as contained in paragraph 25(d) (i) where the Appellants claimed a follows:
“₦23,188,000.00 (Twenty- three Million, One Hundred and Eighty-eight Thousand Naira) as special damages.”
In the case of MMA INC & ANOR V. NMA (2012) LPELR – 20618(SC), the Supreme Court, per Galadima J.S.C stated the basis for pleading the particulars of special damages as follows:
“The basis for the law requiring the giving of particulars of special damage is to allow the other party know the case against it so as to eliminate any element of surprise. In the case of B.E.O.O. Ind. (NIG) LTD. v. MADUAKOH (1975) 12 S.G. 91 at P, 108, this Court approved Lord Donovan’s observations in PERESTRELLO v. UNITED PAINT (1969) 1 WLR 570 thus: “The obligation to particularize arise not because the nature of the loss is necessarily unusual but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to facts which make such calculation possible”. Similarly, this observation was re-echoed by this Court in the case of ATTORNEY-GENERAL BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt.118) 646, when Nnaemeka-Agu JSC (of Blessed memory) had this to say at p.678: “I must note that the main function of particulars is to give to the other party notice of all necessary particulars in the claim or defence so as to avoid taking the other party by surprise. It may assumeone of the three forms namely: (i) Better particulars of any claim, defence or other matter pleaded; (ii) A statement of the nature of the case relied upon; or (iii) Both such particulars and statement. At the root of it all is the fairness of the trial and the need to enable the other side prepare his case and evidence at the trial.”

The Appellants’ counsel in his Reply Brief made concerted efforts to salvage the shortcoming of the Appellants’ pleadings regarding their claim for special damages by downplaying the requirement of particularization of the special damages in the pleadings as a mere technicality that should not allowed to take credence over substantial justice. Contrary to the submissions of the Appellants’ counsel in this regard, I am of the firm view that the need to specifically plead and particularize a claim for special damages cannot be tied to the issue of technicality and as a matter of fact, substantial justice requires that the other party be allowed to know the case against it so as to eliminate any element of surprise. Exhibit G which is the Updated Compensation Valuation Certificate for compensationsvaluation Report on eroded/flooded Agricultural lands etc. dated 24/2/95 (see pages 73 – 83 of the record of appeal) no matter how well prepared by the Appellants estate valuers does not meet the requirement that the claim for special damages should be specifically pleaded and particularized in the Appellants Amended Statement of Claim. Flowing from the hills of the above, regrettable as it may be, I find it difficult to fault the trial Court’s refusal to grant the Appellant’s relief for an award of special damages.

The second limb of the Appellants’ complaint is the trial Court’s decision to grant them the sum of N200,000.00 as nominal damages instead of the general damages they prayed for. The law is settled by virtue of Section 131-134 of the Evidence Act that the onus is on the plaintiff in civil case to prove by cogent and credible evidence that he is entitled to the reliefs he seeks from Court. The standard of proof therefore is on the balance of probability or preponderance of evidence. SeeAG BAYELSA STATE V A.G RIVERS STATE (2006) 18 NWLR (PT. 1012) 596, (2006) LPELR-615 (SC).

The case of the Appellants is predicated on the nuisance caused by the Respondent’s wastewater and the destruction of their cash crops and economic trees. The Appellants in the trial Court averred that they initially instituted an action against the Respondent in 1996 and that after several demands to abate the nuisance and pay compensation failed, a move for settlement was made by a joint committee set up by the Enugu State Government Protection Agency (ENCEPA). The Appellants witnesses testified to the effect that the condition given to them by the Respondent to enable the payment of compensation was for them to withdraw the suit which they did. The Appellants averred that despite the recommendation by ENCEPA that they should be paid the sum of ₦23,188,000.00 (Twenty-Three Million, One Hundred and Eighty-eight Thousand Naira) by the Respondent, the Respondent did not pay the compensation neither did they abate the nuisance. The letter of recommendation of the joint implementation committee was tendered by PW1 and same was marked Exhibit B. PW1 also tendered the minutes of meeting of the joint implementation committee and the said document was admitted and marked Exhibit A1– A4.

