(2018) LPELR-45145(CA)

Transcription

1 NIGERIAN AGIP OIL CO. LTD v. AKPATI & ORS CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON FRIDAY, 6TH JULY, 2018 Suit No: CA/OW/109/2016 Before Their Lordships: MASSOUD ABDULRAHMAN OREDOLA ITA GEORGE MBABA TUNDE OYEBANJI AWOTOYE NIGERIAN AGIP OIL CO. LTD Between And 1. CHIEF UZOMA AKPATI 2. NWABINWE NNURU 3. PATRICK IRONA (For themselves and as representing members of Ununwabinwe Akpati family Umuoyata village, Oguta) Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. DAMAGES - SPECIAL/GENERAL DAMAGES: Whether the Court can award general damages as compensation where a claim for special damages fails "A critical examination of the respondents' brief of argument would reveal that apart from few arguments in support of the fact that the respondents proved their claim and thus entitled to damages awarded in their favour; the rest of the arguments in the said respondents' brief of argument are of little assistance in this appeal. The above notwithstanding, this appeal would still be determined on its merit, in order to ascertain the true position in relation to the contention forcefully canvassed by the learned counsel for the appellant. Before addressing the contention of the appellant's counsel, it will be of great importance to define the two concepts of general and special damages. General damages are those categories of damages which the law implies in every breach and violation of a duty or legal right, which occasioned damage or loss to a party. That is, they are categories of damages which are presumed to be the direct, natural or probable consequence of an act complained of, or breach of duty or legal right. They are damages that follow the ordinary or natural course of events. See the cases of G. K. F. Investment (Nig.) Ltd. v. NITEL Plc. (2009) 15 NWLR (Pt. 1164) 344; Ajigbotosho v. Reynolds Construction Co. Ltd. (2008) LPELR and N. E. P. A. v. Auwal (2010) LPELR Unlike the case of special damages, a successful plaintiff need not plead or prove any loss or quantum of loss before general damages can be awarded in his favour. The main consideration in the award of this head of relief is whether the plaintiff has successfully established a particular wrong done to him. Once this has been ascertained or established, general damages will be awarded in his favour to ameliorate and assuage for the wrong done and or injury suffered. See the cases of Seven-Up Bottling Co. Plc. V. NkangaOrs. (2008) LPECR and Ndinwa v. Igbinedion (2001) 5 NWLR (705) 140.Thus, the plaintiff need not prove any actual damage or loss before he would be held entitled to general damages. Indeed, the law is trite, that general damages are always made as a claim at large. Hence, the quantum need not be pleaded or proved. See Union Bank of Nig. Plc. V. Ajabule& Anor. (2011) 12 SC (Pt. IV) 1. Special damages on the other hand, are the categories of damages awarded to restore or compensate for the actual and/or accountable loss suffered by a party. Put differently, they are classified as the categories of damages which are the actual, but not necessarily the result of alleged wrong or breach of duty or legal right. They are damages that flows as a proximate consequence of a particular act. See Ahmed & Ors. v. Central Bank of Nigeria (2012) LPELR and Okundaye v. Moses (2013) LPELR To be entitled to special damages, all items sought to be specifically claimed must not only be distinctly pleaded with particularity but also, to be strictly proved with credible evidence. See the cases of Owena Mass Transport Co. Ltd. v. Imafidon (2011) LPELR-4810 and First Bank of Nig. Plc. V. Atunrase Carpets & Underlays Ltd (2011) LPELR ; Neka B. B. B. Manufacturing Co. Ltd. v. African Continental Bank Ltd. (2004) 1 SC (Pt. 1) 32 Though general and special damages are somewhat interrelated, in that they are awarded to compensate for a wrong done or loss suffered (as the case maybe); nevertheless, they are independent of each other. I am unaware of any authority which in any way suggests or indicates in the slightest, that for a party to be held entitled to general damages, he must first plead and prove special damages. It will be somewhat absurd, invidious and indeed does not accord with reason to insist on a party to plead and prove special damages only to be awarded general damages. The Million dollar question be asked; of what use or relevance will the proof of special damages be, if it is only needed for the sake of awarding general damages? Or what happens in cases whereby a successful party did not suffer specific damage or loss but it was proved that his right was breached or wrong occasioned to him? The contention by the learned counsel for the appellant in this appeal makes one to be more circumspect considering the fact that Courts are enjoined to refrain from awarding double compensation in favour of a party in respect of the same breach or wrong. That is, it is improper and uncalled for, to proceed and award damages in favour of a party on one head of damages, where he has in the same case been awarded damages under a different head for the same wrong. See Tsokwa Motors (Nig.) Ltd. v. U. B. A. Plc. (2008) 2 NWLR (Pt. 1071) 347 and Artra Industries (Nig.) Ltd. v. N. B. C. I. (1998) 4 NWLR (Pt. 546) 357.?In support of his contention that special damages need to be pleaded and proved before a trial Court can grant general damages in favour of a party, the learned counsel for the appellant cited and placed heavy reliance on the Supreme Court cases of Adim v. N. B. C. Ltd. (2010) 9 NWLR (Pt. 1200) 543 and S. P. D. C. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439. It is instructive to observe that none of these cases raised the issue in contention, not to talk of being in support of the appellant's position. In the former, the crux of the appeal was to determine whether the plaintiff can be awarded special damages for loss of use of his vehicle based on an inconclusive evidence and power of an appellate Court to tamper with general damages awarded by a trial Court. In the latter case, the issue in contention was whether the learned trial judge acted properly when after holding that the plaintiff failed to prove his special damages, could turn around to still award the plaintiff damages as general damages in respect of the same specific damages; when the plaintiff did not seek for such. In fact, the facts, circumstances and issues of law in contention in the cases under reference are completely different from those under consideration in this case. Thus, the cases are not applicable or relevant authorities in respect of this appeal. For the sake of clarity, I am of the firm viewpoint that the complaint, challenge and or contention advanced, canvassed and mounted by the learned counsel for the appellant, that the learned trial judge erred when he awarded general damages to the respondents despite the fact that they failed to plead and prove special damages, is highly misconceived, misplaced and does not represent the position of the law."per OREDOLA, J.C.A. (Pp , Paras. E-C) - read in context

