(2018) LPELR-44712(CA)

Transcription

1 AGIP (NIG) PLC v. OSSAI & ORS CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON THURSDAY, 14TH JUNE, 2018 Suit No: CA/OW/324/2014 Before Their Lordships: MASSOUD ABDULRAHMAN OREDOLA ITA GEORGE MBABA TUNDE OYEBANJI AWOTOYE Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal AGIP (NIG) PLC - Appellant(s) 1. UDOM OSSAI 2. ALPHONSUS IJEOMA 3. OZIOMA AGORUO And RATIO DECIDENDI - Respondent(s)

2 1. ACTION - MISNOMER: When will an error in a name be a misnomer "The law is also that where an incorrect name is given in a writ and the parties are not misled, in that they know the identity of the person suing or being sued, such is a misnomer that can be corrected. See the case of Osawaru & Anor Vs Fay-Dessy Catering (2011) LPELR (CA); Agbonmagbe Bank Ltd & Anor Vs CFAO (1961)1 All NLR (Pt.1) 116; A.B. Manu & Co. Vs Costain (WA) Ltd (1994)8 NWLR (Pt.360) 112; Shokunbi Vs Mosaku (1969) NWLR 52; Njemanze Vs Shell BP (1966) All NLR 8; Nkwocha Vs Fed. University of Technology (1996)1 NWLR (Pt.422)112. Njoku Vs UAC Foods (1999)12 NWLR (Pt.632)557. See also Njoku & Ors Vs Onwunelega (2017) LPELR CA, where my learned brother, M.A. Oredola, appeared to have exhaustively dealt with this same issue or problem, when he said: "It is elementary principle of corporate law, that a company is only known by the name it bears in its memorandum of association and with which it was incorporated. It is only by this name and none other, that it can sue or be sued under our law. See Section 37 of the Companies and Allied Matters Act, Cap. 59 Laws of the Federal of Nigeria, Every company is by law required to display its corporate name on a sign post outside its office. Thus, anyone who wishes to bring an action against a company can simply get the name of such a company from either the said sign post or by simply conducting a search at the registry of the Corporate Affairs Commission. Where an action is initiated against a company in a name which is different from its corporate or registered name, such an action is ordinarily expected to fail for lack of proper party. However, the question that needs to be asked is: can a party who mistakenly brought an action against a company on a wrong name be allowed to amend his/her processes to reflect the right name? The answer to the poser posed above would most respectfully depend on whether the mistake is a mere misnomer or more than that; a fundamental error. Where the identity of a party to be sued is well known to the party, but its name was inadvertently or wrongly spelt by the opposing party, the mistake or error would be regarded as a mere misnomer. See the case of MTN Nigeria Communications Ltd. V. Mr Akinyemi Aluko & Anor. (2013) LPELR , wherein this Court held as follows: "The law is settled that a person who is made a party to an action either as a plaintiff or a defendant must have legal personality or if not, it must be a body vested by law with power to sue or be sued. Thus, a company is recognized as a corporate body that can sue or be sued. Admittedly, it is a legal fiction that exists only in the eyes of the law. This is due to the fact that a company has no brain, eyes or hands of its own. It acts through human beings natural persons such as its Directors or Shareholders whose actions are invariably binding on it. See Ladejobi V. Odutola Holdings Ltd. (2002)3 NWLR (Pt.753)121. Now, where there is a mistake with regard to the name of a litigant in an action, such a mistake is described as a misnomer. It simply means a mis description or wrong use of a name. It is a mistake as to the name and not a mistake as to the identity of the particular party to the litigation. The former can be corrected while the latter cannot be corrected. Hence, in the case of a misnomer, an application can be made to amend the writ in order to substitute the mistaken name for the correct one. This could result in a juristic person being substituted for a non-jurustic one. Howbeit, the applicant who craves such an indulgence in the form of an amendment must show that there are reasonable grounds or basis in his use of the wrong name in the first instance. See Maersk Line V. Addide Investment Ltd. (2002)11 NWLR (Pt.778) 317/ Misnomer is all about mistake as to name and not mistake about identity. It is simply a wrong use of a name. If the party intended to be sued exists but a wrong name has been used to describe it, that strictly speaking, is a misnomer. Put differently, a misnomer does not lie in giving the name of the "wrong person" but in mistakenly giving a "wrong name" to the right person and the intended person to be sued..." In this case, Appellant, Nigeria Agip Oil Company Ltd, appears to have also owned up to being called AGIP NIG. PLC, as pleaded by the Respondents, hence their full participation in the case and filing of this Appeal on their said name. They cannot therefore complain of denial of fair hearing, having been duly heard. Chidoka & Anor Vs FCFC Ltd (2012) LPELR (SC); Ukiwo Vs Onwudiwe & Anor (2016) LPELR CA; Newswatch Comm. Ltd Vs Atta (2006) 12 NWLR (Pt.993) 144. I therefore resolve this issue against the Appellant, having withdrawn the preliminary objection and taken full part in the case to conclusion and the misnomer in its name, not- withstanding, especially with information that it was also known as Nigeria Agip Oil Company Limited, which Appellant admitted."per MBABA, J.C.A. (Pp , Paras. B-C) - read in context 2. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: Circumstances in which an appellate court will interfere with award of damages made by a trial Court "The law permits appellate Court to interfere and intervene, where the trial Court, in awarding the damages, acted under wrong principles of law in reaching its decision, or that the amount awarded was extremely high or extremely low. See Nigeria Agip Oil Co. Ltd Vs Ogini & Ors (2017) Adim Vs NBC Ltd & Anor (2010) LPELR SC B.B. Apugo and Sons Ltd Vs OHMB (2016) LPELR (SC)."Per MBABA, J.C.A. (P. 51, Paras. D-F) - read in context