​The Appellants engaged an Estate Valuer (PW2) in 1992 during the period of Diamond Breweries and a report which was prepared by the said witness was upgraded in 1995 and 2002 respectively. The said Report was tendered and marked Exhibit G. The witness also tendered a valuation certificate which was admitted in evidence and marked Exhibit H. A soil scientist (PW3) also testified on behalf of the Appellants and he tendered a report which was marked Exhibit J. The trial Court at pages 224 to 232 of the record of appeal considered whether the Appellants established their claim against the Respondent and after a thorough evaluation of the evidence led by the parties before it, the Court at page 226, lines 9 – 13 of the record of appeal was of the view that the Appellants established that waste water from Diamond Breweries destroyed their crops, trees and land. The trial Court was also satisfied that the Respondent acquired the liabilities of the defunct Diamond Breweries along its rights, assets and stocks. To add credence to the Appellants’ case, the Appellants tendered Exhibit F which is a letter from Nigerian Bottling Company Plc.acknowledging their share of the responsibility of the damages caused to the Appellants land, cash crops and economic trees. The Nigerian Bottling Company Plc. by way of compensation paid the Appellants the sum of ₦15,000,000.00 (Fifteen Million Naira). At the close of the Appellants’ case, the burden to disprove the Appellants’ allegation shifted to the Respondent and in evaluating the case of the Respondent, the trial Court at page 229 of the record of appeal held that:
“The defendants asserted that their industrial waste in not harmful and could not have caused the damage complained of. The burden has shifted onto them to establish that fact by credible evidence because as regards this issue if no further evidence is given judgment will be against the defendants. See S. 133 (1) & (2) of the Evidence Act (Supra).
The defendant failed to discharge that burden. This Court is therefore left with the evidence given by the plaintiffs that the waste water and effluent discharge from the defendant destroyed their land, crops and trees.”

​Still on whether the Appellants established their claim against the Respondent on thebalance of probability, the trial Court held at page 231 to 232 of the record of appeal as follows:
“The plaintiffs led evidence to show that their land, trees and crops were destroyed by the industrial water or waste from the defendant. The defendant on the other hand could not lead evidence in their claim that the industrial waste was not flowing through the plaintiffs land. They could not lead any evidence to establish that the waste from their factory is not harmful. As a matter of fact during cross-examination DW1 was asked “You are not sure of the Chemical content of your waste do you cannot say it is toxin free. His answered “Yes” (sic).
We are therefore left with the evidence of the plaintiffs that the waste adversely affected their land, even without the evidence of PW3 and his report Exhibit J. I am satisfied that the plaintiffs established their claim by preponderance of evidence on a balance of probability. The evidence weighed side by side with that of the defendant in the imaginary scale tills (sic) the scale in their favour. This issue is therefore resolved in favour of the plaintiffs.”The Appellants sought at paragraph 25 (ii) of their Amended Statement of Claim prayed the Court below for the sum of ₦126,812,000.00 (One Hundred and Twenty Six Million, Eight Hundred and Twelve Thousand Naira) as general damages for mental torture and anguish caused to them by the devastation of their farm lands and estate by the Respondent.

In its consideration of the Appellants’ entitlement to the general damages prayed for, the trial Court held at page 233 of the record of appeal as follows:
“All the plaintiffs could plead and establish is that their land was destroyed including their crops and trees. The evidence of the PW1 and PW2 support that claim including all the exhibits tendered especially exhibits G & H. PW1 testified that their land can no more yield anything. I am also in agreement with the defence counsel that the plaintiffs did not plead and did not prove any element of mental torture. I am satisfied that the plaintiffs are entitled to general damages, considering the fact that they established that compensation is owed to them because of the damage done to their land, crops and trees. Had the plaintiffs pleaded their SpecialDamages properly they would not have been entitled to general damages. But since their claim for special damages failed, they are entitled to general damages to taken into consideration the amount of damage caused by the waste product to the defendant on their land, trees and economic crops.
In the case of E.I.B. Building Soc. Ltd. vs. Adebayo (2013) 11 NWLR pt. 832 p. 497, the Court of Appeal held that the award of damages must be commensurate with the amount of injury suffered by the Claimant or as far as possible, represent a fair compensation that will be an adequate solarium.
In the instant case the plaintiffs suffered damage to their land, trees and crops. But in the case I am wrong and they are not entitled to that consideration under general damages I will award them a nominal damage.
In view of the fact that the plaintiff PW1 testified in support of their pleading that their land cannot produce anything anymore and that they are heartbroken, I am constrained to award them a nominal General Damage of ₦200,000.00.”

​The principles guiding the award of general damages are littered in a legion of judicial authorities of this Courtand that of the Supreme Court. In the case of ELF PETROLEUM V. UMAH & ORS. (2018) LPELR – 43600 (SC), the Supreme Court, Per OGUNBIYI, J.S.C held as follows:
“It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation.”