3 MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Nigeria, sitting at Owerri (hereinafter referred to as the lower Court).The said judgment was delivered on the 26th day of October, 2015 in Suit No. FHC/OW/CS/04/2014, Coram: Hon. Justice O. O. Oguntoyinbo, J., (hereinafter referred to as the learned trial judge). The suit which gave rise to this appeal was initiated by the plaintiffs/respondents (hereinafter called the respondents) at the lower Court, vide a writ of summons and other originating processes filed on the 4th day of February, 2014, wherein the respondents by their statement of claim sought for the grant of the following relief: The payment of Fifty Million Naira (N50M) being fair and adequate compensation for the loss of inherited fishing rights, inconveniences, and for the injurious affection suffered as a result of Defendant oil spill and burning of the Agbo Nnuru creek and adjoining fish ponds and fish channels." 1

4 The respondents case against the defendant/appellant (hereinafter referred to as the appellant) was that one of the appellant s pipes carrying crude oil along Akri/Oguta flow station, Oguta, Imo State; ruptured and thereby caused the appellant s crude products to spill out in to the respondents Agbo Nnuru Creek and adjoining fish ponds and channels. The respondents claimed that the said spillage was caused as a result of the corrosion and rust of the appellant s oil pipeline. The respondents stated that the effect of the spillage was devastating as all their aquatic lives were lost, and their fishing activities dwarfed. The respondents further stated that the appellant in a bid to lessen the effect of the spillage; it engaged the services of Green Rock Company Ltd to clean up the oil spillage. The respondents stated that rather than clean up the spill, the company recklessly and mischievously burnt the spill area which further caused severe damages to the appellant s creek, fish ponds and channels. It was the respondents case that they made efforts to get compensation from the 2

5 appellant for their losses and damages suffered, but the appellant adamantly refused, hence, they filed this action. In its defence, the appellant admitted that the pipe did in fact burst, but it stated that the incident was caused by the act(s) of some unknown persons (that is, sabotage) who wanted to bunker crude oil from its pipeline. The appellant denied that the company engaged by it to clean up the spill rather than scoop the oil, burnt it. The appellant maintained that the burning of a section of the spill site around the affected creek was started by some unknown persons and not the company, that is, its contractor. In the main, the appellant stated that the oil spill and the damages suffered by the respondents were not as a result of the negligent act(s) of the appellant and thus, the appellant should not be held liable/responsible. Pleadings in the case were duly and swiftly filed and exchanged, thereafter the case proceeded to hearing. The respondents in proof of their case called a sole witness in addition to the 3rd respondent and tendered five exhibits 3