3 3. DAMAGES - AWARD OF DAMAGES: Basis of award of damages "General damages is always inferred and presumed from the wrong/injury caused by the Defendant. See Yalaju-Amaye Vs Ass of Regis. Engineering Contractors Ltd (1990) LPELR SC; Ogbonna Vs Ogbonna (2014) LPELR (CA); UBN PLC Vs Chimaeze (2014) LPELR SC."Per MBABA, J.C.A. (P. 52, Paras. B-C) - read in context 4. JUDGMENT AND ORDER - CONSEQUENTIAL ORDER: Whether award of cost is a consequential order "Award of cost is part of the consequential orders a Court can make in a case. It cannot be seen as done, functus officio, if it follows the judgment of the Court. See the case of Bauchi State Gov. & Anor. Vs Yusgate Nig. Ltd & Ors (2017) LPELR (CA), where this Court said: "... In appropriate case a Court has inherent jurisdiction to make incidental or consequential orders to its judgment and/or vary its own orders in order to carry out its meaning or to make its meaning plain... The phrase "functus officio" means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. This means in practice that idea that the specific duties and functions that an officer was legally empowered and charged to perform have been wholly accomplished and thus, the officer has no further authority or legal competence based on the original commission..." When it is used in connection with a Court, it means that, once a Court has decided a matter before it, that Court has no further force or authority over the matter and it lacks competence or jurisdiction to review, or revisit its decision and/or to reopen the said matter... Thus, a Court, after entering judgment in a matter is not precluded from entertaining applications for ancillary orders, particularly those that seek to give life to the orders made in the judgment." Per Abiru JCA."Per MBABA, J.C.A. (Pp , Paras. A-C) - read in context 5. PRACTICE AND PROCEDURE - IRREGULAR PROCEDURE/PROCEDURAL IRREGULARITY: Whether a party who consents or acquiesced to an irregular/wrong procedure can later challenge same "...Of course, Appellant never denied that averment, but rather did everything to confirm the same, when it defended the suit and owned up the said names with which it was sued, and also prosecuted this appeal, comfortably, in the said name, owning up the transaction's and facilities, including the oil well - Akiri 9 oil well, situate at Ogwuma, Oguta, where the incident, resulting in this case took place. See the case of Alfa Vs Attai & Ors (2017) LPELR (SC) where it was held: "The law is trite, that where an action as in this case, was commenced by a procedure that is irregular, a party who took active part in the proceeding without raising a formal objection to the irregular procedure cannot later be heard complaining and praying that the action be set aside on ground of irregularity, which he himself had earlier acquiesced." See also Saude Vs Abdullahi (1989) LPELR (SC); CBN Vs Inter-Stella Comm. Ltd and Ors (2015) 8 NWLR (Pt.1462) 399; Ezomo Vs Oyakhire (1985)1 NWLR (Pt.2) 195; See the Supreme Court case of Uchendu Vs Ogboni (1999)5 NWLR (Pt.603) 337 at 245, which was adopted by this Court in SPDC Vs Nwagbara (2018) LPELR (CA), where the law was restated, that: "The appropriate time at which a party to a proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at any time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain at the concluding state of the proceedings or on appeal, thereafter, that there was a procedural irregularity which vitiated the proceedings... By, contesting the case to the full on the merits without earlier taken (sic) a preliminary objection at the trial Court, the Appellant must be deemed to have waived whatever rights it had..." See also Zakirai Vs Muhammad (2017) LPELR (SC); (2017)17 NWLR (Pt.1594) 181."Per MBABA, J.C.A. (Pp , Paras. D-B) - read in context 6. TORT - RES IPSA LOQUITUR: How the plea of res ipsa loquitur may be raised "...Moreover, where the doctrine of res ipsa loquitor applies, that appears to make express pleading of particulars of negligence, unnecessary. See Ibekendu Vs Ike (1993) LPELR (SC), where it was held: "...the doctrine need not even be pleaded, so long there are facts pleaded and evidence led before the Court on which it can be based... It can also be pleaded in the alternative to particulars of negligence averred. Kuti Vs Tugbobo (1967) NMLR 419."Per MBABA, J.C.A. (Pp , Paras. F-B) - read in context