I have held earlier that the trial Court was right not to have awarded special damages to the Appellants by reason of their failure to plead particulars of their special damage, however, I wish to correct the position of the trial Court when it held that “Had the plaintiffs pleaded their special damages properly they would not have been entitled to generaldamages”. It is not the law that a party who has sufficiently pleaded and proved a claim of special damages and has been granted same by the trial Court would not be awarded his claim for general damages if he deserves same too. An award of Special damage is never an alternative to an award of general damages. From the excerpts of the decision of the trial Court elaborately reproduced above, I am perturbed as to why the trial Court failed to grant the Appellants’ claim for general damages after having thoroughly evaluated the evidence led by the parties and came to a conclusion that he is satisfied that the Appellants are entitled to general damages, considering the fact that they established that compensation is owed to them because of the damage done to their land, crops and trees by the Respondent’s brewing activities. The trial Court averted its mind to the principle guiding the assessment and award of general damages but failed to apply the parameters guiding assessment of same when he failed to take into consideration the consequences of the damage done to the Appellants’ land, crops and economic trees by the effluents andwastewater of the Respondent. I am of the opinion that the award of ₦200, 000. 00 as nominal damages considering the devastating effect of the Respondent’s activities to the Appellants’ 374 plots of land is nowhere commensurate with the amount of injury suffered by the Appellants or as far as possible represent a fair compensation that will be an adequate consolation.

The law is trite that nominal damages will only be awarded where there is no other evidence in the assessment of damages. See the case of BAKER MARINE NIG LTD. V. CHEVRON NIG LTD. (2006) LPELR – 715 (SC). The Appellants’ through PW2, a University Professor and an Estate Surveyor tendered a report which was upgraded in 1995 and 2002 respectively. The said Report was tendered and marked Exhibit G. PW2 also tendered a valuation certificate which was admitted in evidence and marked Exhibit H. (See pages 73 – 84 of the record of appeal.) From Exhibits G and H tendered by the Appellants’, I am of the view that there was evidence available to the trial Court in the assessment of damages caused to the Appellants’ land, crops and economic trees by thepoisonous wastewater and effluent of the Respondent.

From the totality of the evidence adduced by the Appellants at trial and the submissions and arguments of learned counsel to the Appellants in this Court, I am of the firm view that the Appellants have shown why they consider the sum ₦200,000.00 awarded as “nominal general damages” by the trial Court as too low. Considering the fact that it is on record that the land of the Appellants can no longer produce anything and that the Appellants by virtue of this are heartbroken, a fact which was also accepted by the trial Court, I am of the unflinching view that the trial Court did not exercise his discretion judicially and judiciously in making the award, and this Court as an appellate Court has the power to interfere with the award.
The law is trite that nominal damages will only be awarded where there is no other evidence in the assessment of damages. See the case of BAKER MARINE NIG LTD. V. CHEVRON NIG LTD. (2006) LPELR – 715 (SC). The Appellants’ through PW2, a University Professor and an Estate Surveyor tendered a report which was upgraded in 1995 and 2002 respectively. The said Report was tendered and marked Exhibit G. PW2 also tendered a valuation certificate which was admitted in evidence and marked Exhibit H. (See pages 73 – 84 of the record of appeal.) From Exhibits G and H tendered by the Appellants’, I am of the view that there was evidence available to the trial Court in the assessment of damages caused to the Appellants’ land, crops and economic trees by thepoisonous wastewater and effluent of the Respondent.

​On the whole, the appeal therefore succeeds in part and same is hereby allowed. The award of ₦200,000.00 awarded to the Appellants by the trial Court as “nominal general damages” is hereby set aside. In addition to the injunctive relief granted by the trial Court to the Appellants in relief (a) of their Amended Statement of claim, I also award the sum of N10,000,000.00 (Ten Million Naira) only as generaldamages for damages caused to the Appellants by the devastation of their farm lands, destruction of their economic trees and crops bearing in mind that evidence abound that their land can no longer reproduce anything. The measure of general damages in this regard is awarded to assuage the loss, which flows naturally from the Respondent’s act. I award the cost of ₦100,000.00 (One Hundred Thousand Naira Only) in favour of the Appellants and against the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: The erudite Judgment of my Learned Brother A.S. Umar, JCA; had been availed me and I was privileged to have read same in advance before now. I agree with his reasoning and conclusion that from the totality of the facts before the Court of trial, the Appellants had suffered the devastation of their sources of survival and livelihood in terms of their farmlands, economic trees and crops to the extent that the fertility of their land has been rendered completely void.

Accordingly, in line with the decisions in ELF Petroleum v. Umah&Ors. (2018) LPELR- 43600 (SC) and UBN V. Ajabule& Anor (2011) LPELR-8239 (SC); on the circumstances where thisCourt can interfere with general damages awarded by a Trial Court in that the Court below erroneously under-estimated the damages for which the Appellants were (are) entitled; I agree that the award of N200,000.00 (Two Hundred Thousand Naira) as nominal damages in the face of overwhelming evidence from the PW2 (an Expert), was manifestly too low to assuage the Appellants of the damage to their land, economic trees and crops.

​On the whole I adopt the position taken by Learned brother that this Appeal succeeds and abide the award of N10,000,000.00 (Ten Million Naira) as made by him including the Order as to costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal is partly meritorious and it is accordingly partly allowed.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

C. C. ECHETEBU, ESQ.For Appellant(s)

OGOCHUKWU ONYEKWULUJE, ESQ.For Respondent(s)