6 which included photographs and video production of the burning creeks. The appellant in its defence called a single witness and closed its case. Thereafter, the learned counsel for the parties filed and exchanged their written addresses in support of their respective cases. The written addresses were accordingly adopted by the learned counsel for the parties and the case was adjourned for delivery of judgment. The learned trial judge in a reserved judgment, found that the respondents had successfully established their case and thereby entered judgment in their favour. Consequently, the learned trial judge awarded the sum of N35,000, (Thirty Five Million Naira) as fair and adequate compensation to the respondents, for the loss of their fishing rights, inconveniences, and for the injurious affection suffered as a result of the oil spill and burning of the respondents Agbo Nnuru creek and adjoining fishing ponds and fish channels. The said decision of the lower Court did not go down well with the appellant, thus, it caused an appeal to be filed against the same before this Court, vide its notice of appeal 4

7 filed on the 2nd day of December, The said notice of appeal was subsequently amended with the leave of this Court granted on the 1st day of February, The appellant s complaint against the judgment of the lower Court was captured in its sole ground of appeal. The said ground of appeal as contained in its amended notice of appeal is reproduced with the particulars as follows: ERROR IN LAW The learned trial judge erred in law when she awarded the sum of Thirty Five Million Naira (N35,000,000,00) as compensation to the Plaintiffs/Respondents when the Respondents did not prove special damages. PARTICULARS OF ERROR. a) The Plaintiffs/Respondents claim was for general damages. b) The Plaintiffs/Respondents did not prove special damages at the lower Court. c) The law is trite that the award of general damages is dependent on the proof of special damages. d) The award of general damages even though at the discretion of the Court should be exercised judicially and judiciously. 5

8 In prosecution of this appeal, the learned counsel for the parties filed and exchanged their respective briefs of argument. The appellant s brief of argument prepared by Collins Iwuorie Esq., was filed on the 6th day of October, 2016 but the said appellant s brief was deemed as properly filed and served by the order of this Court made on the 26th day of September, On the part of the respondents, their amended respondents brief of argument prepared by Chukwuma C. Onyicha Esq. was filed on the 8th day of February, Towards the determination of this appeal, the learned counsel for the parties in line with the sole ground of appeal distilled a single issue for resolution. The issue as distilled by the learned counsel for the appellant is reproduced below as follows: Whether the learned trial judge was right in awarding the sum of N35,000, as general damages to the respondents when the respondents did not prove special damages. 6

9 On his own part, the sole issue formulated by the learned counsel for the respondents is reproduced below as follows: Whether the Court below was right when it awarded the sum of thirty five Million Naira to the respondents as compensation for the loss of fishing rights, inconveniences, and for the injurious affection suffered as a result of the oil spill and burning of the respondents creek. (Sole Ground of the Notice of Appeal). Save for their different styles of usage, the sameness or similarity in the sole issue crafted or donated by each of the learned counsel for the parties can be vividly discerned. However, the issue as couched by the appellant s counsel is preferred as the same captured more poignantly, the complaint as expressed in the sole ground of appeal. Thus, the issue suggested by the learned appellant s counsel is adopted by me, for resolution and the determination of this appeal. Before I proceed to consider the said sole issue, let me point it out clearly that this appeal is predicated on the complaint, that the learned trial judge wrongly awarded 7

10 compensation as general damages in favour of the respondents when they did not prove special damages. Thus, all arguments and/or contentions that centred on other findings of the lower Court which are not related to this complaint and those that bordered on quantum of damages would be discountenanced as they do not form part of the cruxor gravamen of this appeal. ARGUMENTS ON ISSUE. The learned counsel for the appellant commenced and submitted, that the sum of N35,000, awarded by the learned trial judge in favour of the respondents as compensation was in the form of general damages. He proceeded and pointed out, that there is a radical distinction between a general and special damages. It was thus contended, that the former is usually awarded as damages naturally resulting from the defendant s fault, while the latter is not. He referred us to the case of Adim v. N. B. C. Ltd. (2010) Vol. 187 LRCN 90, (2010) 9 NWLR (Pt. 1200) 543. The learned counsel argued, that even though the respondents pleaded special damages, they did not prove it as required by law. 8

11 He then maintained that the failure on the part of the respondents to prove their special damages in accordance with the specific standard set by the extant position of our law, has disentitled them to the general damages awarded in their favour by the learned trial judge. He supported his position with the cases of Rockonoh Co. Property Ltd. v. NITEL (2001) 7 KLR (Pt. 128) 2871, (2001) 14 NWLR (Pt. 733) 468; Adecentro Ltd. v. Council of O. A. U (2005) 5 KLR (Pt. 196) and Xtoudos Services Nig. Ltd. v. Taisei W/A Ltd. (2006) KLR (Pt. 221). Both cited without reference to the pages on which they are reported. The learned counsel for the appellant further contended, that notwithstanding the fact that the respondent pleaded and listed the particulars of the loss they allegedly suffered, they however did not lead any credible evidence to establish the averments in their pleadings, as they failed to demonstrate in evidence how they arrived at the pleaded and or quoted figures. The learned counsel then argued, that respondents are not only required to specifically plead their loss(es) but strictly prove the same with cogent and credible evidence. 9