4 7. TORT - RES IPSA LOQUITUR: Application of the doctrine of res ipsa loquitur and the effect thereof "Appellant had also faulted the application of the Res Ipsa Loquitor by the trial Court in this case, saying the common law principle would not apply, where there was a statutory provision, as in Oil Pipelines Act (OPA), Cap 07' LFN 2004, which Appellant said relates to this case. Appellant said Section 11(5) of OPA imposes on the holder of Oil Pipeline Licence, the obligation to pay compensation to person(s) suffering damages by reason of any neglect on the part of the holder or his agent to protect, maintain or repair any work, structure or thing, executed under the licence. I do not think this case comes under the Oil Pipeline Act (OPA), and that the doctrine of Res Ipsa Loquitor will cease to apply, even in a case relating to negligence under that Act (OPA), where the Court sees reason to infer the application of such legal principle, in appropriate circumstances. The Courts have stated, several times, when/where the doctrine of res ipsa loquitor can be applicable to a case. In the case of Anyigo Vs Ogar (2013) LPELR CA, this Court held: "Res Ipsa Loquitor simply means that "the thing speaks for itself. The doctrine... is applicable to actions for injury by negligence, where no proof of such negligence is required beyond the accident itself, which is such as necessarily involves negligence." See Ojo Vs Gharoro (2006) 2-3 SC 105." See also Ibekendu Vs Ike (Supra) In that case of Ojo Vs Gharoro (supra), the Supreme Court held: "The doctrine of res ipsa loquitor is premised or predicated on the mere fact of the event happening, which is based on two rebuttable presumptions, viz: a) That the event happened as a result of a duty of care somebody owes his neighbor. b) And that somebody is the defendant." And in the case of SPDC Vs Nwagbara (2018) LPELR -this Court said; "I believe, when the phrase (Res Ipsa Loquitor) is resorted to, it is used to simply imply that the evidence is obvious to the Court, or that the Court can readily take notice of the obvious facts which requires no further effort to establish. And it can be appreciated in a case of accident, or fire incident which result in the damage complained of, and the defendant's negligence held responsible for the accident or incident. In my view, it does not apply where the cause of the accident is known not to relate to the claims made." In this case, at hand, the trial Court had found, as a fact, that the fire was ignited, following explosion at the facility of the Appellant - Akiri 9 Oil Well, at Nde Ogwuma, Oguta, owned and exclusively controlled by the Appellant. The fact that the fire raged for 2 months, uncontrollably, causing devastation and sending toxic fumes to the neighboring communities of the Respondents and causing damages to Respondents' farms, (amongst others) further illustrated the negligence of the Appellant. I think the lower Court held, rightly, when it said; "I hold the view, as a result of the evidence before me, that since the oil well was under the exclusive control of the defendant and the fire could not have occurred if the defendant had complied with the duty of care imposed upon it under International Best Practices and as such occurred due to Defendant's negligence, the doctrine of res ipsa loquitor applies in this case. The Respondents have therefore established the Appellant's negligence and liability, which the DW1 had even alluded to, when he told the trial Court that Appellant had even paid compensation to some other persons - the Ogwuma Community, arising from the same fire incident, under a discussed settlement. See Exhibits F and G, carrying the evidence of such payments. That of course, amounted to clear admission of liability over the said fire incident, generally, and the Respondents could not have been lawfully excluded, in the circumstances."per MBABA, J.C.A. (Pp , Paras. C-E) - read in context 8. TORT - NEGLIGENCE: Fundamental ingredients a plaintiff must prove to succeed in an action for negligence "To establish liability for negligence, what the plaintiff is expected to prove are: that (a) The Defendant owed him a duty of care; (b) The Defendant breached that duty and (c) As a result of the breach, he (plaintiff) suffered damages. And the above factual conditions must exist conjunctively. See the case of Dare Vs Fagbamila (2009) All FWLR (Pt.489) 568; Ogbiri Vs N.A.O.C. Ltd (2010) 14 NWLR (Pt.1213) 208. And in the case of Omotoye Vs ABC (Transport Co.) Ltd (2009) LPELR (CA), my lord, Kekere Ekun JCA (now JSC) re-stated the principles/basis of liability in tort of negligence, thus: "In order to establish a claim for damages for negligence, the claimant must plead and prove: (a) That the defendant owed him a duty of care; (b) That the defendant failed to exercise due care; and (c) That the damages was as a result of the negligence of the defendant. See Ngilari Vs Mothercat (1999)13 NWLR (Pt.636) 628; Osigwe Vs Unipetrol (2005)5 NWLR (Pt. 918) 261." In the recent case of SPDC Vs Nwagbara (2018) LPELR (CA) this Court held: "This being a claim in tort, for negligence, it required in-depth scientific and technical analysis, to establish the probable link between the operational activities of the Appellant and the property of the Respondent; whether the activities of the Appellant, in fact, caused damage of Respondent's property (crops and land). The Respondent had a duty to prove that, infact, there was escape of unburnt gas from Appellant's Gas flow station into his land, and that causing the damages claimed, resulting in the quantum of damages claimed/awarded..." I therefore, agree with the trial Court that the Respondents had established the negligence of the Appellant and were entitled to remedy."per MBABA, J.C.A. (Pp , Paras. E-B) - read in context

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6 ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judggment): This appeal is against the judgment of the Federal High Court, Owerri, in Suit No.FHC/OW/CS/01/2011, delivered on 27/6/2014, wherein the trial Court granted the reliefs sought by Plaintiffs (now Respondents) as per their amended statement of claim. At the trial Court the summary of the claim was: Each of the plaintiffs claims against the Defendant the sum of (Five Million Naira) N5, (See page 37 of the Records). After hearing the case and considering the evidence and addresses of Counsel, the trial Court held: Indeed, upon a critical examination of the evidence placed before me, I am of the view that, 16 years after the fire incident, caused by the Defendant s negligence occurred, the plaintiffs are entitled to their claims, the value of which would have been greatly eroded due to the loss in purchasing power of the Naira over this period of time The 1st, 2nd and 3rd plaintiffs are each entitled to N5M (Five Million Naira) as general damages from the defendant for losses incurred as a result of the negligence between 1

7 March and April Plaintiffs claim succeeds. (See pages 232 and 233 of the Supplementary Records of Appeal). Dissatisfied, Appellant (who was the Defendant at the trial Court) appealed, as per the (Amended Notice of Appeal, filed on 2/3/15 and deemed duly filed on 3/3/15, disclosing 13 grounds of Appeal. Appellant filed brief of arguments on 19/6/2015, which was deemed duly done on 19/4/2016, and distilled 4 Issues for the determination of the appeal, as follows: (1) Whether the failure of the trial Court to hear and determine the preliminary Objection filed by the Appellant on June 21, 1999, before proceeding to enter judgment in favour of the Respondents, does not amount, to a denial of the Appellant s right to fair hearing. (Ground one) (2) Whether the Respondents established a case of negligence against the Appellant as found by the lower Court. Grounds 3,4,5,6,7,8,8,10,and 11) (3) Whether the trial Court was right when it awarded general damages of N5, (Five Million) in favour of each of the Respondents. (Ground 12) (4) Whether the award of cost to each of the 2

8 Respondents after the trial Court had delivered and signed its judgment is not a nullity (Grounds 13). The Respondents filed their Brief on 6/10/16, which was deemed duly filed on 24/4/18. They adopted the issues as distilled by the Appellant, for the determination of the appeal. Appellant filed a Reply Brief on 24/4/2018. Appellant did not distill any issue from ground 2 and so the same is hereby struck out, for being abandoned. See Kayode Vs State (2016) LPELR SC. Arguing the appeal on 24/4/2018, Learned Counsel for Appellant, Tonye Krukrubo Esq. on issue one, referred us to the preliminary objection filed by Appellant on 21/6/1999, seeking to dismiss the suit for want of jurisdiction; that, (1) the Nigerian Agip Oil Company Ltd is a separate entity from Agip (Nig) Plc sued as Defendant in the suit and (2) Agip (Nig) Plc is not an entity known to law and, as such the lower Court lacked the jurisdiction to entertain the suit. (Pages of the Records of Appeal). Counsel said the trial Court did not hear and determine the said application before it proceeded to enter judgment in favour of the Respondents on 27/6/14. Counsel said that 3

9 the trial Court had on 9/12/11 observed, in the course of the trial, as follows about the said preliminary objection: On 21st June, 1999, the Defendant filed a preliminary objection asking the Court to strike out the Defendant s name (because the Defendant on record Agip Nigeria Plc is not an entity know to law) and to dismiss this suit for want of jurisdiction. It is not clear from the records of the Court what transpired regarding the said preliminary objection. (page 126 of the Records) Counsel submitted that the Court is duty bound to determine all applications filed by the parties before proceeding to enter judgment in the matter; that it is irrelevant whether the Court perceives the application as downright stupid, frivolous, unmeritorious or even as an abuse of the Court process; that the Court must hear the party and rule one way or the other, as to act otherwise will amount to breach of the right to fair hearing of the applicant. Counsel relied on the case of Mobil Producing (Nig) UnLtd Vs Monokpo (2003)18 NWLR (Pt.852) 346 at 413; Eriobuna Vs Obiorah (1999)8 NWLR (Pt.616) 622 at

10 In the instant case, counsel said, the trial Court was fully aware of the existence of the Appellant s preliminary objection; that having found out that it was not clear what transpired regarding the said preliminary objection (on page 126 of the Records), the trial Court shirked its duty to ensure that the application was heard and determined before proceeding to enter judgment in the matter; that the net effect was that the said preliminary objection was still pending even after the judgment of the trial Court! He relied on the case of Victino Fixed Odds Ltd Vs Ojo (2010) 8 NWLR (Pt.1197)489 at 500, and Section 36 (1) of the 1999 Constitution, on the effect of failure to adhere to and protect party s right to fair hearing. He urged us to allow the appeal on the issue. On Issue 2, Counsel said that the action was founded on negligence; that by law, to succeed in an action founded on negligence the ingredients of negligence must be established, namely: a) The defendant owed him a duty of care; b) The Defendant breached the duty of care c) As a result of the breach, the plaintiff suffered damage. Counsel said the above ingredients must exist, 5

11 conjunctively, to ground the Defendant s liability in negligence. He relied on the case of Dare Vs Fagbamila (2009) All FWLR (Pt.489)568; Ogbiri Vs N.A.O.C. LTD (2010)14 NWLR (Pt. 1213) 208 at Counsel said the Respondents failed, woefully, to establish the case of negligence alleged against the Appellant, and so the trial Court was wrong to enter judgment for the Respondents. Counsel illustrated the said failure in the following ways: (1) Failure to plead and give evidence of the particulars of the negligent conduct or acts of the defendant which caused the plaintiffs to suffer damage. Koya Vs UBA Ltd (1997) 1 NWLR (Pt.481) 251 at 291; Ogbiri Vs N.A.O.C. Ltd (supra). In the instant case, Counsel said Respondents founded the alleged negligence on the fire outbreak in one of the Oil Wells known as and called the Akiri 9 Oil Well situate at Nde Ogwuma, Oguta; that other than mere stating the fact that there was a fire outbreak, the Respondents failed to plead or furnish the particulars of the negligent conduct or act of the Appellant that caused the fire outbreak; that the Respondent only made a blanket allegation of negligence, 6

12 without more; that failure to supply the particulars of the alleged negligent acts and prove same, with credible evidence, was fatal to the case of the Respondents. He argued that the trial Court did not make specific findings on this. He relied on Abubakar Vs Nasamu (No.1) (2012)17 NWLR (Pt.1330); Adah Vs NYSC (2004)13 NWLR (Pt.891) 639; Ogolo Vs Ogolo (2003)18 NWLR (Pt.852)494. (2) In applicability of the Doctrine of Res Ipsa loquitor Counsel said that while holding that the Doctrine of resipsa loquitor applied to the case, the trial Court held: The occurrence of the fire at its oil Well, as a result of an explosion, which raged on for two months (this is not in dispute between the parties i.e. the length of time in which the fire persisted) is sufficient evidence of the breach of the Defendant s duty of care. I hold the view, as a result of the evidence before me, that since the oil well was under the exclusive control of the Defendant and the fire could not have occurred if the Defendant had complied with the duty of care imposed upon it under International Best Practices, and as such occurred due to the Defendant s 7