12 He further submitted, that the mere repetition of the pleadings of the particulars of loss of income by the PW1 cannot qualify as a strict proof in evidence. He referred us once again to the cases of Rockonoh Property Co. Ltd. v. NITEL (supra); Adim v. N. B. C.(supra); Adecentro Ltd. v. Council of O. A. U. (supra) and Xtoudos Services Nig. Ltd. v. Taisei (W/A) Ltd.(supra). Again, the learned counsel for the appellant stated, that a look at the respondents claim will show that the claim was founded on the anvil of general damages. Additionally, that the respondents having failed to strictly prove their loss of income in evidence cannot be entitled to general damages. It was thereafter submitted, that it is trite law that a Plaintiff can only be entitled to general damages on proof of special damages In the instant appeal, there is no claim for special damages that is proved by the Respondents One wonders the justification for the award of N35,000, general damages in favour of the respondents by the trial judge. He called in aid the case of SPDC v. Tiebo II (2005) NNSCR. 10

13 The appellant s counsel continued with the submission, that even though the award of general damages is at the discretion of the trial Court, but the said discretion is required to be exercised judicially and judiciously. He referred us to the cases of Akpoku v. Ilombu (1998) 8 NWLR (Pt. 561) 283 and Adim v. N. B. C. Ltd. (Supra). Finally, the learned counsel for the appellant argued that the award of damages made by the lower Court was based on wrong principle, as there was neither claim of special damages or proof of the same by the respondents in their writ of summons. He concluded and stated, that the award of damages made by the learned trial judge was made without jurisdiction because the lower Court lacked the requisite jurisdiction to entertain the respondent s suit ab initio, because they failed to claim for special damages. He referred to and relied on the cases of Fatunbi v. Olanloye (2004) 12 NWLR (Pt. 887) 229; Agbu v. Civil Service Commission Nassarawa State (2013) ALL FWLR (Pt. 675) 231; Orthopedic Hospitals Management Board v. Garba (2002) 14 NWLR (Pt. 788) 538 and S. L. B. Consortium Ltd. v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252)

14 We were invited and urged, to allow the appeal of the appellant and set aside the judgment of the trial Court as it acted without jurisdiction. It is pertinent to observe that the respondents brief of argument did little (if at all) in addressing the main issue in contention in this appeal. For purpose of clarity, the appellant s contention in this appeal was that the learned trial judge erred in law when he awarded general damages in favour of the respondents, when they did not claim nor prove special damages. Thus, the contention or arguments were focused on the complaint that a trial Court lacks the power to grant general damages in favour of a plaintiff, unless where the plaintiff has previously sought and proved special damages. A critical examination of the respondents brief of argument would reveal that apart from few arguments in support of the fact that the respondents proved their claim and thus entitled to damages awarded in their favour; the rest of the arguments in the said respondents brief of argument are of 12

15 little assistance in this appeal. The above notwithstanding, this appeal would still be determined on its merit, in order to ascertain the true position in relation to the contention forcefully canvassed by the learned counsel for the appellant. Before addressing the contention of the appellant s counsel, it will be of great importance to define the two concepts of general and special damages. General damages are those categories of damages which the law implies in every breach and violation of a duty or legal right, which occasioned damage or loss to a party. That is, they are categories of damages which are presumed to be the direct, natural or probable consequence of an act complained of, or breach of duty or legal right. They are damages that follow the ordinary or natural course of events. See the cases of G. K. F. Investment (Nig.) Ltd. v. NITEL Plc. (2009) 15 NWLR (Pt. 1164) 344; Ajigbotosho v. Reynolds Construction Co. Ltd. (2008) LPELR and N. E. P. A. v. Auwal (2010) LPELR Unlike the case of special damages, a successful plaintiff need not plead or prove any loss or quantum of loss 13

16 before general damages can be awarded in his favour. The main consideration in the award of this head of relief is whether the plaintiff has successfully established a particular wrong done to him. Once this has been ascertained or established, general damages will be awarded in his favour to ameliorate and assuage for the wrong done and or injury suffered. See the cases of Seven Up Bottling Co. Plc. V. NkangaOrs. (2008) LPECR 8462 and Ndinwa v. Igbinedion (2001) 5 NWLR (705) 140.Thus, the plaintiff need not prove any actual damage or loss before he would be held entitled to general damages. Indeed, the law is trite, that general damages are always made as a claim at large. Hence, the quantum need not be pleaded or proved. See Union Bank of Nig. Plc. V. Ajabule& Anor. (2011) 12 SC (Pt. IV) 1. Special damages on the other hand, are the categories of damages awarded to restore or compensate for the actual and/or accountable loss suffered by a party. Put differently, they are classified as the categories of damages which are the actual, but not necessarily the result of alleged wrong or 14