13 negligence, the doctrine of res ipsa loquitor applies in this case. See Ali Vs CBN (supra). (pages of the Records of Appeal). Counsel said the above holding was wrong, to imply that the mere occurrence of the fire incident, which raged on for 2 months was sufficient evidence of the breach of Appellant s duty of care to the Respondents; he said that the fact that there was fire incident is in no way confirmation that same was caused by an act of omission of the Appellant; that the Respondent had a duty to prove that the fire incident was as a result of the negligence of the Appellant. He relied on Abubakar Vs Joseph (2008) 13 NWLR (Pt.1104) 307. Counsel said reliance on the common law doctrine of res ipsa loquitor was inappropriate, since the Respondents claim related to oil well explosion, a claim subject to the provisions of the Oil Pipelines Act, (OPA) Cap 07 LFN 2004, and OPA does not contemplate of the doctrine of res ipsa loquitor. He relied on Section 11(2) (5) of the OPA, which Counsel said, also provides for circumstances under which compensation can be paid for damages and injuries, arising 8

14 from neglect by a licensee. He also relied on Patkun Ind. Ltd Vs Niger Shoes Ltd (1988) NWLR (Pt.93) 138, where the Supreme Court said: It is well settled law that where a common law right has been enacted into statutory provision, it is to the statutory provision so made that resort must be had for such rights and not in the common law. He also relied on Harka Air Services (Nig) Ltd Vs Keazor Esq (2011) LPELR 1353 SC; Bodo Communities & Ors Vs The Shell Devt. Co of Nig. Ltd (2014) Ewite (1973) TCC; Nigeria Agip Oil Co. Ltd Vs Ogbu: CA/PH/387/2011 delivered, on 25/7/2017. Counsel added that assuming (without conceding that the doctrine of res ipsa loquitor could be invoked in this case, the doctrine means that the thing speaks for itself ; that is, there is evidence of negligence in the absence of explanation by the defendant; and it applies in a situation where the facts of a case are such that the negligence complained of would not have occurred if the defendant had taken due care; he said that the Court is entitled, in that situation, to draw inference from those facts, unless 9

15 the defendant adduces evidence in rebuttal of such inference. He relied on NPA Vs Rahman Bros. Ltd (2010)17 NWLR (Pt.1221)100 at 117. Counsel also relied on the case of ABI Vs CNB (2012)3 NWLR (Pt.1286)1 at 12, on the conditions for a successful invocation of the doctrine of res ipsa loquitor; that in that case the doctrine would have been available to the Appellant, if he had adduced evidence to show that the injury would not have appeared without the likelihood of lack of care by the Respondents. Counsel said the Respondent failed to satisfy the said conditions in this case; that Appellant had explained the cause of the fire to show that it was not in any way negligent. Counsel also relied on the case of Nigeria Ports Plc Vs B.P. PTE Ltd (2012)3 NWLR (Pt.1333) 454 AT 483 to conditions applicable for invoking the doctrine of res ipsa loquitor. 3) No credible evidence in proof of damages suffered. Counsel also said that the Respondents woefully failed to prove that they suffered any damage as a result of the fire which ignited the oil well to hold that Respondents were affected by the fire incident. Counsel said the Respondents had admitted that Appellant paid compensation 10

16 to members of the three neighboring communities/farm settlements; namely: Nde Ogwuma; Nde Anene and Nde Azogu, after conducting inspection of their farm settlements: Counsel said that Respondents had alleged that Appellant failed or refused to visit their farm settlements, but failed to produce their alleged complaints at the trial; that that amounted to withholding of evidence and urged us to invoke Section 167 (d) of the Evidence Act. He relied on the Registered Trustees of RCCG Vs Bankole (2011)1 NWLR (Pt.1227)40 at 58. Counsel also picked quarrel with the way the trial Court treated and relied on the Exhibits A1 A13; C and D, E to E2 and asserted that that Respondents did not establish any injury or damages suffered. On issue 3, whether the trial Court was right to award N5, to each of the Respondents, Counsel answered in the negative. He stated the circumstance where the appellate Court may interfere with the damages awarded by the trial Court, and said this presents a proper circumstance to do so; he said that the damages were awarded without regard to established principles of law; that the law does not permit remedy, where no fault 11

17 is established, and he relied on Tsokwa Oil Marketing Co. Vs B.O.N. Ltd (2002)11 NWLR (Pt.777)163 at 218; Anike Vs SPDC Nig Ltd (2012) All FWLR (Pt.638)975 at 989. Counsel said that the Respondents did not establish the liability of the Appellant at the trial Court by credible evidence to entitle them to the award of damages. He further relied on his submissions relating to issue 2, and added that the quantum of the losses suffered by the defendant was/is ascertainable and quantifiable or particularized; that in such a situation, it was wrong to award general damages. He referred us to paragraphs 15A to 15D of the statement of claim, where Respondents pleaded the particulars of their losses. He relied on the case of Edun Vs LACOED (1998) 13 NWLR (Pt.580) 52 at 69, where it was held: the guiding principle in respect of award of general damages is that, where the quantum of the loses are ascertainable that it will be wrong and improper to award general damages. He said that in the case of Okeke Vs Aondoakaa (2000)9 NWLR (Pt.675) 501 at 529, it was held by the Court: 12

18 So long as an injury that has resulted from a tortuous act is capable of quantification in money s worth, it stops to be a claim under the head of general damages for the reason that it ceases to be a matter of speculation by the Court. Once the quantum of loss is ascertainable, it is improper, to consider it as one coming under the claim for general damages." Counsel referred us to page 232 of the supplementary Records of Appeal, where he said the trial Court affirmed the fact that the Respondents had particularized their losses the quantum thereof, when the trial Court said: The particulars of loss incurred as stated in the Amended statement of claim are the same as contained in the written Deposition of PW1 and PW2 dated 13th July 2011, and these two persons have also stated and repeated those details under cross examination. In view of the above, Counsel said there was no basis for the trial Court to award general damages to the Respondents, when they had particularized their losses; that the proper thing the trial Court should have done was to examine the particulars of losses and the evidence adduced in proof thereof, to determine if the Respondents 13

19 were entitled to same. He said that the award was perverse as the trial Court based it on reasons/grounds not pleaded, when it held: General damages are awarded to assuage the natural loss and painful mental feelings suffered by the plaintiff and caused by the Defendant. Such damages flow from the wrong suffering caused by the Defendant. (page 232 of the Record). Counsel said the Respondents did not make claims for natural loss or painful mental feelings to entitle the trial Court to rely on same to assess the general damages, awarded. He said that a Court is enjoined to always confine itself to the case made out by the parties and not to make a case for the parties; that as an umpire the Court cannot descend into the arena of conflict. UBN Nig. Ltd Vs Emole (2001)18 NWLR (Pt.745) 501 at 517. Thus, he said the Respondents failed to lead credible evidence in proof of the particulars of losses, elaborately, given by them in the pleadings; that the evidence offered were fraught with speculation and approximation and did not meet the standard required by law. NEKA BBB MFG CO.LTD VS ACB LTD. 14

20 (2004)2 NWLR (Pt.858) 521 at He said that the claims, which were in the nature of special damages, ought to have been dismissed, and he relied on Badmus Vs Abegunde (1999)11 NWLR (Pt.627) 493 at 503, where the Supreme Court said: In no circumstances can general damages be properly substituted for special damages which a plaintiff has failed to prove, or even if he has led evidence on it, did not make any claim for it. See West African Shipping Agency Vs Kalla (1978)3 SC 21 at 32; (1978)11 NSCC 144." Counsel also relied on Rockonoh Property Co. Ltd Vs NITEL PLC (2001)14 NWLR (Pt.733) 468 at 510. Counsel also argued that, assuming, but without conceding, that the trial Court was right to make the award, that the amount (N5, ) awarded, to each of the Respondents was excessive, unwarranted and, ridiculously too high; he said that the aggregate of the claims made by the plaintiffs in paragraphs 15A to 15C of the Amended statement of claim (page 34 of the Records of Appeal) amounted to N406,400, and in paragraph 15D of the pleadings, they claimed for medical expenses which they failed to disclose any particulars. 15

21 Counsel also argued that arising from the same fire incident, compensation of N1,800, was paid to the Ogwuma Community by the Appellant, as a whole, for damages, general inconveniences, rent for alternative accommodation and other losses (Exhibit F), and that as per the Exhibit G, only N10, was paid to each of the 101 families affected for general inconveniences; that the Respondents being individuals, pursuing individual claims did not prove and were not entitled to such excessive award (N5M) each as general damages. He relied on the case of A.S.E.S.A Vs Ekwerem (2008) All FWLR (Pt. 419) 838 at 864, to say that damages are not awarded on the basis of sentiments or sympathy. On Issue 4, whether the award of cost to each of the Respondents, after the trial Court had delivered and signed its judgment was not a nullity, Counsel answered in the affirmative. Counsel submitted that the trial Court, after delivering the judgment, awarding the damages of N5 Million to each of the Respondents, signed the judgment on the said 27/6/2014, and thereafter entertained fresh proceedings, which culminated in the award of costs of N150, to 16

22 each of the Respondents, and the ruling relating to the said costs was not signed by the trial judge. He referred us to pages 233 to 236 of the supplementary Records of Appeal. Counsel submitted that a judgment is deemed complete, when, upon delivery, the judge dates and signs it; that thereafter, the judge cannot review or rewrite the judgment, being functus officio. He relied on the case of TSALIBAWA Vs HABIBA (1991)2 NWLR (Pt.174) 461 at 475. Thus, Counsel said the trial Court lacked jurisdiction to reopen the case for the purpose of awarding costs to the Respondents. He relied on the case of NAB Ltd Vs Shuaibu (1991)4 NWLR (Pt.186) 450 at 462; Nwoko Vs Azekwo (2012) NWLR (Pt.1313) 151 at Counsel urged us to resolve the Issues for Appellant and to allow the appeal. The Respondents Counsel, CHIDI B.I. NWORKA ESQ, on Issue one, answered in the negative. Counsel submitted that on 20/9/1999, Appellant had withdrawn the said motion of 21/6/1999, (the subject matter of Issue one), and that was before Hon. Justice Mustapher J; that the proceedings of what transpired in the Court between July 17

23 1998 (when this case was filed) and 2000 were craftily left out of the Records of proceedings, by the Appellants, but even then that the truth (which could not be hid) still found its way out on page 11 of the Records of Appeal where the said motion is reproduced and clearly marked as having been withdrawn on 20/9/99; that it was upon the withdrawal of the said motion, that Appellant moved the motion it filed on the same date, 20/9/99, for extension of time to file statement of defence and to deem the statement of defence filed, as duly done. Page of the Records of Appeal). Thus, having withdrawn the motion on 20/9/99, Counsel said there was nothing again before the trial Court to pronounce upon in 2014, when judgment was delivered in the suit. Counsel questioned the motive of the Appellant in leaving out what transpired at the lower Court, between July 1998 and 2000, and submitted that Appellant cannot be allowed to rely on its own failure to claim that its said motion was still pending as, at the time of judgment in Counsel also argued that even when the lower Court, on page 126 of the Records, made the observation, which Appellant tried to exploit, the trial Court went further 18