17 breach of duty or legal right. They are damages that flows as a proximate consequence of a particular act. See Ahmed & Ors. v. Central Bank of Nigeria (2012) LPELR 9341 and Okundaye v. Moses (2013) LPELR To be entitled to special damages, all items sought to be specifically claimed must not only be distinctly pleaded with particularity but also, to be strictly proved with credible evidence. See the cases of Owena Mass Transport Co. Ltd. v. Imafidon (2011) LPELR-4810 and First Bank of Nig. Plc. V. Atunrase Carpets & Underlays Ltd (2011) LPELR 4161; Neka B. B. B. Manufacturing Co. Ltd. v. African Continental Bank Ltd. (2004) 1 SC (Pt. 1) 32 Though general and special damages are somewhat interrelated, in that they are awarded to compensate for a wrong done or loss suffered (as the case maybe); nevertheless, they are independent of each other. I am unaware of any authority which in any way suggests or indicates in the slightest, that for a party to be held entitled to general damages, he must first plead and prove special damages. 15

18 It will be somewhat absurd, invidious and indeed does not accord with reason to insist on a party to plead and prove special damages only to be awarded general damages. The Million dollar question be asked; of what use or relevance will the proof of special damages be, if it is only needed for the sake of awarding general damages? Or what happens in cases whereby a successful party did not suffer specific damage or loss but it was proved that his right was breached or wrong occasioned to him? The contention by the learned counsel for the appellant in this appeal makes one to be more circumspect considering the fact that Courts are enjoined to refrain from awarding double compensation in favour of a party in respect of the same breach or wrong. That is, it is improper and uncalled for, to proceed and award damages in favour of a party on one head of damages, where he has in the same case been awarded damages under a different head for the same wrong. See Tsokwa Motors (Nig.) Ltd. v. U. B. A. Plc. (2008) 2 NWLR (Pt. 1071) 347 and Artra Industries (Nig.) Ltd. v. N. B. C. I. (1998) 4 NWLR (Pt. 546)

19 In support of his contention that special damages need to be pleaded and proved before a trial Court can grant general damages in favour of a party, the learned counsel for the appellant cited and placed heavy reliance on the Supreme Court cases of Adim v. N. B. C. Ltd. (2010) 9 NWLR (Pt. 1200) 543 and S. P. D. C. v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439. It is instructive to observe that none of these cases raised the issue in contention, not to talk of being in support of the appellant s position. In the former, the crux of the appeal was to determine whether the plaintiff can be awarded special damages for loss of use of his vehicle based on an inconclusive evidence and power of an appellate Court to tamper with general damages awarded by a trial Court. In the latter case, the issue in contention was whether the learned trial judge acted properly when after holding that the plaintiff failed to prove his special damages, could turn around to still award the plaintiff damages as general damages in respect of the same specific damages; when the plaintiff did not seek for such. In fact, the facts, circumstances and issues of law in contention in the cases under reference are completely different from those under consideration in this case. 17

20 Thus, the cases are not applicable or relevant authorities in respect of this appeal. For the sake of clarity, I am of the firm viewpoint that the complaint, challenge and or contention advanced, canvassed and mounted by the learned counsel for the appellant, that the learned trial judge erred when he awarded general damages to the respondents despite the fact that they failed to plead and prove special damages, is highly misconceived, misplaced and does not represent the position of the law. Consequently, it is discountenanced and disregarded by me. Thus, this issue is resolved against the appellant and in favour of the respondents. Having resolved the sole issue formulated for resolution and the determination of this appeal in the manner as done above, this appeal is found by me to be utterly lacking in merit and it is accordingly dismissed. Thus, the judgment of the lower Court delivered on the 26th day of October, 2015 in Suit No. FHC/OW/CS/04/2014 is hereby affirmed by me. Costs in the sum of N50, is awarded in favour of the respondents and against the appellant. 18

21 ITA GEORGE MBABA, J.C.A.: I agree completely with the reasoning and conclusions of my learned brother M.A. Oredola JCA, in the lead judgment and also dismiss the appeal and abide by the consequential orders in the lead judgment TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree. 19

22 Appearances: U. C. Iwuorie Esq For Appellant(s) E. O. Ochomma Esq. with Ezekwesili Nwauwa Esq. For Respondent(s)