24 to say that the substantive suit was struck out by that Court as then constituted, on 14th December 2000, and later relisted on 28th March 2001 (pages 2-3 of the supplementary Records of Appeal). He argued that upon the striking out of the suit in December 2000, all the processes filed in or with the suit stood struck out, and when the substantive suit was restored in March 2001, only the substantive suit came back to life. Counsel added that even then, a party who files a process in Court and fails to take steps to get it heard, he is deemed to have abandoned the process and the same is deemed abandoned. He relied on the case of CAREW VS OGUNTOKUN (2011) ALL FWLR (Pt.568) 895 at Counsel also argued that, on page of the Records, the Respondents had pleaded, in paragraph 2 of the Amended statement of claim, that AGIP NIGERIA PLC was also known as AGIP NIGERIA OIL COMPANY LIMITED, and Appellant did not deny that averment; moreover, Counsel said all the processes filed by the Appellant, throughout, the trial were done in the name it now seeks to claim is not an entity, known to law; that Appellant participated in 19

25 the trial, in every material particular, in the said name and never raised any protest that it was not an entity known to law, and should not have been sued; that it is too late to complain. And because the motion had been withdrawn, Counsel said, there is no cause/basis for complaint. He relied on the case of Broadline Vs Monterey (1995) 10 SCNJ 1 at 20. He also relied on Ipinlaiye Vs Olukotun (1996) 6 SCNJ 74 at 88, to say that, where a party consents to a procedure which is neither unconstitutional nor a nullity, but merely wrong or irregular, and, in fact, suffers no in-justice thereby, it would be too late to complain, on appeal that the wrong procedure was adopted, simply because he lost the case at the trial. On Issue 2, whether the claim of negligence was established, Counsel answered in the affirmative. He said ample evidence was adduced in support of the pleadings to establish the claim of negligence by the Appellant; and the evidence was not dented. He referred us to the witnesses Depositions of Respondents on pages and 94 to 95 of the Records. Counsel added that the feeble attempt by Appellant to pass off the false 20

26 claim contained in its statement of defence (that the fire was ignited by the bush burning activities of the Respondents community) was resolutely debunked, when Appellant s Counsel put that question to PW1, on page 126 of the Supplementary Records of Appeal; he said that evidence showed the fire occurred when there was explosion of Appellant s facility, which set of an inferno that Appellant, negligently, allowed to rage, uncontrollably, for two months before it was brought under control; that Appellant also, negligently, failed to warn the residents, timeously, of the hazards of the ensuing pollution, and when the warning eventually came, it was too late, after the Respondents had been dangerously exposed to and already suffered the health hazard due to exposure to toxic fumes released into the surrounding atmosphere by the fire. Counsel said Appellant s witness (DW1) admitted that the fire outbreak began in early March, 1998 and ended in April 1998 (page of the Records of Appeal). Counsel also said there was evidence that Appellant paid compensation to some communities affected by the fire 21

27 incident, which did not bring action in Court against it; that that was evidence of admission of responsibility. Counsel noted that Appellant did not report the fire incident to appropriate authority, as required by Sections 24 and 25 of the Mineral Oils (Safety) Regulations (made as subsidiary legislation to the Petroleum Act, Cap P10, Laws of the Federal Republic of Nigeria, 2004) for investigation. Thus, Counsel said the evidence of the Appellant was weightless, and that the trial Court was right to believe the Respondents and was absolutely right to apply the principles of res ipsa loquitor. He relied on the case of NEPA VS ALLI (1992)10SCANJ 34 at 53, where the Supreme Court said that the principle of res ipsa loquitor rests on three conditions: (1) That the thing which caused the damage was under the care and control of the Defendant. (2) That the occurrence is such that it could not have happened in the absence of negligence, and (3) That there is no evidence as to why or how the occurrence took place. Counsel said the three conditions are overwhelmingly, present in this case. Counsel said the provisions of the Oil 22

28 Pipelines Act, which Appellant sought to introduce into this case, was totally irrelevant and inapplicable to the case. He said that, by law, one cannot read into an enactment what it has not provided: Mbonu Vs Nwoti (1991) 7 NWLR (Pt.206) 737 at 750; that that Act, as clearly provided, even in the section quoted by Appellant, applies to pipelines and substances used in the production, refining and conveyance of oil; he said that oil well is neither a pipeline nor a substance, rather the very site where oil is dug up. Thus, the applicable law is Petroleum Act Cap, P.10 Laws of F.R.N. 2004, and the subsidiary legislations made there under Mineral Oils (Safety) Regulations, Sections 3 and 5 which imposed strict duties on Appellant to comply with safety standards provided for in that Regulation; that Section 4 thereof even criminalizes failure to comply with the Regulations. Counsel said that Appellant cannot be heard to question whether it owed a duty of care to Respondents and other neighboring communities, in the light of the provisions of the Mineral Oils (Safety) Regulations. He referred us to Sections 20 and 21, and argued that if Appellant had 23

29 performed its duty, diligently, unauthorized person(s) would not have had access to the Akiri 9 oil well facility to start the fire (as Appellant claimed); that the fire would not have raged for 2 months, uncontrollably, and while that was going on, that Appellant failed to warn the residents of the danger of exposure to the toxic fumes in good time, to enable them avoid the exposure, or assist to relocate them (residents) from the danger. Counsel relied on the Supreme Court decision Ibekendu Vs Ike (1993) 7 SCNJ (Pt.1) 50 at 59, to say that Res Ipsa Loquitor need not be specifically pleaded, so long as facts and evidence led are before the Court, from which it can be based; that it can also be pleaded in the alternative to particulars of negligence averred; that the rule of res ipsa loquitor is a rule of practice and not a rule of law. It is to assert the right of the party, claiming injury and damages due to negligence; that there must be evidence of negligence in a reasonable way. Thus, where a thing is shown to be under the management of defendant or his servant and an accident occurs in the process and that accident is such as does not occur in the ordinary 24

30 course of things, if those who are in the management exercise proper care or diligence;that in the absence of any explanation by those in the management as to how the accident occurred, the accident is presumed to occur due to negligence or lack of care; that is a convenient way to explain an unusual accident. He relied on the case of Odebunmi Vs Abdullahi (1997) 2 SCNJ 112 at 121. He concluded that the doctrine of Res Ipsa Loquitor eminently applied in the case. On Issue 3, whether the trial Court was right to award the general damages of N5 Million to each of the Respondents, Counsel answered in the affirmative. He argued that the pleadings which Appellant referred to was only a guide showing particulars to give idea of some of the damages to the Court, and so did not disclose all or total actual loss or damages, and had established their said claim. He said the law is trite that a plaintiff who claims damages, whether special or general damages, must provide some particulars upon which the Court would base its assessment; that where a plaintiff has difficulties in quantifying his actual pecuniary loss, he may claim in general damages 25

31 KUSFA VS UBC LTD (1994)4 SCNJ (Pt.1) at 16; that that was what the Respondents did in this case. Counsel also drew our attention to the law that an appellate Court does not ordinarily, interfere with the award of damages made by the trial Court. Sabru Motors Ltd Vs Rajab Ltd (2002)4 SCNJ 370 at 382. On Issue 4, whether the award of cost of N150, to each of the Respondents after the trial Court had delivered and signed its judgment was a nullity, Counsel answered in the negative. He said that Appellant had dredged up some weird argument about the stage at which the trial Court dealt with the issue of cost to the parties. Counsel said that what the trial Court did, after delivering the judgment, was to call on parties (Counsel) to address it on the issue of cost to be awarded; that that was in line with the law and practice. He said that Appellant only tried to make a heavy weather on the issue, by taking out separate Records of Appeal to establish the difference between the judgment and the Ruling on costs! He relied on Order 25 Rule 10(1) of the Federal High Court Rules, 2009 to say that the trial Court was right 26

32 to seek and take address on the cost to be awarded and to rule on it; he said that that ruling on cost was part of the judgment delivered, as shown in the judgment Order on page of the Supplementary Records of Appeal; that the trial Court delivered one single judgment, encompassing all the awards; that Appellant took part in the proceeding relating to the cost awardable and so cannot complain against the procedure adopted, on appeal. Counsel urged us to resolve the issues against the Appellant and dismiss the appeal. In Appellant s Reply Brief, on the point that Appellant did not produce Records of what transpired in Court, between 1998 and December 2000, Counsel said the Respondents had a duty to compile additional Records, if they were not satisfied with the Records compiled by the Appellant. He relied on cases, including Garuba & Ors Vs Omokhodion & Ors (2011)15 NWLR (Pt.1269)145. He added that the preliminary objection was still subsisting. Counsel made further arguments, which appear to be a re-enforcement of the arguments in the main Brief, which is not what Reply Brief is for. A reply brief is not an opportunity to re-argue a brief. 27

33 Kalu Vs State (2017) LPLER SC. RESOLUTION OF THE ISSUES I think the four issues donated by the Appellant for the determination of this appeal are apt for the purpose, and I adopt them, but in considering the issues, I shall take the issues 2 and 3 together. Issue One: Whether the failure of the trial Court to hear and determine the preliminary objection filed by the Appellant on June 21, 1999, before proceeding to enter judgment in favour of Respondent occasioned denial of the Appellant s right to fair hearing? As rightly argued by the Respondents Counsel, Appellant kept this Court in the dark about what actually transpired in Court between 30/7/98 when this case was originated and 14/12/2000 when the suit was struck for want of diligent prosecution, and later relisted on 28/3/2001. Appellant s Records of Appeal (Vol.1) carried the Processes filed in the case, while the Supplementary Records of Appeal (volume 2) carried the proceedings and the judgment/rulings. The preliminary objection filed by the Appellant on 21/6/99 is reproduced on pages 11 to 12 of the Records of Appeal 28

34 (Vol.1). It sought the leave of Court to strike out the name of the defendant/applicant in the suit; an order dismissing the suit for want of jurisdiction, and any further order(s) as the Court may deem fit. On the top right hand side of the process is a hand written information: WITHDRAWN(and) signed on 20/9/1999. That obviously, suggests what happened to the said process, that it was withdrawn on 20/9/99, the same date Appellant (as Defendant) filed another motion, for: (1) An order for extension of time within which the Defendant/Appellant may file and serve its statement of defence, the time allowed by the rules having elapsed. 2) An order deeming as properly filed and served the statement of defence attached to the affidavit to this motion, the proper filing fees having been paid. (See the processes on page of the Records). There is no indication in the Records of Appeal as to when that motion for extension of time to file Defendant s Statement of defence and deem as duly filed, the said statement of defence, was moved. But it is obvious that the withdrawal of the preliminary objection 29

35 could be justified by the motion of 20/9/99 to file Defendant s statement of defence, as the two, by law, cannot co-exist. That is, Appellant could not have pursued a preliminary objection against the suit for non valid Defendant, and for being in want of jurisdiction, and seeking its dismissal, and at the same time, seeking accommodation to defend the suit! See Elabanjo & Anor Vs Dawodu (2006 LPELR 1106 SC; (2006)15 NWLR (Pt.1001) 76; Egbe Vs Alhaji (1990) LPELR 1033 SC. There is also evidence that Appellant defended the Suit as per the said Statement of defence, showing the motion was granted as prayed. I think Appellant was acting smart, and was economical with the truth, when it insisted that the said preliminary objection was subsisting and unheard, when the same Appellant had exhibited in the Records of Appeal, that the process had been withdrawn, on the date it filed the motion to file its defence! It can also be seen that Appellant took full part in the case, filing processes and arguing them, and also fielding witnesses and taking cross examination of Respondents witnesses, without any 30